Fifth Amendment Takings and the ESA

AuthorLawrence R. Liebesman/Rafe Petersen
Page 135
Chapter XVI
Fifth Amendment Takings and the ESA
The Takings Clause of the Fifth Amend-
ment prohibits the government from tak-
ing property for public use without “ just
compensation.”1 is prohibition under the Fifth
Amendment must be distinguished from “taking”
of a listed species under §9 of the ESA.2 Implemen-
tation of the ESA and other statutes and regulations
that protect wildlife also presents many situations
that raise the question of whether such a Fifth
Amendment taking has occurred. ese wildlife
protection-related situations seldom arise f rom an
attempt by the federal or state authorities to con-
demn properties utilizing their power of eminent
domain. More commonly, these issues originate
from situations in which agencies, in implement-
ing the ESA (or some other wildlife regulation),
arguably may have appropriated private property.
is distinction may lead to diculties for prop-
erty owners. A “taking” may more readily be found
when the interference with property can be charac-
terized as a physical invasion by government, than
when interference arises from some public program
adjusting the benets and burdens of economic
life to promote the common good.3 Indeed, the
Supreme Court has recognized two general types
of takings. First, where the government encroaches
upon or occupies private land for its own proposed
use, the Court has held that even a minimal perma-
nent physical occupation of real property requires
compensation under the Fifth Amendment.4 Sec-
1. U.S. C. amend. V.
2. 16 U.S.C. §1538, ELR S. ESA §9. e ESA §9 prohibition
on “taking” of a listed species is premised on the statutory de-
nition of “take” to mean “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct.” 16 U.S.C. §1532(19), ELR S. ESA
3. See, e. g., United States v. Causby, 328 U.S. 256 (1946).
4. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 427 (1982).
ond, a taking also occurs where a government regu-
lation, although not encroaching upon or occupy-
ing property, simply “goes too far.”5
In mak ing the determination a s to whether
such a “taking” has occurred, a court will engage
in a two-step process. First, a court determines
whether the plainti possesses a valid interest in
the property aected by the governmental action,
i.e., whether the plainti  possessed a “stick in the
bundle of property rights.” If so, the court proceeds
to the second step, determining whether the gov-
ernmental action at issue constituted a taking of
that “stick.”6
A. What Is the Property Interest?
In the rst instance, a court will consider whet her
a prospective plainti claims a valid property inter-
est that is potentially subject to protection. W hile
it is normally clear in cases where entire parcels a re
condemned for public use that such an ownership
right exists, such a conclusion is often not as clear
in situations involving the protection of wildlife.
Such situations generally involve the restrict ion of
an owner’s right to utilize his property.
It has been held that such an alleged right will
not be protected if it is not consistent with the
restrictions that background principles of the
State’s law of property and nuisance already place
upon land ownership.”7 is means that, in order
to be protected, the property owner’s anticipated
use of the property must be one that has been (or
would be) recognized under existing law as being
appropriately subject to protection.
5. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
6. Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1374, 30
ELR 20565 (Fed. Cir. 2000) (internal citation omitted).
7. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029,
22 ELR 21104, 21111 (1992).

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