Amicus Curiae Brief — James Doyle, dba Rocky Mountain Ventures, dba Environmental Land Technologies, Ltd., Petitioner v. United States

Supreme Court briefApr 17, 2025

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No. 24-997

In the

Supreme Court of the United States

♦

JAMES DOYLE, DBA ROCKY MOUNTAIN VENTURES,

DBA ENVIRONMENTAL LAND TECHNOLOGIES, LTD.,

Petitioner,

UNITED STATES,

Respondent

♦

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

♦

BRIEF OF AMICUS CURIAE MOUNTAIN STATES

LEGAL FOUNDATION IN SUPPORT OF PETITION

FOR CERTIORARI

♦

William E. Trachman

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

April 17, 2025

Attorneys for Amicus Curiae

QUESTION PRESENTED

Under Knick v. Township of Scott, 588 U.S. 180

(2019), a regulatory takings claim is ripe for

adjudication in federal court when the government

reaches a final decision concerning any restrictions on

private

property;

exhausting

state-litigation

procedures is unnecessary. Pakdel v. City and County

of San Francisco, 594 U.S. 474 (2021) (per curiam),

likewise rejected administrative exhaustion as a

condition of ripeness. Instead, Pakdel clarified that

“nothing more than de facto finality is necessary”—

meaning that “the government has reached a

conclusive position” about how it will regulate the

claimant’s property. Yet the Federal Circuit held in

the decision below that “Knick and Pakdel are

inapplicable” to takings claims against the United

States. The court of appeals added that such claims

are unripe until the owner satisfies “federal

administrative agency exhaustion” by submitting “a

complete permit application.”

The questions presented are:

1. Whether a regulatory takings claim against the

United States is ripe when a property owner

demonstrates “de facto finality.”

2. Whether a property owner can show that his

regulatory takings claim against the United

States is ripe without obtaining the

government’s denial of a complete application

for administrative relief.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ............................

TABLE OF CONTENTS ................................

TABLE OF AUTHORITIES ..........................

iii

IDENTITY AND INTEREST OF AMICUS

CURIAE ..........................................................

SUMMARY OF THE ARGUMENT...............

ARGUMENT ..................................................

Exclusive Ownership and the Right

to Exclude Are Fundamental

Property Rights. ..................................

The Taking is Evidenced by the

Permit Requirement Imposed on

Doyle. ...................................................

Supreme Court Precedent Confirms

That Regulations Authorizing

Physical Invasion or Effectively

Extinguishing Property Rights

Constitute Per Se Takings. .................

The Lower Courts’ Errors in

Applying the Ripeness Doctrine

Highlight the Need for Certiorari

Review. .................................................

The Burden of ESA Permitting Is

Prohibitive. ..........................................

CONCLUSION ...............................................

II.

III.

IV.

iii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) .....................................

Agins v. Tiburon,

447 U.S. 255 (1980) .....................................

Arkansas Game & Fish Commission v.

United States,

568 U.S. 23 (2012) .......................................

Boston Chamber of Commerce v. Boston,

217 U.S. 189 (1910) .....................................

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)

2, 4, 9, 12, 13, 14, 15, 16

Dolan v. City of Tigard

512 U.S. 374 (1994) .....................................

First English Evangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987) .....................................

Garland v. VanDerStok,

144 S. Ct. 1390 (2024) .................................

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991)....................

Horne v. Department of Agriculture

576 U.S. 350 (2015) .....................................

Kaiser Aetna v. United States,

444 U.S. 164 (1979) .....................................

3, 4, 9

Koontz v. St. Johns River Water

Management District,

570 U.S. 595 (2013) .....................................

Knick v. Township of Scott,

588 U.S. 180 (2019) ............................. 16, 17, 18, 19

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) .....................................

3, 4, 9

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................... 12, 14, 15, 16

Lynch v. Household Finance Corp.,

405 U.S. 538 (1972) .....................................

Marvin M. Brandt Revocable Tr. v. U.S.,

572 U.S. 93 (U.S., 2014) ..............................

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) .............................

3, 9, 16, 20

Pakdel v. City and County of San

Francisco,

594 U.S. 474 (2021) .....................................16, 17, 19

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .....................................

Patsy v. Board of Regents of Florida,

457 U.S. 496 (1982) .....................................

17, 18

Penn Central Transportation Co. v. New

York City,

438 U.S. 104 (1978) .....................................

13, 21

Pennsylvania Coal v. Mahone,

260 U.S. 393 (1922) .............................

6, 7, 11, 16

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) .....................................

United States v. Riverside Bayview Homes,

Inc.,

474 U.S. 121 (1985) .....................................

Williams v. Reed,

145 S. Ct. 465 (2025) ...................................

Constitutional Provisions and Statutes

U.S. Const. amend. V .....................................

28 U.S.C. § 1491(a)(1) ....................................

Other Authorities

1 William Blackstone, Commentaries on

the Laws of England 134 (1765) .................

Thomas W. Merrill, PROPERTY AND THE

RIGHT TO EXCLUDE,

77 Neb. L. Rev. 730 (1998) ..........................

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Mountain States Legal Foundation (MSLF) is a

nonprofit public-interest law firm organized under the

laws of the State of Colorado. MSLF is dedicated to

bringing before the courts issues that are vital to the

defense and preservation of individual liberties: the

right to equal justice under law, the right to speak

freely, the right to own and use property, and the need

for limited and ethical government. Since its creation

in 1977, MSLF attorneys have been active in litigation

regarding the proper interpretation and application of

statutory, regulatory, and constitutional provisions.

See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S.

200 (1995) (MSLF serving as lead counsel); Marvin M.

Brandt Revocable Tr. v. U.S., 572 U.S. 93 (U.S., 2014)

(MSLF serving as lead counsel); Garland v.

VanDerStok, 144 S. Ct. 1390 (2024) (MSLF serving as

co-counsel).

SUMMARY OF THE ARGUMENT

This should be a straightforward case. In the

1990s, the Fish and Wildlife Service (the Service)

fenced off Mr. Doyle’s land to save a threatened

tortoise, blocking his access and making it impossible

for him to develop the property as he originally

planned. Despite enduring this deprivation for nearly

three decades, the lower courts say his claim is

1 Per Supreme Court Rule 37.6, the undersigned affirms that no

counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of the brief. And as required

by Rule 37.2, amicus’s counsel notified counsel of record for all

parties of amicus’s intention to file this brief at least 10 days

prior to the due date for the brief.

“unripe” because he did not submit a prohibitively

expensive incidental take permit application—one

that almost certainly would have been denied anyway.

This outcome makes no sense: the government has

physically excluded Mr. Doyle from his own land for

thirty years, and under this Court’s precedents like

Cedar Point, that gives rise to a takings claim.

Mr. Doyle should be able to exclude others, including

the Service, from his property rather than have it

unilaterally usurped by regulatory agencies. Yet the

lower court says that Mr. Doyle has no valid takings

claim because he never completed a futile, financially

ruinous permit process. This Court should intervene

to clarify that an owner’s takings claim is ripe when

government actions make it clear that property

cannot be developed or even accessed. The Federal

Circuit’s ripeness analysis erroneously treats this as

a simple regulatory restriction subject to

administrative resolution, which flies in the face of

this

Court’s

jurisprudence

that

demands

compensation for this highly intrusive, categorical

taking.

ARGUMENT

Exclusive Ownership and the Right to

Exclude Are Fundamental Property

Rights.

The right to exclude others has historically been

recognized as one of the most fundamental attributes

of property ownership. This principle was not merely

a common law innovation, but rather reflects an

understanding of property rights that predates the

Republic itself. As William Blackstone observed in his

Commentaries, private property “consists in the free

use, enjoyment, and disposal of all [one’s] acquisitions,

without any control or diminution, save only by the

laws of the land.” 1 William Blackstone,

Commentaries on the Laws of England 134 (1765).

This Court has repeatedly affirmed the central

importance of the right to exclude in its takings

jurisprudence, recognizing it as the cornerstone of

property ownership.

In Kaiser Aetna v. United States, this Court

characterized the right to exclude as “one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.” 444 U.S. 164,

176 (1979). The Court emphasized that this right is

“so universally held to be a fundamental element of

the property right” that the government “cannot take

[it] without compensation.” Id. at 179-80. This

principle was reaffirmed in Nollan v. California

Coastal Commission, where the Court recognized that

“the right to exclude [others is] ‘one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.’” 483 U.S. 825,

831 (1987) (quoting Kaiser Aetna, 444 U.S. at 176).

Later, in Loretto v. Teleprompter Manhattan CATV

Corp., the Court reiterated that the right to exclude is

“one of the most treasured strands in an owner’s

bundle of property rights.” 458 U.S. 419, 435 (1982).

The Court explained that a physical occupation of

property “is perhaps the most serious form of invasion

of an owner’s property interests” because “the owner

has no right to possess the occupied space himself, and

also has no power to exclude the occupier from

possession and use of the space.” Id. at 435. This

reasoning applies with even greater force when the

government physically excludes the owner from his

own property.

Most recently, in Cedar Point Nursery v. Hassid,

this Court reaffirmed that “the right to exclude is

‘universally held to be a fundamental element of the

property right’ and is ‘one of the most essential sticks

in the bundle of rights that are commonly

characterized as property.’” 594 U.S. 139, 146 (2021)

(quoting Kaiser Aetna, 444 U.S. at 179-180). This right

is not simply one of a bundle of property rights. It is

part of the essential definition of what it means to

‘own’ property in our legal tradition. The Court

further explained that “the right to exclude is ‘one of

the most treasured’ rights of property ownership.” Id.

at 146 (quoting Loretto, 458 U.S. at 435).

The Court’s consistent recognition of the right to

exclude as a fundamental property right reflects the

understanding that, without this right, private

property would cease to exist in any meaningful sense.

As Professor Thomas Merrill has observed, the right

to exclude is the “sine qua non” of property—that is,

the essential element without which property cannot

exist. See also Thomas W. Merrill, PROPERTY AND THE

RIGHT TO EXCLUDE, 77 Neb. L. Rev. 730, 730 (1998).

The government’s actions against Mr. Doyle strike

at the heart of these fundamental property rights. Not

only has the government stripped him of the right to

exclude others from his property, but it has also taken

the extraordinary step of excluding him from his own

land. The fences erected by the Bureau physically

prevent Mr. Doyle from accessing his property, while

government officials maintain unfettered access to

patrol and enforce the Endangered Species Act’s

(ESA) regulations. This physical appropriation of Mr.

Doyle’s right to access and control his own property

directly contradicts this Court’s jurisprudence

protecting fundamental property rights.

The infringement on Mr. Doyle’s property rights is

not merely theoretical—it has resulted in tangible

economic harm. Unable to develop or use his property

for three decades, Mr. Doyle was forced into

bankruptcy. App.63a. Here, the complete deprivation

of Mr. Doyle’s right to exclude—indeed, his outright

exclusion from his own property—unquestionably

“goes too far.”

The Federal Circuit’s dismissal of Mr. Doyle’s

takings claim as unripe fails to acknowledge the

severity of the infringement on his fundamental

property rights. By requiring Mr. Doyle to submit an

expensive habitat conservation plan before his claim

can ripen, the court below imposed an impossible

burden that effectively denied him the constitutional

remedy of just compensation. This approach

misunderstands the nature of the Takings Clause,

which, as this Court explained in First English

Evangelical Lutheran Church v. County of Los

Angeles, “is designed not to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.” 482 U.S. 304, 315

(1987).

The Federal Circuit’s ripeness doctrine effectively

conditions Mr. Doyle’s constitutional right to just

compensation on his ability to navigate and finance a

complex administrative process. This doctrine also

misunderstands the self-executing nature of the Fifth

Amendment’s Taking Clause, which does not ask

what the owner has received, but only what has the

owner lost. See Boston Chamber of Commerce v.

Boston, 217 U.S. 189, 195 (1910) (stating “[T]he

question is, What has the owner lost? not, What has

the taker gained?”).

The distinction between property rights and other

legal interests is not merely semantic—it reflects a

fundamental understanding that certain rights

inhere in the ownership of property itself and cannot

be separated from it without destroying the concept of

property. As Justice Holmes observed, “we are in

danger of forgetting that a strong public desire to

improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the

constitutional way of paying for the change.”

Pennsylvania Coal, 260 U.S. at 416. This principle

applies with particular force when the government

not only restricts a property owner’s use of his land

but physically excludes him from it.

The Court’s decision in Dolan v. City of Tigard

further illustrates the constitutional importance of

the right to exclude. There, the Court explained that

requiring that the public be granted access to private

property eviscerates the owner’s right to exclude

others from entering and using her property—

perhaps the most fundamental of all property

interests. 512 U.S. 374, 384 (1994) (“deprive petitioner

of the right to exclude others, ‘one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.’” (citation

omitted). The government’s actions against Mr. Doyle

go even further—they not only grant the public access

to his property but exclude him from it entirely.

The Federal Circuit’s ripeness doctrine effectively

recasts Mr. Doyle’s property rights as mere privileges

contingent on administrative approval. This approach

misconceives the nature of property rights in our

constitutional system. As this Court explained in

Lynch v. Household Finance Corp., “the dichotomy

between personal liberties and property rights is a

false one. Property does not have rights. People have

rights.” 405 U.S. 538, 552 (1972). Mr. Doyle’s right to

exclude others from his property is not a mere

regulatory privilege subject to administrative

exhaustion; it is a fundamental constitutional right

that demands judicial protection. The Service,

through their regulatory actions, have not only

deprived Mr. Doyle of his property rights but

fundamentally usurped them.

II.

The Taking is Evidenced by the Permit

Requirement Imposed on Doyle.

The Fifth Amendment’s Takings Clause

establishes an unequivocal constitutional mandate:

private property shall not “be taken for public use,

without just compensation.” U.S. Const. amend. V.

This fundamental protection against government

appropriation without compensation is an essential

safeguard of individual liberty. As Justice Holmes

famously observed in Pennsylvania Coal Co. v.

Mahon, “while property may be regulated to a certain

extent, if regulation goes too far it will be recognized

as a taking.” 260 U.S. 393, 415 (1922). Mr. Doyle’s case

presents a classic example of regulatory action that

has unmistakably “gone too far.”

The ESA’s regulatory framework, as applied to Mr.

Doyle’s property, has effectively appropriated his land

without providing just compensation. For nearly three

decades, the federal government has maintained a

regulatory regime that prohibits virtually all

economically beneficial use of his property without

providing compensation. It has eviscerated his right

to exclude others, and erected physical barriers

preventing his access to his own land. These actions

constitute a taking under the Fifth Amendment.

The chronology of the government’s actions

against Mr. Doyle’s property reveals a systematic

deprivation of use rising to the level of a compensable

taking. In 1990, the Service listed the Mojave Desert

Tortoise as threatened under the ESA. By 1994, the

Service had designated Mr. Doyle’s entire property as

critical habitat, imposing significant restrictions on

land use. This designation was followed in 1996 by the

Service approval of a habitat conservation plan that

explicitly prohibited development on his land. The

culmination of these restrictions occurred when the

Bureau of Land Management (the Bureau) erected

physical barriers that “blocked access to the tortoise

reserve, including Doyle’s property.” App.60a.

Perhaps most tellingly, as Mr. Doyle testified,

“[t]he gate to my property is controlled by the

government. I do not have a key to the lock that

controls access to my own property.” App.74a. This

stark declaration encapsulates the complete inversion

of property rights that has occurred—Mr. Doyle has

been physically excluded from accessing his own land

while government officials maintain unrestricted

ingress and egress to monitor and enforce ESA

regulations. The physical manifestation of this taking

through fences and locked gates provides tangible

evidence of the government’s appropriation of his

property rights.

This Court has consistently recognized that the

right to exclude others represents “one of the most

treasured strands in an owner’s bundle of property

rights.” Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 435 (1982). In Kaiser Aetna v.

United States, the Court characterized this right as

“so universally held to be a fundamental element of

the property right” that the government “cannot take

[it] without compensation.” 444 U.S. 164, 179-80

(1979). Yet here, the government has not merely

compromised Mr. Doyle’s right to exclude others—it

has executed a complete inversion of this fundamental

property right by excluding him from his own land,

while itself claiming unfettered access.

The physical appropriation of Mr. Doyle’s right to

exclude (and indeed, the right to enter) represents a

per se taking under this Court’s precedents. In Cedar

Point Nursery v. Hassid, this Court unequivocally

held that “government-authorized invasions of

property—whether by plane, boat, cable, or

beachcomber—are physical takings requiring just

compensation.” 594 U.S. 139, 153 (2021). While Cedar

Point involved the government authorizing third

parties to enter private property, the principle applies

with equal (or greater) force when the government

itself physically excludes an owner from accessing his

own property via regulatory action.

The physical exclusion of Mr. Doyle from his

property through government-erected barriers is

more severe than the temporary access rights granted

to union organizers in Cedar Point. As this Court has

recognized, “a ‘permanent physical occupation’ has

occurred... where individuals are given a permanent

and continuous right to pass to and fro, so that the

real property may continuously be traversed, even

though no particular individual is permitted to station

himself permanently upon the premises.” Nollan v.

California Coastal Commission, 483 U.S. 825, 832

(1987). Here, government officials maintain precisely

such a “permanent and continuous right” to traverse

Mr. Doyle’s property, while he remains physically

excluded by government-erected barriers.

The government’s enforcement scheme imposes a

particularly perverse burden on Mr. Doyle, if it is

valid: he can neither use his land nor be compensated

for this restriction unless he submits a complete

permit application, with his own habitat conservation

plan. Yet the cost of preparing such a plan can exceed

one million dollars, a prohibitive expense that

transforms the regulatory requirement into a per se

taking. The conditioning of Mr. Doyle’s property

rights on such an onerous and expensive permitting

process demonstrates that the government has

effectively appropriated his land for public use

without just compensation.

This permit requirement itself constitutes strong

evidence of a taking—not just a “regulatory taking,”

but a per se taking. True, this Court explained in

United States v. Riverside Bayview Homes, Inc., that

“the mere assertion of regulatory jurisdiction by a

governmental body does not constitute a regulatory

taking.” 474 U.S. 121, 126 (1985). However, the Court

qualified this principle by noting that the application

of a general zoning law to particular property may

effect a taking if it “denies an owner economically

viable use of his land.” Id. at 126 (citing Agins v.

Tiburon, 447 U.S. 255, 260 (1980)). Here, the

government has gone far beyond merely asserting

regulatory jurisdiction—it has physically excluded

Mr. Doyle from his property, and conditioned any use

on prohibitively expensive permit requirements.

For thirty years, Mr. Doyle has been denied

economically beneficial use of his property. The

extended duration of this deprivation further

evidences its character as a taking. In Arkansas Game

& Fish Commission v. United States, this Court noted

that “once the government’s actions have worked a

taking of property, no subsequent action by the

government can relieve it of the duty to provide

compensation for the period during which the taking

was effective.” 568 U.S. 23, 33 (2012) (internal

quotation marks omitted). The three-decade

deprivation of Mr. Doyle’s property rights cannot be

dismissed as a mere temporary restriction awaiting

administrative resolution.

Despite submitting an application for an

incidental take permit, the Service has refused to

process it because it did not include a personalized

habitat conservation plan—a requirement that

effectively renders the application process financially

impossible for most property owners. The Federal

Circuit’s determination that Mr. Doyle’s takings claim

is unripe fundamentally misconstrues this Court’s

jurisprudence and imposes an intolerable burden on

property owners seeking compensation for takings.

Even in the “regulatory” context, the government’s

actions against Mr. Doyle exemplify what Justice

Holmes warned against in Pennsylvania Coal:

regulation that “goes too far” becomes a taking. 260

U.S. at 415. When the government erects physical

barriers excluding a property owner from his land,

requires prohibitively expensive permits for any

economically beneficial use, and maintains this

restrictive regime for three decades, it has

unquestionably “gone too far.” The Fifth Amendment

demands just compensation for such regulatory

appropriation.

III.

Supreme Court Precedent Confirms That

Regulations

Authorizing

Physical

Invasion or Effectively Extinguishing

Property Rights Constitute Per Se

Takings.

This Court’s takings jurisprudence has developed

along two principal tracks: physical takings and

regulatory takings. The Court has consistently

recognized that government actions physically

appropriating private property or denying all

economically beneficial use constitute per se takings

requiring just compensation. See Cedar Point Nursery

v. Hassid, 594 U.S. 139 (2021); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992). The

Federal Circuit’s decision to require Mr. Doyle to

obtain a final agency decision before his takings claim

actually ripens, while locking him out of his own

property, fundamentally misunderstands this Court’s

holdings regarding takings.

The distinction between categories is not merely

academic—it determines the analytical framework

that courts must apply when evaluating takings

claims. As this Court explained in Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, “[w]hen the government physically takes

possession of an interest in property for some public

purpose, it has a categorical duty to compensate the

former owner, regardless of whether the interest that

is taken constitutes an entire parcel or merely a part

thereof.” 535 U.S. 302, 322 (2002). In contrast,

regulatory takings that do not involve physical

invasions or complete deprivations of all economically

beneficial use are analyzed under the multi-factor

balancing test established in Penn Central

Transportation Co. v. New York City, 438 U.S. 104

(1978).

In Cedar Point, this Court provided its most recent

and comprehensive articulation of the physical

takings doctrine, holding that “governmentauthorized physical invasions” are per se takings. 594

U.S. at 153. The Court clearly rejected the notion that

the government may avoid the duty to compensate by

restricting the property owner’s right to exclude,

rather than acquiring the right to invade. Id. at 15152. This principle applies with even greater force

when the government not only invades the property,

but physically bars the owner from accessing it. The

fences erected by the Bureau around Mr. Doyle’s

property constitute precisely the type of physical

appropriation that Cedar Point recognized as a per se

taking.

The Court’s reasoning in Cedar Point directly

contradicts the Federal Circuit’s analysis in this case.

In Cedar Point, the Court expressly rejected the

argument that “the access regulation cannot amount

to a per se taking because it did not allow for

permanent and continuous access ‘24 hours a day, 365

days a year.’” Id. at 150. The Federal Circuit’s focus

on the government’s contention that it has not

permanently appropriated Mr. Doyle’s property

ignores this obvious instruction from Cedar Point.

The physical nature of the government’s

appropriation is evident in the record. The Bureau

erected fences that physically exclude Mr. Doyle from

his property. App.60a. Mr. Doyle testified that he

“do[es] not have a key to the lock that controls access

to [his] own property.” App.74a. In Hendler v. United

States, the Federal Circuit correctly recognized that

“the concept of permanent physical occupation does

not require that in every instance the occupation be

exclusive, or continuous and uninterrupted.” 952 F.2d

1364, 1378 (Fed. Cir. 1991). Instead, the relevant

inquiry is whether the government “behave[s] as if it

ha[s] acquired an easement.” Id. Here, the

government has gone beyond merely acquiring an

easement—it has physically excluded the owner while

maintaining its own access rights.

The Federal Circuit’s analysis ignores the physical

dimension of the government’s actions. By requiring

Mr. Doyle to demonstrate ripeness through the permit

application process, the court below failed to recognize

that the physical exclusion from his property through

government-erected fences already constitutes a

taking. The physical nature of this appropriation

renders administrative exhaustion requirements

irrelevant. As this Court stated in Cedar Point, “When

the government physically acquires private property

for a public use, the Takings Clause imposes a clear

and categorical obligation to provide the owner with

just compensation.” 594 U.S. at 145.

Even absent the physical barrier, the

government’s regulatory scheme effectively deprives

Mr. Doyle of all economically beneficial use of his

property. Under Lucas, a regulation that “denies all

economically beneficial or productive use of land”

constitutes a categorical taking. 505 U.S. at 1015. For

more than three decades, Mr. Doyle has been unable

to develop his property as initially planned. This

sustained denial of all economically viable use

demonstrates a per se taking under Lucas.

The Lucas Court recognized “that total deprivation

of beneficial use is, from the landowner’s point of view,

the equivalent of a physical appropriation.” Lucas v.

S.C. Coastal Council, 505 U.S. 1003, 1017, 112 S. Ct.

2886, 2894, (1992). The government’s actions against

Mr. Doyle have rendered his property economically

worthless for its intended use, placing this case

squarely within Lucas’s categorical rule.

The Washington County HCP itself acknowledges

that Zone 3, where Mr. Doyle’s property is located, is

“the core of the Reserve” and permits only “[a] narrow

set of land development and land use activities.”

App.83a, 89a. These activities are limited to

“recreation uses; utility, water development, and flood

control activities; management of the Reserve; and

certain other specific uses.” App.83a. Notably absent

from these permitted activities is the residential

development that Mr. Doyle originally planned. This

regulatory prohibition, combined with the physical

barriers excluding Mr. Doyle from his property,

constitutes a per se taking under both Cedar Point and

Lucas.

The Court’s decision in Horne v. Department of

Agriculture further illustrates this principle. There,

the Court held that “a physical appropriation of

property g[ives] rise to a per se taking, without regard

to other factors.” 576 U.S. 350, 360 (2015). Similarly,

in this case, the government has taken possession and

control of Mr. Doyle’s property through physical

barriers and regulatory prohibitions. The Federal

Circuit’s ripeness analysis erroneously treats this as

mere

regulatory

restriction

subject

administrative resolution rather than a physical and

categorical taking that demands immediate

compensation.

The Federal Circuit tried to place Mr. Doyle’s

injury in the traditional regulatory takings category

and impose an onerous permit-exhaustion process. Its

approach fails those terms. As shown, the government

has engaged in the kind of physical appropriation of

private property that Cedar Point recognizes as a per

se taking: the Service and the Bureau fenced Mr.

Doyle out, kept their own key, and retained the

exclusive right of entry. That alone is enough to

trigger a per se rule, without administrative

exhaustion.

Regulations may be so severe that they produce

the

functional

equivalent

physical

appropriation—either because they forbid all

beneficial use, see Lucas, or because they authorize

near-constant intrusion, see Nollan and Cedar Point.

Here, the government has effectively extinguished

both Mr. Doyle’s right to exclude and his ability to

access the property himself. That is precisely the sort

of deprivation that “goes too far,” Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922), and therefore

demands compensation under the Takings Clause.

And under Knick and Pakdel, a claim is ripe once the

government’s position is clear—“nothing more than de

facto finality is necessary.” Pakdel, 594 U.S. at 479.

Three decades of fencing, gating, and unyielding

opposition to any meaningful development confirm

that the Service has “reached a conclusive position

about how it will treat the property.” Id. at 480.

This is a regulatory taking that has gone so far as

to constitute a per se taking, and Mr. Doyle’s claim is

therefore ripe under this Court’s jurisprudence. The

Federal Circuit’s ruling that Mr. Doyle must expend

enormous sums on a futile permit process misreads

Pakdel, and gives the government a backdoor to avoid

paying constitutionally mandated compensation.

IV.

The Lower Courts’ Errors in Applying the

Ripeness Doctrine Highlight the Need for

Certiorari Review.

The Federal Circuit’s application of ripeness

doctrine to Mr. Doyle’s takings claim conflicts with

this Court’s recent decisions in Knick v. Township of

Scott, 588 U.S. 180 (2019), and Pakdel v. City &

County of San Francisco, 594 U.S. 474 (2021). This

conflict underscores the urgent need for this Court’s

intervention to resolve a misunderstanding of the

ripeness requirements for takings claims.

Specifically, the lower court imposed an

exhaustion requirement that this Court rejected in

Pakdel. The court held that Mr. Doyle’s takings claim

is unripe until he satisfies “federal administrative

agency exhaustion” by “receiv[ing] a final decision

from FWS on an Incidental Take Permit.” App.10a.

Yet Pakdel said that “administrative ‘exhaustion of

state remedies’ is not a prerequisite for a takings

claim[.]” 594 U.S. at 480.

The requirement also conflicts with Patsy v. Board

of Regents of Florida, 457 U.S. 496 (1982), which

established that “federal courts may create

exhaustion requirements only where doing so is

consistent with congressional intent.” Accord

Williams v. Reed, 145 S. Ct. 465, 476 (2025) (Thomas,

J., dissenting). Patsy emphasized that “this Court has

stated categorically that exhaustion is not a

prerequisite to an action under § 1983, and we have

not deviated from that position in the 19 years[.]” 457

U.S. at 500. This principle applies to takings claims,

as the Court recognized in Knick. 588 U.S. at 195.

Neither the Tucker Act nor the ESA prescribes

administrative exhaustion as a condition for bringing

a takings claim. The Tucker Act simply provides

jurisdiction in the Court of Federal Claims for “any

claim against the United States founded...upon the

Constitution.” 28 U.S.C. § 1491(a)(1). It does not

require administrative exhaustion as a prerequisite to

judicial review. Similarly, the ESA does not mandate

that property owners exhaust administrative

remedies before seeking just compensation for takings

effectuated by the Act’s provisions. The Federal

Circuit’s imposition of an exhaustion requirement

without congressional authorization contradicts Patsy

and this Court’s later jurisprudence.

The record shows that the government has reached

a “conclusive position” regarding Mr. Doyle’s property.

For thirty years, the government has prevented Mr.

Doyle from developing his land. The Bureau erected

fences preventing his access to his property. App.60a.

The Washington County HCP designated his land as

being within Zone 3, “the core of the Reserve,” where

only “[a] narrow set of land development and land use

activities” are permitted—none of which include the

residential development Mr. Doyle originally planned.

App.83a, 89a. These facts establish “de facto finality.”

The Federal Circuit’s insistence that Mr. Doyle

submit a complete permit application with his own

habitat conservation plan imposes an intolerable

burden on his constitutional right to just

compensation. Preparing a habitat conservation plan

can millions of dollars—a prohibitive expense for Mr.

Doyle, who has already been forced into bankruptcy

the

government’s

actions.

App.77a-78a.

Conditioning constitutional rights on such expensive

administrative processes effectively denies those

rights to all but the wealthiest property owners.

This Court’s intervention is necessary to resolve

the conflict between the Federal Circuit’s ripeness

doctrine and this Court’s decisions in Knick and

Pakdel. By granting certiorari, this Court can clarify

that the “de facto finality” standard applies equally to

takings claims against the federal government and

that property owners need not exhaust expensive

administrative remedies before seeking just

compensation. The right to just compensation is not

illusory, it provides meaningful protection against

government appropriation of private property.

The artificial distinction between takings local

governments and takings by the federal government

undermines constitutional rights. As this Court

explained in Knick, the Takings Clause secures

compensation for otherwise proper deprivations. 588

U.S. at 192 (“government action that works a taking

of property rights necessarily implicates the

constitutional obligation to pay just compensation.”)

This guarantee applies regardless of which

government effects the taking. The Federal Circuit’s

holding that Knick and Pakdel are “inapplicable” to

takings by the federal government creates a twotiered system of constitutional rights that this Court

should reject.

The Burden

Prohibitive.

ESA

Permitting

The Federal Circuit’s requirement that Mr. Doyle

submit an ESA application with ignores the

prohibitive burden that the requirement imposes on

property owners. This burden itself is a taking.

Preparing a habitat conservation plan is an

expensive and complex undertaking that requires

scientific expertise, environmental studies, and

financial resources. As the record indicates, “a recent

article in the Journal of the Society for Conservation

Biology found that the median cost for the

implementation stage of an HCP was $71,018,570 for

large-scale HCPs and $908,507 for project-scale

HCPs.” App.77a-78a. These figures do not include the

costs of preparing the plan itself, which typically

requires hiring environmental consultants, wildlife

biologists, and other specialized experts.

For landowners like Mr. Doyle, who has already

lost his property due to the government’s actions,

these costs are prohibitive. As Mr. Doyle testified, he

has gone into bankruptcy twice because of the

government’s actions. App.63a-66a. The Federal

Circuit’s requirement that he spend millions of dollars

on a permit application process with no guarantee of

success ignores these economic realities.

This Court has recognized that imposing such

burdensome requirements on property owners can

itself constitute evidence of a taking. In Nollan v.

California Coastal Commission, the Court observed

that “the right to build on one’s own property—even

though its exercise can be subjected to legitimate

permitting requirements—cannot remotely be

described as a ‘governmental benefit.’” 483 U.S. 825,

833 n.2 (1987). Similarly, in Koontz v. St. Johns River

Water Management District, the Court recognized

that “land-use permit applicants are especially

vulnerable to the type of coercion that the

unconstitutional conditions doctrine prohibits

because the government often has broad discretion to

deny a permit that is worth far more than property it

would like to take.” 570 U.S. 595, 605 (2013).

The ESA’s incidental take permit scheme and the

related measures taken thereto, as applied to Mr.

Doyle, exhibit the characteristics of a regulatory

taking identified in Penn Central, 438 U.S. 104. The

economic impact on Mr. Doyle has been severe—he

has been unable to develop his property for three

decades, and has been forced into bankruptcy twice.

App.63a-66a. The interference with his distinct

investment-backed expectations is manifest—he

acquired the property for development purposes

before the desert tortoise was listed as threatened.

And the character of the government action reflects an

effort to place the entire burden of species

conservation on individual property owners rather

than distributing that burden across society as a

whole.

Even the permit requirement can be considered

substantial evidence of a regulatory taking because it

fundamentally restricts Mr. Doyle’s ability to freely

use his property. By necessitating a permit process—

often involving fees, administrative hurdles, and

uncertainty

about

eventual

approval—such

regulation effectively conditions the owner’s

utilization of their land on government oversight. This

oversight goes beyond mere guidelines or zoning

classifications; it wields the power to deny or delay

productive uses, drastically undermining the

property’s value and its owner’s reasonable

investment-backed expectations. Even beyond the

fencing off of the property, the permitting process

itself works a de facto appropriation of significant

control over the property.

The Federal Circuit’s ripeness doctrine creates an

insurmountable catch-22 for property owners: they

must either spend hundreds of thousands on a permit

application process with no guarantee of success, or

forfeit their constitutional right to just compensation.

This approach effectively shields the government from

liability for regulatory takings by imposing financial

barriers that most property owners cannot overcome.

The record establishes that Mr. Doyle’s property is

within Zone 3 of the reserve, which is “the largest

block of contiguous [desert tortoise] Habitat and is

considered the core of the Reserve.” App.89a

(emphasis added). The Washington County HCP

allows only “[a] narrow set of land development and

land use activities” within this zone, including

“recreation uses; utility, water development, and flood

control activities; management of the Reserve; and

certain other specific uses.” App.83a. Notably absent

from these permitted activities is the residential

development that Mr. Doyle originally planned.

While the Washington County HCP contains

language suggesting that “the HCP will place no

restrictions on the use of [private] property within the

Reserve” and that “[i]t is possible that a private

landowner * * * may * * * ultimately develop lands

within the Reserve,” App.12a, these statements are

contradicted by the HCP’s specific provisions

regarding Zone 3. The HCP itself acknowledges that

Zone 3 is “the core of the Reserve” and permits only

limited activities that do not include residential

development. App.83a, 89a. The Federal Circuit’s

reliance on these general statements ignores the

specific restrictions that the HCP places on Mr.

Doyle’s property within Zone 3.

The Federal Circuit’s insistence that Mr. Doyle

must submit a complete permit application ignores

the futility of such an application. In Palazzolo v.

Rhode Island, this Court recognized that “[r]ipeness

doctrine does not require a landowner to submit

applications for their own sake.” 533 U.S. 606, 622

(2001). The Court explained that “once it becomes

clear that the agency lacks the discretion to permit

any development, or the permissible uses of the

property are known to a reasonable degree of

certainty, a takings claim is likely to have ripened.”

Id. at 620. Here, the government’s actions over the

past three decades, including the physical exclusion of

Mr. Doyle from his property and the designation of his

land as “the core of the Reserve,” demonstrate that the

permissible uses of his property are known with

reasonable certainty and do not include residential

development.

Even the Federal Circuit acknowledged that “there

may be good reason to suspect that even a complete

permit application—one containing an individualized

conservation plan—would have been denied by [the

Service].” App.15a (emphasis added). This concession

undermines the court’s ripeness analysis. If there is

“good reason to suspect” that a complete permit

application would be denied, requiring Mr. Doyle to

expend hundreds of thousands of dollars on such an

application serves no purpose other than to erect an

insurmountable barrier to seeking just compensation.

The futility exception to the ripeness doctrine,

recognized by this Court in Palazzolo, applies with

particular force here. The Court explained that

“federal ripeness rules do not require the submission

of further and futile applications with other agencies.”

533 U.S. at 625-26. Given the government’s actions

over the past three decades, including its physical

exclusion of Mr. Doyle from his property and the

designation of his land as “the core of the Reserve,”

any permit application seeking to develop residential

housing on his property would be futile.

The burden of the ESA permitting process,

combined with the government’s clear indication that

development will not be permitted on Mr. Doyle’s

property, confirms that a regulatory taking has

occurred. The Federal Circuit’s insistence on

administrative exhaustion as a condition of ripeness

effectively denies Mr. Doyle his constitutional right to

just compensation. This Court should grant certiorari

to clarify that property owners need not exhaust

prohibitively expensive administrative remedies

before seeking just compensation for regulatory

takings.

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari.

Respectfully submitted,

William E. Trachman

Counsel of Record

Grady J. Block

Alexander Khoury

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

April 17, 2025

Attorneys for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.