Amicus Curiae Brief — Garnell Walls, Petitioner v. Prince George's County, Maryland, et al.

Nos. 26-107, 26-110

In the

Supreme Court of the United States

GARNELL WALLS,

Petitioner,

v.

PRINCE GEORGE’S COUNTY, MARYLAND, et al.,

Respondents.

TEDFORD’S TENANCY, LLC,

Petitioner,

v.

CITY OF NEW YORK, NEW YORK, et al.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the Fourth Circuit and Appellate Division,

Supreme Court of New York, First Judicial Department

BRIEF OF ATLANTIC LEGAL FOUNDATION

AND JAMES DOYLE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Lawrence S. Ebner

Counsel of Record

Sarah Elizabeth Spencer

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

Nancie G. Marzulla

Roger J. Marzulla

Marzulla Law, LLC

1150 Connecticut Ave., NW

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

roger@marzulla.com

Counsel for Amici Curiae

121210

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE........................ 1

INTRODUCTION ........................................................ 3

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 9

This Court Should Grant Certiorari and Adopt a

Rule That Meeting Article III, Concrete, Injuryin-Fact Conditions Satisfies the Ripeness

Requirement for a Taking Claim ........................... 9

A. Misuse of the ripeness requirement runs

afoul of the requirements of the Fifth

Amendment ............................................... 10

B. The decisions below turn the ripeness

requirement into an insurmountable quest

to reach a “final” decision .......................... 12

1. Walls v. Prince George’s County (26107) ....................................................... 12

2. Tedford’s Tenancy, LLC v. City of New

York (26-110) ........................................ 14

ii

C. Doyle’s experience further demonstrates

that impractical and costly barriers can bar

a legitimate taking claim from judicial

review ......................................................... 17

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

335-7 LLC v. City of New York,

No. 21-823, 2023 WL 2291511 (2d Cir. Mar. 1,

2023) ....................................................................... 16

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967).............................................. 4, 5

Armstrong v. United States,

364 U.S. 40 (1960).................................................... 8

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897)................................................ 10

Colorado River Water Conservation Dist. v. United

States,

424 U.S. 800 (1976)................................................ 10

Doyle v. United States,

No. 2023-1735, 2024 WL 5154019 (Fed. Cir. Dec.

18, 2024) ................................................. 2, 18, 20, 21

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, California,

482 U.S. 304 (1987)................................................ 14

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123 (1951).................................................. 5

iv

Knick v. Township of Scott, Pennsylvania,

588 U.S. 180 (2019)................................................ 11

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)................................................ 6

Ohio Forestry Ass'n, Inc. v. Sierra Club,

523 U.S. 726 (1998)................................................ 10

Pakdel v. City and County of San Francisco,

California,

594 U.S. 474 (2021)................................ 4, 6, 7, 8, 17

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton

Bank of Johnson City,

473 U.S. 172 (1985).................................................. 7

Constitutional Provisions

U.S. Const. art. III, §2, cl. 1……………………4, 10, 17

U.S. Const. amend. V ........................................ 2, 3, 11

Statutes

16 U.S.C. § 1532(5)(A)(i)............................................ 19

16 U.S.C. § 1533(c) .................................................... 20

1

INTEREST OF THE AMICI CURIAE 1

Established in 1977, amicus curiae Atlantic Legal

Foundation (ALF) is a national, nonprofit,

nonpartisan, public interest law firm. ALF’s mission

for the past five decades has been to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, former government officials, corporate legal

officers, private practitioners, business executives,

and prominent scientists who serve on its Board of

Directors and Advisory Council, ALF pursues its

mission by participating as amicus curiae in carefully

selected appeals before the Supreme Court, federal

courts of appeals, and state supreme courts. See

atlanticlegal.org.

Amicus curiae James Doyle is a Utah land owner

who, like ALF, has an interest in the taking questions

presented by the captioned petitions for writs of

certiorari. The Federal Circuit held that even though

Mr. Doyle’s land was in the most environmentally

1 Petitioners’ and Respondents’ counsel have received timely

notice of this brief in accordance with Supreme Court Rule 37.2.

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

no party or counsel other than the amici curiae and their counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

2

sensitive area of a county-wide Habitat Conservation

Plan approved by the U.S. Fish and Wildlife Service to

protect an endangered tortoise species, he must

exhaust a prohibitively expensive permitting process

to ripen his taking claim for review. 2

***

The Fifth Amendment’s Just Compensation Clause

(also known as the Taking Clause) recognizes that

private ownership of property and economic liberty

are foundational principles in our nation of individual

rights, liberty, and free enterprise, and are intrinsic to

our nation’s social fabric. ALF has participated as

amicus curiae in many cases where confiscatory

governmental action raises serious Fifth Amendment

concerns. 3 The two pending certiorari petitions that

this amicus brief supports present a significant

constitutional question central to ALF’s mission of

defending

private

property

rights

from

uncompensated takings: Whether the ripeness

doctrine can be applied in a way that swallows the

Just Compensation protection of the Fifth

2 See Doyle v. United States, No. 2023-1735, 2024 WL 5154019, at

*4 (Fed. Cir. Dec. 18, 2024), cert. denied, 145 S. Ct. 2704 (2025).

3 See, e.g., Br. of Atl. Legal. Found. as Amicus Curiae in Support

of Petitioners in Clemente Properties, Inc. v. Pierluisi-Urrutia,

No. 25-1426 (U.S. July 29, 2026); United Water Conservation

District v. United States, No. 25-523 (U.S. Nov. 28, 2025);

Devillier v. Texas, No. 22-913 (U.S. Nov. 20, 2023); Tyler v.

Hennepin County, No. 22-166 (U.S. March 3, 2023); and Sheetz v.

County of El Dorado, No. 22-1074 (U.S. Nov. 20, 2023).

3

Amendment. Once a government decision-maker’s

position is clear, requiring a property owner to satisfy

pointless procedural requirements to ripen a taking

claim for judicial review leads to underenforcement of

the Just Compensation Clause and what is

tantamount to immunity for a categorical or physical

taking under an “incomplete application” rationale.

The experience of amicus curiae James Doyle

illustrates the profound injustice of requiring property

owners to exhaust prohibitively costly and

burdensome administrative processes before seeking

judicial review of a taking claim when those processes

offer no realistic prospect of changing a federal

agency’s final position. In Mr. Doyle’s case, the

Federal Circuit concluded that his physical taking

claim was not ripe because he had not engaged an

environmental consultant to prepare a prohibitively

expensive individual Habitat Conservation Plan

required to obtain an Incidental Take Permit. This

despite the fact that the agency had designated his

land as critical habitat for the Mojave desert tortoise,

had enclosed his property inside a locked tortoise fence

(to which he had no key), and prohibited his planned

development of the property. But the Federal Circuit

was insistent that to ripen his taking claim, Mr. Doyle

must incur substantial permit-related costs—or lose

the ability to test the constitutionality of the agency’s

confiscatory actions in court.

INTRODUCTION

For Petitioner Garnell Walls, the Fourth Circuit

held that he must, in addition to obtaining a final

4

decision from federal administrative decisionmakers,

exhaust the legislative process in an effort to change

the law to ripen his taking claim for review. For

Petitioner Tedford’s Tenancy, LLC, the state court

below held that its taking claim was not ripe until

Tedford’s applied for hardship exemptions that it was

ineligible to receive.

The constitutional injury arises when the property

is taken. At that point, the duty to pay just

compensation becomes fixed. This Court’s Just

Compensation jurisprudence should not demand that

a property owner finance every hypothetical proposal

or pursue every potential burdensome possibility to

ripen a taking claim for judicial review. Finality

requires only that the challenged governmental action

not be speculative, and that the injury-in-fact be real

and concrete and that the government “has reached a

conclusive position” on the challenged action. 4

The Court should grant both certiorari petitions

and hold that establishing Article III standing

satisfies the ripeness standard in a taking case.

SUMMARY OF ARGUMENT

In the landmark case of Abbott Laboratories v.

Gardner, 5 this Court explained that the purpose of the

4 Pakdel v. City and County of San Francisco, California, 594 U.S.

474, 480 (2021).

5 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

5

ripeness doctrine “is to prevent the courts, through

avoidance of premature adjudication, from entangling

themselves

in

abstract

disagreements

over

administrative policies, and also to protect the

agencies from judicial interference until an

administrative decision has been formalized and its

effects felt in a concrete way by the challenging

parties.” 6

The Abbott Laboratories court added that the

ripeness problem “is best seen in a twofold aspect,

requiring us to evaluate both the fitness of the issues

for judicial decision and the hardship to the parties of

withholding court consideration.” 7

Since then, the Court has confirmed that the

ripeness requirement in a taking case should apply a

de facto ripeness test and not a strict procedural and

mechanistic requirement as a prelude to vindicating

constitutionally protected rights. As Justice

Frankfurter once noted, a finality requirement “is not

. . . a principle inflexibly applied.” 8

This is not to say that exhaustion of an

administrative process to reach a final decision may

never be appropriate. Before the taking occurs, the

6 Id. at 148–49.

7 Id. at 149.

8 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,

156 (1951) (Frankfurter, J., concurring).

6

landowner may be required to take additional steps to

ripen a claim. But once a taking has occurred, the

Government cannot load on additional requirements

to further ripen a taking claim.

This Court has repeatedly tied finality to the

existence of a concrete injury: In the taking context,

the government must take a definitive position on the

property owner’s compensation proposal. For example,

in Lucas v. South Carolina Coastal Council, 9 the

property owner challenged the state’s application of

the Coastal Zone Management Act that rendered

Lucas’s building lots off-limits to residential

development. Although the Act set up a variance

process that, if applicable to Lucas, would have

required him to apply for a variance, be denied for that

variance, and start his litigation all over again, the

Court concluded that the taking claim was sufficiently

ripe for judicial review: “[N]either ‘prudence’ nor any

other principle of judicial restraint requires that we

remand. . . .” 10

In Pakdel v. City & Cnty. of San Francisco,

California, the owners of a multiunit residential

building in San Francisco sought to convert the units

into individually owned condominiums. 11 But the city

required that nonoccupant owners who rented out

9 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

10 Id. at 1014 n.5.

11 See Pakdel, 594 U.S. at 475–76 (2021).

7

their units had to offer their tenants a lifetime lease.

Pakdel challenged the requirement as an

unconstitutional taking but missed the city’s deadline

for administratively challenging the requirement. The

Ninth Circuit held that Pakdel’s taking claim was not

ripe because he had not exhausted “the prescribed

procedures.” 12

The Court rejected that conclusion, holding that

“[t]he rationales for the finality requirement

underscore that nothing more than de facto finality is

necessary.” 13 In vacating the Ninth Circuit’s decision,

the Court stated:

In this case, there is no question about

the city’s position: Petitioners must

“execute the lifetime lease” or face an

“enforcement action.” . . . And there is no

question

that

the

government’s

“definitive position on the issue [has]

inflict[ed] an actual, concrete injury” of

requiring petitioners to choose between

surrendering possession of their property

or facing the wrath of the government. 14

12 Id. at 478.

13 Id. at 479.

14 Pakdel, 594 U.S. at 478–79 (quoting Williamson Cnty. Reg’l

Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,

193 (1985)).

8

The Court also noted that “[t]he Ninth Circuit’s

demand that a plaintiff seek ‘an exemption through

the prescribed [state] procedures,’ . . . plainly requires

exhaustion.” 15 But the Supreme Court concluded

otherwise, stating that “[w]hatever policy virtues this

doctrine might have, administrative ‘exhaustion of

state remedies’ is not a prerequisite for a takings claim

when the government has reached a conclusive

position.” 16

Yet because of the remaining confusion about the

contours of the ripeness requirement in lower courts,

ripeness has emerged as an effective way to shield

taking claims from constitutional scrutiny, even

where the impact of the challenged action is concretely

established. This sharply cuts against the

constitutional guarantee of just compensation when

government takes private property for public use. And

the long-established rule that the obligation for just

compensation attaches whenever government action

works a taking of private property. 17

Requiring taking litigants to establish more than

concrete, injury-in-fact allows governments to skirt

their constitutional duty to pay for property they have

taken, as these petitions demonstrate.

15 Pakdel, 594 U.S. at 479.

16 Id. at 480.

17 See Armstrong v. United States, 364 U.S. 40, 49 (1960).

9

Certiorari should be granted in both cases to clarify

that final-decision ripeness in takings cases is an

injury-focused requirement, not a prudential license to

decline access to judicial review.

ARGUMENT

This Court Should Grant Certiorari and Adopt a

Rule That Meeting Article III, Concrete, Injuryin-Fact Conditions Satisfies the Ripeness

Requirement for a Taking Claim

Once a taking has occurred, finality should only

require a showing that a government decision-maker

has made a final decision regarding a proposed

property use. There is no legitimate purpose for

requiring a property owner to make a taking claim

more ripe by requiring a taking plaintiff to exhaust

burdensome, costly, and often outcome-insensitive

procedural hurdles.

By treating satisfaction of ripeness as merely

prudential (i.e., discretionary) for taking purposes and

emphasizing the absence of a formal denial despite the

government’s definitive, final position on the proposed

use, lower courts too often force property owners to

bear the burdens of government regulation without

any meaningful opportunity to obtain a constitutional

remedy.

A final-decision ripeness requirement serves a

narrow but essential purpose: ensuring that a

regulatory taking has caused a concrete, actual injury

by establishing how far the government has applied a

10

regulation to a particular property. That purpose

closely tracks Article III’s injury-in-fact requirement.

The ripeness doctrine exists to prevent courts from

adjudicating premature claims. 18 It should not be

stretched, as it has been in the Walls and Tedford’s

Tenancy cases, to bar taking plaintiffs from seeking

judicial relief where they have already suffered a

concrete injury due to a final government decision.

A. Misuse of the ripeness requirement runs

afoul of the requirements of the Fifth

Amendment

Misuse of the prudential ripeness doctrine enables

courts to decline adjudication of otherwise justiciable

constitutional claims, and undermines the “virtually

unflagging” obligation of a court to decide cases within

its jurisdiction. 19 This obligation applies all the more

to constitutional claims involving the protection of

private property rights, which are essential in a “free

government” because these rights would “become

worthless if the government possessed an

uncontrollable power over the private fortune of every

citizen. . . .” 20

18 See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 734

(1998).

19 Colorado River Water Conservation Dist. v. United States, 424

U.S. 800, 817 (1976).

20 Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 236

(1897).

11

In Knick v. Twp. of Scott, Pennsylvania, 21 the

Court held that a property owner was not required to

exhaust the state’s compensation remedy before filing

a taking claim, overruling its contrary holding in

Williamson County on which the trial court relied. 22 In

so holding, the Court emphasized that its ripeness

decision was anchored in the requirements of the Fifth

Amendment: “We have long recognized that property

owners may bring Fifth Amendment claims against

the Federal Government as soon as their property has

been taken.” 23

Woven throughout takings jurisprudence is the

bedrock principle that the Just Compensation Clause

is a self-executing, unique money-mandating

provision in our Bill of Rights: “[B]ecause a taking

without compensation violates the self-executing Fifth

Amendment at the time of the taking, the property

owner can bring a federal suit at that time.” 24

21 Knick v. Township of Scott, Pennsylvania, 588 U.S. 180 (2019).

22 Id. at 189.

23 Id.

24 Id. at 194.

12

B. The decisions below turn the ripeness

requirement into an insurmountable quest to

reach a “final” decision

The courts below have turned satisfying ripeness

for taking purposes into a never-ending quest

comparable to that of Diogenes, who searched the

streets of ancient Athens looking for an honest man.

1. Walls v.

(26-107)

Prince

George’s

County

After learning that his modest, residential building

lot was located too far from municipal sewer and water

systems to connect, Garnell Walls planned to install

an interim well and septic system. 25 But he then

discovered that the installation of both was prohibited

by Prince George’s County’s 2018 Water & Sewer

Plan. 26

Walls applied for the waiver and received a letter

from the County denying the waiver but was told that

he could seek a “water and sewer category

amendment”:

In February 2022, Walls received a letter

from [the County] stating that, based on

[the Director of Permitting, Inspections,

and Enforcement (DPIE)]’s research,

[his] lot did not meet the criteria for a

25 Walls Pet. App. 3a.

26 Id.

13

waiver under the Plan (the 2022 letter).

However, in the 2022 letter, [the County]

also informed Walls that he could pursue

use of an interim well or septic system

through a “water and sewer category

amendment.” . . . This process initially

would require Walls to seek a

“Legislative Amendment” from the

County Council and, next, to obtain an

“Administrative Amendment” approved.

. . . 27

Walls did not seek a legislative amendment to

reclassify his building lot because the County Council

had told him on several different occasions that it

would not support his efforts and that his efforts

would be futile. 28

The District Court dismissed the taking claim as

unripe, and the Fourth Circuit affirmed, on the ground

that Walls had not pursued a multi-step legislative

amendment to the County’s Water & Sewer Plan,

explaining that “there is still an opportunity for the

County to change its position on Walls’ use of his

property,” and therefore, “the County has not issued a

final decision.” 29

27 Id. at 4a.

28 Id. at 5a (citation omitted).

29 Id. at 9a.

14

The Fourth Circuit’s decision cannot be reconciled

with the requirements of the Fifth Amendment,

including the “temporary-takings doctrine”: once a

taking occurs, later legislative fixes cannot erase past

liability for the period of deprivation. 30 Post-hoc

legislative change cannot relieve the duty to

compensate for a taking already effected. 31

By treating satisfaction of the ripeness finality

requirement as merely prudential, the courts below

required Walls to pursue an inherently political,

legislative amendment to a Water & Sewer Plan. 32

That the County had refused to allow Walls to install

a private well and septic system to service his lot, for

which there are no public utilities available for him to

connect to, should have been sufficiently concrete for

the Fourth Circuit to find his claim ripe for judicial

review.

2. Tedford’s Tenancy, LLC v. City of New

York (26-110)

After a family-owned apartment in New York City

became subject to the Rent Stabilization Law, the

30 First English Evangelical Lutheran Church of Glendale v. Los

Angeles County, California, 482 U.S. 304, 321 (1987).

31 Id. (“where the government's activities have already worked a

taking of all use 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”).

32 Walls Pet. App. 10a–11a.

15

owners determined that the rental cap made their

rental operations not economically feasible. 33 The

outstanding repairs needed, estimated to cost at least

$1 million, could not be recouped due to applicable

government-imposed limits. 34

The property owners explored applying for a

hardship exemption but discovered that they could not

satisfy the requirements for that exemption. 35 And

they also learned that, even if it had applied, the relief

it would offer would be inadequate to ameliorate the

economic burden imposed by the Rent Stabilization

Law. 36

But because Tedford’s had not applied for and been

denied a hardship exemption it was not eligible for,

the New York appellate court held that Tedford’s

taking claim was not ripe. 37 The court’s decision left

no doubt that its application of the ripeness

requirement elevated form over substance, stating, for

33 Tedford’s Pet. at 11 (“under the RSL, Tedford’s multi-family

property has little to no economic use”).

34 Id. (“RSL only allows for minimal rent increases to offset the

cost.”).

35 Id. at 1.

36 Id. (Property owners “are not eligible for any of the ‘hardship’

exemptions to the rent control law and, even if they were, the

maximum allowable increase would not make a dent.”).

37 Tedford's Pet. App. 2a.

16

example, that even the fact that granting the hardship

exemption would have only a minimal impact on

Tedford’s operating finances was “‘not sufficient to

avoid the finality requirement.’” 38

The decision in Tedford’s imposes futile

administrative exhaustion demands disconnected

from finality and economic impact. Tedford’s alleged

that the Rent Stabilization Law caps residential

income far below expenses, that over $1 million in

essential repairs could not be recouped through other

government-allowable increases, and that Tedford’s

Tenancy was ineligible for “hardship” exceptions. In

short, any allowed increase would be insufficient to

make

the

apartment

building’s

operations

economically feasible. 39 These facts established de

facto finality for purposes of ripening a taking claim

for judicial review.

The lower court’s insistence that Tedford’s pursue

hardship applications as a prerequisite to bringing its

taking claim, despite the pleaded ineligibility and

immaterial economic effect on the asserted taking,

rendered

ripeness

an

impossible-to-reach

requirement, as reflected in the lower court’s

analytical tautology: “Here, plaintiff argues that it did

not pursue a hardship exemption because to do so was

38 335-7 LLC v. City of New York, No. 21-823, 2023 WL 2291511

at *3 (2d Cir. Mar. 1, 2023).

39 See Tedford’s Pet. at 11 (“under the RSL, Tedford’s multifamily property has little to no economic use”).

17

futile, overly burdensome, and would offer de minimis

relief. . . . Thus, plaintiff's takings claim is not yet

ripe[.]” 40

Tedford’s further shows how prudential ripeness

eclipses uncontested standing by insisting on

hardship submissions regardless of ineligibility or

trivial effect, effectively postponing adjudication of an

ongoing economic deprivation.

This Court has held that a taking claim is ripe

when there is de facto finality, not exhaustion of all

possible remedies: “The finality requirement is

relatively modest. All a plaintiff must show is that

there [is] no question . . . about how the regulations at

issue apply to the particular land in question.” 41

The Court should clarify that finality is an injuryfocused inquiry comparable to the injury-in-fact

requirement under Article III standing.

C. Doyle’s experience further demonstrates that

impractical and costly barriers can bar a

legitimate taking claim from judicial review

The federal government has reduced amicus curiae

James Doyle to nothing more than the nominal owner

of land that the federal government now controls for

40 Tedford's Pet. App. 2a.

41 Pakdel, 594 U.S. at 478 (internal citation omitted) (emphasis

added).

18

the purpose of protecting the endangered Mojave

Desert tortoise. Mr. Doyle’s land is included in the

most severely restricted area of the critical habitat

area of reserve under a County-wide Incidental Take

Permit. 42 Doyle’s land is also within the core area of

the highly protected Red Cliffs Wildlife Reserve for the

tortoise and enclosed by locked tortoise fencing. 43

Despite repeated efforts to obtain permission to

develop his land, the U.S. Fish & Wildlife Service has

steadfastly refused to grant him permission to do so.

That the Service will never grant Doyle a permit to

develop any portion of his land is confirmed by the fact

that the Service issued a County-wide permit to

Washington County, where Doyle’s land is located,

and his land serves as permanently preserved

mitigation that anchors other development in the

County the Service has approved. 44 There is no other

suitable critical habitat available within the County to

substitute for Doyle’s. Doyle’s land also serves as

42 See Doyle v. United States, No. 2023-1735, 2024 WL 5154019,

at *2 (Fed. Cir. Dec. 18, 2024).

43 See Decl. of Timothy Burton Anderson, ECF No. 13-2 at 2,

Doyle v. United States, No. 22-cv-00499-NBF (Fed. Cl. Nov. 3,

2022); see also Decl. of James Doyle, ECF No. 13-3 at 4, Doyle v.

United States, No. 22-cv-00499-NBF (Fed. Cl. Nov. 3, 2022).

44 See generally Decl. of Timothy Burton Anderson, ECF No. 132, Doyle v. United States, No. 22-cv-00499-NBF (Fed. Cl. Nov. 3,

2022).

19

mitigation to offset the Service’s approval of the

Northern Corridor Route. 45

As in Walls, Doyle also repeatedly discussed

proposals for developing his land with the local

representatives of the U.S. Fish & Wildlife Service.

And on every occasion, he was told that he would not

be granted permission to develop his land. 46

As the government officials advised him, his land

was designated as critical habitat because it is “within

the geographical area occupied by the species” and is

“essential to the conservation of the species[.]” 47

The Federal Circuit affirmed the U.S. Court of

Federal Claims’ dismissal of Doyle’s physical taking

claim because he had not submitted a prohibitively

costly and time-consuming habitat conservation plan

to the U.S. Fish & Wildlife Service, even though there

45 U.S. Fish & Wildlife Serv., Findings and Recommendations for

the Issuance of an Endangered Species Act Section 10(A)(1)(B)

Incidental Take Permit for the Washington County Habitat

Conservation Plan at 39 (Jan. 13, 2021) (The approved Northern

Corridor Project plan consists of a four-lane highway that crosses

through Zone 3, where Mr. Doyle’s land is located. The plan

includes restoration and preservation efforts to offset possible

habitat degradation from the project.).

46 See Decl. of Timothy Burton Anderson, ECF No. 13-2 at 5,

Doyle v. United States, No. 22-cv-00499-NBF (Fed. Cl. Nov. 3,

2022); see also Decl. of James Doyle, ECF No. 13-3 at 3–5, Doyle

v. United States, No. 22-cv-00499-NBF (Fed. Cl. Nov. 3, 2022).

47 16 U.S.C. § 1532(5)(A)(i).

20

was no evidence that Doyle would ever be able to

develop his environmentally sensitive land in the most

environmentally sensitive area (the Reserve) in the

County-wide Habitat Conservation Plan for the

Mojave Desert Tortoise, an endangered species listed

under the Endangered Species Act, 48 and enclosed

inside a government-controlled locked gate.

The Federal Circuit agreed with Doyle’s argument

that being required to hire a biologist, engineer, and

environmental consultant to prepare a Habitat

Conservation Plan was prohibitively expensive and

futile. Further, the Federal Circuit admitted 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 FWS.” 49 Yet, the Circuit still concluded that

“such speculation does not render his taking claim

ripe.” 50

Equally bizarrely, the Federal Circuit agreed that

it was highly unlikely that the Fish & Wildlife Service

would allow Doyle to develop his land because that

land had been permanently preserved as mitigation.

But to the Federal Circuit, this showed that Doyle’s

48 16 U.S.C. § 1533(c); Doyle, No. 2023-1735, 2024 WL 5154019,

at *1 (“In 1990, FWS categorized the Mojave desert tortoise as

endangered, making it a ‘listed’ species.”).

49 Doyle, No. 2023-1735, 2024 WL 5154019, at *6.

50 Id.

21

taking claim was not ripe because “there is a world in

which he could be granted a permit – and the County

Permit could be modified.” 51

Equally troubling was the ease with which the

Federal Circuit discounted this Court’s ruling in Knick

and Pakdel: “Knick and Pakdel did not address federal

administrative agency exhaustion, which here would

ask whether Mr. Doyle has received a final decision

from FWS on an Incidental Take Permit. These cases

pertain, instead, solely to exhaustion of state remedies

before a takings claim is ripe.” 52

Doyle’s case illustrates how easily a court can

utilize prudential standing to bar a physical taking

claim from judicial review. The Court’s intervention is

necessary to ensure uniform access to adjudication of

Fifth Amendment taking claims, and to prevent courts

from exercising unfettered discretion to vitiate the

constitutional right to just compensation for a taking.

51 Id.

52 Id. at *4 (emphasis added).

22

CONCLUSION

The Walls and Tedford’s Tenancy petitions for

writs of certiorari should be granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

SARAH ELIZABETH SPENCER

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

NANCIE G. MARZULLA

ROGER J. MARZULLA

MARZULLA LAW, LLC

1150 Connecticut Ave., NW

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

roger@marzulla.com

August 2026