Amicus Curiae Brief — Seiber v. United States

[~~ Supreme Court. U.S.

FILED

= /| AUG 20 2004

OFFICE OF THF CLERK

No. 04-100

In the

Supreme Court of the United States

+

MARSHA SEIBER and ALVIN SEIBER

Petitioners,

V.

UNITED STATES

Respondent.

wade

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

~>-

JAMES S. BURLING

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTIONS PRESENTED

(1) Is the Takings Clause violated when the government

commandeers the use of 40 acres of trees to provide habitat for

a spotted owl?

(2) Does it matter that the owners did not lose the ability

to use the trees on other property they owned?

(3) Should this taking be analyzed as a physical invasion

or a regulatory taking?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................ i

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

INTEREST OF AMICUS CURIAE .................. l

INTRODUCTION AND SUMMARY ................ l

PO TE ht on sd crawend ante eee) LL: 3

I. THERE IS NO CONSENSUS IN THE STATE

AND LOWER FEDERAL COURTS AS TO

HOW THE RELEVANT PARCEL SHOULD

et NE on dn wa ace eR 3

A. Some State and Federal Courts Focus on the

Property Affected by a Prohibitory

PE 6 ics pecans ee eee ee 6

B. Some Courts Focus on All the Contiguous

Property an Owner May Have in

Defining the Relevant Parcel................ 8

C. Contrary to Guidance from This Court,

Some Courts Have Even Combined Discrete

Parcels in Analyzing the Relevant Parcel ..... 10

Il. THE COURT CAN RESOLVE THE

QUESTION OF WHETHER A TAKING IN

WHICH GOVERNMENT COMMANDEERS

PROPERTY FOR USE BY OWLS IS A

PHYSICAL INVASION ..................... 12

A. The Issue and the Lower Court’s Ruling...... 13

B. The Conflict with This Court .............. 15

C. The Conflict with Other Lower Courts ....... 17

iil

TABLE OF AUTHORITIES

Page

Cases

American Savings and Loan Association y. C ounty

of Marin, 653 F.2d 364 (9th Cir. i erry Perr eyer 7

Bell Atlantic Telephone Cos. v. FCC,

24 F.3d 1441 (D.C. Cir. 1994) ................... 18

Boise Cascade Corp. v. Board of F: orestry,

ew Women OO, BONED oe i iy des voc cvenns... 7

Boise Cascade Corp. v. United States,

296 F.3d 1339 (Fed. Cir. 2002) ........... 14-15, 17

Brown v. Legal Foundation of Washington,

998 U.S. 216 (2003) . 0... ccccccccccncccce 11,17

Clajon Production Corp. v. Petera,

70 F.3d 1566 (10th Cir. 1995) ..................... 9

Coast Range Conifers, LLC v. State of Oregon,

189 Or. App. 531 (Or. App. 2003) ................. 7

FCC v. Florida Power Corp., 480 U.S. 245 (1987) .. 13,16

Florida Rock Industries, Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994), cert. denied,

oe 6

Florida Rock Industries, Inc. v. United States,

791 F.2d 893 (Fed. Cir. 1986), cert. denied,

WOW PF CNUN I 8 ik dw kcascssccacce... 6

Forest Properties, Inc. v. United States,

177 F.3d 1360 (Fed. Cir. 1999) .................... 8

Gulf Power Co. v. United States,

187 F.3d 1324 (11th Cir. 1999)................ 17-18

ee a ee eT eC eee eer eee

iV

TABLE OF AUTHORITIES—Continued

Hawaii Housing Authority v. Midkiff,

Se AE OE pak pease ch eee asn eh en ceaks 13

K & K Construction, Inc. v. Department

of Natural Resources, 575 N.W.2d 531

(Mich.), cert. denied, 525 U.S. 819 (1998) .......... 10

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .. 13-15

Kaiser Development Co. v. City and County

of Honolulu, 649 F. Supp. 926 (D. Haw. 1986),

ee ge aire, ae a errr 8

Karam v. New Jersey Department of Environmental

Protection, 705 A.2d 1221 (N.J. Super. Ct. App. Div.

1998), aff'd by adopting appellate opinion, 723 A.2d

943 (N.J.), cert. denied, 528 U.S. 814 (1999) ........ 10

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) .......... 14, 16-18

Lucas v. South Carolina Coastal Council,

ee Dh ee ee ee er er 4,10

Machipongo Land & Coal Co. v. Dep’t of Envtl.

Protection, T99 B20 121 (EU. BOOED ov sawn vicn sca 9

Manocherian v. Lenox Hill Hospital, 643 N.E.2d 479

(N.Y. 1994), cert. denied, 514 U.S. 1109 (1995) ...... 8

Nollan v. California Coastal Commission,

ee Bh OO RT hn eck es es cae eee wee 1, 16

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ....... 1,5

Penn Central Transportation Co. v. City of

New York, 366 N.E.2d 1271 (N.Y. 1977) ........... 10

V

TABLE OF AUTHORITIES—Continued

Page

Pumpelly v. Green Bay & Mississippi Canal

Company, 80 U.S. 166 CIGTA) . ow oc < ccaveceuees 12-13

Rith Energy v. United States,

LIO FSG 1947 (FOG, Cat. ZORE) oo oc oc enekeua eee 9

Seawall Associates v. City of New York,

Sab N.B.2G IGP ONT. TG os vn cx de eeeeeenuons 8

State ex rel. R.T.G., Inc. v. State,

780 N.E.2d 996 (Olio 2002)... ec ccceecenedeuwns 7

Suitum v. Tahoe Regional Planning Agency,

SL. FSAMADST) . occ aden canskkeweaaen ee l

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 535 U.S. 302 (2002).......... 13-14

Volkema v. Department of Natural Resources,

542 N.W.2d 282 (Mich. Ct. App. 1995),

cert. denied, 525 U.S. 1040 (1998) ................ 10

Whitney Benefits, Inc. v. United States, 926 F.2d 1169

(Fed. Cir.), cert. denied, 502 U.S. 952 (1991) ........ 6

Yee v. City of Escondido, 503 U.S. 519 (1992) ......... 13

Statute

RFU. © ZAG ov scp causweses icackake ee aen ee 17

Rule

Ls, See P LTT ER ECE TS ee eee l

ee ee

Vi

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Eagle, Steven J., Regulatory Takings § 11-7(b)(2)

62: G's Fie 1) © a ema 11

Henderson, Ernest F, Select Historical Documents of the

Middle Ages (Stubb’s Charters trans.), in The

Constitution of the United States of America and the

Constitution of the State of California 6 (California

State Senate 1993-1994) 2... eee eee 3

Fee, John E., Of Parcels and Property, in Takings Sides

on Takings Issues: Public and Private Perspectives

(Thomas Roberts, ed. 2002) § 51 ................. 1]

Restatement (Second) of Torts §§ 223, 226............. 4

L

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation is a nonprofit public interest

legal foundation that specializes in defending property rights

and other individual liberties.' Pacific Legal Foundation

attorneys have represented property owners before this Court

when regulatory agencies have taken rights in property without

the payment of just compensation, see, e.g., Palazzolo v. Rhode

Island, 533 U.S. 606 (2001), Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997), Nollan v. California

Coastal Commission, 483 U.S. 825 (1987), and Pacific Legal

Foundation has participated as amicus curiae in almost all of the

major Takings Clause cases before this Court in the past 30

years.

This amicus brief will urge this Court to grant review in™—=————

order to resolve the conflict over the degree to which

government may take discrete interests in private property and

avoid the duty to pay just compensation because the owner

retains other discrete interests. This case can also resolve the

important question of whether government programs that

protect animal habitat should be judged by a standard applicable

to physical invasions or regulatory takings. Amicus Pacific

Legal Foundation believes that it can add insight as to why this

case presents an excellent vehicle for resolving these issues.

Counsel for petitioner and respondent have consented to

the filing of this brief. Letters of consent are filed with the

Clerk of this Court.

INTRODUCTION AND SUMMARY

Once again landowners come to this Court seeking

clarification in matters of Takings Clause jurisprudence that

1

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the prepara-

tion or submission of this brief.

2

continue to bedevil the state and lower federal courts, a state of

conflict that leaves landowners and regulators alike without

clear direction. The facts of this case are simple: by denying a

landowner an Incidental Take Permit, the government denied a

landowner the assurance that he would not be prosecuted for

violating the Endangered Species Act if he cut trees near a

spotted owl nest. In essence, the government commandeered 40

acres of trees for the public purpose of preserving spotted owl

habitat. While the facts are obvious enough, the law affecting

this case is anything but simple.

What, if anything, has been taken? The law is not settled

over whether the object of the takings analysis should be: (1)

just the trees on these 40 acres (2) the trees plus the underlying

ground on these 40 acres, or (3) trees and the underlying ground

on these 40 acres p/us another 160 acres owned by the Seibers

but not expropriated by the government for habitat preservation.

By what standard should this taking be judged? Is the

government-sanctioned imposition of protected owl habitat on

these 40 acres equivalent in nature to other physical invasions,

such as those where other nongovernmental entities or objects

are permitted to occupy private property? The state and lower

federal courts have not determined whether there is a distinction

between those cases where a landowner must refrain from using

property (as in a zoning or typical permit denial case) and those

cases where the property is actually being utilized for a direct

governmental purpose (as with a lake behind a dam or a nest for

a protected species of animal.)

The remainder of this brief will explain why this Court

should accept the Petition for Writ of Certiorari to answer these

questions.

3

ARGUMENT

I

THERE IS NO CONSENSUS IN

THE STATE AND LOWER FEDERAL

COURTS AS TO HOW THE RELEVANT

PARCEL SHOULD BE DEFINED

A key question here is what is the relevant parcel or object

of the takings inquiry? There are three choices: (1) the specific

interest in property used by the government (the trees on 40

acres of land) to preserve owl habitat, (2) all the property used

by the government (40 acres of trees plus the underlying

ground), or (3) all the property used by the government plus all

other contiguous property owned by the same owner (200 acres

of trees plus the underlying ground). There is no consensus of

opinion in the state and lower federal courts on this question.

Suppose that the government came upon 40 acres of the

Seibers’ property and cut and removed all the trees and sold

them for profit. There is no question that the government

would be liable to the Seibers for the tort of conversion.

Restatement (Second) Torts § 223. The government's liability

in such a case dates back at least to the Magna Carta. “No

constable or other bailiff of ours [the King] shall take the corn,

or other chattels of any one except he straightway give money

for them.”? There is also no question that the government

would be liable regardless of how much other timber the

Seibers might own elsewhere.

Suppose instead that the government came onto 40 acres

of the Seibers’ property, cut the trees, but left them on the

ground for chipmunk habitat and prohibited the Seibers from

* Emmest F. Henderson, Select Historical Documents of the Middle

Ages (Stubb’s Charters trans.), in The Constitution of the United

States of America and the Constitution of the State of California 6

(California State Senate 1993-1994). 7

4

moving the trees, making the underlying land useless for all

purposes. Again, there should be no question that there is

liability. Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1015 (1992) (describing classes of categorical takings).

The government would still be liable for the conversion of the

trees. Restatement (Second) Torts §§ 223, 226. But it also

would be liable for the taking of the underlying property.

Again, the government's liability for the conversion is

independent of how much other timber the Seibers might own

elsewhere. But, as will be shown, there is wide disagreement

on whether the taking of the underlying property is somehow

ameliorated if the Seibers own other timberland that is not

burdened by the government action.

Finaily, suppose that the government came on the same 40

acres and marked all the trees as protected property not to be

touched so that they can be used only for owl habitat. Because

of the prevalence of trees on the property, the underlying

ground cannot be used. In this case, it is doubtful that the tort

of conversion would apply because the government has not

altered or destroyed the trees. But there is a strong argument

that the trees and the underlying land have been taken. (The

theory under which there has been a taking will be discussed in

Part II, infra.) What is especially not clear, however, is to what

extent the Seibers’ ownership of other timber and other land

should affect the finding of a taking of the Seibers’ trees and

land. To the Seibers, of course, the results in all three scenarios

are nearly the same. They cannot use their trees in any of the

scenarios and they cannot use their land in the latter two. Yet,

:n the last scenario, where they have been injured more than in

the first scenario (losing the use of both the trees and the land),

they may be the least likely in some courts to receive

compensation simply because they own other property not

affected by the regulations.

The state of affairs where the more one owns the more

government can take, without paying just compensation, has

ES Eas

5

troubled this Court and has confused the state and lower federal

courts. In Palazzolo v. Rhode Island, 533 U.S. 606, this Court

wrote: “Some of our cases indicate that the extent of

deprivation effected by a regulatory action is measured against

the value of the parcel as a whole, .. . but we have at times

expressed discomfort with the logic of this rule. . . a sentiment

echoed by some commentators.” /d. at 631. Because the issue

of the relevant parcel had not been previously raised in

Palazzolo, this Court did not contemplate it further. The

present case, however, provides a good opportunity for this

Court to revisit the question of the relevant parcel. And,

considering the degree to which confusion has reigned in the

state and lower federal courts, it is an issue worthy today of this

Court's consideration.

There are two aspects of the relevant parcel question at

issue in this case. First, there is the matter of whether the trees

can be treated separately from the surface estate for purposes of

a takings analysis. Second, because the Seibers own timberland

outside the affected 40 acre spotted owl nest site, was it

appropriate for the court to suggest that the entire 200 acres

they owned should be considered to be the relevant parcel?

Petitioners focus on the first of these questions, arguing that the

affected trees should be the focus of the takings inquiry. The

Federal Circuit below, however, felt that it did not need to

determine whether the trees should be treated as a separate

estate, because “[t]he Seibers have never alleged that their

timber on the entire two hundred-acre parcel was rendered

valueless.” Opinion, Pet. App. at 22a. Thus, the Seibers

focused on just the trees, the court focused on everything the

Seibers owned in the vicinity, and neither the Seibers nor the

court below chose to focus on the 40 acres of trees plus the 40

acres of land on which the trees grew. The proper choice

among these alternatives is not obvious because there is no

uniformity in the lower courts. Had the law been more clear,

6

then the Seibers and the court would have been able to

determine more easily the appropriate denominator.

A. Some State and Federal Courts Focus on the

Property Affected by a Prohibitory Regulation

In Florida Rock Industries, Inc. v. United States, 791 F.2d

893 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987)

(Florida Rock I), the Federal Circuit Court of Appeals was

confronted by a single 1,560-acre parcel subject to the Corps of

Engineers’ restrictions. The landowner argued that all 1,560

acres of its wetland mining property had been taken after a

permit to mine 98 acres was denied. 791 F.2d at 895-96, 904-

05. The government argued that there was no taking because

the use of only 98 acres had been denied—leaving the “parcel

as a whole” largely unaffected by the denial. /d. at 904. The

Federal Circuit rejected both arguments, holding that (1) it

would be unfair to the government to award compensation for

the 1,462 acres for which the applicant had no immediate plans,

id, at 904-05, and (2) the court would focus on only the 98 acres

to see if there had been a taking. /d. at 904.

Several years after Florida Rock I, the Federal Circuit

responded to the government’s new argument that the takings

denominator should include more than the mineral rights and

surface resources needed for mining. The court disagreed:

By taking some portion of Florida Rock’s economic

use of the property—its power to disturb the

overlying wetlands, and with it the common law

property right to mine its subsurface minerals—the

Government appears to have destroyed part of the

value of Florida Rock’s holdings.

Florida Rock Industries, Inc. v. United States, 18 F.3d 1560,

1572 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109 (1995)

(Florida Rock IV). The court noted that in appropriate

circumstances a subset of the bundle of rights can be taken

NT

7

through inverse condemnation. See id. at 1572 n.32. See also

Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 1174

(Fed. Cir.), cert. denied, 502 U.S. 952 (1991) (court rejected the

government's suggestion that there was no taking because the

coal owner could farm about half of its property. The mineral

estate was a significant enough separate interest in property to

be considered the denominator.).

In a case strikingly similar to the one now before this

Court, in Boise Cascade Corp. v. Board of Forestry, 935 P.2d

411 (Or. 1997), a landowner was prohibited from logging 56

acres on a 64-acre tract because of a spotted owl nest. The

Oregon Supreme Court held that the landowner could state a

claim for a regulatory taking under the Oregon and United

States constitutions. Jd. at 415-16. Thus the court segregated

the 56 acres of owl habitat from the remaining 8 acres of

harvestable timber and considered the timber on the 56 acres to

be the relevant parcel. As recently described by the Oregon

Court of Appeals, while “the Oregon courts have not been

exactly generous in their explanations, they at least have been

consistent in their treatment of the whole parcel rule. In a

nutshell, they have effectively rejected it.” Coast Range

Conifers, LLC y, State of Oregon, 189 Or. App. 531, 546 (Or.

App. 2003). For the Federal Circuit to have rejected a claim

very similar to those arising in Boise Cascade and Coast Range

Conifers points out the doctrinal inconsistency that needs

clarification from this Court.

In State ex rel. R.T.G., Inc. v. State, 780 N.E.2d 998 (Ohio

2002), a coal mining company sought just compensation for a

taking after some of its coal reserves were declared unsuitable

for mining because of their proximity to a watershed. The Ohio

Supreme Court held first that the relevant parcel in vertical

context was the coal deposit. The court also excluded from

consideration coal outside the protected area and held that the

owner suffered a categorical taking under Lucas.

—— eee

The Ninth Circuit and New York Court of Appeals have

similarly defined the relevant parcel in accordance to the

property actually regulated. See American Savings and Loan

Association v. County of Marin, 653 F.2d 364 (9th Cir. 1981)

(separating out property in accordance to how it was zoned,

relying on the government’s regulatory segregation of property

to define the relevant parcel); accord Kaiser Development Co.

v. City and County of Honolulu, 649 F. Supp. 926, 947-48 (D.

Haw. 1986), aff'd, 898 F.2d 112 (9th Cir. 1990) (“Most

importantly, the City has treated Queen’s Beach separately for

zoning and planning purposes. .. . [U]nder the facts of this

case, Queen’s Beach is to be considered a separate parcel for

the purposes of determining whether there has been a taking.);

Seawall Associates v. City of New York, 542 N.E.2d 1059, 1067

(N.Y. 1989) (“[T]he permanent abrogation of one of those

rights, without regard to its comparative value in relation to the

whole, may well be sufficient to constitute a taking.”); accord

Manocherian v. Lenox Hill Hospital, 643 N.E.2d 479 (N.Y.

1994), cert. denied, 514 U.S. 1109 (1995) (finding the

destruction of a reversionary interest to be a regulatory taking).

In all of these cases, the courts took a decidedly different

approach than the one followed below. But the court below is

not alone. Unfortunately, as shown next, there are a number of

courts which insist on defining the relevant parcel very broadly,

and in doing so they deny compensation for the taking of

substantial interests in property.

B. Some Courts Focus on All the Contiguous

Property an Owner May Have in

Defining the Relevant Parcel

As noted above the Federal Circuit in Whitney Benefits

focused on the mineral estate that was affected by the

prohibition on mining. The Federal Circuit, however, has not

been particularly consistent in its approach for analyzing the

relevant parcel. In Forest Properties, Inc. v. United States, 177

9

F.3d 1360, 1365 (Fed. Cir. 1999), the Federal Circuit joined

together a regulated wetland portion of the owner's

development with an unregulated upland parcel for purposes of

a takings analysis. And, of course, in the present case it

rejected the Seibers’ claim because it preferred to focus not just

on the 40 acres where the owl-based prohibition lay, but on all

of the Seibers’ 200 acres.

Similarly, in Rith Energy v. United States, 270 F.3d 1347

(Fed. Cir. 2001), the Federal Circuit defined the relevant parcel

to be all coal, both that which could not be mined after the

government prohibited further mining and the coal that had

already been mined.

The Tenth Circuit in Clajon Production Corp. v. Petera,

70 F.3d 1566 (10th Cir. 1995), expressly rejected the Florida

Rock IV holding. Clajon involved an attempt to bring a takings

challenge to hunting regulations in Wyoming that limited wild

game licenses sold to hunters from out-of-state. The plaintiff,

who derived income from out-of-state hunters, complained that

this was a taking of a property right in hunting. 70 F.3d at

1577. In ruling against the rancher, the Tenth Circuit expressly

rejected the Federal Circuit’s language in Florida Rock IV that

it can be appropriate to focus on the property interest actually

taken:

However, we believe that the relevant denominator

must be derived from the entire bundle of rights

associated with the parcel of land. ... Thus, we

reject the Florida Rock approach.

Id. (citations omitted).

Finally, the Pennsylvania Supreme Court, in a decision

inconsistent with the Ohio Supreme Court’s holding in R7G,

ruled in Machipongo Land & Coal Co. v. Dep't of Envil.

Protection, 799 A.2d 751 (Pa. 2002), that the relevant parcel in

10

a takings analysis could consist of other coal reserves located

outside of the protected watershed.

C. Contrary to Guidance from This Court,

Some Courts Have Even Combined Discrete

Parcels in Analyzing the Relevant Parcel

In Lucas, this Court expressly rejected as “extreme” and

“unsupportable” the notion advocated by the New York Court

of Appeal in Penn Central Transportation Co. v. City of New

York, 366 N.E.2d 1271, 1276-77 (N.Y. 1977),

where the state court examined the diminution in a

particular parcel’s value. . . in light of total value of

the takings claimant’s other holdings in the vicinity.

Lucas, 505 U.S. at 1016 n.7. There is a logical incongruity in

the notion that owners of lots of property should be treated

worse than owners of only a small amount of property.

Nevertheless, some courts have found that the ownership of

other interests in property potentially diminishes the impact on

a regulated interest in property.

The Michigan Supreme Court in K & K Construction, Inc.

v. Department of Natural Resources, 575 N.W.2d 531 (Mich.),

cert. denied, 525 U.S. 819 (1998), combined a 55-acre parcel

with two other parcels of 16 and 3.4 acres for purposes of

determining whether there was a taking. The court reasoned

that the parcels were owned in whole or in part by the same

owner of the 55-acre parcel and that there was a unified plan of

development. The same reasoning was followed in Volkema v.

Department of Natural Resources, 542 N.W.2d 282 (Mich. Ct.

App. 1995), cert. denied, 525 U.S. 1040 (1998).

The Michigan example was also followed in Karam v.

New Jersey Department of Environmental Protection, 705 A.2d

1221 (N.J. Super. Ct. App. Div. 1998), aff'd by adopting

appellate opinion, 723 A.2d 943 (N.J.), cert. denied, 528 U.S.

814 (1999). In Karam, the appellate court examined the history

11

of a lot comprised of an upland and wetland unit and found the

two portions to be a single unit for a takings analysis.

These cases all follow the logic of the notion that this

court rejected in Lucas: The more real property one owns, the

more the government can take without having to pay for it.

Professor Eagle has criticized this approach, calling it

“conceptual agglomeration” in opposition to the idea of

“conceptual severance” that this Court rejected in Tahoe-Sierra.

Steven J. Eagle, Regulatory Takings § 11-7(b)(2) (2d ed. 2001).

See also John E. Fee, Of Parcels and Property,, in Takings

Sides on Takings Issues: Public and Private Perspectives

(Thomas Roberts, ed. 2002), § 5.1 at 103 (discussing principle

of conceptual agglomeration).

There is no uniformity to how courts decide how much of

an Owner’s property to consider when deciding how much value

has been destroyed by government regulation. Only this Court

can provide some measure of consistency and guidance.’

* Moreover, the nature of this taking—as a physical invasion by

the owls of the trees of the Seiber’s property—makes the focus

on the discrete interests in the property taken all the more

compelling. As this Court explained in Brown v. Legal

Foundation of Washington, 538 U.S. 216 (2003), physical

invasion takings tan occur even if other property is unaffected

and even if the taking is temporary:

When 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. Thus,

compensation is mandated when a leasehold is taken and

(continued...)

12

iI

THE COURT CAN RESOLVE THE

QUESTION OF WHETHER A TAKING

IN WHICH GOVERNMENT COMMANDEERS

PROPERTY FOR USE BY OWLS IS A

PHYSICAL INVASION

The Seibers assert that the government’s commandeering

of their property in order to provide a nesting site for a pair of

spotted owls is the physical invasion of their property.

The scenarios described at the beginning of this brief’s

argument demonstrate the transition from an absolute

conversion of property, compensable under theories of tort, to

government action that is not compensable in tort but

nonetheless has an equally devastating impact on the use and

value of the property. It was to provide fairness and justice in

this circumstance that this Court first articulated the concept of

a physical. invasion taking in Pumpelly v. Green Bay &

Mississippi Canal Company, 80 U.S. 166 (1871). There, this

Court noted

if the government refrains from the absolute

conversion of real property to the uses of the public

it can destroy its value entirely, can inflict irreparable

and permanent injury to any extent, can, in effect,

subject it to total destruction without making any

compensation, because, in the narrowest sense of

that word, it is not taken for the public use. Such a

construction would pervert the constitutional

provision into a restriction upon the rights of the

citizen, as those rights stood at the common law,

* (...continued)

the government occupies the property for its own

purposes, even though that use is temporary.

Id. at 233.

13

instead of the government, and make it an authority

for invasion of private right under the pretext of the

public good, which had no warrant in the laws or

practices of our ancestors.

Id. at 177-78.

To be sure, the physical invasion in Pumpelly’s reservoir

was more tangible than forest land commandeered to play host

to a pair of nesting spotted owls. So too, is the concept of

“public use” which has come to mean not an actual occupation

by members of the public as with a road, post office, or public

works project, but more of a project that promotes the a

legislatively determined “public purpose.” See, e.g., Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984) (The

“public use requirement is thus coterminous with the scope of

a sovereign’s police powers.”) This evolving view of “public

use” is consistent with the view that taking can occur when

private property is commandeered to serve a larger public

good—even when there is no direct appropriation. As this Court

continued in Pumpelly, “there are numerous authorities to

sustain the doctrine that a serious interruption to the common

and necessary use of property may be . . . equivalent to the

taking of it, and that under the constitutional provisions it is not

necessary that the land should be absolutely taken.” 80 U.S. at

181.

A. The Issue and the Lower Court’s Ruling

In Yee v. City of Escondido, 503 U.S. 519 (1992), this

Court explained that government effects a physical taking

whenever “it requires the landowner to submit to the physical

occupation of his land.” 503 U.S. at 527. To rephrase the

point, a physical taking occurs whenever the government

deprives a property owner of his “right to exclude,” a right that

is “one of the most essential sticks in the bundle of rights that

are commonly characterized as property.” Jd. at 528 (quoting

Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)). In

14

either formulation, it is the “element of required acquiescence

[that] is at the heart of the concept of occupation.” /d. at 527

(quoting FCC v. Florida Power Corp., 480 U.S. 245, 252

(1987)). Indeed, this Court recently noted the obvious point

that this required acquiescence is often effected by means of

regulation: where “regulations . . . require the [property owner]

to suffer the physical occupation of a portion of his building,”

they will be analyzed not as regulatory takings but rather as

physical takings. Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 535 U.S. 302 323 n.18 (2002)

(quoting Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 440 (1982)).

In the present case, the Seibers alleged in their inverse

condemnation complaint that the effect of the government's

1egulations was to “impose[] a servitude upon their property

requiring the merchantable timber to be left standing so it can

occupied as a northern spotted owl nesting site.” Pet. App. at

57a, ¥ 9. in brief, the Seibers alleged that the government

required them to submit to the physical occupation of their land

by spotted owls. Or, to frame the allegation in other pertinent

terms, the government deprived the Seibers of the right to

exclude the owls from their property and instead required them

to acquiesce in the owls’ presence on their land. In so alleging,

the Seibers successfully stated a claim for a categorical taking

by physical occupation under this Court’s precedents.

Without in any manner questioning the accuracy of the

Seibers’ allegations concerning the effect of the government's

actions, the Federal Circuit rejected the Seibers’ physical

occupation claim, saying only that “regulatory restrictions on

the use of property do not constitute physical takings.” Opinion,

Pet. App. at 16a. The court based this assertion on a citation to

Tahoe-Sierra. Pet. App. at 16a (citing Tahoe-Sierra, 535 U.S.

at 303). This Court in Tahoe-Sierra, however, was noting only

that “[t]he longstanding distinction between physical and

regulatory takings makes it inappropriate to treat precedent

i i

15

from one as controlling on the other.” 535 U.S. at 303. It was

not providing any guidance on whether a regulation of this

sort—where a landowner must involuntarily acquiesce to an

occupation of his property—is a physical or regulatory taking.

The court below also relied on one of its own precedents,

Boise Cascade v. United States, 296 F.3d 1339 (Fed. Cir. 2002)

for the proposition that “the government protection of owls...

is not comparable to a government authorization to third parties

to utilize property.” Specifically, the court in Boise Cascade

held that

between a government authorizing or conducting a

physical invasion of the property of another and a

government regulating what one may do with

property due to the random or incidental location of

a natural resource or wild animal on the property.

The state has no control over where spotted owls

choose to nest.

296 F.3d at 1354. But, this assertion is inconsistent with prior

decisions of this Court.

B. The Conflict with This Court

In Kaiser Aetna, the property owners converted a privately

owned lagoon into a marina, thereby connecting the lagoon to

a publicly owned bay; subsequently, the United States sought

“an injunction to require [the owners] to allow public access”

to the waters of the marina on the ground that it had become

subject to the federal “navigational servitude.” 444 U.S. at 169.

Having ruled that “Congress could assure the public a free right

of access to the [waters of the marina] if it so chose,” id at 174,

this Court went on to consider whether Congress could do so

“without invoking its eminent domain power and paying just

compensation,” id. at 180. The Court emphatically ruled that

Congress could not, because “the imposition of the navigational

servitude in this context will result in an actual physical

16

invasion of the privately owned marina.” /d. (emphasis added).

Here, as in the present case, the government has “no control” of

where or when boaters [or owls] may decide to utilize the

property. The key is not that the government was protecting the

waterway, but that it forced the landowner to acquiesce in the

use of that waterway by others.

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, is similar. In that case, “New York law provide[d] that a

landlord must permit a cable television company to install its

cable facilities upon his property.” Jd. at 421. This Court

concluded that “such a physical occupation of property is a

taking.” Jd. As in the present case, this case involved more

than the mere regulation of apartment rooftops and cable.

Instead, the Court characterized the case as one in which the

government’s regulations “require[d] the landlord to suffer the

physical occupation of a portion of his building by a third

party.” Jd. at 440 (emphasis added); accord Florida Power

Corp., 480 U.S. at 252 (quoting same); Tahoe-Sierra, 535 US.

at 323, n.18 (quoting same). Also relevant to the present case,

it is crucial to recognize that the New York City government

did not “cause or induce” the cable company to occupy the

property of the landlord and has “no control” over that activity.

In Nollan v. California Coastal Commission, 483 U.S.

831, this Court held that had the government “required the

[property owners] to make an easement across their beachfront

available to the public on a permanent basis. . ., we have no

doubt there would have been a taking.” The Court reached this

conclusion even though that property would have been

periodically occupied not by the government, but by random

members of the beachgoing public:

In Loretto we observed that where governmental

action results in “a permanent physical occupation”

of the property, by the government itself or by

others, “our cases uniformly have found a taking to

17

the extent of the occupation, without regard to

whether the action achieves an important public

benefit or has only minimal economic impact on the

owner.”

- Id. at 831-32 (emphasis added and citations omitted) (quoting

Loretto, 458 U.S. at 432-35). Nollan therefore confirms that

physical occupations may be effected “by the government itself

or by others.” This again is not a case merely where the

government is regulating so that a landowner must refrain from

use—but both No//an and the present case the government would

require the owner to allow the property to be put to a public use;

by trespassers or by owls—in a way that substantially interferes

with the owner’s use and enjoyment of the property.

Finally, in Brown v. Legal Foundation of Washington, 538

U.S. 216, this Court found a physical invasion when funds

belonging to legal clients was involuntarily transferred to the

Legal Foundation of Washington. This Court noted that “the

transfer of the interest to the Foundation here seems more akin

to the occupation of a small amount of rooftop space in

Loretto.” /d. at 235. Here, the occupation of the treetops has

the same result and should be treated as a physical invasion.

C. The Conflict with Other Lower Courts

The decision in Seiber also conflicts with decision of the

Eleventh and D.C. Circuit Courts of Appeals. In Gulf Power

Co. v. United States, 187 F.3d 1324 (11th Cir. 1999), the

Eleventh Circuit concluded that the Pole Attachment Act*

“effects a [physical] taking ofa utility’s property.” /d. at 1328.

(citation omitted). The explicit nature of the conflict is clear

when it is recalled that the court below held that requiring

property owners to acquiesce in the presence of the owls did not

* 47 U.S.C. § 224(f)(1) (provides that a public utility company must

provide access to a cable television or telecommunications carriers

with nondiscriminatory access to poles, conduits, or right-of-ways.)

————

18

effect a physical occupation because the government was

simply protecting the owls, or in the words of the case it cited

for authority, merely “regulating what one may do with

property,” Boise Cascade, 296 F.3d at 1354. The Eleventh

Circuit confronted a similar argument—*the mandatory access

provision [is] a simple regulatory condition”—and quickly

rejected it as “meritless.” Gulf Power Co., 187 F.3d at 1330

(emphasis added). “Characterizing the mandatory access

provision as a regulatory condition,” concluded the court,

“cannot change the fact that it effects a taking by requiring a

utility to submit to a permanent, physical occupation of its

property.” /d. at 1331.

More generally, the “power to regulate [property] does not

extend to taking without just compensation the night of a

[property owner] to exclude unwanted occupiers of its

property.” Jd. As the Eleventh Circuit observed, among other

arguments this Court rejected in Loretto “was the argument that

the statute was merely a ‘permissible regulation of the use of

real property.” . . . [A]lthough property is subject to broad

regulatory power, a regulation becomes a taking when the

government authorizes permanent, physical occupation by a

third party.” /d. at 1328 (quoting Loretto, 458 U.S. at 439-40).

Similarly, in Bell Atlantic Telephone Cos. v. FCC, 24 F.3d

1441, 1443 (D.C. Cir. 1994), the D.C. Circuit addressed a

“physical co-location” access scheme under which local

telephone exchange companies are required to “set aside a

portion of their central offices for occupation and use by

competitive access providers.” Jd. at 1443. The D.C. Circuit

concluded that the scheme “directly implicates the Just

Compensation Clause of the Fifth Amendment, under which a

‘permanent physical occupation authorized by government is a

taking without regard to the public interests that it may serve.*”

Id. at 1445 (quoting Loretto, 458 U.S. at 426).

19

Like the Eleventh Circuit’s decision in Gulf Power, the

D.C, Circuit's decision in Bell Atlantic cannot be squared with

Seiber.

CONCLUSION

The petition for writ of certiorari should be granted.

DATED: August, 2004.

Respectfully submitted,

JAMES S. BURLING

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation