Opposition Brief — Boise Cascade Corp. v. United States, 123 S. Ct. 1484 (2003) (No. 02-862)

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In the Supreme Court of the eos —

BOISE CASCADE CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

WILLIAM LAZARUS

KATHRYN E. KOVACS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

{

QUESTION PRESENTED

Whether a district court injunction that required

petitioner to obtain a permit before harvesting timber

on its property constituted a taking under the Fifth

Amendment.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......--sssseo

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687 (1995)

Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942) ..............

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) mR

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

1003 (1992) .....cscccsccssssrecserescsesssnssnensonssssssnsncensneneenenensnensassneness

New York v. Burger, 482 U.S. 691 (1987)

Nollan v. California Coastal Comm’n, 483 U.S.

GPE (1987) ..cerecreccororevecsevecevensessvsvecsovoconensesesouononsseseresese

Penn Cent. Transp. Co. v. New York City, 438

U.S. 104 (1978) ...cccccccsscsssssscssosossssesssesesnenenssesencnssosnssssensseseness

Seiber v. Oregon, cert. denied (Jan. 13, 2003) ........---00

Shellnut v. Arkansas State Game & Fish Comm’n,

258 S.W.2d 570 (Ark. 1953)

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84

(2d Cir. 1992), cert. denied, 507 U.S. 987 (1993) ..........+++

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 122 S. Ct. 1465 (2002) ....-serseereeseerneees

United States v. Riverside Bayview Homes, Inc.,

ATA U.S. 121 (1985) ....eccccscscssssssssssssesesererncssnesrsnsncsescenensneneesees

Wisconsin v. Herwig, 117 N.W.2d 335 (Wis. 1962) ..........

(III)

Page

11-12

8,11

Constitution, statutes and regulations: Page

U.S. Const.:

Amend. IV 15

Amend. V (Takings Clause) 5, 11, 12, 14

Amend. V (Just Compensation Clause) ..... 13

Endangered Species Act of 1973, 16 U.S.C. 1531

et seq.

§ 3(6), 16 U.S.C. 1532(6)

§ 3(15), 16 U.S.C. 1532(15)

§ 3(19), 16 U.S.C. 1532(19)

§ 3(20), 16 U.S.C. 1532(20)

§ 4(a), 16 U.S.C. 1533(a)

§ 9, 16 U.S.C. 1538

§ 9(a)(1), 16 U.S.C. 1538(a)(1)

§ 9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B)

§ 10, 16 U.S.C. 1539 rie

§ 10(a)(1)(B), 16 U.S.C. 1539(a)(1)(B)

§ 10(a)(2)(A), 16 U.S.C. 1539(a)(2)(A)

§ 10(a)(2)(B), 16 U.S.C. 1539(a)(2)(B)

§ 11, 16 U.S.C. 1540

50 C.F.R.:

Section 17.22

Section 17.22(b)(1)

Section 17.22(b)(2)

Section 17.3

Section 17.31(a)

Section 222.102

Section 222.303(b)

Section 222.307(b)(5)

Section 222.307(c)(2)

Section 402.01(b)

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In the Supreme Court of the Anited States

No. 02-862

BOISE CASCADE CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. Supp. App.

sal-sa30) is reported at 296 F.3d 1339. The opinion of

the Court of Federal Claims (Pet. App. 2a-1la) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 19, 2002. A petition for rehearing was denied on

September 3, 2002 (Pet. App. la). The petition for a

writ of certiorari was filed on November 27, 2002. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. The Endangered Species Act of 1973 (ESA), 16

U.S.C. 1531 et seg., mandates protection and conserva-

tion measures for species of fish or wildlife determined

to be endangered or threatened. Administration of the

ESA is divided between the Secretaries of the Interior

(through the Fish and Wildlife Service (FWS)) and of

Commerce (through the National Marine Fisheries

Service), depending upon the species involved. See 16

U.S.C. 1532(15); 50 C.F.R. 402.01(b).

The ESA authorizes the appropriate Secretary to

list a domestic or foreign species as endangered or

threatened. 16 U.S.C. 1538(a).' Section 9(a)(1)(B) of

the Act, 16 U.S.C. 1538(a)(1)(B), provides that it is gen-

erally unlawful to “take” any endangered species within

the United States. The ESA defines the term “take” to

mean “harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any

such conduct.” 16 U.S.C. 1532(19). The term “harm” is

defined by Interior Department regulations to include

“significant habitat modification or degradation where

it actually kills or injures wildlife by significantly im-

pairing essential behavioral patterns, including breed-

ing, feeding or sheltering.” 50 C.F.R. 17.3; see 50

C.F.R. 222.102 (Commerce Department definition of

“harm”); Babbitt v. Sweet Home Chapter of Communi-

ties for a Great Or., 515 U.S. 687 (1995) (upholding

Interior Department regulation defining “harm” for

purposes of “take” prohibition). For species under her

1 An endangered species is one that is in danger of extinction

throughout all or a significant portion of its range. 16 U.S.C.

1532(6). A threatened species is one that is likely to become en-

dangered within the foreseeable future throughout all or a signifi-

cant portion of its range. 16 U.S.C. 1532(20).

jurisdiction, the Secretary of the Interior has generally

extended Section 9’s take prohibition to cover threat-

ened as well as endangered species. .50 C.F.R. 17.31(a).

The ESA establishes both civil and criminal penalties

for violations of Section 9 and implementing regula-

tions. 16 U.S.C. 1540.

Under Section 10(a)(1)(B) of the ESA, the Secretary

may permit the “take” of a listed species “if such taking

is incidental to, and not the purpose of, the carrying

out of an otherwise lawful activity.” 16 U.S.C.

1539(a)(1)(B). The applicant for an Incidental Take

Permit (ITP) under Section 10 must submit a conser-

vation plan describing the impact of the take, steps

the applicant will take to minimize and mitigate those

impacts, and alternatives the applicant has con-

sidered. 16 U.S.C. 1539(a)(2)(A); 50 C.F.R. 17.22(b)(1),

222.307(b)(5). Upon receipt of a complete application,

the Secretary publishes notice of the application in

the Federal Register. 50 C.F.R. 17.22, 222.303(b). The

Secretary may issue an ITP if she finds that the taking

will be incidental and “will not appreciably reduce the

likelihood of the survival and recovery of the species in

the wild,” and that the applicant will minimize and

mitigate the impacts on the species “to the maxi-

mum extent practicable” and will implement any other

terms and conditions the Secretary deems necessary

and appropriate. 16 U.S.C. 1539(a)(2)(B); 50 C.F.R.

17.22(b)(2), 222.307(c)(2). The take of any listed species

in compliance with the terms of an ITP does not violate

Section 9 of the ESA. See 16 U.S.C. 1538(a)(1).

2. Petitioner Boise Cascade Corporation owns a

tract of timberland of approximately 65 acres, known as

the Walker Creek Unit, located in Clatsop County,

Oregon. Pet. 5; C.A. App. 14° A pair of northern

spotted owls, a federally listed threatened species,

nested on the site from 1990 to 1996. C.A. App. 14. In

order to protect the spotted owl nesting site, the

Oregon Department of Forestry prohibited logging in

an area that included the Walker Creek Unit. Jbid.

In October 1997, the State of Oregon notified peti-

tioner that because the owls had not occupied the

nesting site during the 1997 nesting season—the female

owl had died and the male owl had moved to a nesting

site outside the Walker Creek Unit—the State con-

sidered the owls to have abandoned the site. C.A. App.

14, 196. Petitioner then submitted a plan to harvest the

timber on the Walker Creek Unit. Jd. at 14-15. The

State approved the plan but advised petitioner that it

should consult with the FWS before it commenced

logging operations. Id. at 15.

After inspecting the site, the FWS informed peti-

tioner that the Walker Creek Unit “contain[ed] nesting

habitat as well as foraging or dispersal habitat for

spotted owls” and that logging would “create a risk of

harm to the northern spotted owls which would use this

site.” C.A. App. 15, 211. The FWS suggested that if

petitioner “desire[d] certainty in this matter,” it could

file an application for an ITP or pursue a land exchange

with the State. Jd. at 211. Instead of applying for an

ITP, petitioner filed suit against the FWS in federal

district court, seeking a declaration that logging on the

Walker Creek Unit would not “take” spotted owls with-

in the meaning of the ESA, and an injunction pro-

hibiting the FWS from taking any action to prevent the

2 Petitioner’s complaint identified “50 acres of merchantable

timber,” C.A. App. 14, but apparently the tract is somewhat larger.

See Pet. 5; Pet. Supp. App. sal.

logging. Pet. App. 19a-24a. The United States filed a

counterclaim to enjoin petitioner from logging on the

Walker Creek Unit without an ITP. C.A. App. 16.

On April 1, 1998, the district court dismissed peti-

tioner’s complaint and preliminarily enjoined it from

logging during the pendency of the litigation. C.A.

App. 102-119. The court explained that, under the ap-

plicable regulations, “significant habitat modification—

such as [petitioner’s] proposed logging—can constitute

a taking of an endangered or threatened species even if

no members of that species are immediately present.”

Id. at 116. The court found that preliminary injunctive

relief was appropriate “[bJecause [petitioner’s] own wit-

nesses have testified to facts that indicate that irre-

parable harm is imminent and that a taking of spotted

owls in violation of the ESA is likely to occur.” Jd. at

118. The court permitted the FWS to survey the

‘Walker Creek Unit for spotted owls, and it required the

parties to report to the court by September 4, 1998, on

the results of the surveys, as well as on the parties’

positions regarding whether logging would violate the

ESA and whether petitioner could obtain an ITP. Id. at

16, 105, 118-119. Petitioner did not appeal.’

During the 1998 nesting season, a subadult spotted

owl was found to have been in the area of the Walker

Creek Unit. C.A. App. 134. On October 15, 1998, the

3 On June 28, 1998, petitioner filed suit in the Court of Federal

Claims (CFC), alleging a Fifth Amendment permanent taking of

the Walker Creek Unit resulting from the district court’s injunc-

tion. See C.A. App. 134. The United States argued that the tak-

ings claim was not ripe because petitioner had not sought a permit

from the FWS. Ibid. On November 13, 1998, the CFC entered a

voluntary dismissal of petitioner’s complaint without prejudice in

order to facilitate petitioner’s pursuit of available administrative

remedies. [bid.

district court permanently enjoined petitioner from

“taking any northern spotted owls by the logging of any

further timber in its Walker Creek Unit without a

permit issued pursuant to Section 10 of the ESA.” Pet.

App. 36a. Petitioner again did not appeal.

On November 6, 1998, petitioner submitted an appli-

cation for an ITP under Section 10 of the ESA. C.A.

App. 16, 184. On December 10, 1998, while the FWS

was evaluating the completeness of the ITP application,

petitioner filed a mandamus action to require the FWS

to publish notice of the application in the Federal

FWS published notice of that application. Jd. at 16. On

February 5, 1999, the district court ordered the FWS to

act on petitioner’s permit application by September 1,

1999. Id. at 16-17, 157.

By letters dated July 30, 1999, the FWS notified

petitioner that it no longer needed an ITP to conduct

logging on the Walker Creek Unit tract. C.A. App. 159,

212. The subadult spotted owl that had previously been

detected in the vicinity of the Walker Creek Unit was

found dead on May 17, 1999, and subsequent surveys

detected no spotted owls. Jd. at 212. Accordingly, the

FWS concluded that “no spotted owls would be taken

by [petitioner’s] planned harvest of the property” and

that a permit was therefore no longer required. Jd. at

159, 212. On August 17, 1999, the district court dis-

solved the injunction that it had previously entered

against logging without a permit on the Walker Creek

unit. Jd. at 17.

3. On October 6, 1999, petitioner filed the instant

suit in the Court of Federal Claims (CFC), seeking

“just compensation for the temporary taking of mer-

chantable timber, which it was prevented from logging

as the result of an injunction obtained by the govern-

ment.” C.A. App. 13. Petitioner’s complaint set forth

four claims. First, the complaint alleged that the dis-

trict court injunction had imposed a temporary servi-

tude upon petitioner’s property by “requiring [peti-

tioner’s] merchantable timber to be left standing so it

could be occupied as a northern spotted owl nesting

site,” and by “requir[ing] [petitioner} to allow govern-

ment personnel to come onto [petitioner’s] property for

the purpose of determining if northern spotted owls

were present.” Id. at 17. Petitioner alleged that the

injunction thereby effected a per se taking under this

Court’s decision in Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982), and it sought just

compensation in the amount of $295,012. C.A. App. 17.

Second, the complaint alleged that by temporarily

depriving petitioner of all economically productive use

of its timber, the injunction constituted a per se taking

under Lucas v. South Carolina Coastal Council, 505

U.S. 1008 (1992). C.A. App. 17-18. Third, the complaint

alleged that “[pJrotecting habitat where there are no

identifiable owls present to be harmed and where that

habitat has not been designated critical to the survival

of the species, does not advance a legitimate govern-

mental interest under the ESA,” and that the injunc-

tion therefore constituted a taking under Agins v. City

of Tiburon, 447 U.S. 255 (1980). C.A. App. 19. Fourth,

the complaint alleged that petitioner had a reasonable

investment-backed expectation that it would be able

to harvest the timber on the Walker Creek Unit and

that, by prohibiting logging, the injunction worked a

temporary taking under Penn Central Transportation

Co. v. New York City, 488 U.S. 104 (1978). C.A. App.

20.

The CFC granted the government’s motion to dis-

miss the complaint. Pet. App. 2a-lla. The court in-

voked the “settled principle in takings law that a regu-

latory process that requires a property owner to obtain

a permit before proceeding with a particular use of his

or her property does not, in itself, effect a taking of the

property.” Jd. at 8a. Rather, the court explained,

“foJnly when a permit is denied and the effect of the

denial is to prevent economically viable use of the land

in question can it be said that a taking has occurred.”

Ibid. (quoting United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 127 (1985) (internal quotation

marks omitted)). The court concluded that “the permit

process was an obligatory component of the En-

dangered Species Act on which no claim of taking may

be based. A permit process that only temporarily

curtails the use of private property cannot fairly be

characterized as the appropriation of private property

to public use.” Jd. at 10a-lla. The CFC also rejected

petitioner’s contention that the district court injunction

had effected a “physical taking” by requiring petitioner

to admit government personnel to the land and by

forbidding petitioner to oust the northern spotted owl.

Id. at lla. The court explained that those “incidents of

the permitting process * * * were transitory in

character, involved no continuous governmental pre-

sence at the site and imposed no additional burdens on

the property beyond the temporary curtailment of

logging inherent in the permitting process itself.” bid.

4. The court of appeals affirmed. Pet. Supp. App.

sal-sa30.

a. The court of appeals held that petitioner’s regu-

latory takings claims lacked merit because the effect of

the district court’s injunction was simply that no log-

ging on the Walker Creek Unit tract could take place

without a permit. Pet. Supp. App. sa9-sa21. The court

explained that, under the precedents of this Court and

the Federal Circuit, “the imposition of such a

requirement, without more, simply cannot give rise to a

compensable taking.” Jd. at sal6. The court relied on

the “longstanding rule” that, unless and until a permit

application is actually denied, “only extraordinary

delays in the permitting process ripen into a com-

pensable taking.” Jd. at sa20. Because petitioner had

made “no claim of delay in the permitting process,” the

court of appeals “affirm[ed] the [CFC’s] dismissal of the

regulatory takings claims.” Jd. at sa21.

b. Petitioner also contended that “the district court’s

injunction worked a per se taking under [this] Court’s

decision in Loretto because (1) [petitioner] was pre-

vented from excluding spotted owls from its property;

and (2) [petitioner] was required to allow government

agents to enter its property to conduct owl surveys.”

Pet. Supp. App. sa21. The court of appeals rejected

that claim. Jd. at sa2l-sa29. The court observed that

“(t]he holding of Loretto is quite narrow” and “applies

only to permanent physical occupations either by the

government or by a third party acting under govern-

ment authority.” Id. at sa22.

With respect to “the alleged taking of an ‘owl ease-

ment’ across [petitioner’s] property,” the court stated

that the district court injunction did not deprive peti-

tioner of any pre-existing right to exclude the birds

because “[t]he ESA itself precludes [petitioner] from

harassing, harming, pursuing, wounding, or killing

spotted owls. [Petitioner] lost whatever right it had to

‘exclude’ the owls nesting on its land when they were

listed as a threatened species under the ESA.” Pet.

Supp. App. sa23 (citations omitted). The court also ob-

served that the temporary ban on logging could not

properly be characterized as a “forced government

intrusion” upon petitioner’s land because “(t]he govern-

ment has no control over where the spotted owls nest,

and it did not force the owls to occupy [petitioner’s]

land. The government simply imposed a temporary re-

striction on [petitioner’s] exploitation of certain natural

resources located on its land unless [petitioner] ob-

tained a permit.” Jd. at sa25.

The court of appeals similarly rejected petitioner’s

claim of “a per se taking based on the requirement that

it allow government officials to enter its land to conduct

owl surveys.” Pet. Supp. App. sa25. The court ob-

served that “[t]ransient, nonexclusive entries by the

[F WS] to conduct owl surveys do not permanently

usurp [petitioner’s] exclusive right to possess, use, and

dispose of its property.” Jd. at sa26. It concluded that

“the extremely limited and transient nature of the

intrusion in this case, coupled with its purpose, which

was to discover information necessary to the adjudi-

cation of a case that [petitioner] itself initiated, pre-

clude a finding that a taking occurred as a matter of

law.” Id. at sa29.

ARGUMENT

Petitioner contends that it suffered a physical occu-

pation of its property, and thus a per se taking under

this Court’s decision in Loretto, on the theory that “the

FWS both claimed the right to use Petitioner’s prop-

erty for a spotted owl nesting habitat, and prevented

Petitioner from engaging in any action to exclude the

owls from its property.” Pet. 11. Petitioner also sug-

gests (see Pet. 10, 19, 22) that the district court effected

a physical taking by authorizing FWS personnel to

enter the Walker Creek Unit.’ Petitioner’s claims lack

merit and do not. warrant this Court’s review. _

As the court of appeals recognized, “(t]he holding of

Loretto is quite narrow. It applies only to permanent

physical occupations either by the government or by a

third party acting under government authority.” Pet.

Supp. App. sa22. The timber harvesting restrictions of

which petitioner complains were temporary rather than

permanent, and they did not effect a “physical occupa-

tion” of petitioner’s land. Nor do this Court’s decisions

suggest that every entry of government officials onto

private property constitutes a per se physical taking.”

1. A requirement that real property be left undis-

turbed until the issuance of a government permit is a

common feature of land-use regulation. In Riverside

Bayview, this Court considered and rejected the sug-

gestion that such requirements effect a Fifth Amend-

ment taking. The Court explained:

A requirement that a person obtain a permit before

engaging in a certain use of his or her property does

not itself “take” the property in any sense: after all,

the very existence of a permit system implies that

permission may be granted, leaving the landowner

free to use the property as desired. Moreover, even

if the permit is denied, there may be other viable

uses available to the owner. Only when a permit is

denied and the effect of the denial is to prevent

4 Petitioner does not press in this Court its prior claim, rejected

by the court of appeals (see Pet. Supp. App. sa9-sa21), that the

district court injunction effected a regulatory taking of its prop-

erty.

-5 On January 13, 2008, this Court denied the petition for a writ

of certiorari in Seiber v. Oregon, No. 02-348, which presented a

substantially similar question.

“economically viable” use of the land in question can

it be said that a taking has occurred.

474 US. at 127. In Tahoe-Sierra Preservation Council,

Inc. v. Tahoe Regional Planning Agency, 122 S. Ct.

1465, 1485 (2002), this Court reaffirmed that the normal

delays associated with land-use permitting processes

should not be treated as per se takings.

In the present case, neither the ESA itself nor the

district court injunction foreclosed the possibility that

timber could be harvested on petitioner’s land. The Act

makes clear that land-use activities may proceed, even

when their incidental effect is to “take” members of an

endangered species, so long as the landowner has ob-

tained an ITP. The district court required the FWS to

rule on petitioner’s ITP application by a date certain,

and the FWS determined before that date that an ITP

was unnecessary, leaving petitioner free to harvest the

timber on its land. That determination was made less

than nine months after petitioner submitted its ITP

application. Petitioner has made “no claim of delay in

the permitting process,” Pet. Supp. App. sa21, nor has

it attempted in this Court to demonstrate a taking

under the multi-factor analysis of Penn Central. This

Court’s decisions in Riverside Bayview and Tahoe-

Sierra therefore foreclose petitioner’s takings claim.

2. In Loretto, this Court held that a “permanent

physical occupation” of real property constitutes a per

se Fifth Amendment taking. 458 U.S. at 426-435. The

Court applied that rule to a state-law requirement that

the owner of an apartment building permit the installa-

tion of cable television equipment on the building’s roof.

Id. at 438-440. The Court has also held that a “perma-

nent physical occupation” of real property occurs when

members of the public “are given a permanent and con-

tinuous right to pass to and fro, so that the real prop-

erty may continuously be traversed.” WNollan v.

California Coastal Comm’n, 483 U.S. 825, 832 (1987).

Nothing in this Court’s decisions suggests that a pro-

hibition on timber harvesting should be regarded for

takings purposes as a “physical occupation,” either by

the trees themselves or by the wildlife whose habitat is

protected. As the court of appeals explained, “[t]he

government has no control over where the spotted owls

nest, and it did not force the owls to occupy [peti-

tioner’s] land. The government simply imposed a tem-

porary restriction on [petitioner’s] exploitation of cer-

tain natural resources located on its land unless [peti-

tioner] obtained a permit.” Pet. Supp. App. sa25.

Petitioner’s theory would obliterate the distinction,

central to this Court’s Just Compensation Clause juris-

prudence, between physical and regulatory takings.

Under petitioner’s theory, restrictions on a broad range

of ground-disturbing activities (e.g., logging, mining,

filling of wetlands) could be recharacterized as “physi-

cal occupations” of the land by its existing physical

features.

Land-use restrictions that deprive a parcel of all

economic value may effect a taking under this Court’s

decision in Lucas. And even where the economic con-

sequences of land-use regulation are less severe, the

property owner may be able to establish a taking under

the multi-factor analysis described in Penn Central.

The government does not cause a per se taking under

_ Loretto, however, simply by prohibiting the destruction

or alteration of some pre-existing physical feature of

the land.

8. Petitioner contends (Pet. 20) that “[t]here is a

split among the lower courts in cases involving wildlife

over whether a property owner can sustain a claim

based on a physical taking theory.” Contrary to peti-

tioner’s suggestion, the cases upon which petitioner

relies do not conflict with the court of appeals’ decision.

In Southview Associates, Ltd. v. Bongartz, 980 F.2d

84 (1992), cert. denied, 507 U.S. 987 (1993), the Second

Circuit rejected a claim similar to the one petitioner

advances here. The plaintiff there claimed that the

denial of a permit to construct a residential subdivision

based on harm to necessary deer habitat constituted a

per se taking under Loretto. Id. at 92-93. The court of

appeals provided a detailed analysis of that claim and

ultimately concluded that the permit denial “repre-

sent[ed] a regulation of the use of Southview’s prop-

erty, rather than a per se physical taking.” Jd. at 95.

That holding is fully consistent with the court of

appeals’ decision in this case.

Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942), did

not involve a physical taking claim at all. The plaintiff

there sued to enjoin enforcement of a regulation pro-

hibiting hunting of migratory water fowl on lands

adjacent to a federally owned refuge. Jd. at 319. The

plaintiff contended, inter alia, that the hunting ban

constituted a regulatory taking. Jd. at 324. The Fourth

Circuit rejected that claim. Jbid.

Wisconsin v. Herwig, 117 N.W.2d 335 (Wis. 1962),

involved a criminal prosecution for violation of a rule

prohibiting hunting in an area of privately owned land.

The defendant had a valid hunting license, but was

nonetheless charged with hunting on his own land be-

cause it was designated a closed area. The court af-

firmed the defendant’s acquittal, finding that the

hunting ban worked a regulatory taking of his property

under the state constitution. Jd. at 340. The court did

not discuss the proper treatment of per se physical

invasions under the Fifth Amendment, and the case did

not involve temporary restrictions on particular uses of

property during permitting procedures.

In Shellnut v. Arkansas State Game & Fish Com-

mission, 258 S.W.2d 570 (Ark. 1953), the Supreme

Court of Arkansas struck down a state regulation that

prohibited hunting on lands surrounded by state wild-

life refuges. The plaintiffs brought suit to enjoin en-

forcement of the regulation on the ground that it

materially reduced the value of their lands by pre-

cluding them from preventing damage to their crops

caused by deer. Jd. at 573. Like the Wisconsin

Supreme Court’s decision in Herwig, the Arkansas

Supreme Court’s decision was based on the state rather

than the federal constitution, see id. at 573-574, and it

predates this Court’s modern takings jurisprudence.

Nor did that case involve temporary land-use restric-

tions imposed during the pendency of a permit appli-

cation process. Petitioner has therefore identified no

conflict in authority warranting this Court’s review.

4. Petitioner suggests in passing (see Pet. 10, 19, 22)

that the district court injunction effected a per se

physical taking by authorizing FWS officials to enter

and inspect petitioner’s tract. That claim lacks merit.

Although a per se taking may occur when members of

the public “are given a permanent and continuous right

to pass to and fro” along private property, Nollan, 483

U.S. at 832 (emphasis added), this Court has not sug-

gested that the government must pay compensation

whenever its officials enter privately owned land to

monitor compliance with applicable legal requirements.

To the contrary, the Court in Loretto emphasized the

constitutional distinction between “cases involving a

permanent physical occupation, on the one hand, and

cases involving a more temporary invasion, * * * on

the other.” 458 U.S. at 428; see id. at 428-435; cf. New

York v. Burger, 482 U.S. 691, 699-701 (1987) (discussing

circumstances under which warrantless searches of

commercial property will be deemed reasonable under

the Fourth Amendment).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.