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

No. 02-862

Supreme Court of the Wnited States

4

BOISE CASCADE CORPORATION,

a Delaware Corporation

Petitioner,

Vv.

UNITED STATES,

Respondent.

*

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

4-

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

+

ROBIN L. RIVETT

ERIC GRANT Counsel of Record

SWEENEY & GRANT LLP Pacific Legal Foundation

Wells Fargo Center 10360 Old Placerville Road,

400 Capitol Mall, Suite 900 Suite 100

Sacramento, California 95814 Sacramento, California 95827

Telephone: (916) 341-0321 Telephone: (916) 362-2833

Facsimile: (916) 691-3261 Facsimile: (916) 362-2932

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Where the government admittedly deprives an owner of

the right to exclude third parties from his land, may the govern-

ment evade liability for a physical taking merely because it did

not “cause” or “induce” or “force” the subsequent occupation

or exercise “contro!” over the occupier?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTE? «oo sccckseegcuceeewereewedes -

TABLE GP ALFTIROIR Ee 6 on hk ieee eee iii

INTEREST OF AMICUS CURA. «3 us ves de se seescceses ]

SUMMARY OF ARGEIIING 25.5 5 i cess whew seeeesiacns ]

AIT, gk. v0 ses eda eee eee 3

IN RULING THAT GOVERNMENT DOES

NOT EFFECT A PHYSICAL TAKING IN DE-

PRIVING AN OWNER OF THE RIGHT TO

EXCLUDE THIRD PARTIES, THE LOWER

COURT DEPARTED FROM THIS COURT’S

DECISIONS AND EXACERBATED A CON-

FLICT AMONG THE LOWER COURTS ............ 3

A. The Issue and the Lower Court’s Ruling.......... 3

B. The Conflict with This Court .................. 5

C. The Conflict with Other Lower Courts ........... 8

CORNCLARIIN |. kbc cb cedccscadienea he ¥enebe ene ea aans 15

ill

TABLE OF AUTHORITIES

Page

Cases

Bell Atlantic Telephone Cos. v. FCC,

pO mE A). | 11-12

Boise Cascade Corp. v. State ex rel. Board of

Forestry, 991 P.2d 563 (Or. Ct. App. 1999),

cert. denied, 532 U.S. 923 (2001) .......... 5, 7, 10, 12

Boise Cascade Corp. v. United States,

Be Fe re. GR. BOUE) on ov cece ccesees passim

FCC v. Florida Power Corp.,

aera re ae 4,7

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ......... 4

GTE Northwest Inc. v. Public Utility

Commission, 900 P.2d 495 (Or. 1995),

ee ed dL) 1]

GTE Service Corp. v. FCC,

ee ee ea 11

GTE Southwest Inc. v. Public Utility

Commission, 10 S.W.3d 7 (Tex. App. 1999) ........ 11

Gulf Power Co. v. United States,

6 & gke Til) oe). ) rere 10

Hendler v. United States, 11 Cl. Ct. 91 (1986),

rev'd, 952 F.2d 1364 (Fed Cir. 1991) ........... 14-15

Hendler v. United States,

eee ge Fe 15

Kaiser Aetna v. United States,

a 3, 5-6, 14

1V

TABLE OF AUTHORITIES—Continued

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1962) ............

Lucas v. South Carolina Coastal Council,

Ue ra RU CURED wb Neo os d eu weeae soa

Nollan v. California Coastal Commission,

ee he EE cas oo ea en eee eas

Palazzolo v. Rhode Island,

Pad Wis CUP EROUED 5 ae iceswechacuswrbo vans

Suitum v. Tahoe Regional Planning Agency,

i Ae, FE LOUED 0s kk 50k FR ORK eon eee

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

ROe ty Oks, EE ho bk oak ee

United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985) .............

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

Statutes, Regulations,

Legislative Materials, and Rules

16 U.S.C. § 1532(19) ....... Re Se Re

OO cigs sds sp elo deer aioe

WEB oie iia

SURO. COEDS ....55 sR

oth ee). |

Ae 2k) | ores

Page

err

V -

TABLE OF AUTHORITIES—Continued

Page

eee A MS be Dene re re ere Nr 14

Gl Fod. Reg. 45,476 (1996) once ccc cscvssesvevessavs 9

H.R. Conf. Rep. No. 104-458, reprinted in

142 Cong. Rec. H1078 (Jan. 31, 1996) .............. 9

smapreme Court Rule 37.3... ccc caciscececccseasevce ]

We Pr ee ee ee ee ]

l

INTEREST OF AMICUS CURIAE

For three decades, amicus Pacific Legal Foundation (PLF)

has been litigating in support of the rights of individuals to

make reasonable use of their private property. PLF attorneys

have been before this Court on three occasions representing in-

dividuals whose right to use their property was unlawfully de-

nied by government agencies. See Nollan v. California Coastal

Commission, 483 U.S. 825 (1987); Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997); and Palazzolo v. Rhode

Island, 533 U.S. 606 (2001). Finally, PLF has participated as

amicus curiae in nearly every major real property takings case,

and numerous other takings cases, heard by this Court in the

past two decades.!

o—

SUMMARY OF ARGUMENT

Petitioner Boise Cascade alleged—and the court below

expressly acknowledged—that Boise lost the right to exclude

spotted owls from its property as a result of the government’s

enforcement of regulations promulgated under the Endangered

Species Act (ESA). Nonetheless, the Court of Appeals for the

Federal Circuit rejected Boise’s physical takings claim on the

ground that the government could not be liable for a taking by

permanent physical occupation if it did not “cause” or “induce”

or “force” the occupation and exercised no “control” over the

occupier. In so deciding, the lower court resolved an important

question of federal takings law in a way that conflicts with this

' Pursuant to this Court’s Rule 37.2(a), all parties have consented to

the filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

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

Court’s takings jurisprudence and with the decisions of other

lower courts.

First, this Court’s decisions make clear that the govern-

ment effects a physical taking whenever it requires a property

owner to submit to the physical occupation of his land or (to

say the same thing) whenever it deprives the owner of the right

to exclude strangers. Under either formulation, it is required

acquiescence that is the touchstone of a compensable physical

occupation. This Court’s decisions further make clear that the

government cannot evade takings liability merely because the

instrument of the required occupation was not the government

itself but rather a third party. In none of these decisions did the

Court make the government’s “causing or inducing” (let alone

“forcing”) the third-party occupation a prerequisite to liability,

nor did the Court require that the government exercise some

“control” over the third-party occupier. Indeed, in each of the

cases, the government was liable for a physical taking despite

having merely “permitted” the occupation, which resulted from

the independent choice of a third party.

Second, lower courts have applied this Court’s physical

takings jurisprudence in a manner that conflicts with the deci-

sion below. These courts have found that physical takings are

(or would be) effected by two federal regulatory schemes that

require property owners to acquiesce in physical occupations

by their competitors. Under neither of these schemes could the

government be said to “cause or induce” (or “force”) the occu-

pations or to “control” the occupiers, and no court made such ~

causation, inducement, or control a prerequisite to the finding

of physical taking. Moreover, the courts rejected the argument

that a required acquiescence in a physical occupation could be

justified as merely a “permissible regulation of the use of real

property.”

3

ARGUMENT

IN RULING THAT GOVERNMENT DOES NOT

EFFECT A PHYSICAL TAKING IN DEPRIVING

AN OWNER OF THE RIGHT TO EXCLUDE THIRD

PARTIES, THE LOWER COURT DEPARTED FROM

THIS COURT’S DECISIONS AND EXACERBATED

A CONFLICT AMONG THE LOWER COURTS

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

1003, 1015 (1992), this Court identified “at least two discrete

categories of regulatory action as compensable witheut case-

specific inquiry into the public interest advanced in support of

the restraint.” The first instance of what are called “categori-

cal” takings “encompasses regulations that compel the property

owner to suffer a physical ‘invasion’ of his property.” Jd. As

to such physical invasions—also called physical “occupations”

—the law is that “no matter how minute the intrusion, and no

matter how weighty the public purpose behind it, we have re-

quired compensation.” Jd. As set forth below, Boise Cascade

suffered this kind of categorical taking when the government

forced it to submit to the physical occupation of its timberland

by spotted owls. In determining otherwise, the Federal Circuit

court rejected this Court’s physical takings jurisprudence and

exacerbated a split in the lower courts on an important question

of takings law.

A. The Issue and the Lower Court’s Ruling

In its most recent consideration of categorical takings by

physical occupation, this Court explained that the government

effects a physical taking whenever “it requires the landowner

to submit to the physical occupation of his land.” Yee v. City

of Escondido, 503 U.S. 519, 527 (1992). 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 com-

monly characterized as property.” Jd. at 528 (quoting Kaiser

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

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4

formulation, it is the “element of required acquiescence [that]

is at the heart of the concept of occupation.” Jd. at 527 (quot-

ing FCC v. Florida Power Corp., 480 U.S. 245, 252 (1987)).

Indeed, the Court recently noted the obvious point that this re-

quired 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 régulatory takings but rather as physical tak-

ings. Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 122 S. Ct. 1465, 1479 n.18 (2002) (quoting

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,

440 (1982)).

In the present case, Boise Cascade alleged, among other

things, that it “was prevented from excluding spotted owls from

its property.” 296 F.3d 1339, 1352 (Fed. Cir. 2002). On this

point, the lower court essentially agreed with petitioner: “The

ESA itself precludes Boise from harassing, harming, pursuing,

wounding, or killing spotted owls. Boise lost whatever right it

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

listed as a threatened species under the ESA.” Jd. at 1354 (ci-

tation omitted and citing 16 U.S.C. §§ 1532(19), 1538(a)(1)).

To frame Boise’s allegation in the terms used in the foregoing

precedents, the ESA, as enforced by the Oregon district court’s

injunction, deprived petitioner of the right to exclude the owls

? The Federal Circuit apparently found it significant that the ESA

itself, as opposed to the district court’s injunction, “was responsible

for taking [Boise’s] right to exclude spotted owls.” Jd. This dis-

tinction is irrelevant for present purposes, however. Boise’s takings

claim is not asserted against the district court, nor even against the

statute itself, but rather against the United States Government. The

precise division of causative responsibility among the federal stat-

ute, the federal regulations, the federal administrative agency, and

the federal district court has no bearing on whether there has been

“governmental interference with property rights . .. amounting to a

taking.” First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 315 (1987) (emphasis added).

Raecmerne neers re errr rence ee

2

from its property and instead required petitioner to acquiesce in

~ the owls’ presence on its land. In so alleging, Boise Cascade

successfully stated a-claim for a categorical taking by physical

occupation under this Court’s takings jurisprudence.

Even as it acknowledged that “Boise lost whatever right

it had to ‘exclude’ the owls nesting on its land,” the court be-

low rejected Boise Cascade’s physical takings claim. It did so

for essentially three reasons. First, the rule that physical occu-

pations are categorical, compensable takings “applies only to

permanent physical occupations either by the government or by

a third party acting under government authority” Id. at 1353

(emphasis added). Second, Boise did not suffer a compensable

physical taking because the government “did not cause or in-

duce the spotted owls to breed on [Boise’s] property”; rather,

_ the government “simply regulated [Boise’s] use of the property

based on the presence of the spotted owls there.” Jd. at 1354

(quoting Boise Cascade Corp. v. State ex rel. Board of For-

estry, 991 P.2d 563, 570 (Or. Ct. App. 1999) (hereafter Board

of Forestry), cert. denied, 532 U.S. 923 (2001). Third, there

was no physical taking because the government “has no control

over where the spotted owls nest, and it did not force the owls

to occupy Boise’s land.” Jd. at 1354-55.

As set forth below, this reasoning is flawed: the decisions

of this Court demonstrate that the lower court erred in holding

that a taking cannot occur unless the third-party occupier was

“acting under government authority,” unless the government

“caused or induced” occupation, and unless it had “control”

over the occupier or otherwise “forced” the occupation. More

to the point perhaps, the decision below is in conflict with the

decisions of many other lower courts.

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

6

“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 1 74,

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 inva-

sion of the privately owned marina.” Jd. (emphasis added). But

just who would actually be doing the “invading”? Not the gov-

ernment, of course, but members of the boating “public” based

on their own independent choices. To use the Federal Circuit’s

_ terms, the public was not “acting under government authority”

(any more than any person acts under government authority

when he enters a public place), nor did the government “cause

or induce” (let alone “force”) anyone to sail into the marina; to

the contrary, the government “ha[d] no control over where”

public boaters chose to navigate their boats. 296 F.3d at 1353-

55. In other words, it was no preclusion to this Court’s finding

a physical taking in Kaiser Aetna that members of the boating

public were not placed or induced onto or into the waters of the

private marina by the government. :

Loretto v. Teleprompter Manhattan CATV C, orp., 458 U.S.

419 (1982), is similar in essential regards. In that case, “New

York law provide[d] that a landlord must permit a cable tele-

vision company to install its cable facilities upon his property.”

Id. at 421. This Court concluded that “such a physical occu-

pation of property is a taking.” Jd. Yet again, it was not the

government (or its agents) that occupied the landlord’s prop-

erty; rather, the occupier was a privately owned cable television

company acting on its own behest. Indeed, the Court charac-

terized 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.” Id. at 440 (emphasis

7

added); accord Florida Power Corp., 480 U.S. at 252 (quoting

same); Tahoe-Sierra, 122 S. Ct. at 1479 n.18 (quoting same).

As relevant to the present case, it is crucial to recognize that the

New York City government did not “cause or induce” (never

mind “force”) the cable company to occupy the property of the

landlord. No, the government merely “‘permit[ted]” the occu-

pation, Loretto, 458 U.S. at 421, and then it “simply regulated

[the landlord’s] use of the property based on the presence of

the [cable facilities] there,” 296 F.3d at 1354 (quoting Board

of Forestry, 991 P.2d at 570)—that is, prohibiting the landlord

from taking any action that would interfere with or otherwise

disturb those facilities.

Finally, in Nollan v. California Coastal C ommission, 483

U.S. 825, 831 (1987), 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 ac-

tion results in “a permanent physical occupation” of

the property, by the government itself or by others,

“our cases uniformly have found a taking to the ex-

tent 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 ethers.” As in Kaiser Aetna, the occupiers could not be

said to be “under government authority” any more than anyone

so acts when he independently visits a place he is authorized

to be. Furthermore, having merely required that a lateral ease-

8

ment be made “available” to the public, the government in no

way caused or induced (or “forced”) the public to traverse the

property owners’ beachfront, nor did it exert any “control” over

when and where those traversals occurred. Thus, Nollan also

confirms that the concepts of authority, causation, inducement,

control, and force on which the Federal Circuit based its deci-

sion are in fact not prerequisites to government’s liability for

categorical takings by physical occupation?

In focusing on those concepts, the Federal Circuit missed

the common thread in this Court’s physical takings jurisprud-

ence, namely, the concept of required acquiescence or (to say

the same thing) the loss of the right to exclude. When govern-

ment regulation imposes that loss by making formerly private

property “available” for use by third parties, it effects a taking

by physical occupation. Having acknowledged that, as a result

of government action, petitioner “lost whatever right it had to

‘exclude’ the owls nesting on its land, 296 F.3d at 1354, the

court should have found a physical taking. Its failure to do so

put it conflict with this Court. |

C. The Conflict with Other Lower Courts

In the past decade, a variety of statutory and regulatory

schemes have required the lower courts to apply this Court’s

physical takings jurisprudence. Several of the resulting deci-

sions are in conflict with the decision below. -

* Nollan also demolishes the Federal Circuit’s apparent holding that

only “permanent and exclusive” (as opposed to intermittent or non-

exclusive) occupations qualify as categorical takings: “We think a

‘permanent physical occupation’ has occurred, for purposes of [such

term], where individuals are given a permanent and continuous right

to pass to and fro, so that the real property may continuously be tra-

versed, even though no particular individual is permitted to station

himself permanently upon the premises.” 483 U.S. at 832. There is

no suggestion in Nollan, moreover, that the Nollans themselves were

excluded from the beach, that they were “absolutely dispossess[ed]”

by the relevant regulation. 296 F.3d at 1353.

9

We turn first to the “mandatory access provision” of the

federal Pole Attachment Act. Under that provision, a public

utility company “shall provide a cable television system or any

telecommunications carrier with nondiscriminatory access to

any pole, duct, conduit, or right-of-way owned or controlled by

it” for the purpose of installing and carrying television or tele-

phone wires. 47 U.S.C. § 224(f)(1). Under implementing reg-

ulations issued by the Federal Communications Commission, a

cable or telephone company’s access to, and use of, a utility’s

property to install and carry wires is triggered by a request from

that company.* Accordingly, any use of that property by third

parties depends on the independent choices of those parties. In

other words, just as in Nollan, the statute in no way causes or

induces (let alone forces) cable or telephone companies to use

the utility’s property; rather, the statute “requires that poles,

ducts, conduits and rights-of-way controlled by utilities [be]

made available” to requesting companies.°

Notwithstanding the lack of causation or inducement or

force on the part of the government, and notwithstanding that

cable and telephone companies are not under the government’s

control, the Eleventh Circuit had little trouble concluding that

* See 47 C.F.R. § 1.1403(b) (“Requests for access to a utility’s poles,

ducts, conduits or rights-of-way by a telecommunications carrier or

cable operator must be in writing.” (emphasis added)); 61 Fed. Reg.

45,476, 45,588 (1996) (observing that the statute “reflects Congress’

determination that utilities generally must accommodate requests for

access by telecommunications carriers and cable operators” (empha-

sis added)); id. at 45,593 (“Section 224(f)(1) mandates that a utility

grant access to a requesting telecommunications provider or cable

system operator . . . .” (emphasis added)).

* H.R. Conf. Rep. No. 104-458, reprinted in 142 Cong. Rec. H1078,

H1133 (Jan. 31, 1996) (emphasis added) (discussing “Section 204 of

the Senate bill”); cf id. at H1134 (observing that as to Section 204,

“[t]he conference agreement adopts the Senate provision with mod-

ifications”).

10

“the Act’s mandatory access provision effects a [physical] tak-

ing of a utility’s property.” Gulf Power Co. v. United States,

187 F.3d 1324, 1328 (11th Cir. 1999) (citation omitted). The

court readily recognized that, like Boise Cascade vis-a-vis the

spotted owls, a utility “has no choice but to permit a cable [or

telephone company] to permanently occupy physical space”

on or in its property. Jd. In contrast to the Federal Circuit, the

Eleventh Circuit correctly perceived that “[s]uch a permanent,

physical occupation of property falls squarely within the Loretto

rule.” Jd. at 1329.

The conflict is even more explicit, however. Recall that

the court below ruled that requiring property owners to acqui-

esce in the presence of spotted owls did not effect a physical

occupation because the government “simply regulated [Boise’s]

use of the property based on the presence of the spotted owls

there.” 296 F.3d at 1354 (emphasis added) (quoting Board of

Forestry, 991 P.2d at 570). The Eleventh Circuit confronted a

similar argument in Gulf Power—“the mandatory access provi-

sion [is] a simple regulatory condition”—and quickly rejected

the same as “meritless.” 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.” Jd. at 1331.

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

extend to taking without just compensation the right of a [prop-

erty 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.” Jd. at 1328

(citation omitted) (quoting Loretto, 458 U.S. at 439).

1]

We turn next to another “access” scheme, this one called

“physical co-location,” under which local telephone exchange

companies (LECs) are required “to set aside a portion of their

central offices for occupation and use by competitive access

providers” (CAPs). Bell Atlantic Telephone Cos. v. FCC, 24

F.3d 1441, 1443 (D.C. Cir. 1994). “In physical co-location,”

according to the D.C. Circuit, “the CAP strings its cable to the

LEC central office”; the LEC “must then turn over space within

the central office in which the CAP may install and operate its

circuit terminating equipment.” Jd. at 1444. The Bell Atlantic

litigation involved a challenge to an FCC order that generally

“require[d] LECs to permit CAPs to connect their facilities to

the LEC network through” physical co-location. Jd. In sustain-

ing this challenge, the D.C. Circuit concluded that the order

“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 pub-

lic interests that it may serve.’” Jd. at 1445 (quoting Loretto,

458 U.S. at 426). Why is that so? Because the order would

result in “an identifiable class of cases in which application of

[the order] will necessarily constitute a taking.” /d. (quoting

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,

128 n.5 (1985)).°

° Accord GTE Service Corp. v. FCC, 205 F.3d 416, 421 (D.C. Cir.

2000) (vacating a subsequent FCC co-location order in part because

it “may resuit in unnecessary [physical] takings of LEC property”);

GTE Southwest Inc. v. Public Utility Commission, 10 S.W.3d 7, 11

(Tex. App. 1999) (ruling that “the Commission’s order amounts to

a physical or per se taking of GTE’s cables and facilities by requir-

ing that GTE surrender its right to exclude others from physical use

of its properties”); id. at 13 (explicitly “disagree[ing]” with the con-

tention that “the Commission’s order amounts not to a taking in the

Loretto sense, but only to permissible regulation”); G7E Northwest

Inc. v. Public Utility Commission, 900 P.2d 495 (Or. 1995) (invali-

dating state-law physical co-location scheme as a physical taking),

cert. denied, 517 U.S. 1155 (1996).

ee OOOO

12

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

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

the ruling below. Although the challenged FCC order was said

to “require” physical co-location, Bell Atlantic, 24 F.3d at 1443,

that was merely shorthand for saying that physical co-location

was required if, and only if, it was requested by the CAP. See

id. at 1444 (framing issue as whether “the Commission lacks

authority . . . to require LECs to permit physical co-location of

equipment upon demand” (emphasis added)). In other words,

perhaps to labor the point, the order found to effect a physical

taking in Bell Atlantic surely did not cause or induce (or force)

the CAP to occupy LEC property, and the order did not put the

government in control of which property would be occupied.

Accordingly, the decisions.of the Eleventh and D.C. Circuits

have no regard for the concepts of authority, causation, induce-

ment, control, and force on which the Federal Circuit rested its

decision. The result is a straightforward conflict among lower

courts in the interpretation of federal takings law.’

_Inall of these cases it could reasonably be asserted, as the

court asserted below, that the government “simply regulated

{owners’ ] use of the property based on the presence of” the oc-

cupying instrumentalities. 296 F.3d at 1354 (quoting Board of

” In the reported decisions discussed herein, the range of things that

can effect takings by physical occupation runs from humans (Kaiser

Aetna and Nollan) all the way to inanimate objects (Loretto, Gulf

Power, and Bell Atlantic). Moreover, one can easily imagine takings

by physical occupation where domestic animals are involved; e.g.,

the government requires A to open his pastureland to grazing by B’s

cattle. Given this spectrum, there is no reason why “wild” animals

such as spotted owls should be categorically excluded from physical

occupation analysis. Certainly, it cannot be because the government

does not “control” wild animals, as the Federal Circuit concluded.

See 296 F.3d at 1354. As this Court’s decisions demonstrate, what

counts is not control by the government but “required acquiescence”

on the part of the property owner. Yee, 503 U.S. at 527.

13

Forestry, 991 P.2d at 570). That is, whenever the boaters, cable

equipment, telephone equipment, or beachgoers were “present”

on the property, the owners were restricted in their “use” of it.

But the restrictions were of a particular kind: the owners could

not use their property in ways that would interfere with the oc-

cupiers’ government-sanctioned use. That is precisely the kind

of “regulation” Boise Cascade endured based on the presence

of spotted owls—restrictions on using their forestland in ways

that would interfere with owls’ present and future use of that

same land as habitat. That is, Boise’s use of its property was

not regulated in the abstract; it was regulated for the purpose

of—and with the actual effect of —requiring Boise to acquiesce

in the owls’ presence and, concomitantly, preventing it from

excluding the owls. The whole point of the ESA regulations

imposed by the government and enforced at its behest by the

Oregon district court was to ensure that Boise’s property “will

be used again . . . for nesting by either the Walker Creek male

or another owl pair.” Petition Appendix 30a (emphasis added)

(government’s ESA counterclaim against Boise).

If the government could be liable for a taking by physical

occupation in Kaiser Aetna, Loretto, or Nollan without having

caused or induced or forced the third-party occupations, and

without having exercised control over the occupiers, the gov-

ernment can be (and is) liable for such a taking in the present

case. If “simply regulating” private property based on the pre-

sence of government-sanctioned third-party occupiers could

effect a physical taking in Kaiser Aetna, Loretto, or Nollan, it

can (and did) effect such a taking here.

In so arguing, we do not mean to suggest that a physical

taking occurs merely by enactment of a statute or a regulation

or by other government action that theoretically extinguishes

a property owner’s right to exclude. In a trivial sense, every

owner in the country “lost” the right to exclude spotted owls

when that species was listed under the ESA. But for purposes

of the Takings Clause, we think the crucial point is when that.

14

loss becomes more than theoretical, i.e., when it begins to have

real-world effects. Thus, petitioner did not suffer a physical

taking when the ESA was enacted, when the habitat modifica-

tion regulation (50 C.F.R. § 17.3) was promulgated, or even (it

would seem) when the spotted owl was listed. While one can

imagine varying scenarios, in the present case it is reasonably

clear that Boise Cascade lost its right to exclude in a practical

sense when the Oregon district court entered “a preliminary in-

junction preventing logging pending the results of the [Forest]

Service’s 1998 breeding season surveys.” 296 F.3d at 1342.

The limitations on what might be called occupations-by-

regulation are apparent in the cases discussed above. Thus, in

Kaiser Aetna, an actual taking would have occurred only if and

when the government obtained the requested “injunction to re-

quire [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, notwithstanding that

purported basis for such an injunction, 33 U.S.C. § 403, was

enacted in 1899. Until an injunction was entered, the servitude

_ (and the public’s use of it) would be wholly theoretical. See

also Nollan, 483 U.S. at 831 (no physical taking would have

occurred until the government actually “required the Nollans

to make an easement across their beachfront available to the

public on a permanent basis”’).

Hendler v. United States, 11 Cl. Ct. 91, 93 (1986), rev'd,

952 F.2d 1364 (Fed Cir. 1991), provides yet another example.

A federal statute gave the government authority to undertake

“investigations, monitoring, surveys, testing, and other infor-

mation gathering” on private property, 42 U.S.C. § 9604(b)(1),

and the government had issued an order granting itself access

to certain property for the purpose of “locating[,] constructing,

operating, maintaining, and repairing [groundwater] wells,” 11

Cl. Ct. at 93. Nevertheless, it was not the statute, or even the

property-specific administrative order, that effected a physical

taking in Hendler; rather, it was “the Government’s actions, in

15

placing wells on plaintiffs’ property and engaging in other ac-

tivities on the site” that resulted in a physical taking. 952 F.2d

at 1375 (emphasis added); see also Hendler v. United States,

175 F.3d 1374, 1383 (Fed. Cir. 1999) (rejecting the theory that

“the scope of the taking . . . is defined by the broad scope of the

access order, and not by the actual activities undertaken by the

Government”). By the way, Hendler also demonstrates that the

finding of a physical taking need not result in serious financial

consequences to the government. Even though the taking con-

tinued for more than a decade, the Federal Circuit affirmed a

judgment that the property owner was due no compensation at

all, given that the benefits of the government’s activities were

found to have outweighed the harms. See id. at 1378. ;

+

CONCLUSION

In rejecting petitioner’s physical takings claim, the Court

of Appeals for the Federal Circuit departed from this Court’s

takings jurisprudence, thereby exacerbating a conflict among

the lower courts. The Court should grant the petition for cer-

tiorari to resolve that conflict.

DATED: February, 2003.

Respectfully submitted,

ROBIN L. RIVETT

ERIC GRANT Counsel of Record

SWEENEY & GRANT LLP Pacific Legal Foundation

Wells Fargo Center 10360 Old Placerville Road,

400 Capitol Mall, Suite 900 Suite 100

Sacramento, California 95814 Sacramento, California 95827

Telephone: (916) 341-0321 Telephone: (916) 362-2833

Facsimile: (916) 691-3261 Facsimile: (916) 362-2932

Counsel for Amicus Curiae