Seiber v. U.S.

• Citation: 364 F.3d 1356
• Decision Date: 19 April 2004
• Docket Number: No. 03-5010.,03-5010.
• Parties: Marsha SEIBER and Alvin Seiber, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

364 F.3d 1356

Marsha SEIBER and Alvin Seiber, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 03-5010.

United States Court of Appeals, Federal Circuit.

DECIDED: April 19, 2004.

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Phillip D. Chasey, Stoel Rives LLP, of Portland, OR, argued for plaintiffs-appellants. With him on the brief were Charles F. Adams and Scott E. Crawford.

Kathryn E. Kovacs, Attorney, Environment & Natural Resources Division, Appellate Section, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Kelly A. Johnson, Acting Assistant Attorney General; and Katherine J. Barton, Attorney.

John E. Echeverria, Georgetown Environmental Law & Policy Institute, Georgetown University Law Center, of Washington, DC, for amicus curiae the Audubon Society of Portland, et al.

Before NEWMAN, LOURIE, and DYK, Circuit Judges.

DYK, Circuit Judge.

This is a Fifth Amendment temporary takings case involving the Fish and Wildlife Service's ("FWS") denial of a federal incidental take permit ("ITP") to authorize logging on a forty-acre tract of land in Oregon belonging to the appellants Marsha and Alvin Seiber (the "Seibers"). The Court of Federal Claims granted summary judgment for the government, holding that the takings claim was not ripe and that, in any event, the permit denial did not constitute a taking under the Fifth Amendment. Seiber v. United States, 53 Fed.Cl. 570 (2002). We hold that the Seibers' claim was ripe for review. On the merits, we affirm because the permit denial was neither a physical nor a regulatory taking.

BACKGROUND

The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (2000), prohibits the "take" of an endangered species, id. § 1538(a)(1)(B), which includes harassing, harming, pursuing, wounding or killing such an animal, id. § 1532(19). The Environmental Protection Agency ("EPA") defines the ESA prohibition against "harming" endangered species to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3 (2004). See generally Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). The ESA also provides a permitting mechanism to allow the "incidental take" of an endangered or threatened species in certain circumstances, authorizing "any taking otherwise prohibited... 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 ESA invests the Secretary of the Department of the Interior with the authority to "determine whether any species is an endangered species or a threatened species." Id. § 1533(a)(1). Pursuant to this responsibility, the FWS, a division of the Department of the Interior, listed the northern spotted owl as a threatened species in 1990. Endangered & Threatened Wildlife & Plants; Determination of Threatened Status for the Northern Spotted Owl, 55 Fed.Reg. 26, 114 (June 26, 1990).

Oregon maintains a system of endangered species protection as well, which co-exists and overlaps with the federal system. See Or.Rev.Stat. § 496.182(1) (2003). Oregon law defines the term "endangered species" as including species so designated by the Oregon State Fish and Wildlife Commission or by the federal ESA. Id. §§ 496.004(6), 496.176. Oregon law requires the implementation of rules "necessary to ensure the survival" of such endangered species, including the protection of nesting sites that are "critical to the survival of individual members of the species." Id. § 496.182(2). Once the Oregon Department of Forestry ("ODF") has designated a certain area as protected habitat for an endangered species, an individual may engage in otherwise prohibited activity only by securing a federal ITP from the federal FWS. See Or. Admin. R. 629-665-0210(5) (2004).

The Seibers own a two hundred-acre parcel of land in Linn County, Oregon, which included merchantable timber. In January 1996 ODF implemented regulations to protect the northern spotted owl in accordance with the FWS's determination of their threatened status. ODF designated a seventy-acre area in Linn County, Oregon, as a protected spotted owl-nesting habitat, including forty acres of the Seibers' two hundred-acre property.

On February 4, 1998, the Seibers submitted a "written plan" to ODF, as required by Oregon law, to log timber on the regulated forty acres. See Or.Rev.Stat. § 527.670 (1994); Or. Admin. R. 629-665-0210(1) (2004). ODF rejected the Seibers' logging application on February 19, 1998, explaining that ODF could not make an exception to the protected status of the nesting site unless the Seibers procured a federal permit (an ITP) in accordance with the ESA. The Seibers sought a hearing at the Oregon Board of Forestry, arguing that the ODF rule should be withdrawn because it constituted a taking of their property. See Or. Admin. R. 629-672-0200 (2004). On March 28, 1998, the Oregon Board of Forestry affirmed ODF's denial, finding that "[t]he denial of the Seiber's [sic] written plan was appropriate [and did] not cause a taking under the U.S. or the Oregon Constitutions." (J.A. at 266.) The Seibers appealed to the Circuit Court of the State of Oregon for the County of Linn, which dismissed their action because "[t]akings claims are not ripe for adjudication until the Seibers apply for an Incidental Take Permit from the U.S. Fish & Wildlife Service." Seiber v. State, No. 98-0649 (Or.App. Dec. 17, 1999). The Seibers apparently did not seek review in the Supreme Court of Oregon.¹

Meanwhile, on November 24, 1999, the Seibers submitted an ITP application to the FWS, seeking a permit to log on their regulated forty acres. The Seibers' application included a Habitat Conservation Plan ("HCP"). Such a plan is required to describe the likely impact of the requested "take," the applicant's plan to "minimize and mitigate such impacts," the alternative options pursued by the applicant, and the reasons those options were not ultimately chosen. 16 U.S.C. § 1539(a)(2)(A)(i). As of January 3, 2000, the Seibers had yet to receive a response from the FWS, and they sent a letter requesting notice to be published in the Federal Register within ten days in order to commence with the required public notice and comment period.² On January 11, 2000, the FWS responded, explaining that it was reviewing the ITP application, in particular the HCP, to determine whether it contained the necessary information. On February 7, 2000, the Office of the Solicitor of the Department of the Interior advised the Seibers that "[a]ccording to the FWS, the application lacks much of the biological analysis and information routinely provided by their other applicants [and] was prepared without any discussion with the Service employees." (J.A. at 217.) In particular, the letter highlighted that the Seibers' ITP application did not seem to follow the steps outlined in the FWS's Habitat Conservation Handbook. The Seibers replied on February 9, 2000, disagreeing that the HCP was inadequate and urging that prior "closely parallel[]" HCPs had been accepted by the FWS. (J.A. at 218.) The Seibers stated that "[i]t seems that the [FWS] is engaging in `make weight' arguments not to publish [in the Federal Register]. There is no desire on the Seibers' part to discuss modifications to the permit application and the process can be expedited by publishing notice in the Federal Register without further delay." (J.A. at 218-19.) Notice was published in the Federal Register on February 18, 2000, notifying the public of the Seibers' ITP application and requesting written comments on the permit application and HCP by March 20, 2000.

After completion of the notice and comment period, the FWS formally rejected the Seibers' ITP application on July 6, 2000, on the ground that the application did not satisfy applicable criteria for mitigation. The FWS stated that "[b]ecause minimization and mitigation programs exist that are based on a sound biological rationale, are commensurate with the impacts they address, and are practicable, we have come to the conclusion that the mitigation offered in the [Seibers'] HCP does not meet" the ITP criteria. (J.A. at 228.) The letter also suggested alternatives "under which we believe a permit could be issued," including selective harvesting of the regulated forty acres, harvesting of the regulated forty acres that would eliminate suitable habitat initially but regenerate such habitat within a specific amount of time, or harvesting of the unregulated one hundred sixty acres. (J.A. at 229.) Finally, the FWS letter informed the Seibers of their right to request reconsideration of the denial in accordance with 50 C.F.R. § 13.29. The Seibers requested reconsideration of the ITP denial on July 28, 2000. Reconsideration was denied, and the Seibers appealed to the Regional Director of the FWS on September 26, 2000. The Regional Director denied the appeal on November 9, 2000, explaining that "in the absence of any new information or modification of their HCP proposal, we must continue to conclude that the mitigation and minimization measures in the Seibers' proposed HCP do not meet the permit issuance criteria for an incidental take permit under the ESA." (J.A. at 47.)

The Seibers brought suit in the Court of Federal Claims on July 26, 2001, seeking compensation from the United States for a taking, claimed to result from the FWS's permit denial. The complaint included four counts, alleging: (1) that the ITP denial constituted a categorical physical taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); (2) that the ITP denial constituted a per se regulatory taking under Lucas v. South Carolina Coastal Council, 505 U.S....