## Facts

- Marsha and Alvin Seiber owned a 200-acre forested tract in Oregon; about 40 acres were identified as northern spotted owl nesting habitat.
- The Endangered Species Act (ESA) prohibits “take” of listed species; regulations define “harm” to include significant habitat modification that kills or injures wildlife by impairing essential behaviors (including breeding and sheltering).
- The ESA allows incidental take permits (ITPs) for otherwise lawful activities if supported by an adequate Habitat Conservation Plan (HCP).
- The Seibers sought to harvest timber across the property, including the 40-acre habitat, and applied for an ITP with an HCP.
- The U.S. Fish and Wildlife Service (FWS) denied the ITP in July 2000, concluding the HCP lacked adequate mitigation for the spotted owl, while indicating possible mitigation changes that could support approval.
- The Seibers sued in the Court of Federal Claims in July 2001, alleging the permit denial effected a Fifth Amendment taking.
- By June 3, 2002, FWS notified the Seibers that an ITP was no longer necessary because changes in owl nesting patterns meant the property no longer functioned as nesting habitat.
- The Seibers limited their claim to a temporary taking for the period between the final denial and the June 3, 2002 letter.

## Issues

1. Whether the Seibers’ Fifth Amendment takings claim was ripe once FWS issued a final denial of the ITP.
2. Whether the ITP denial constituted a temporary taking under the Fifth Amendment as a physical taking, a categorical regulatory taking, or a non-categorical regulatory taking under Penn Central.

## Decision

- The Federal Circuit held the takings claim was ripe because the permit denial was final agency action.
- The court affirmed summary judgment for the United States on the merits, holding the permit denial did not constitute a compensable temporary taking.
- The court rejected a physical taking theory because the denial did not authorize occupation or invasion by the government or third parties.
- The court rejected a categorical (Lucas) taking because, viewing the parcel as a whole, the denial did not eliminate all economically viable use.
- The court rejected a Penn Central temporary taking claim due to insufficient proof of compensable economic impact, limited interference with reasonable expectations given ESA constraints, and the regulatory character of species-protection measures.

## Legal Principles

- A final agency denial of a land-use permit can render a takings claim ripe even if the agency suggests alternative measures that might allow approval.
- Physical takings require a government-authorized occupation or invasion; denial of permission to use property is generally analyzed as a regulatory taking.
- For categorical regulatory takings, courts generally evaluate economic use using the “parcel as a whole,” not a segmented, regulated subarea.
- A temporary restriction is not compensable under Penn Central absent persuasive evidence of significant economic impact, substantial interference with reasonable investment-backed expectations, and a government action that functions like appropriation rather than a general public-regarding regulation.
- Owners’ reasonable expectations are shaped by existing background legal constraints, including environmental and endangered species protections.

## Conclusion

The Federal Circuit concluded that although the FWS’s final denial of an ESA incidental-take permit made the Seibers’ claim ripe, the temporary restriction on logging a portion of their land did not amount to a compensable taking because there was no physical occupation, no total deprivation of economic use when the property was considered as a whole, and no sufficient showing under Penn Central of significant economic harm or unreasonable interference with investment-backed expectations.


Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004), cert. denied, 543 U.S. 873 (2004)