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Boise Cascade Corp. v. United States

Citation: 32 ELR 20797
No. No. 01-5106, 296 F.3d 1339/(Fed. Cir., 07/19/2002)

The court holds that a logging company's takings claims against the United States, based on the temporary prohibition of logging due to an injunction entered by an Oregon court, were properly dismissed for failure to state a claim. The injunction prohibited the company from logging its property without an interim take permit for the northern spotted owl. After the injunction was issued, the company sought an interim take permit. The U.S. Fish and Wildlife Service (FWS) subsequently discovered that northern spotted owls no longer existed in the area. The permit, therefore, was no longer necessary, and the injunction was lifted. The company then filed suit against the government for the temporary taking of merchantable timber.

The court first holds that the trial court properly dismissed the company's claims for failure to state a claim. The injunction merely required that no logging take place without a permit. The denial of a permit, therefore, is a necessary trigger for a ripe takings claim. If the government denies a permit, then the aggrieved party can seek compensation. Similarly, if at some point the government reconsiders its earlier denial and then grants the permit, the aggrieved party can seek compensation for a temporary regulatory taking. Here, however, the FWS did not deny the logging company's permit. Moreover, only extraordinary delays in the permitting process ripen into a compensable taking, but the company made no claim of delay. In addition, the court rejects the company's argument that the injunction resulted in a per se taking. The company claimed that the injunction prevented it from excluding owls on its property and that it was required to allow government officials on its property, but the nature of the intrusion the company complains of is insufficient to make out a per se takings claim.

Counsel for Plaintiff
Phillip D. Chadsey
Stoel Rives
900 SW 5th Ave., Ste. 2600, Portland OR 97204
(503) 224-3380

Counsel for Defendant
Kathryn E. Kovacs
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Clevenger, J. Before Friedman and Schall, JJ.