Jump to Navigation
Jump to Content

Seiber v. United States

ELR Citation: 34 ELR 20026
Nos. No. 03-5010, (Fed. Cir., 04/19/2004)

The court holds that the U.S. Fish and Wildlife Service's (FWS') denial of an incidental take permit authorizing logging on 40 acres of protected owl habitat was neither a physical nor a regulatory taking. Contrary to the lower court's decision, the landowners' claim is ripe. Although the FWS invited the landowners to continue discussions as to their logging plans, the permit denial was clearly final. Nevertheless, the landowners' temporary takings claim failed. The permit denial was not a physical taking because regulatory restrictions on the use of property do not constitute physical takings. Further, the Endangered Species Act and the incidental take permit process serve a legitimate public purpose. Nor did the permit denial constitute a categorical taking because the landowners were not deprived of all economically viable use of the timber on their 200-acre parcel. Last, no regulatory taking occurred because no economic injury was shown to have resulted from the alleged taking.

Counsel for Plaintiffs
Phillip D. Chasey
Stoel, Rives, Boley, Jones & Grey
900 SW 5th Ave., Ste. 2300, 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