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Morris v. United States

ELR Citation: 34 ELR 20156
Nos. No. 04-5029, (Fed. Cir., 12/16/2004)

The Federal Circuit affirms a lower court decision finding property owners' takings claim against the National Marine Fisheries Service unripe. The owners sought to harvest redwood trees on their property. After learning that the cost of an incidental take permit (ITP) under the Endangered Species Act (ESA) would cost more than the potential profits earned from harvesting the trees, the owners did not apply for an ITP and instead sued under the Fifth Amendment alleging a regulatory taking in the requirement that they comply with the ESA's permitting process. But the cost of an ITP application is unknowable until the agency has had some meaningful opportunity to exercise its discretion to assist in the process. Thus, their case is unripe.