TITLE

"Taking" a Different Tack on Just Compensation Claims Arising Out of the Endangered Species Act

AUTHOR(S)
Scaccia, Brian
PUB. DATE
May 2010
SOURCE
Ecology Law Quarterly;2010, Vol. 37 Issue 2, p655
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
In Casitas Municipal Water District v. United States, the Federal Circuit again grappled with the difficult question of how to analyze Fifth Amendment just compensation claims arising out of endangered species protections. Currently, the doctrine distinguishes between physical and regulatory takings, with numerous per se tests created to classify especially problematic situations. However, by simply focusing on the classification of particular government actions while ignoring their consequences, the jurisprudence continues to move away from the underlying concerns of fairness that motivate the Fifth Amendment, leaving the government, private landowners, and the courts with remarkably little guidance in specific cases. I argue that the nexus and rough proportionality tests articulated by the Supreme Court in Nollan v. California Coastal Commission and Dolan v. City of Tigard provide a better means of achieving fair results and should be extended from the context of development exactions to endangered species takings claims. Applied to the fish ladder construction mandated to protect the West Coast steelhead trout in Casitas, the Court's exaction tests would redirect the focus in takings cases to the fairness of the government action, while also providing a strong incentive for cooperation between the government and private parties at the initial permitting stage. These benefits increase the transparency of judicial decisions and reduce the difficulty in classifying hard cases concerning endangered species protections.
ACCESSION #
52547443

 

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