When Animals Invade and Occupy: Physical Takings and the Endangered Species Act

Government actions implementing the Endangered Species Act (ESA) on private lands have sparked extensive debate and litigation over whether such actions result in Fifth Amendment takings. To date, courts have uniformly rejected regulatory takings claims under the ESA, leading several landowners to advance a different theory-physical takings claims. Successful physical takings claims require landowners to show that government actions resulted in either per se physical takings or compensable physical invasions of their land. In two recent decisions, Boise Cascade Corp. v. United States,/i\u3e and Seiber v. United States, courts rejected per se physical takings claims under the ESA, finding that listed species are not controlled by the government, and the presence of such species on private land does not destroy all of a landowner\u27s fundamental property rights. The second type of physical takings, compensable physical invasions, arises when a government action limits a landowner\u27s right to exclude but leaves other property rights intact. To determine if such an invasion is a taking, a court would likely employ the three-factor test the United States Supreme Court presented in Penn Central Transportation Co. v. New York City and weigh the character of the government action, the effect of the action on the landowner\u27s reasonable investment-backed expectations, and the economic effect of the action on the landowner. This Comment argues that government actions taken under the ESA to protect listed species on private lands do not give rise to compensable physical invasions