Posted by: Patricia Salkin | January 28, 2017

US Court of Claims Finds Takings Claims Unripe as Landowner Failed to Seek an Incidental Take Permit to Develop Property

Plaintiffs James Doyle, a real estate developer doing business as Rocky Mountain Ventures (“RMV”), and his wholly owned limited partnership Environmental Land Technologies, Ltd. (“ELT”), filed this action claiming that the government had taken property owned in the name of ELT without paying just compensation in contravention of the Fifth Amendment of the Constitution. These claims arose in connection with a government-approved Habitat Conservation Plan (“HCP”) to protect and provide critical habitat for the Mojave Desert tortoise under the Endangered Species Act (“ESA”). 
In 1996, the government approved a Habitat Conservation Plan and Implementation Agreement and issued an Incidental Take Permit for Washington County that allowed for development in some areas and precluded development in other areas, including areas where plaintiffs own land. The government argued that the permit held by Washington County did not prevent plaintiffs from seeking their own Section 10 permit to develop lands within the area now within the protected reserve established by the HCP. Here, it was not disputed that plaintiffs had not sought or been denied an incidental take permit of their own to develop any portion of the ELT property at issue. Additionally, the plaintiffs could not show that applying for a section 10 incidental take permit would be futile. Because Section 10 afforded the Fish and Wildlife Service discretion to allow for development in areas designated as critical habitat under the ESA, the court could not find that the permissible uses of the plaintiffs’ property were known to a reasonable degree of certainty. Accordingly, the court held that plaintiffs’ claim for a regulatory taking was not ripe.

Doyle v. United States, 129 Fed.Cl. 147 (2016)


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