[00:00:00] Speaker 03:
The next case is James Doyle versus the United States, 2023-1734, 1735.

[00:00:08] Speaker 03:
Mr. Marzullo.

[00:00:15] Speaker 03:
Mr. Marzullo, are you with us?

[00:00:18] Speaker 04:
Thank you, Your Honor.

[00:00:21] Speaker 04:
Good morning.

[00:00:22] Speaker 04:
May it please the Court.

[00:00:24] Speaker 04:
Roger Marzullo appearing on behalf of Mr. Doyle.

[00:00:28] Speaker 04:
The error in the trial court's decision was to fail to properly apply the de facto finality rule announced by the Supreme Court in Packdale versus City and County of San Francisco.

[00:00:46] Speaker 04:
We asked that the court therefore reverse and remand for further proceedings.

[00:00:52] Speaker 04:
Now, in Packdale, the Supreme Court held

[00:00:56] Speaker 04:
that the Ninth Circuit had erroneously affirmed a dismissal on grounds that the landowner had failed to pursue an exemption from existing regulatory requirements.

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the Supreme Court observed that those requirements mirrored its exhaustion of remedies requirements in the context of administrative remedies.

[00:01:29] Speaker 04:
What the Supreme Court said is that fundamentally, the court needs to know how the regulations apply to the property in question.

[00:01:39] Speaker 04:
The focus then is not on what remedies may be available to the plaintiff, but rather how the regulations apply to the property.

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Now, the trial court looked at those cases and properly announced or recited the decisions

[00:01:59] Speaker 04:
in Packdale and in Nick versus Township of Scott, on which it relied.

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But the trial court then jumped to a conclusion that does not follow that rule.

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The trial court's conclusion was that there was one and only one way in which Mr. Doyle could ripen his claim.

[00:02:21] Speaker 04:
And that was to file an incidental take permit with Fish and Wildlife Service and have it denied.

[00:02:29] Speaker 04:
In fact, he chided Mr. Doyle for, in his words, spending 25 years without having ever filed for an incidental permit.

[00:02:41] Speaker 04:
Well, first of all, factually, that is incorrect.

[00:02:44] Speaker 02:
Mr. Marzullo, it seems that you concede under Pachtel there'd have to be no question about how the regulations at issue apply to the particular land in question here in order for you to have a right claim.

[00:02:58] Speaker 02:
Is that right?

[00:02:59] Speaker 04:
That is a phrase from the court.

[00:03:03] Speaker 04:
Yes, Your Honor.

[00:03:03] Speaker 04:
I think no question could be a little misleading, I suppose.

[00:03:10] Speaker 04:
Do we ever have no question about anything?

[00:03:13] Speaker 04:
But yes, that is the quote.

[00:03:15] Speaker 02:
Presumably it's not metaphysical certainty.

[00:03:17] Speaker 02:
But how else could someone in Mr. Doyle's position, in your view, establish that there is no question without

[00:03:28] Speaker 02:
giving the service here what it says it needs in order to make a complex multi-factor analysis as to whether or not to give him the permit that he needs.

[00:03:39] Speaker 04:
Well, excellent question, Your Honor.

[00:03:41] Speaker 04:
And as I was suggesting, first of all, in the early 1990s, Mr. Doyle did exactly that.

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And as the government's brief points out, he spent $140,000 preparing a habitat conservation plan, preparing an application for an incidental take permit, and he filed it.

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And they were rejected.

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The trial court apparently didn't realize that, because the trial court says he didn't.

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Beyond that, the focus here is on what actually has happened, and that's what the trial court

[00:04:15] Speaker 04:
I think there are five facts that the trial court improperly ignored and, thus, didn't have an understanding of how the regulations affect this property.

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First of all, it's designated as critical habitat for the Mojave Desert tortoise.

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Critical habitat is a statutorily defined term which says this land is essential to the conservation of the species.

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Secondly, Congress designated about 62,000 acres, including Mr. Doyle's land, as the Red Cliffs Conservation Area.

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And Congress directed the Secretary of Interior that she shall manage this property to conserve, protect, and enhance its natural conditions.

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Third, the Fish and Wildlife Service itself

[00:05:14] Speaker 04:
in issuing an incidental take permit for most of Washington, Canada, Utah, covering about 129,000 acres, and balancing all of the issues, all of the kinds of factors that Your Honor is talking about.

[00:05:32] Speaker 04:
and I'll reach that in just a moment, issued this unusual sort of incidental take permit that covers a great deal of property in the county, including Mr. Doyle's.

[00:05:43] Speaker 04:
And it placed Mr. Doyle's property in the so-called Zone 3.

[00:05:48] Speaker 04:
which is the highest value tortoise habitat.

[00:05:52] Speaker 02:
But that Washington County permit expressly contemplates landowners, even within zone three, making their own incidental take permit applications.

[00:06:03] Speaker 02:
It does not per se prevent Mr. Doyle from being granted exactly what he says he wants.

[00:06:09] Speaker 04:
Actually, your honor, I don't think that's quite what it says.

[00:06:13] Speaker 04:
The government quotes the fact that

[00:06:16] Speaker 04:
under the no surprises discussion, which is a policy that the Interior Department won't come up with new requirements once an incidental tank permit issues.

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It says, well, you, the landowners who are governed by this permit, should be aware that someone could apply for an incidental tank permit.

[00:06:40] Speaker 04:
And in that case, what would happen?

[00:06:42] Speaker 04:
Well, because

[00:06:44] Speaker 04:
The requirements of section 10 of the Endangered Species Act are that there be adequate mitigation for any development.

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If one person gets development rights, another person has to give them up.

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So that is the impact on the no surprises factor that the incidental take permit talks about.

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And as I said, it does place, it classifies all of this 129,000 acres as either developable, not developable, and zone three is the least developable.

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It is characterized as the core of the entire conservation project.

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And to our knowledge, no

[00:07:38] Speaker 04:
development has ever been approved within Zone 3.

[00:07:43] Speaker 04:
It is a conservation area.

[00:07:45] Speaker 04:
Fourth, the fourth factor, if I may go on, is that from day one, the anticipation was that the United States, the Bureau of Land Management in the name of the United States, would acquire title to all of the 62,000 acres that were being managed as the conservation area, the Red Cliffs Conservation Area.

[00:08:07] Speaker 04:
In the original incidental take permit that was issued in 1996, there is described a then pending super exchange under which title was to be acquired by exchanging all of the private holdings within this conservation area.

[00:08:31] Speaker 04:
for developable land in Nevada, in the Las Vegas area, that had been declared excess.

[00:08:39] Speaker 04:
Well, for one reason or another, that super exchange did not go through.

[00:08:43] Speaker 04:
Congress did not pass the necessary legislation.

[00:08:47] Speaker 04:
And so the private landowners were left

[00:08:50] Speaker 04:
holding the bag, so to speak, being governed by the various restrictions, but not having developable land exchanged.

[00:09:02] Speaker 04:
What BLM promised is we will seek appropriations to purchase your property.

[00:09:08] Speaker 04:
It remains our intent, and I believe it remains their intent today, to purchase title, to acquire title, to all of the property,

[00:09:18] Speaker 04:
so that we can manage this as a single conservation area for the benefit of the Mojave Desert tortoise and for the other conservation values that the Red Cliffs Reserve allows.

[00:09:32] Speaker 04:
And finally, if I get to number five, fact number five, the BLM has in fact managed the entire area

[00:09:42] Speaker 04:
though it already owned the property and that includes fencing in the areas where the tortoises are most prevalent with this special tortoise fencing that keeps them from digging under the fence.

[00:09:58] Speaker 04:
Obviously they don't jump over it but they they do tend to

[00:10:04] Speaker 04:
tunnel under it.

[00:10:06] Speaker 03:
So if you are to look at the land... Council, they're discussing a lot of aspects of this case, but it's very simple that he didn't apply for the proper permit, and the case is therefore not ripe.

[00:10:23] Speaker 04:
That was the losing argument in Packdale, Your Honor.

[00:10:28] Speaker 04:
That is the exhaustion of remedies requirement

[00:10:33] Speaker 04:
that the Supreme Court said does not apply in a taking case, where the only question is, are there present regulations on the plaintiff's property?

[00:10:43] Speaker 04:
Which may or may not constitute a taking.

[00:10:45] Speaker 04:
We never reached that issue.

[00:10:47] Speaker 04:
But are there regulations currently applicable to the plaintiff's property?

[00:10:52] Speaker 04:
Or is this a hypothetical question, something that has not yet occurred?

[00:10:58] Speaker 04:
In footnote 118 in our brief, we cite the Otai-Mesa case out of the D.C.

[00:11:06] Speaker 04:
Circuit, in which the D.C.

[00:11:08] Speaker 04:
Circuit held merely designating property as critical habitat, imposes an entry on the structure.

[00:11:16] Speaker 00:
Can I ask you a question?

[00:11:18] Speaker 00:
Sure.

[00:11:18] Speaker 00:
You're talking about Nick and Packdell, but I'm reading both of them.

[00:11:21] Speaker 00:
is being limited to section 1983 actions, and specifically whether a plaintiff alleging a regulatory taking must pursue an inverse condemnation case in a state court under that statutory provision, which is not an issue in this case.

[00:11:42] Speaker 00:
So tell me why

[00:11:44] Speaker 00:
Why am I wrong in thinking that those cases don't apply here, where it's a taking under the Tucker Act, and there is not a taking under Section 1983?

[00:11:58] Speaker 04:
Yes.

[00:11:59] Speaker 04:
The holding is not limited to Section 1983, Your Honor, looking first at the Nick case, because that's kind of the foundational one here.

[00:12:09] Speaker 04:
Under the case that it overruled, Williamson County

[00:12:13] Speaker 04:
The Supreme Court had held that the landowner must exhaust efforts to obtain just compensation before making a federal claim that just compensation had been denied.

[00:12:31] Speaker 00:
That case that it overruled was a Section 1983 case.

[00:12:36] Speaker 04:
It was, Your Honor.

[00:12:37] Speaker 04:
But the discussion, and if you look at Nick, there actually is

[00:12:44] Speaker 04:
a discussion of the Tucker Act and how under the Tucker Act, in this court, a taking occurs at the time that the regulations are imposed.

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And the court uses that to show that the taking does not occur after an individual has completed administrative processes, sought a permit or an exemption,

[00:13:11] Speaker 04:
but rather at the time the regulation is imposed.

[00:13:14] Speaker 04:
And the court then takes that Tucker Act holding, or discussion rather, and says, this also applies to section 1983, which after all, and it applies rather not in all section 1983 cases, which is any violation of civil rights, but only in taking cases.

[00:13:35] Speaker 04:
It is a holding specific to how the Fifth Amendment applies.

[00:13:41] Speaker 04:
to states and localities the same way that it applies to the United States.

[00:13:46] Speaker 03:
Counsel, your time is mostly gone.

[00:13:49] Speaker 03:
I assume you want to save it.

[00:13:50] Speaker 04:
I do.

[00:13:51] Speaker 04:
Thank you, Your Honor.

[00:13:53] Speaker 03:
Mr. Anderson.

[00:14:00] Speaker 01:
Good morning, Your Honors.

[00:14:01] Speaker 01:
May it please the court, Christopher Anderson from the United States.

[00:14:04] Speaker 01:
I think I'd like to begin by pointing out that the United States does not disagree that practical finality is sufficient to ripen a takings claim.

[00:14:12] Speaker 01:
But as my colleague points out, for there to be practical finality, there must be no question as the Supreme Court's term as to how the regulations will apply to the property at issue.

[00:14:22] Speaker 01:
And in this case, there are numerous questions as to what development may be permitted on Mr. Doyle's land and what mitigation measures may be required.

[00:14:30] Speaker 01:
We are not arguing

[00:14:31] Speaker 01:
that Mr. Doyle needs to apply for a permit for the sake of seeking a permit.

[00:14:36] Speaker 01:
We're arguing that he needs to apply for a permit so that the service can exercise its discretion to answer those questions.

[00:14:43] Speaker 01:
I think it's important to distinguish the holding in Pachtel from this case.

[00:14:47] Speaker 01:
Pachtel involved a situation in which

[00:14:51] Speaker 01:
There were essentially no administrative remedies left open to the plaintiff.

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And the Ninth Circuit more or less said that they had lost their takings claim by not timely seeking those administrative remedies.

[00:15:03] Speaker 01:
And the Supreme Court said that's wrong.

[00:15:05] Speaker 01:
That's not the case here.

[00:15:08] Speaker 01:
The Fish and Wildlife Service has full discretion to issue Mr. Doyle an incidental take permit to reapply for one.

[00:15:14] Speaker 01:
That process remains open and available to him.

[00:15:17] Speaker 01:
With regard to Nick, Nick, as you point out, is a 1983 case.

[00:15:22] Speaker 01:
And Nick overruled only one of Williamson County's two holdings.

[00:15:28] Speaker 01:
Williamson County held first that in a 1983 takings action, plaintiffs must exhaust state law remedies.

[00:15:35] Speaker 01:
But then it went on to discuss the finality requirement.

[00:15:37] Speaker 01:
And if you read the Supreme Court's decision in NIC, it explicitly says, we are overruling the state law exhaustion requirement.

[00:15:44] Speaker 01:
We are not touching the finality requirement.

[00:15:47] Speaker 01:
And were that not the case, they would have had to address all of the Supreme Court's finality jurisprudence subsequent to Williamson County, and they didn't.

[00:15:59] Speaker 01:
Nick does not support Mr. Doyle in this case.

[00:16:02] Speaker 02:
So you agree to the no question standard and you've asserted there are plenty of questions.

[00:16:07] Speaker 02:
Give us a couple of examples of what questions remain open.

[00:16:10] Speaker 01:
Well, so for example, Your Honor, the incidental take permit application that Mr. Doyle filed doesn't even explain what he proposes to do on the property.

[00:16:21] Speaker 01:
All it says is that he proposes a low density development of

[00:16:26] Speaker 01:
Three development units per acre totaling 799 developments.

[00:16:29] Speaker 01:
The service needs to know a lot more about what that development might look like so it can assess what the impacts might be on the tortoise, whether there are alternatives that need to be considered, and most importantly, what mitigation measures might be necessary.

[00:16:40] Speaker 02:
Is there an open question as to whether any type of residential development can be permitted on his property, given what we've heard in Zone 3 and it's in Red Cliffs, the conservation area, and it's essential?

[00:16:55] Speaker 02:
Is it really an open question about whether he can do any kind of development?

[00:16:59] Speaker 01:
There is, Your Honor.

[00:17:00] Speaker 01:
And I can address all of those points separately.

[00:17:03] Speaker 01:
But I think the most important thing that you pointed out, the Washington County permit by its terms does not apply to any private land holdings.

[00:17:12] Speaker 01:
The private landowner does not choose to participate in it.

[00:17:15] Speaker 01:
And the Habitat Conservation Plan does contemplate that private in-holders could be granted their own incidental take permits.

[00:17:23] Speaker 01:
And there is no limitation on what that could be, provided that the requirements of the native species act are met and that it's possible to mitigate impacts that may be inevitable from the development.

[00:17:38] Speaker 01:
The Fish and Wildlife Service believes that that may be possible, but the Fish and Wildlife Service can't determine that for certain until it has a detailed development plan and until it has a mitigation proposal.

[00:17:49] Speaker 01:
And those are questions that just can't be prejudged at this point.

[00:17:53] Speaker 01:
If I can touch briefly on the five points my colleague made.

[00:17:57] Speaker 01:
As far as critical habitat goes, the designation of land as critical habitat does not, of its own force, impose any limitation on the use of that land.

[00:18:05] Speaker 01:
What it does is it requires a federal agency issuing a permit, which includes an incidental take permit.

[00:18:10] Speaker 01:
to ensure that that federal action will not adversely affect the critical habitat.

[00:18:16] Speaker 01:
But importantly, under Fish and Wildlife Service regulations, when the service makes that determination, it evaluates the critical habitat as a whole, not any particular piece of habitat.

[00:18:26] Speaker 01:
So there are 129,000 acres of critical habitat for the tortoise here.

[00:18:30] Speaker 01:
Mr. Doyle, at the time of the complaint, owned, he alleges, 115 acres.

[00:18:35] Speaker 01:
That's less than one-tenth of 1%.

[00:18:38] Speaker 01:
When considering a development proposal in the context of critical habitat as a whole, it is not obvious that adverse impacts to one tenth of 1% of critical habitat can't be authorized.

[00:18:52] Speaker 01:
As far as the Red Cliffs National Conservation Area goes, I would just point to the statute 16 USC 460, WWW paragraph D. The only land in the conservation area is

[00:19:05] Speaker 01:
federal land.

[00:19:07] Speaker 01:
So the statute does provide, as my colleague says, that additional land may be acquired and incorporated into the reserve with restrictions on the reserve.

[00:19:16] Speaker 01:
Only apply to public land.

[00:19:17] Speaker 01:
They do not apply to private in holdings within the reserve boundaries.

[00:19:23] Speaker 01:
Talking about the permit.

[00:19:26] Speaker 01:
It is true that BLM would like to acquire all of the land in the reserve.

[00:19:30] Speaker 01:
BLM is continuing to do that.

[00:19:32] Speaker 01:
In fact, since the time of the complaint, BLM has acquired additional portions of Mr. Doyle's property.

[00:19:36] Speaker 01:
I believe, based on information that was given by BLM, that his holdings within the conservation area are down to about 60 acres.

[00:19:46] Speaker 01:
BLM does that on a willing buyer, willing seller basis as and when appropriations become available.

[00:19:51] Speaker 01:
It is continuing to try to do that, but that doesn't... The fact that BLM wants to acquire the property doesn't affect the service's ability to issue an incidental take permit.

[00:20:02] Speaker 01:
In fact, the service could not consider that because that's not one of the statutory factors in the Endangered Species Act that the service is permitted to consider.

[00:20:09] Speaker 01:
And the Endangered Species Act factors

[00:20:12] Speaker 01:
If those factors are met, the service must issue the permit.

[00:20:14] Speaker 01:
The service doesn't have discretion to not issue a permit because it doesn't want to if an applicant otherwise meets the factors.

[00:20:21] Speaker 01:
And the last thing I would just say on the assertion that BLM is managing the property, there is a complicated management structure for this area that includes the state, BLM, Washington County, to implement the Habitat Conservation Plan that's part of Washington County's permit.

[00:20:40] Speaker 01:
Yes, there is fencing.

[00:20:43] Speaker 01:
The allegations about what specific fencing is of concern here are not very well developed in the complaint.

[00:20:49] Speaker 01:
We don't know that it's even federal fencing.

[00:20:52] Speaker 01:
But putting all of that aside,

[00:20:56] Speaker 01:
Those actions reflect the state of affairs as they exist today.

[00:21:00] Speaker 01:
Should Mr. Doyle apply for an incidental take permit, should he meet the ESA's factors, should the service issue him that permit, all things which are entirely possible, then that management structure would adjust to account for that.

[00:21:14] Speaker 01:
And there are provisions in the habitat conservation plan that provide for that and other mechanisms to adjust that.

[00:21:21] Speaker 01:
If I can talk about the fencing for just a second.

[00:21:23] Speaker 01:
I had originally read Mr. Joyle's opening brief to state a claim for a physical taking based on statements in the reply brief.

[00:21:32] Speaker 01:
It appears that that's not what's being pressed, that the fencing was only brought up as evidence that incidental take permit could not be issued as a practical matter.

[00:21:45] Speaker 01:
But for much the same reasons that he failed to state a physical taking based on fencing, that doesn't support the argument that

[00:21:52] Speaker 01:
There's practical finality here because fences can be reconfigured if necessary to accommodate development.

[00:21:58] Speaker 02:
What about his no surprises point?

[00:22:02] Speaker 02:
He suggests, if I understand it correctly, you'll never grant him a permit because it would mean taking developmental rights away from somebody else.

[00:22:09] Speaker 01:
Sure.

[00:22:10] Speaker 01:
So that's not correct.

[00:22:12] Speaker 01:
Should he apply for a permit, that would have to be evaluated on the basis of his property.

[00:22:18] Speaker 01:
And under both the Act and Fish and Wildlife Services regulations, to get that permit, he would have to mitigate the effects on the tortoise.

[00:22:30] Speaker 01:
That requirement stems from the fact of where his land is, not from any provision in the Washington County permit, because where his land is is a place that is important to the tortoises.

[00:22:42] Speaker 01:
But if the permit were issued, it would mean that he had implemented the necessary or committed to implementing the necessary mitigation, which would necessarily offset the loss of mitigation in Washington County's permit.

[00:22:55] Speaker 01:
And that's, in effect, what the Habitat Conservation Plan provision, which is at appendix 430, contemplates.

[00:23:02] Speaker 01:
And then that contemplates that should that happen, there would be some effort to coordinate the mitigation measures of the various parties so that they work together.

[00:23:11] Speaker 01:
to protect the tortoise.

[00:23:16] Speaker 03:
Thank you, Council.

[00:23:17] Speaker 01:
Thank you.

[00:23:18] Speaker 01:
We would ask that the Court of Federal Claims be affirmed.

[00:23:21] Speaker 03:
As we've often said, no one loses points for not using up all their time.

[00:23:26] Speaker 03:
Mr. Masula has two minutes for a bottle.

[00:23:30] Speaker 04:
Thank you, Your Honor.

[00:23:31] Speaker 04:
And I think I have maybe three points.

[00:23:35] Speaker 04:
The first is there's no mitigation land available anymore after all these years that the government hasn't either acquired or there wasn't government land in the first place.

[00:23:45] Speaker 04:
So to mitigate for disturbing tortoise habitat, Mr.

[00:23:52] Speaker 04:
Doyle would have to find that from someone else.

[00:23:55] Speaker 04:
And that's what I meant when I said it would mean a reshuffling of the entire plan for the entire county, most of which has been built out now.

[00:24:04] Speaker 04:
Second, we disagree with government's suggestion that Packdale has application only in situations where the landowner has let the time run on his remedy, and they don't have it anymore.

[00:24:18] Speaker 04:
And the Supreme Court said, oh, well, in that case, your case is right.

[00:24:22] Speaker 04:
Packdale talked about how they don't, that it might actually affect the damages that Packdale had failed to pursue his remedy.

[00:24:32] Speaker 04:
But the main point was he doesn't have to pursue an exemption if otherwise his property is now regulated.

[00:24:43] Speaker 04:
Third, I guess to touch briefly on the nature of an incidental take permit, because I think it's not entirely clear from the way the government has presented it, it's not a building permit.

[00:24:55] Speaker 04:
The Endangered Species Act

[00:24:56] Speaker 04:
prohibits any harm, any person causing any harm or injury to the species.

[00:25:02] Speaker 04:
An incidental take permit says, we will not prosecute you for harming a species if you do what we say.

[00:25:11] Speaker 04:
That is, in this case, if you construct according to our plans, if they indeed allow that construction.

[00:25:20] Speaker 04:
And that's what the countywide permit did here.

[00:25:22] Speaker 04:
It took the whole county, and it set up, as counsel said.

[00:25:25] Speaker 04:
this federal state committee that reviews every development proposal and so forth and so on.

[00:25:34] Speaker 04:
And finally, my final point is, the trial court mistakenly believed that Mr. Doyle had never filed an incidental take permit application.

[00:25:46] Speaker 04:
He did.

[00:25:46] Speaker 04:
In the early 1990s, it was denied.

[00:25:50] Speaker 04:
Why does that not satisfy even the standard?

[00:25:53] Speaker 04:
that the trial court set forth as requiring him to file an incident will take permit application.

[00:26:00] Speaker 03:
Thank you, Your Honor.