Oregon Supreme Court Finds No Taking Under the Endangered Species Act

The Supreme Court of Oregon recently held that a regulatory taking does not occur under the Endangered Species Act unless a property owner’s whole parcel is deprived of any economically viable use.  In Coast Range Conifers, LLC v. Oregon, 117 P.3d 990 (Or. 2005), a logging company claimed that Oregon had taken its property through its enforcement of the Endangered Species Act (ESA).  Specifically, a protected Bald Eagle nest was spotted on plaintiff’s property, and the Oregon Board of Forestry refused to grant permission to log in the area surrounding the nest in accordance with the ESA.  The plaintiff, however, was allowed to log the remaining 31 acres of his parcel that were not in the vicinity of the nest.  The Oregon Court of Appeals held that a taking had occurred because the regulation deprived plaintiff of all economically viable use of the nine acres surrounding the Bald Eagle nest.  The appeals court decision focused upon the effect of the ESA upon the land immediately surrounding the nest.  Because the ESA completely precluded this land from its intended use, logging, the court found that the land retained no economically viable use. 

On appeal, the Supreme Court of Oregon addressed whether this was appropriate or whether the “whole parcel rule” should have been applied to this case.  The whole parcel rule stands for the proposition that it is inappropriate for a court to focus upon specific segments of an individual property to determine whether it has been deprived of all economically viable use.  Instead, a court must examine “the owner’s ability to use the whole parcel and asks whether the remaining interests have any economically viable use.”  The court noted that this rule has consistently been applied in both federal and state regulatory takings cases.   

Plaintiff argued that it was appropriate to consider only the nine acres of timber surrounding the Bald Eagle nest in order to determine whether the property retained any economically viable use.  The government, however, maintained that no taking occurred if the property as a whole “retains some economically viable use.”

The Supreme Court of Oregon reversed the appeals court, holding that the Oregon Constitution mandated that a court should examine a property owner’s ability to use the entire parcel in order to determine whether it retains any economically viable use.  Because the plaintiff could use the majority of his parcel for its intended purpose, the court held that the ESA did not rise to the level of a taking.

The court also applied the whole parcel rule to the plaintiff’s federal Fifth Amendment claims.  In doing so, the court reasoned that because the plaintiff was able to log the majority of its parcel, the ESA regulation did not deprive plaintiff’s property of all its economic value.  Further, the court stated that when the plaintiff’s investment-backed expectations were examined in the context of the entire parcel, there was no taking. 

 
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