Summary of a Recent
Judicial Development in
Biosecurity

APHIS's Revision of Quarantine Regulations Was
Not a "Taking" Under the Fifth Amendment

Jennifer C. Fiser
National AgLaw Center Research Associate

Summary of Decision

In Page v. United States, 50 Fed. App'x 409 (Fed. Cir. 2002), the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claim's grant of summary judgment in favor of the Animal and Plant Health Inspection Service (APHIS), finding that new quarantine standards addressing incubator/hatcher areas and bird holding areas did not constitute a taking under the Fifth Amendment.

Background

The plaintiffs operated an ostrich quarantine facility in Illinois. Id. at 409. Four months prior to the start of their business, APHIS published a proposal to revise standards covering incubator and hatcher areas and bird holding areas, and indicated that the ostrich industry would feel the greatest impact of the new standards. Id. The plaintiffs operation began after the proposal was made but before the final rule was passed. Id. Their quarantine station had a capacity of 2018 eggs per cycle, which was in compliance with the prior rule but was greater than the maximum allowed under the new rule. Id. APHIS offered to help accommodate the plaintiffs during their transition into compliance with the new standard; however, the plaintiffs responded by filing suit against APHIS. Id. at 409-10.

Arguments

The plaintiffs argued that they had an expectation of operating their quarantine facility with a certain capacity, and that the right to operate their facility without a requirement of compliance with the new standard was a compensable interest that was taken by the government. Id.

The government argued that forcing the plaintiffs to comply with the new standard did not constitute a "taking" for which the plaintiffs should receive compensation. Id.

Analysis and Holdings

The court stated the two-step analysis that is to be used when analyzing a takings claim: "First, a court should inquire into the nature of the land owner's estate to determine whether the use interest proscribed by the governmental action was part of the owner's title to begin with, i.e., whether the land use interest was a 'stick in the bundle of property rights' acquired by the owner. Second, if the claimant can establish the existence of such an interest, the court must then determine whether the governmental action at issue constituted a compensable taking of that 'stick.'" Id. (quoting M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed.Cir.1995)). "No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit." Id. (quoting N.Y. Cent. R.R. v. White, 243 U.S. 188, 198 (1917)).

The court noted that the plaintiffs' business was in a highly regulated field, and they began their business with notice of APHIS's plans to revise the regulations. Id. It held that the government's revision of the quarantine regulations did not constitute a taking under the Fifth Amendment. Id.

The case was decided on November 6, 2002.