Problem
Marcus just bought himself a nice piece of land, roughly two acres, where he was planning to build he and his new wife their first dream home. Awww, how sweet... Any who, unbeknownst to Marcus, biologists working for the University of Florida recently discovered an endangered and highly threatened species of spotted tree ferrets living on his property-right after Marcus finalized his purchase of the land. Because of these tree ferrets, according to the Department of Interior Fish and Wildlife regulations, Marcus is unable to build his dream home, as it would constitute "harm" to the tree ferret under §9(a)(1) of the Endangered Species Act. This section reads that "with respect to any endangered species of fish or wildlife listed pursuant to §1533 of this title it is unlawful for any person to ... (B) take any such species..." Further, "take," under §3(19) of the act, means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Even further, the Secretary of the interior has defined harm to mean "an act which actually kills or injures wildlife [, which] may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." As such, according to the Department's definition of harm, Marcus's plans to build a home would clearly fall under this definition of harm. However, the land has no other value to Marcus other than to be the place where he will settle down and spend the rest of his life with his new wife and start their family (blah, blah, blah); so, Marcus sues the government making two claims:
i. He argues that "harm" only applies to direct harms against the animal, and so the Secretary's definition of "harm" is too broad.
ii. He argues that this action by the government constitutes a taking without a valid "public use" or purpose. Therefore, the taking is unconstitutional and in violation of his 5th Amendment. However, he continues, even if the taking is constitutional and made with a valid "public purpose," he is still entitled to be compensated for the value of the now useless land.
Evaluate Marcus's arguments based on the lecture and the cases you were assigned. What is Marcus's likelihood of winning any of his arguments? Explain your answer.