NATIONAL EMINENT DOMAIN POWER
Overview

“The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.”597 Eminent domain “appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.”598 In the early years of the nation the federal power of eminent domain lay dormant as to property outside the District of Columbia,599 and it was not until 1876 that its existence was recognized by the Supreme Court. In Kohl v. United States600 any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any state. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power,601 but once this is conceded the ambit of national powers is so wide-ranging that vast numbers of objects may be effected.602 This prerogative of the National Government can neither be enlarged nor diminished by a state.603 Whenever lands in a state are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the state, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the state.604

“Prior to the adoption of the Fourteenth Amendment,” the power of eminent domain of state governments “was unrestrained by any federal authority.”605 The Just Compensation Clause of the Fifth Amendment did not apply to the states,606 and at first the contention that the Due Process Clause of the Fourteenth Amendment afforded property owners the same measure of protection against the states as the Fifth Amendment did against the Federal Government was rejected.607 However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state “legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.”608 Although the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings.

The power of eminent domain is inherent in government and may be exercised only through legislation or legislative delegation. Although such delegation is usually to another governmental body, it may also be to private corporations, such as public utilities, railroad companies, or bridge companies, when they are promoting a valid public purpose.609

Public Use

Explicit in the Just Compensation Clause is the requirement that the taking of private property be for a public use; one cannot be deprived of his property for any reason other than a public use, even with compensation.610 The question whether a particular intended use is a public use is clearly a judicial one,611 but the Court has always insisted on a high degree of judicial deference to the legislative determination.612 “The role of the judiciary in determining whether that power is being exercised for a public use is an extremely narrow one.”613 When it is state action being challenged under the Fourteenth Amendment, there is the additional factor of the Court’s willingness to defer to the highest court of the state in resolving such an issue.614 As early as 1908, the Court was obligated to admit that, notwithstanding its retention of the power of judicial review, “[n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses . . . .”615 However, in a 1946 case involving federal eminent domain power, the Court cast considerable doubt upon the power of courts to review the issue of public use. “We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.”616 There is some suggestion that “the scope of the judicial power to determine what is a ‘public use’ ” may be different as between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former,617 but it may well be that the case simply stands for the necessity for great judicial restraint.618 Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature or the body to which the legislature has delegated the decision, and is not subject to judicial review.619

At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term “public use” was synonymous with “use by the public” and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago.620 The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such “definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order— these are some of the . . . traditional application[s] of the police power . . . .” Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. “For the power of eminent domain is merely the means to the end.”621 Subsequently, the Court put forward an added indicium of “public use”: whether the government purpose could be validly achieved by tax or user fee.622 Traditionally, eminent domain has been used to facilitate transportation, the supplying of water, and the like,623 but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.624

The Supreme Court has also approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker,625 a unanimous Court observed: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” For “public use,” then, it may well be that “public interest” or “public welfare” is the more correct phrase.626 Berman was applied in Hawaii Housing Auth. v. Midkiff,627 upholding the Hawaii Land Reform Act as a “rational” effort to “correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly.” Direct transfer of land from lessors to lessees was permissible, the Court held, there being no requirement “that government possess and use property at some point during a taking.”628 “The ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers,” the Court concluded.629

The expansive interpretation of public use in eminent domain cases may have reached its outer limit in Kelo v. City of New London.630 There, a five-justice majority upheld as a public use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered, areawide redevelopment plan adopted by a municipality to invigorate a depressed economy. The Court saw no principled way to distinguish economic development from the economic purposes endorsed in Berman and Midkiff, and stressed the importance of judicial deference to the legislative judgment as to public needs. At the same time, the Court cautioned that private-to-private condemnations of individual properties, not part of an “integrated development plan . . . raise a suspicion that a private purpose [is] afoot.”631 A vigorous four-justice dissent countered that localities will always be able to manufacture a plausible public purpose, so that the majority opinion leaves the vast majority of private parcels subject to condemnation when a higher-valued use is desired.632 Backing off from the Court’s past endorsements in Berman and Midkiff of a public use/police power equation, the dissenters referred to the “errant language” of these decisions, which was “unnecessary” to their holdings.633

Just Compensation

“When . . . [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation.”634 The Fifth Amendment’s guarantee “that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”635

The just compensation required by the Constitution is that which constitutes “a full and perfect equivalent for the property taken.”636 Originally the Court required that the equivalent be in money, not in kind,637 but more recently has cast some doubt on this assertion.638 Just compensation is measured “by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future, . . . [but] ‘mere possible or imaginary uses or the speculative schemes of its proprietor, are to be excluded.’ ”639 The general standard thus is the market value of the property, i.e., what a willing buyer would pay a willing seller.640 If fair market value does not exist or cannot be calculated, resort must be had to other data which will yield a fair compensation.641 However, the Court is resistant to alternative standards, having repudiated reliance on the cost of substitute facilities.642 Just compensation is especially difficult to compute in wartime, when enormous disruptions in supply and governmentally imposed price ceilings totally skew market conditions. Holding that the reasons which underlie the rule of market value when a free market exists apply as well where value is measured by a government-fixed ceiling price, the Court permitted owners of cured pork and black pepper to recover only the ceiling price for the commodities, despite findings by the Court of Claims that the replacement cost of the meat exceeded its ceiling price and that the pepper had a “retention value” in excess of that price.643 By a five-to-four decision, the Court ruled that the government was not obliged to pay the present market value of a tug when the value had been greatly enhanced as a consequence of the government’s wartime needs.644

Illustrative of the difficulties in applying the fair market standard of just compensation are two cases decided by five-to-four votes, one in which compensation was awarded and one in which it was denied. Held entitled to compensation for the value of improvements on leased property for the life of the improvements and not simply for the remainder of the term of the lease was a company that, while its lease had no renewal option, had occupied the land for nearly 50 years and had every expectancy of continued occupancy under a new lease. Just compensation, the Court said, required taking into account the possibility that the lease would be renewed, inasmuch as a willing buyer and a willing seller would certainly have placed a value on the possibility.645 However, when the Federal Government condemned privately owned grazing land of a rancher who had leased adjacent federally owned grazing land, it was held that the compensation owed need not include the value attributable to the proximity to the federal land. The result would have been different if the adjacent grazing land had been privately owned, but the general rule is that government need not pay for value that it itself creates.646

Interest.

Ordinarily, property is taken under a condemnation suit upon the payment of the money award by the condemner, and no interest accrues.647 If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term “interest,” the Court has called “an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.”648 If the owner and the government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.649 Where property of a citizen has been mistakenly seized by the government and it is converted into money which is invested, the owner is entitled in recovering compensation to an allowance for the use of his property.650

Rights for Which Compensation Must Be Made.

If real prop-erty is condemned the market value of that property must be paid to the owner. But there are many kinds of property and many uses of property which cause problems in computing just compensation. It is not only the full fee simple interest in land that is compensable “property,”651 but also such lesser interests as easements652 and leaseholds. If only a portion of a tract is taken, the owner’s compensation includes any element of value arising out of the relation of the part taken to the entire tract.653 On the other hand, if the taking has in fact benefitted the owner, the benefit may be set off against the value of the land condemned,654 although any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated may not be set off.655 When certain lands were condemned for park purposes, with resulting benefits set off against the value of the property taken, the subsequent erection of a fire station on the property instead was held not to have deprived the owner of any part of his just compensation.656

The Court has also held that the government has a “categorical duty to pay just compensation” when it physically takes personal property, just as when it takes real property.657 In Horne v. Department of Agriculture, the Court held that a raisin marketing order issued under a Depression-era statute requiring raisin growers to reserve a percentage of their total crop for the federal government to dispose of in its discretion constituted “a clear physical taking” because, even though the scheme was intended to benefit the growers by maintaining stable markets for raisins, the “[a]ctual raisins are transferred from the growers to the Government.”658 The Court further held the government could not avoid paying just compensation for this physical taking by providing for the return to the raisin growers of any net proceeds from the government’s sale of the reserve raisins.659 The majority also rejected the government’s argument that the reserve requirement was not a physical taking because raisin growers voluntarily participated in the raisin market.660 In so doing, the Court noted that selling produce in interstate commerce is not a “special government benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.”661 In addition, the Court determined that the value of the raisins for takings purposes was their fair market value, with no deduction for the offsetting benefits of the overall statutory scheme, which is intended to maintain stable markets for raisins.662

Interests in intangible as well as tangible property are subject to protection under the Taking Clause. Thus compensation must be paid for the taking of contract rights,663 patent rights,664 and trade secrets.665 So too, the franchise of a private corporation is property that cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the government was required to pay for the franchise to take tolls as well as for the tangible property.666 The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required,667 but government requisitioning from a power company of all the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under state law, to draw a portion of that water, entitles the lessee to compensation for the rights taken.668 When, upon default of a ship-builder, the Government, pursuant to contract with him, took title to uncompleted boats, the material men, whose liens under state laws had attached when they supplied the shipbuilder, had a compensable interest equal to whatever value these liens had when the government “took” or destroyed them in perfecting its title.669 As a general matter, there is no property interest in the continuation of a rule of law.670 And, even though state participation in the social security system was originally voluntary, a state had no property interest in its right to withdraw from the program when Congress had expressly reserved the right to amend the law and the agreement with the state.671 Similarly, there is no right to the continuation of governmental welfare benefits.672

Consequential Damages.

The Fifth Amendment requires com-pensation for the taking of “property,” hence does not require payment for losses or expenses incurred by property owners or tenants incidental to or as a consequence of the taking of real property, if they are not reflected in the market value of the property taken.673 “Whatever of property the citizen has the government may take. When it takes the property, that is, the fee, the lease, whatever, he may own, terminating altogether his interest, under the established law it must pay him for what is taken, not more; and he must stand whatever indirect or remote injuries are properly comprehended within the meaning of ‘consequential damage’ as that conception has been defined in such cases. Even so the consequences often are harsh. For these whatever remedy may exist lies with Congress.”674 An exception to the general principle has been established by the Court where only a temporary occupancy is assumed; then the taking body must pay the value which a hypothetical long-term tenant in possession would require when leasing to a temporary occupier requiring his removal, including in the market value of the interest the reasonable cost of moving out the personal property stored in the premises, the cost of storage of goods against their sale, and the cost of returning the property to the premises.675 Another exception to the general rule occurs with a partial taking, in which the government takes less than the entire parcel of land and leaves the owner with a portion of what he had before; in such a case compensation includes any diminished value of the remaining portion (“severance damages”) as well as the value of the taken portion.676

Enforcement of Right to Compensation.

The nature and char-acter of the tribunal to determine compensation is in the discretion of the legislature, and may be a regular court, a special legislative court, a commission, or an administrative body.677 Proceedings to condemn land for the benefit of the United States are brought in the federal district court for the district in which the land is located.678 The estimate of just compensation is not required to be made by a jury but may be made by a judge or entrusted to a commission or other body.679 Federal courts may appoint a commission in condemnation actions to resolve the compensation issue.680 If a body other than a court is designated to determine just compensation, its decision must be subject to judicial review,681 although the scope of review may be limited by the legislature.682 When the judgment of a state court with regard to the amount of compensation is questioned, the Court’s review is restricted. “All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution.”683 “[T]here must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State has deprived him of his property unconstitutionally.”684 Unless, by its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he was entitled to.685

When Property Is Taken

The issue whether one’s property has been “taken” with the consequent requirement of just compensation can hardly arise when government institutes condemnation proceedings directed to it. Where, however, physical damage results to property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value,686 whether there has been a taking in the Fifth Amendment sense becomes critical.

Government Activity Not Directed at the Property.

The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to “direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.”687 Accordingly, a variety of consequential injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street;688 similar deprivations, lessening the circulation of light and air and impairing access to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street.689 Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action, such as the expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen,690 or by a landowner in raising the height of the dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.temple v. c691

But the Court also decided long ago that land can be “taken” in the constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently or recurrently.692 A later formulation was that “[p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.”693 It was thus held that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired the guns at the fort across the land and had established a fire control service there.694 In two major cases, the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise, glare, and fear of injury occasioned by the low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it.695 Eventually, the term “inverse condemnation” came to be used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming that governmental action or regulation has “taken” his property.696

Navigable Waters.

The repeated holdings that riparian own-ership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liability in the taking area. When damage results consequentially from an improvement to a river’s navigable capacity, or from an improvement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject.697 This exception does not apply to lands above the ordinary high-water mark of a stream,698 hence is inapplicable to the damage the government may do to such “fast lands” by causing overflows, by erosion, and otherwise, consequent on erection of dams or other improvements.699 And, when previously nonnavigable waters are made navigable by private investment, government may not, without paying compensation, simply assert a navigation servitude and direct the property owners to afford public access.700

Regulatory Takings.

Although it is established that govern-ment may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use pursuant to the police power, and for years there was broad dicta that no one may claim damages that result from a police regulation designed to secure the common welfare, especially in the area of health and safety.701 “What distinguishes eminent domain from the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.”702 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited.703 The older cases flatly denied the possibility of compensation for this diminution of property values,704 but the Court in 1922 established as a general principle that “if regulation goes too far it will be recognized as a taking.”705

In Mahon, Justice Holmes, for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds that reserved to the coal companies ownership of subsurface mining rights and that held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that “[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it “commercially impracticable to mine certain coal,” had essentially “the same effect for constitutional purposes as appropriating or destroying it.”706 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went “too far.”707 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it, pointing out that, unlike its predecessor, the newer law identified important public interests.708

The Court had been early concerned with the imposition upon one or a few individuals of the costs of furthering the public interest.709 But it was with respect to zoning, in the context of substantive due process, that the Court first experienced some difficulty in this regard. The Court’s first zoning case involved a real estate company’s challenge to a comprehensive municipal zoning ordinance, alleging that the ordinance prevented development of its land for industrial purposes and thereby reduced its value from $10,000 an acre to $2,500 an acre.710 Acknowledging that zoning was of recent origin, the Court observed that it must find its justification in the police power and be evaluated by the constitutional standards applied to exercises of the police power. After considering traditional nuisance law, the Court determined that the public interest was served by segregation of incompatible land uses and the ordinance was thus valid on its face; whether its application to diminish property values in any particular case was also valid would depend, the Court said, upon a finding that it was not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”711 A few years later the Court, again relying on due process rather than taking law, did invalidate the application of a zoning ordinance to a tract of land, finding that the tract would be rendered nearly worthless and that to exempt the tract would impair no substantial municipal interest.712 But then the Court withdrew from the land-use scene until the 1970s, giving little attention to states and their municipalities as they developed more comprehensive zoning techniques.713

As governmental regulation of property has expanded over the years—in terms of zoning and other land use controls, environmental regulations, and the like—the Court never developed, as it admitted, a “set formula to determine where regulation ends and taking begins.”714

More recently the Court has observed that, “[i]n the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules.”715 Indeed, “[t]his area of the law has been characterized by ‘ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.’”716 Nonetheless, the Court has now formulated general principles that guide many of its decisions in the area.717

In Penn Central Transportation Co. v. City of New York,718 the Court, while cautioning that regulatory takings cases require “essentially ad hoc, factual inquiries,” nonetheless laid out general guidance for determining whether a regulatory taking has occurred. “The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are . . . relevant considerations. So too, is the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”719

At issue in Penn Central was the City’s landmarks preservation law, as applied to deny approval to construct a 53-story office building atop Grand Central Terminal. The Court upheld the landmarks law against Penn Central’s takings claim through application of the principles set forth above. The economic impact on Penn Central was considered: the Company could still make a “reasonable return” on its investment by continuing to use the facility as a rail terminal with office rentals and concessions, and the City specifically permitted owners of landmark sites to transfer to other sites the right to develop those sites beyond the otherwise permissible zoning restrictions, a valuable right that mitigated the burden otherwise to be suffered by the owner. As for the character of the governmental regulation, the Court found the landmarks law to be an economic regulation rather than a governmental appropriation of property, the preservation of historic sites being a permissible goal and one that served the public interest.720

Justice Holmes began his analysis in Mahon with the observation that “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every . . . change in the general law,”721 and Penn Central’s economic impact standard also leaves ample room for recognition of this principle. Thus, the Court can easily hold that a mere permit requirement does not amount to a taking,722 nor does a simple recordation requirement.723 The tests become more useful, however, when compliance with regulation becomes more onerous.

Several times the Court has relied on the concept of “distinct [or, in most later cases, ‘reasonable’] investment-backed expectations” first introduced in Penn Central. In Ruckelshaus v. Monsanto Co.,

724 the Court used the concept to determine whether a taking had resulted from the government’s disclosure of trade secret information submitted with applications for pesticide registrations. Disclosure of data that had been submitted from 1972 to 1978, a period when the statute guaranteed confidentiality and thus “formed the basis of a distinct investment-backed expectation,” would have destroyed the property value of the trade secret and constituted a taking.725 Following 1978 amendments setting forth conditions of data disclosure, however, applicants voluntarily submitting data in exchange for the economic benefits of registration had no reasonable expectation of additional protections of confidentiality.726 Relying less heavily on the concept but rejecting an assertion that reasonable investment backed-expectations had been upset, the Court in Connolly v. Pension Benefit Guaranty Corp.727 upheld retroactive imposition of liability for pension plan withdrawal on the basis that employers had at least constructive notice that Congress might buttress the legislative scheme to accomplish its legislative aim that employees receive promised benefits. However, where a statute imposes severe and “substantially disproportionate” retroactive liability based on conduct several decades earlier, on parties that could not have anticipated the liability, a taking (or violation of due process) may occur. On this rationale, the Court in Eastern Enterprises v. Apfel728 struck down the Coal Miner Retiree Health Benefit Act’s requirement that companies formerly engaged in mining pay miner retiree health benefits, as applied to a company that spun off its mining operation in 1965 before collective bargaining agreements included an express promise of lifetime benefits.

On the other hand, a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly addressing the ban’s obvious interference with investment-backed expectations.729 The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that the owner still had viable economic uses for his holdings, such as displaying them in a museum and charging admission, and that he still had the value of possession.730

The Court has made plain that, in applying the economic impact and investment-backed expectations factors of Penn Central, courts are to compare what the property owner has lost through the challenged government action with what the owner retains. Discharging this mandate requires a court to define the extent of plaintiff ’s property—the “parcel as a whole”—that sets the scope of analysis.731 In Murr v. Wisconsin, the Court stated that, “[l]ike the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property.”732 In Murr, the owners of two small adjoining lots, previously owned separately, wished to sell one of the lots and build on the other. The landowners were prevented from doing so by state and local regulations, enacted to implement a federal act, which effectively merged the lots when they came under common ownership, thereby barring the separate sale or improvement of the lots. The landowners therefore sought just compensation, alleging a regulatory taking of their property.733

In ruling against the landowners, the Supreme Court set forth a flexible multi-factor test for defining “the proper unit of property” to analyze whether a regulatory taking has occurred.734 The Court continued the approach of prior cases whereby the boundaries of the parcel determine the “denominator of the fraction” of value taken from a property by a governmental regulation, which in turn can determine whether the government has “taken” private property.735 Under this formula, regulators have an interest in a larger denominator—in the Murr case, combining the two adjoining lots—to reduce the likelihood of having to provide compensation, while property owners seeking to show that their property has been taken have an interest in the denominator being as small as possible. The Murr Court instructed that, in determining the parcel at issue in a regulatory takings case, “no single consideration can supply the exclusive test for determining the denominator.736 Instead, courts must consider a number of factors,” including (1) “the treatment of the land under state and local law”737 ; (2) “the physical characteristics of the land”738 ; and (3) “the prospective value of the regulated land.”739

In the course of its opinion in Penn Central the Court rejected the principle that no compensation is required when regulation bans a noxious or harmful effect of land use.740 The principle, it had been contended, followed from several earlier cases, including Goldblatt v. Town of Hempstead.741 In that case, after the town had expanded around an excavation used by a company for mining sand and gravel, the town enacted an ordinance that in effect terminated further mining at the site. Declaring that no compensation was owed, the Court stated that “[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests.”742 In Penn Central, however, the Court denied that there was any such test and that prior cases had turned on the concept. “These cases are better understood as resting not on any supposed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation— expected to produce a widespread public benefit and applicable to all similarly situated property.”743 More recently, in Lucas v. South Carolina Coastal Council,744 the Court explained “noxious use” analysis as merely an early characterization of police power measures that do not require compensation. “[N]oxious use logic cannot serve as a touchstone to distinguish regulatory ‘takings’—which require compensation—from regulatory deprivations that do not require compensation.”745

Penn Central is not the only guide to when an inverse condemnation has occurred; other criteria have emerged from other cases before and after Penn Central. The Court has long recognized a per se takings rule for certain physical invasions: when government permanently746 occupies property (or authorizes someone else to do so), the action constitutes a taking regardless of the public interests served or the extent of damage to the parcel as a whole.747 The modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings; although the equipment occupied only about 1½ cubic feet of space on the exterior of each building and had only a de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property and thus constituted a taking.748 Recently, the Court sharpened further the distinction between regulatory takings and permanent physical occupations by declaring it “inappropriate” to use case law from either realm as controlling precedent in the other.749 Physical invasions falling short of permanent physical occupations remain subject to Penn Central.

A second per se taking rule is of more recent vintage. Land use controls constitute takings, the Court stated in Agins v. City of Tiburon, if they do not “substantially advance legitimate governmental interests,” or if they deny a property owner “economically viable use of his land.”750 This second Agins criterion creates a categorical rule: when, with respect to the parcel as a whole, the landowner “has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.”751 The only exceptions, the Court explained in Lucas, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations. Regulations “so severe” as to prohibit all economically beneficial use of land “cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent land owners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate [public] nuisances . . . , or otherwise.”752 Thus, while there is no broad “noxious use” exception separating police power regulations from takings, there is a narrower “background principles” exception based on the law of nuisance and unspecified “property law” principles.

Together with the investment-backed expectations factor of Penn Central, background principles were viewed by many lower courts as supporting a “notice rule” under which a taking claim was absolutely barred if based on a restriction imposed under a regulatory regime predating plaintiff ’s acquisition of the property. In Palazzolo v. Rhode Island,753 the Court forcefully rejected the absolute version of the notice rule, regardless of rationale. Under such a rule, it said, “[a] State would be allowed, in effect, to put an expiration date on the Takings Clause.”754 Whether any role is left for preacquisition regulation in the takings analysis, however, the Court’s majority opinion did not say, leaving the issue to dueling concurrences from Justice O’Connor (prior regulation remains a factor) and Justice Scalia (prior regulation is irrelevant). Less than a year later, Justice O’Connor’s concurrence carried the day in extended dicta in Tahoe-Sierra,755 though the decision failed to elucidate the factors affecting the weighting to be accorded the pre-existing regime.

The “or otherwise” reference, the Court explained in Lucas,756 was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, Inc.,757 the owners of property destroyed by retreating United States armies in Manila during World War II were held not entitled to compensation, and in United States v. Central Eureka Mining Co.,758 the Court held that a federal order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensation for loss of profits. Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken as much for the owners’ benefit as for the general public benefit and the owners must bear the costs of the damage inflicted on the buildings subsequent to the occupation.759

The first prong of the Agins test,760 asking whether land use controls “substantially advance legitimate governmental interests,” has now been erased from takings jurisprudence, after a quarter-century run. The proper concern of regulatory takings law, said Lingle v. Chevron U.S.A. Inc.,761 is the magnitude, character, and distribution of the burdens that a regulation imposes on property rights. In “stark contrast,” the “substantially advances” test addresses the means-end efficacy of a regulation, more in the nature of a due process inquiry.762 As such, it is not a valid takings test.

A third type of inverse condemnation, in addition to regulatory and physical takings, is the exaction taking. A two-part test has emerged. The first part debuted in Nollan v. California Coastal Commission,763 and holds that in order not to be a taking, an exaction condition on a development permit approval (requiring, for example, that a portion of a tract to be subdivided be dedicated for public roads)764 must substantially advance a purpose related to the underlying permit. There must, in short, be an “essential nexus” between the two; otherwise the condition is “an out-and-out plan of extortion.”765 The second part of the exaction-takings test, announced in Dolan v. City of Tigard766 specifies that the condition, to not be a taking, must be related to the proposed development not only in nature, per Nollan, but also in degree. Government must establish a “rough proportionality” between the burden imposed by such conditions on the property owner, and the impact of the property owner’s proposed development on the community—at least in the context of adjudicated (rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the breadth of what became known as the “heightened scrutiny” test. The stakes were plainly high in that the test, where it applies, lessens the traditional judicial deference to local police power and places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey, Ltd.,767 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the exaction context that gave rise to those cases. Still unclear, however, is whether the Court meant to place outside Dolan exactions of a purely monetary nature, in contrast with the physically invasive dedication conditions involved in Nollan and Dolan.768 The Court clarified this uncertainty in Koontz v. St. Johns River Water Management District by holding that monetary exactions imposed under land use permitting were subject to essential nexus/rough proportionality analysis.769

The announcement following Penn Central of the above per se rules in Loretto (physical occupations), Agins and Lucas (total elimination of economic use), and Nollan/Dolan (exaction conditions) prompted speculation that the Court was replacing its ad hoc Penn Central approach with a more categorical takings jurisprudence. Such speculation was put to rest, however, by three decisions from 2001 to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn Central as the dominant mode of analysis for inverse condemnation claims, confining the Court’s per se rules to the “relatively narrow” physical occupation and total wipe-out circumstances, and the “special context” of exactions.770

Following the Penn Central decision, the Court grappled with the issue of the appropriate remedy property owners should pursue in objecting to land use regulations.771 The remedy question arises because there are two possible constitutional objections to be made to regulations that go “too far” in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. The Court finally resolved the issue in First English Evangelical Lutheran Church v. County of Los Angeles, holding that when land use regulation is held to be a taking, compensation is due for the period of implementation prior to the holding.772 The Court recognized that, even though government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, “no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.”773 Outside the land-use context, however, the Court has now recognized a limited number of situations where invalidation, rather than compensation, remains the appropriate takings remedy.774

The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Takings Clause’s protection against government “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”775 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good.776 Similarly, the Court looks askance at governmental efforts to secure public benefits at a landowner’s expense—“government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.”777

On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation sometimes takes on importance. Some strands are more important than others. The right to exclude others from one’s land is so basic to ownership that extinguishment of this right ordinarily constitutes a taking.778 Similarly valued is the right to pass on property to one’s heirs.779

Failure to incur administrative (and judicial) delays can result in dismissal of an as-applied taking claim based on ripeness doctrine, an area of takings law that the Court has developed extensively since Penn Central. In the leading decision of Williamson County Regional Planning Commission v. Hamilton Bank,780 the Court announced the canonical two-part ripeness test for takings actions brought in federal court. First, for an as-applied challenge, the property owner must obtain from the regulating agency a “final, definitive position” regarding how it will apply its regulation to the owner’s land. Second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court. Thus, the claim in Williamson County was found unripe because the plaintiff had failed to seek a variance (first prong of test), and had not sought compensation from the state courts in question even though they recognized inverse condemnation claims (second prong). Similarly, in MacDonald, Sommer & Frates v. County of Yolo,781 a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but that denial had not foreclosed the possibility that a scaled-down (though still economic) version would be approved. In a somewhat different context, a taking challenge to a municipal rent control ordinance was considered “premature” in the absence of evidence that a tenant hardship provision had ever been applied to reduce what would otherwise be considered a reasonable rent increase.782 Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the “final decision” rule, while nonetheless explicitly reaffirming it. In Palazzolo v. Rhode Island,783 for example, the Court saw no point in requiring the landowner to apply for approval of a scaled-down development of his wetland, since the regulations at issue made plain that no development at all would be permitted there. “[O]nce it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.”784

Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that, without pursuing administrative remedies, a claimant often lacks evidence that a statute has the requisite economic impact on his or her property.785

The requirement that state remedies be exhausted before bringing a federal taking claim to federal court has occasioned countless dismissals of takings claims brought initially in federal court, while at the same time posing a bar under doctrines of preclusion to filing first in state court, per Williamson County, then relitigating in federal court. The effect in many cases is to keep federal takings claims out of federal court entirely—a consequence the plaintiffs’ bar has long argued could not have been intended by the Court. In San Remo Hotel, L.P. v. City and County of San Francisco,786 the Court unanimously declined to create an exception to the federal full faith and credit statute787 that would allow relitigation of federal takings claims in federal court. Nor, said the Court, may an England reservation of the federal taking claim in state court788 be used to require a federal court to review the reserved claim, regardless of what issues the state court may have decided. While concurring in the judgment, four justices asserted that the state-exhaustion prong of Williamson County “may have been mistaken.”789

Footnotes

597
United States v. Carmack, 329 U.S. 230, 241–42 (1946). The same is true of “just compensation” clauses in state constitutions. Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). For in-depth analysis of the eminent domain power, see 1 NICHOLS ON EMINENT DOMAIN (Julius L. Sackman, 2006). [Back to text]
598
Boom Co., 98 U.S. at 406. [Back to text]
599
Prior to this time, the Federal Government pursued condemnation proceedings in state courts and commonly relied on state law. Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Jones, 109 U.S. 513 (1883). The general statutory authority for federal condemnation proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 NICHOLS ON EMINENT DOMAIN § 1.24[5] (Julius L. Sackman, 2006). [Back to text]
600
91 U.S. 367 (1876). [Back to text]
601
United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896). [Back to text]
602
E.g., California v. Central Pacific Railroad, 127 U.S. 1, 39 (1888) (highways); Luxton v. North River Bridge Co., 153 U.S. 525 (1894) (interstate bridges); Cherokee Nation v. Southern Kansas Ry, 135 U.S. 641 (1890) (railroads); Albert Hanson Lumber Co. v. United States, 261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297 U.S. 288 (1936) (hydroelectric power). “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end.” Berman v. Parker, 348 U.S. 26, 33 (1954). [Back to text]
603
Kohl v. United States, 91 U.S. 367 374 (1876). [Back to text]
604
Chappell v. United States, 160 U.S. 499, 510 (1896). The fact that land included in a federal reservoir project is owned by a state, or that its taking may impair the state’s tax revenue, or that the reservoir will obliterate part of the state’s boundary and interfere with the state’s own project for water development and conservation, constitutes no barrier to the condemnation of the land by the United States. Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941). So too, land held in trust and used by a city for public purposes may be condemned. United States v. Carmack, 329 U.S. 230 (1946). [Back to text]
605
Green v. Frazier, 253 U.S. 233, 238 (1920). [Back to text]
606
Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). [Back to text]
607
Davidson v. City of New Orleans, 96 U.S. 97 (1878). The Court attached most weight to the fact that both due process and just compensation were guaranteed in the Fifth Amendment while only due process was contained in the Fourteenth, and refused to equate the missing term with the present one. [Back to text]
608
Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 233, 236–37 (1897). See also Sweet v. Rechel, 159 U.S. 380, 398 (1895). [Back to text]
609
Noble v. Oklahoma City, 297 U.S. 481 (1936); Luxton v. North River Bridge Co., 153 U.S. 525 (1895). One of the earliest examples of such delegation is Curtiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810). [Back to text]
610
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La Grange, 113 U.S. 1, 6 (1885). [Back to text]
611
“It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.” City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930). [Back to text]
612
Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be “rationally related to a conceivable public purpose.” Id. at 490 (Justice Kennedy concurring). [Back to text]
613
Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia). [Back to text]
614
Green v. Frazier, 253 U.S. 283, 240 (1920); City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930). See also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of state legislature). [Back to text]
615
Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement. [Back to text]
616
United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices Reed and Frankfurter and Chief Justice Stone disagreed with this view. Id. at 555, 557 (concurring). [Back to text]
617
327 U.S. at 552. [Back to text]
618
So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32 (1954). [Back to text]
619
Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman v. Parker, 348 U.S. 26, 33 (1954). “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in federal courts.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984). [Back to text]
620
Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916). [Back to text]
621
Berman v. Parker, 348 U.S. 26, 32, 33 (1954). [Back to text]
622
Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. at 242 n.2 (Justice Scalia dissenting). [Back to text]
623
E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); Chicago M. & S.P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of exchange with a railroad company for a portion of its right-of-way required for widening a highway); Delaware, L. & W.R.R. v. Town of Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896), however, the Court held that it was an invalid use when a State attempted to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit. [Back to text]
624
E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress takes land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. 90–545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National Park); Pub. L. 93–444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. 100–647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park). [Back to text]
625
348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that the project was illegal because it involved the turning over of condemned property to private associations for redevelopment, the Court said: “Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude.” Id. at 33–34 (citations omitted). [Back to text]
626
Most recently, the Court equated public use with “public purpose.” Kelo v. City of New London, 545 U.S. 469, 480 (2005). [Back to text]
627
467 U.S. 229, 243 (1984). [Back to text]
628
467 U.S. at 243. [Back to text]
629
467 U.S. at 240. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984) (required data disclosure by pesticide registrants, primarily for benefit of later registrants, has a “conceivable public character”). [Back to text]
630
545 U.S. 469 (2005). [Back to text]
631
545 U.S. at 487. [Back to text]
632
Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and Chief Justice Rehnquist. [Back to text]
633
545 U.S. at 501. [Back to text]
634
Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898). [Back to text]
635
Armstrong v. United States, 364 U.S. 40, 49 (1960). “The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.” United States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition against confiscation of enemy property, but aliens not so denominated are entitled to the protection of this clause. Compare United States v. Chemical Foundation, 272 U.S. 1, 11 (1926)and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-American Corp. v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings Clause protections for such aliens may be invoked, however, only “when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). [Back to text]
636
Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). The owner’s loss, not the taker’s gain, is the measure of such compensation. Brown v. Legal Found. of Washington, 538 U.S. 216, 236 (2003); United States ex rel. TVA v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943). The value of the property to the government for its particular use is not a criterion. United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); United States v. Twin City Power Co., 350 U.S. 222 (1956). Attorneys’ fees and expenses are not embraced in the concept. Dohany v. Rogers, 281 U.S. 362 (1930). Applying the owner’s-loss standard, the Court addressed a state program requiring lawyers to deposit client funds that cannot earn net interest in a pooled account generating interest for indigent legal aid. Brown, 538 U.S. at 237. Assuming a taking of the client’s interest, his pecuniary loss is nonetheless zero; hence, the just compensation required is likewise. Brown is in tension with the Court’s earlier treatment of a similar state program, where it recognized value in the possession, control, and disposition of the interest. Phillips v. Washington Legal Found., 524 U.S. 156, 170 (1998). [Back to text]
637
Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 (C.C. Pa. 1795); United States v. Miller, 317 U.S. 369, 373 (1943). [Back to text]
638
Regional Rail Reorganization Act Cases, 419 U.S. 102, 150–51 (1974). [Back to text]
639
Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226, 250 (1897); McGovern v. City of New York, 229 U.S. 363, 372 (1913). See also Boom Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 U.S. 342 (1936). [Back to text]
640
United States v. Miller, 317 U.S. 369, 374 (1943); United States ex rel. TVA v. Powelson, 319 U.S. 266, 275 (1943). See also United States v. New River Collieries Co., 262 U.S. 341 (1923); Olson v. United States, 292 U.S. 264 (1934); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). Exclusion of the value of improvements made by the government under a lease was held constitutional. Old Dominion Land Co. v. United States, 269 U.S. 55 (1925). [Back to text]
641
United States v. Miller, 317 U.S. 369, 374 (1943). [Back to text]
642
United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) (condemnation of church-run camp); United States v. 50 Acres of Land, 469 U.S. 24 (1984) (condemnation of city-owned landfill). In both cases the Court determined that market value was ascertainable. [Back to text]
643
United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Commodities Trading Corp., 339 U.S. 121 (1950). See also Vogelstein & Co. v. United States, 262 U.S. 337 (1923). [Back to text]
644
United States v. Cors, 337 U.S. 325 (1949). See also United States v. Toronto Navigation Co., 338 U.S. 396 (1949). [Back to text]
645
Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470 (1973). The dissent argued that since upon expiration of the lease only salvage value of the improvements could be claimed by the lessee, just compensation should be limited to that salvage value. Id. at 480. [Back to text]
646
United States v. Fuller, 409 U.S. 488 (1973). The dissent argued that the principle denying compensation for governmentally created value should apply only when the government was in fact acting in the use of its own property; here the government was acting only as a condemnor. Id. at 494. [Back to text]
647
Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking). [Back to text]
648
United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment). [Back to text]
649
Albrecht v. United States, 329 U.S. 599 (1947). [Back to text]
650
Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States, 274 U.S. 341 (1927). [Back to text]
651
United States v. General Motors Corp., 323 U.S. 373 (1945). [Back to text]
652
United States v. Welch, 217 U.S. 333 (1910). [Back to text]
653
Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341, 351–52, 354 (1903). Where the taking of a strip of land across a farm closed a private right-of-way, an allowance was properly made for the value of the easement. United States v. Welch, 217 U.S. 333 (1910). [Back to text]
654
Bauman v. Ross, 167 U.S. 548 (1897). [Back to text]
655
Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). [Back to text]
656
Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). [Back to text]
657
See Horne v. Dep’t of Agric., 576 U.S. ___, No. 14–275, slip op. at 5 (2015). In deciding this case, the Court presumably intended to leave intact established exceptions when the government seizes personal property (e.g., confiscation of adulterated drugs). See, e.g., Bennis v. Michigan, 516 U.S. 442, 452 (1996) (“Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”). [Back to text]
658
Horne, slip op. at 8. [Back to text]
659
Id. at 9–12. [Back to text]
660
The government’s argument might have carried more weight had the marketing order been viewed as a regulatory taking. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321–22 (2002) (“The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.”); Bowles v. Willingham, 321 U.S. 503, 519 (1944) (rent control cannot be a taking of premises if “[t]here is no requirement that the apartments be used for purposes which bring them under the [rent control] Act”). [Back to text]
661
Horne, slip op. at 13. Here, the Court expressly rejected the argument that the raisin growers could avoid the physical taking of their property by growing different crops, or making different uses of their grapes, by quoting its earlier decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982) (“[A] landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.”). The Court also distinguished the raisin reserve provisions from the requirement that companies manufacturing pesticides, fungicides, and rodenticides disclose trade secrets in order to sell those products at issue in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). It did so because the manufacturers in Ruckelshaus were seen to have taken part in a “voluntary exchange” of information that included their trade secrets, recognized as property under the Takings Clause, in exchange for a “valuable Government benefit” in the form of a license to sell dangerous chemicals. No such government benefit was seen to be involved with the raisin growers because they were making “basic and familiar uses” of their property. [Back to text]
662
Horne, slip op. at 14–16. [Back to text]
663
Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp. v. United States, 261 U.S. 502, 508 (1923). [Back to text]
664
James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict Mfg. Co., 113 U.S. 59, 67 (1885). [Back to text]
665
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). [Back to text]
666
Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983). [Back to text]
667
Omnia Commercial Co. v. United States, 261 U.S. 502 (1923). [Back to text]
668
International Paper Co. v. United States, 282 U.S. 399 (1931). [Back to text]
669
Armstrong v. United States, 364 U.S. 40, 50 (1960). [Back to text]
670
Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978). [Back to text]
671
Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986). [Back to text]
672
“Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level.” Bowen v. Gilliard, 483 U.S. 587, 604 (1987). [Back to text]
673
Mitchell v. United States, 267 U.S. 341 (1925); United States ex rel. TVA v. Powelson, 319 U.S. 266 (1943); United States v. Petty Motor Co., 327 U.S. 372 (1946). For consideration of the problem of fair compensation in government-supervised bankruptcy reorganization proceedings, see New Haven Inclusion Cases, 399 U.S. 392, 489–95 (1970). [Back to text]
674
United States v. General Motors Corp., 323 U.S. 373, 382 (1945). [Back to text]
675
United States v. General Motors Corp., 323 U.S. 373 (1945). In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the Government seized the tenant’s plant for the duration of the war, which turned out to be less than the full duration of the lease, and, having no other means of serving its customers, the laundry suspended business for the period of military occupancy; the Court narrowly held that the government must compensate for the loss in value of the business attributable to the destruction of its “trade routes,” that is, for the loss of customers built up over the years and for the continued hold of the laundry upon their patronage. See also United States v. Pewee Coal Co., 341 U.S. 114 (1951) (in temporary seizure, Government must compensate for losses attributable to increased wage payments by the Government). [Back to text]
676
United States v. Miller, 317 U.S. 369, 375–76 (1943). “On the other hand,” the Court added, “if the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken.” Id. [Back to text]
677
United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57 (1919). [Back to text]
678
28 U.S.C. § 1403. On the other hand, inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491(a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States “founded . . . upon the Constitution.” See Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998). Inverse condemnation claims against the United States not in excess of $10,000 may also be heard in federal district court under the “Little Tucker Act.” 28 U.S.C. § 1346(a)(2). [Back to text]
679
Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the trial judge is to instruct the jury with regard to the criteria and this includes determination of “all issues” other than the precise issue of the amount of compensation, so that the judge decides those matters relating to what is computed in making the calculation. United States v. Reynolds, 397 U.S. 14 (1970). [Back to text]
680
Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a court-appointed master. [Back to text]
681
Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893). [Back to text]
682
Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897). In federal courts, reports of Rule 71A commissions are to be accepted by the court unless “clearly erroneous.” Fed. R. Civ. P. 53(e)(2). [Back to text]
683
Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898). [Back to text]
684
McGovern v. City of New York, 229 U.S. 363, 370–71 (1913). [Back to text]
685
229 U.S. at 371. See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911). [Back to text]
686
The Court has not yet determined whether the actions of a court may give rise to a taking. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, Justice Scalia, joined by three other Justices, recognized that a court could effect a taking through a decision that contravened established property law. 560 U.S. ___, No. 08–1151, slip op. (2010). Justice Kennedy and Justice Breyer, each joined by one other Justice, wrote concurring opinions finding that the case at hand did not require the Court to determine whether, or when, a judicial decision on the rights of a property owner can violate the Takings Clause. Though all eight participating Justices agreed on the result in Stop the Beach Renourishment, Inc, the viability and dimensions of a judicial takings doctrine thus remains unresolved. [Back to text]
687
Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The Fifth Amendment “has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals,” the Court explained. [Back to text]
688
Meyer v. City of Richmond, 172 U.S. 82 (1898). [Back to text]
689
Sauer v. City of New York, 206 U.S. 536 (1907). But see the litigation in the state courts cited by Justice Cardozo in Roberts v. City of New York, 295 U.S. 264, 278–82 (1935). [Back to text]
690
Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). [Back to text]
691
Manigault v. Springs, 199 U.S. 473 (1905). [Back to text]
692
Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). Recurrent, temporary floodings are not categorically exempt from Takings Clause liability. Ark. Game & Fishing Comm’n v. United States, 568 U.S. ___, No. 11–597, slip op. (2012) (downstream timber damage caused by changes in seasonal water release rates from government dam). [Back to text]
693
United States v. Dickinson, 331 U.S. 745, 748 (1947). [Back to text]
694
Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913). [Back to text]
695
United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in a suit by one whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914). [Back to text]
696
“The phrase ‘inverse condemnation’ generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a ‘taking’ of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity.” San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980). [Back to text]
697
Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 (1913); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. Appalachian Power Co., 311 U.S. 377 (1940); United States v. Commodore Park, Inc., 324 U.S. 386 (1945); United States v. Willow River Power Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967). [Back to text]
698
United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961). [Back to text]
699
United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); United States v. Dickinson, 331 U.S. 745 (1947); United States v. Kansas City Ins. Co., 339 U.S. 799 (1950); United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961). [Back to text]
700
Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp., 444 U.S. 206 (1979). [Back to text]
701
Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). See also The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 255 (1897); Omnia Commercial Co. v. United States, 261 U.S. 502 (1923); Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935). [Back to text]
702
1 NICHOLS ON EMINENT DOMAIN § 1.42 (Julius L. Sackman, 2006). [Back to text]
703
E.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (ordinance upheld restricting owner of brick factory from continuing his use after residential growth surrounding factory made use noxious, even though value of property was reduced by more than 90%); Miller v. Schoene, 276 U.S. 272 (1928) (no compensation due owner’s loss of red cedar trees ordered destroyed because they were infected with rust that threatened contamination of neighboring apple orchards: preferment of public interest in saving cash crop to property interest in ornamental trees was rational). [Back to text]
704
Mugler v. Kansas, 123 U.S. 623, 668–69 (1887) (ban on manufacture of liquor greatly devalued plaintiff ’s plant and machinery; no taking possible simply because of legislation deeming a use injurious to public health and welfare). [Back to text]
705
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (a regulation that deprives a property owner of all beneficial use of his property requires compensation, unless the owner’s proposed use is one prohibited by background principles of property or nuisance law existing at the time the property was acquired). [Back to text]
706
260 U.S. at 414–15. [Back to text]
707
260 U.S. at 415. In dissent, Justice Brandeis argued that a restriction imposed to abridge the owner’s exercise of his rights in order to prohibit a noxious use or to protect the public health and safety simply could not be a taking, because the owner retained his interest and his possession. Id. at 416. [Back to text]
708
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987). [Back to text]
709
Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) (government may not require railroad at its own expense to separate the grade of a railroad track from that of an interstate highway). See also Panhandle Co. v. Highway Comm’n, 294 U.S. 613 (1935); Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346 (1953), and compare the Court’s two decisions in Georgia Ry. & Electric Co. v. City of Decatur, 295 U.S. 165 (1935), and 297 U.S. 620 (1936). [Back to text]
710
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). [Back to text]
711
272 U.S. at 395. See also Zahn v. Board of Pub. Works, 274 U.S. 325 (1927). [Back to text]
712
Nectow v. City of Cambridge, 277 U.S. 183 (1928). [Back to text]
713
Initially, the Court’s return to the land-use area involved substantive due process, not takings. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (sustaining single-family zoning as applied to group of college students sharing a house); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (voiding single-family zoning so strictly construed as to bar a grandmother from living with two grandchildren of different children). See also City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). [Back to text]
714
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The phrase appeared first in Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962). [Back to text]
715
Murr v. Wisconsin 582 U.S. __, __, No. 15–214, slip op. at 7 (2017) (rejecting the argument of the owners of two adjoining undeveloped lots that a regulatory taking occurred through the enactment of regulations that forbade improvment or seperate sale of the lots). [Back to text]
716
Id. (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency 535 U.S. 302, 322 (2002)). [Back to text]
717
While observing that the “central dynamic of the Court’s regulatory takings jurisprudence . . . is its flexibility,” the Court in Murr v. Wisconsin reiterated the “two guidelines . . . for determining when government regulation is so onerous that it constitutes a taking.” Id. at ___, slip op. at 7. First, with some qualifications, “‘a regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause.’” Id. (quoting Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001)). Second, if “a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on ‘a complex of factors,’ including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Id. at ___, slip op. at 7–8 (quoting Palazzolo, 533 U.S. at 617). [Back to text]
718
438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burger dissented. Id. at 138. [Back to text]
719
438 U.S. at 124 (citations omitted). [Back to text]
720
438 U.S. at 124–28, 135–38. [Back to text]
721
260 U.S. at 413. [Back to text]
722
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (requirement that permit be obtained for filling privately-owned wetlands is not a taking, although permit denial resulting in prevention of economically viable use of land may be). [Back to text]
723
Texaco v. Short, 454 U.S. 516 (1982) (state statute deeming mineral claims lapsed upon failure of putative owners to take prescribed steps is not a taking); United States v. Locke, 471 U.S. 84 (1985) (reasonable regulation of recordation of mining claim is not a taking). [Back to text]
724
467 U.S. 986 (1984). [Back to text]
725
467 U.S. at 1011. [Back to text]
726
467 U.S. at 1006–07. Similarly, disclosure of data submitted before the confidentiality guarantee was placed in the law did not frustrate reasonable expectations, the Trade Secrets Act merely protecting against “unauthorized” disclosure. Id. at 1008–10. [Back to text]
727
475 U.S. 211 (1986). Accord, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 645–46 (1993). In addition, see Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (involving frustration of “expectancies” developed through improvements to private land and governmental approval of permits), and PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (characterizing and distinguishing Kaiser Aetna as involving interference with “reasonable investment backed expectations”). [Back to text]
728
524 U.S. 498 (1998). The split doctrinal basis of Eastern Enterprises undercuts its precedent value, and that of Connolly and Concrete Pipe, for takings law. A majority of the justices (one supporting the judgment and four dissenters) found substantive due process, not takings law, to provide the analytical framework where, as in Eastern Enterprises, the gravamen of the complaint is the unfairness and irrationality of the statute, rather than its economic impact. [Back to text]
729
Andrus v. Allard, 444 U.S. 51 (1979). [Back to text]
730
Similarly, the Court in Goldblatt had pointed out that the record contained no indication that the mining prohibition would reduce the value of the property in question. 369 U.S. at 594. Contrast Hodel v. Irving, 481 U.S. 704 (1987), where the Court found insufficient justification for a complete abrogation of the right to pass on to heirs interests in certain fractionated property. Note as well the differing views expressed in Irving as to whether that case limits Andrus v. Allard to its facts. Id. at 718 (Justice Brennan concurring, 719 (Justice Scalia concurring). See also the suggestion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027–28 (1992), that Allard may rest on a distinction between permissible regulation of personal property, on the one hand, and real property, on the other. [Back to text]
731
The “parcel as a whole” analysis refers to the precept that takings law “does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.” Penn Central, 438 U.S. at 130; see also Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 644 (1993); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987). In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court affirmed the established spatial dimension of the doctrine, under which the court must consider the entire relevant tract, as well as the functional dimension, under which the court must consider plaintiff ’s full bundle of rights. See535 U.S. 302, 327 (2002). The spatial dimension is perhaps best illustrated by the analysis in Penn Central, wherein the Court declined to segment Grand Central Terminal from the air rights above it. 438 U.S. at 130. And the functional dimension of the parcel as a whole is demonstrated by the Court’s refusal in Andrus v. Allard to segment one “stick” in the plaintiff ’s “bundle” of property rights in holding that denial of the right to sell Indian artifacts was not a taking in light of rights in the artifacts that were retained. 444 U.S. 51, 65–66 (1979). In Tahoe-Sierra, the Court also added a temporal dimension to the “parcel as a whole” analysis, under which a court considers the entire time span of plaintiff ’s property interest. Invoking this temporal dimension, the Court held that temporary land-use development moratoria do not effect a total elimination of use because use and value return in the period following the moratorium’s expiration. Tahoe-Sierra, 535 U.S. at 327. Thus, such moratoria are to be analyzed under the ad hoc, multifactor Penn Central test, rather than a per se “total takings” approach. [Back to text]
732
Id. at 20 (internal citation omitted) (emphasis added). [Back to text]
733
Id. [Back to text]
734
Id. at 11. In doing so, the Court rejected arguments for the adoption of “a formalistic rule to guide the parcel inquiry,” one that would “tie the definition of the parcel to state law.” See id. at 14. [Back to text]
735
Id. at 9 (“[B]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’ As commentators have noted, the answer to this question may be outcome determinative.” (quoting Keystone, 480 U.S. at 497)). [Back to text]
736
Id. [Back to text]
737
Id. at 11–12 (“[C]ourts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.”). [Back to text]
738
Id. (“[C]ourts must look to the physical characteristics of the landowner’s property. These include the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment. In particular, it may be relevant that the property is located in an area that is subject to, or likely to become subject to, environmental or other regulation.”). [Back to text]
739
Id. at 11, 13 (“[C]ourts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings.”). [Back to text]
740
The dissent was based upon this test. Penn Central, 438 U.S. at 144–46. [Back to text]
741
369 U.S. 590 (1962). Hadacheck v. Sebastian, 239 U.S. 394 (1915), and, perhaps, Miller v. Schoene, 276 U.S. 272 (1928), also fall under this heading, although Schoene may also be assigned to the public peril line of cases. [Back to text]
742
369 U.S. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668–69 (1887)). The Court posited a two-part test. First, the interests of the public required the interference, and, second, the means were reasonably necessary for the accomplishment of the purpose and were not unduly oppressive of the individual. 369 U.S. at 595. The test was derived from Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding that state officers properly destroyed fish nets that were banned by state law in order to preserve certain fisheries from extinction). [Back to text]
743
Penn Central, 438 U.S. at 133–34 n.30. [Back to text]
744
505 U.S. 1003 (1992). [Back to text]
745
505 U.S. at 1026. The Penn Central majority also rejected the dissent’s contention, 438 U.S. at 147–50, that regulation of property use constitutes a taking unless it spreads its distribution of benefits and burdens broadly so that each person burdened has at the same time the enjoyment of the benefit of the restraint upon his neighbors. The Court deemed it immaterial that the landmarks law has a more severe impact on some landowners than on others: “Legislation designed to promote the general welfare commonly burdens some more than others.” Id. at 133–34. [Back to text]
746
By contrast, the per se rule is inapplicable to temporary physical occupations of land. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 434 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980). [Back to text]
747
The rule emerged from cases involving flooding of lands and erection of poles for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); City of St. Louis v. Western Union Tel. Co., 148 U.S. 92 (1893); Western Union Tel. Co. v. Pennsylvania R.R., 195 U.S. 540 (1904). [Back to text]
748
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Loretto was distinguished in FCC v. Florida Power Corp., 480 U.S. 245 (1987); regulation of the rates that utilities may charge cable companies for pole attachments does not constitute a taking in the absence of any requirement that utilities allow attachment and acquiesce in physical occupation of their property. See also Yee v. City of Escondido, 503 U.S. 519 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be; owners could still determine whether their land would be used for a trailer park and could evict tenants in order to change the use of their land). [Back to text]
749
Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra’s sharp physical-regulatory dichotomy is hard to reconcile with dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005), to the effect that the Penn Central regulatory takings test, like the physical occupations rule of Loretto, “aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” [Back to text]
750
447 U.S. 255, 260 (1980). [Back to text]
751
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (emphasis in original). The Agins/Lucas total deprivation rule does not create an all-or-nothing situation, since “the landowner whose deprivation is one step short of complete” may still be able to recover through application of the Penn Central economic impact and “distinct [or reasonable] investment-backed expectations” criteria. Id. at 1019 n.8 (1992). See also Palazzolo, 533 U.S. at 632. [Back to text]
752
505 U.S. at 1029. [Back to text]
753
533 U.S. 606 (2001). [Back to text]
754
533 U.S. at 627. [Back to text]
755
535 U.S. at 335. [Back to text]
756
505 U.S. at 1029 n.16. [Back to text]
757
344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that “when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.” [Back to text]
758
357 U.S. 155 (1958). [Back to text]
759
National Bd. of YMCA v. United States, 395 U.S. 85 (1969). “An undertaking by the government to reduce the menace from flood damages which were inevitable but for the Government’s work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.” United States v. Sponenbarger, 308 U.S. 256, 265 (1939). [Back to text]
760
Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). [Back to text]
761
544 U.S. 528 (2005). [Back to text]
762
544 U.S. at 542. [Back to text]
763
483 U.S. 825 (1987). [Back to text]
764
A third type of inverse condemnation, in addition to regulatory and Nollan, also applies to exactions imposed as conditions precedent to permit approval. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, No. 11–1447 (2013). To the argument that nothing is “taken” when a permit is denied for failure to agree to a condition precedent, the Court stated that what is at stake is not whether a taking has occurred, but whether the right not to have property taken without just compensation has been burdened impermissibly. Id. at 10. The Court in Koontz did not discuss what remedies might be available to a plaintiff who refuses to accept certain demanding conditions precedent and thereby is refused a permit. [Back to text]
765
483 U.S. at 837. Justice Scalia, author of the Court’s opinion in Nollan, amplified his views in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1 (1988), explaining that “common zoning regulations requiring sub-dividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of ” the social evil (e.g., congestion) that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to impose on a few individuals public burdens that “should be borne by the public as a whole.” 485 U.S. at 20, 22. [Back to text]
766
512 U.S. 374 (1994). [Back to text]
767
526 U.S. 687 (1999). [Back to text]
768
A strong hint that monetary exactions are indeed outside Nollan/Dolan was provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining that these decisions were grounded on the doctrine of unconstitutional conditions as applied to easement conditions that would have been per se physical takings if condemned directly. [Back to text]
769
570 U.S. ___, No. 11–1447 (2013). [Back to text]
770
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). The other two decisions are Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). [Back to text]
771
See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 293–97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (rejecting facial taking challenges to federal strip mining law). [Back to text]
772
482 U.S. 304 (1987). The decision was 6–3, Chief Justice Rehnquist’s opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and Scalia, and Justice Stevens’ dissent being joined in part by Justices Blackmun and O’Connor. The position the Court adopted had been advocated by Justice Brennan in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) (dissenting from Court’s holding that state court decision was not “final judgment” under 28 U.S.C. § 1257). [Back to text]
773
482 U.S. at 321. [Back to text]
774
Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory requirement that small fractional interests in allotted Indian lands escheat to tribe, rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment version of escheat statute). [Back to text]
775
Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations of this fairness principle, see Penn Central, 438 U.S. at 123–24; and Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 322, 333–42–89 (2002). [Back to text]
776
Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (government retained the interest derived from funds it required to be deposited with the clerk of the county court as a precondition to certain suits; the interest earned was not reasonably related to the costs of using the courts, since a separate statute required payment for the clerk’s services). By contrast, a charge for governmental services “not so clearly excessive as to belie [its] purported character as [a] user fee” does not qualify as a taking. United States v. Sperry Corp., 493 U.S. 52, 62 (1989). [Back to text]
777
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 128 (1978). In addition to the cases cited there, see also Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (viewed as governmental effort to turn private pond into “public aquatic park”); Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (“extortion” of beachfront easement for public as permit condition unrelated to purpose of permit). [Back to text]
778
Nollan v. California Coastal Comm’n, 483 U.S. 825, 831–32 (1987) (physical occupation occurs with public easement that eliminates right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigation servitude requiring public access to a privately-owned pond was a taking under the circumstances; owner’s commercially valuable right to exclude others was taken, and requirement amounted to “an actual physical invasion”). But see PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to permit individuals to exercise free expression rights on property onto which public had been invited was not destructive of right to exclude others or “so essential to the use or economic value of [the] property” as to constitute a taking). [Back to text]
779
Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass on to heirs fractionated interests in lands constitutes a taking), Babbitt v. Youpee, 519 U.S. 234 (1997) (same result based on “severe” restriction of the right). [Back to text]
780
473 U.S. 172 (1985). [Back to text]
781
477 U.S. 340 (1986). [Back to text]
782
Pennell v. City of San Jose, 485 U.S. 1 (1988). [Back to text]
783
533 U.S. 606 (2001). [Back to text]
784
533 U.S. at 620. See also Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) (taking claim ripe despite plaintiff ’s not having applied for sale of her transferrable development rights, because no discretion remains to agency and value of such rights is a simple issue of fact). [Back to text]
785
See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 295–97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected). [Back to text]
786
545 U.S. 323 (2005). [Back to text]
787
28 U.S.C. § 1738. The statute commands that “judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . .” The statute has been held to encompass the doctrines of claim and issue preclusion. [Back to text]
788
See England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). [Back to text]
789
San Remo Hotel, 545 U.S. at 348 (Chief Justice Rehnquist, and Justices O’Connor, Kennedy, and Thomas). [Back to text]