Takings Limits on the Exercise of Congressional Power

1) Physical intrusion

2) Regulatory taking

a) traditional doctrine includes the nuisance exception;
It is not unconstitutional to regulate these out of existence under the inherent police power of the state for protecting the health, safety and welfare of the population. Mugler v. Kansas, 123 U.S. 623 (1887) (alcoholic beverages manufacture prohibited) ; Hadechek v. Sebastian, 239 U.S. 394 (1915) (brick mill barred in residential neighborhood); Miller v. Shoene, 276 U.S. 272 (1928) (diseased cedar trees must be destroyed to protect apple orchards); Goldblatt v Hempstead, 369 U.S. 590 (1962) (quarry in residential area must dicontinue operations).

"Long ago it was recognized that all property in this country is held under the implied obligation that the owner's use shall not be injurious to the community', and the Takings Clause did not transform that principle into one that requires compensation whenever the State asserts its power to enforce it." Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470, 491-92 (1987), quoting Mugler,123 U.S. 623, at 665 (1887). See Coggins, p. 242.

A company's expectation that "it would not have to spend its own money to remediate health and environmental hazards created by its [activities] ... cannot be a reasonable commercial expectation" requiring governmental compensation, at least not in an industry traditionally subject to regulation. Atlas Corp. v. United States, 895 F.2d 745, 758 (Fed. Cir.1990), cert. denied, 111 S.Ct. 46 (1990). See Coggins, p 242.

b) for public uses which are debatable as "benefit-conferring" vs. "harm-preventing",
a number of questions exist; factors in the balancing equation include:

• Legitimate state interest: The seminal case Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 (1922) indicates that when a regulation goes to far it will be recognized as a taking. In the land use context a land use regulation may effect a taking if it does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land. Agins v. City of Tiburon, 447 U.S. 255 (1980) (that is the traditional "two-pronged test" for early land use takings cases).

• a substantial ends-means connection must exist between the purposes of the regulation and the means used to achieve them. Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).

• there must be some "rough proportionality" between the exactions demanded by a local jurisdiction for approval of development proposal, and the anticipated impacts on the community of that development. Dolan v. City of Tigard, ___ U.S. ___, 114 S.Ct. 2309, 129 L.Ed.2d. 304 (1994).

• extent of loss of economic value: A reduction in value is not necessarily a taking. Andrus v. Allard, 444 U.S. 51 (1979). But a loss of all economic value might be. Lucas. See below.

• degree of loss of control over use

• protection for "investment-backed expectations" is important. Penn Central Transp. v. City of New York, 438 U.S. 104 (1978).

The Lucas Decision: Lucas v. South Carolina Coastal Comm'n, 112 S.Ct. 2886 (1992) does not entirely rework the jurisprudence of the regulatory takings component of the fifth amendment.

• Facts: Beach front property was zoned to prohibit development in 1988 after purchase by Lucas in 1986. Procedural Posture: Lower South Carolina court found a total deprivation of economic value-- this finding was not the subect of inquiry in upper courts; South Carolina Supreme Court reversed, finding a permissible regulation and legitimate exercise of state police power to prevent harm to the public.

• Issue for the United States Supreme Court: Has an unconstitutional taking occurred under the Beachfront Management Act regulations? Held: Yes, unconstitutional regulatory taking.

• Discussion by the Court: Rules of takings jurisprudence; No formula; apparent pro development mind set; bothered by ambiguity of benefit-conferring / harm-preventing regulations

• Rule: Standards will be found in state law of property and nuisance; if under these laws the use an be barred by regulation, then no taking. Otherwise, when all economic value is deprived the landowner, a taking has occurred and compensation is due.

• Dissent: Freezing the evolution of the common law is terrible; depriving state legislatures of the traditional power to revise the law governing the rights and uses of property is unwise / bad policy. This case appears makes a bad situation worse...

1. private property rights in federal resources are not usually fee simple;
2. public land regulation is based in federal law, not state law; and
3. the federal agencies / managers may not be subject to state nuisance law.

Recent Cases in the Wetlands Context

These cases deal with denials of dredge and fill permits under § 404 of the CWA: 33 U.S.C.A. § 1344:

• Formanek v. United States, 26 Cl. Ct. 332 (1992)
• Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153 (1990)
• Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) (court ignored Supreme Court precedent and measured impact of regulation on the parcel for which development approval had been denied, rather than on the entire parcel) See Glicksman and Coggins, 1995, p.58.
• Florida Rock Indus. v. United States, 21 Cl. Ct. 161, (1990) (discharge of dredged or fill material is not a nuisance)
• Florida Rock Indus. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 898, 130 L.Ed.2d 73 (1995) (court reasoned that because partial physical invasions are takings, regulations that reduce but do not eliminate economically viable use also might be takings to the extent of the reduction in value....) See Glicksman and Coggins, 1995, p. 59.

• Merlyn W. Clark, Wetlands: Compensation for "Taking" by Denial of the Section 404 Permit, 29 Idaho L. Rev. 41 (1992/93).
• Jan Goldman-Carter, Protecting Wetlands and Reasonable Investment Backed Expectations in the Wake of Lucas v. South Carolina Coastal Council, 28 Land & Water L. Rev. 425 (1993).
• Dennis J. Priolo, Section 404 of the Clean Water Act: The Case for Expansion of Federal Jurisdiction Over Isolated Wetlands, 30 Land & Water L. Rev. 91 (1995).