For other versions of this document, see http://wikileaks.org/wiki/CRS-97-122 ------------------------------------------------------------------------------ Order Code 97-122 CRS Report for Congress Received through the CRS Web Takings Decisions of the U.S. Supreme Court: A Chronology Updated October 19, 2005 Robert Meltz Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Takings Decisions of the U.S. Supreme Court: A Chronology Summary This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims that a government entity has "taken" private property, as that term is used in the Takings Clause of the Fifth Amendment. A scattering of related, non- takings decisions is also included. Under the Takings Clause, courts allow two very distinct types of suit. Condemnation occurs when a government or private entity formally invokes its power of eminent domain by filing suit to take a specified property, upon payment to the owner of just compensation. By contrast, a taking action -- our topic here -- is the procedural reverse. It is a suit by a property holder against the government, claiming that government conduct has effectively taken the property notwithstanding that the government has not filed a formal condemnation suit. A typical taking action complains of severe regulation of land use, though the Takings Clause reaches all species of property: real and personal, tangible and intangible. The taking action generally demands that the government compensate the property owner, just as when government formally exercises eminent domain. The Supreme Court's takings decisions reach as far back as 1870, and are divided here into three periods. The modern period, from 1978 to the present, is defined by the Court's effort to make its indicia for regulatory takings more explicit, with uneven success, and to develop ripeness standards. In the preceding period, 1922 to 1978, the Court first announced the regulatory taking concept -- that government regulation alone, without appropriation or physical invasion of property, may be a taking if sufficiently severe. During this time, however, it proffered little by way of regulatory takings criteria. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause as protecting property owners only from two particularly intrusive forms of government action: outright appropriation and physical invasion. Regulatory restrictions were tested against other legal theories and generally upheld. Contents I. Takings Law Today: Penn Central (1978) to the Present . . . . . . . . . . . . . . . . . 3 II. The Dawn of Regulatory Takings Law: Pennsylvania Coal Co. (1922) to 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 III. Appropriations and Physical Takings Only: 1870 to 1922 . . . . . . . . . . . . . . 16 Takings Decisions of the U.S. Supreme Court: A Chronology Once in the constitutional wings, the Takings Clause of the Fifth Amendment today stands center stage. No debate on the proper balance between private property rights and conflicting societal needs is complete without it. The reasons for the Takings Clause's ascendancy are clear. Starting with the advent of comprehensive zoning in the early twentieth century, federal, state, and local regulation of private land use has become pervasive. Beyond comprehensive zoning, recent decades have seen explosive growth in the use of historic preservation restrictions, open-space zoning, dedication and exaction conditions on building permits, nature preserves, wildlife habitat preservation, wetlands and coastal zone controls, and so on. In the Supreme Court, the appointment of several conservative justices since the 1970s has prompted a new scrutiny of government conduct vis-a-vis the private property owner. As a result, the Court since the late Seventies has turned its attention toward the takings issue with vigor, clarifying some issues and raising new ones. Through the 1980s and 1990s, property owner plaintiffs scored several major victories; by and large, the substantive doctrine of takings shifted to the right. Recent decisions, however, have moved the analytical framework in a more government-friendly direction, though it is too soon to discern whether this signals a lasting shift. By way of background, the Fifth Amendment of the U.S. Constitution states: "nor shall private property be taken for public use, without just compensation." Until the late nineteenth century, this clause was invoked only for condemnation: the formal exercise by government of its eminent-domain power to take property coercively, upon payment of just compensation. In such condemnation suits, there is no issue as to whether the property is "taken" in the Fifth Amendment sense; the government concedes as much by filing the action. The only question, typically, is how much compensation must be paid. Beginning in the late nineteenth century, the Supreme Court gave its imprimatur to a very different use of the Takings Clause. When the sovereign appropriated or caused a physical invasion of property, as when a government dam flooded private land, the Court found that the property had been taken just as surely as if the sovereign had formally condemned. Therefore, it said, the property owner should be allowed to vindicate his constitutional right to compensation in a suit against the government. In contrast with condemnation actions, then, such takings actions have the property owner suing government rather than vice-versa, hence the synonym "inverse condemnation actions." The key issue in takings actions is usually whether, given all the circumstances, the impact of the government action on a particular property amounts to a taking in the constitutional sense. CRS-2 In 1922, in the most historically important taking decision,1 the Supreme Court extended the availability of takings actions from government appropriations and physical invasions of property to the mere regulation of property use. This critical extension opened up vast new legal possibilities for property owners, and underlies most of the Supreme Court's takings decisions since 1922. * * * * * This report compiles only Supreme Court decisions addressing issues unique to takings (inverse condemnation) actions, not those on formal condemnation or property valuation. Thus the recent headline-grabbing Supreme Court opinion in Kelo v. City of New London,2 principally a formal condemnation case, is not included here. On the other hand, a scattering of due process cases is interspersed where they address property-use restrictions or have been cited by the Court as authority in its takings decisions. In the interest of brevity, we mention no dissenting opinions, and almost no concurrences. Thus, the report does not reveal the closely divided nature of some Supreme Court takings opinions. Decisions are in reverse chronological order. 1 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 2 125 S. Ct. 2655 (2005). CRS-3 I. Takings Law Today: Penn Central (1978) to the Present In 1978, the Supreme Court ushered in the modern era of regulatory takings law by attempting to inject some coherence into the ad hoc analyses that had characterized its decisions before then. In Penn Central Transportation Co. v. New York City, the Court declared that whether a regulatory taking has occurred in a given case is influenced by three principal factors: the economic impact of the regulation, the extent to which it interferes with distinct (in most later decisions, "reasonable") investment- backed expectations, and the "character" of the government action. After Penn Central, ad hocery in judicial taking determinations emphatically still remains, but arguably is confined within tighter bounds. The Court's many takings decisions since Penn Central have developed the jurisprudence in each of its main areas: ripeness, takings criteria, and remedy. As for takings criteria, the Court announced several "per se taking" rules in the two decades after Penn Central (see, e.g., Loretto and Lucas), though more recently it has again been extolling the multifactor, case-by-case approach of that decision (see Palazzolo, Tahoe-Sierra, and Lingle). In Lingle, one of its newest takings decisions, the Court summed up the four types of takings claims it now recognizes: a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may ... alleg[e] a "physical" taking, a Lucas-type "total regulatory taking," a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan. Case Action attacked Holding/rationale San Remo Hotel, City requirement that hotelier Federal full faith and credit statute (barring relitigation of issues that L.P. v. City and pay $567,000 fee for have been resolved by state courts of competent jurisdiction) admits of County of San converting residential rooms no exception allowing relitigation in federal court of takings claims Francisco, 125 S. to tourist rooms, under initially litigated in state court pursuant to "state exhaustion" ripeness Ct. 2491 (2005) ordinance seeking to preserve prerequisite of Williamson County, infra page 8. Court rejects supply of affordable rental argument that whenever claimant reserves his federal taking claim in housing state court, federal courts should review the reserved federal claim de novo, regardless of what issues the state court decided. Lingle v. Chevron State statute limiting rent that No taking. Rule announced in Agins, infra page 9, that government U.S.A. Inc., 125 S. oil companies may charge regulation of private property is a taking if it "does not substantially Ct. 2074 (2005) service station operators who advance legitimate state interests," is not a valid takings test. Takings lease stations owned by oil law looks at the burdens a regulation imposes on property. Thus, the companies, in order to hold physical taking, total taking, and Penn Central tests (infra page 10) down retail gasoline prices each aims to identify government actions that are "functionally equivalent" to a direct appropriation. In contrast, the "substantially advances" test focuses on the regulation's effectiveness, a due-process- like inquiry. Moreover, assessing the efficacy of regulations is a task to which courts are ill-suited. CRS-4 Case Action attacked Holding/rationale Brown v. Legal State's use of interest earned IOLTA program satisfies "public use" requirement of Takings Clause, Found. of by small or short-lived given the compelling interest in providing legal services for the poor. Washington, 538 deposits of title company's As to whether there was a taking, a per se test like that in Loretto, infra U.S. 216 (2003) clients' funds to support legal page 8, seems appropriate, and we assume such a taking occurred. But services for the poor -- under there is still no constitutional violation. The Takings Clause proscribes Interest on Lawyers' Trust takings without compensation. IOLTA mandates use of the interest Accounts (IOLTA) program only when it could generate no net interest for the client, owing to administrative costs. Thus, the compensation owed is zero. Verizon Commu- FCC regulations under Argument that historical costs should be used to avoid the possibility nications, Inc. v. Telecommunications Act of of takings does not present a serious question. Incumbents do not FCC, 535 U.S. 467 1996 providing that rates argue that any particular rate is so unjust as to be confiscatory, but (2002) charged by incumbent local general rule is that any question about the constitutionality of exchange carriers to new ratesetting is raised by rates, not ratesetting methods. Nor is FCC's competitors are to be based action placed outside this rule by any clear signs that takings will occur on forward-looking cost if the historical-costs interpretation is allowed. methodology, rather than historical costs Tahoe-Sierra Building moratoria imposed 1981-1984 moratoria are not per se takings. The argument that a Preservation 1981-1984 until bistate moratorium prohibiting all economic use of a property, no matter how Council, Inc. v. agency could formulate new briefly, is a per se taking must be rejected. Rather, such moratoria are Tahoe Regional regional land-use plan -- plus to be analyzed under the ad hoc balancing test of Penn Central, infra Planning Agency, freeze on building permits page10. Neither First English, infra page 7, nor Lucas, infra page 6, 535 U.S. 302 from 1984 to 1987 under support the per se taking argument. And the "parcel as a whole" rule (2002) court injunction against 1984 bars segmentation of a parcel's temporal dimension, precluding plan, plus restrictions under consideration of only the moratorium period. Finally, "fairness and 1987 plan justice" and the need for informed land-use planning support an ad hoc approach here. (Post-1984 restrictions not addressed.) Palazzolo v. Rhode State denials rejecting Taking claim is ripe. Given state's interpretation of its regulations, Island, 533 U.S. developer's proposals to fill there was no ambiguity as to extent of development (none) allowed on 606 (2001) in all or most of principally wetlands portion of lot. Similarly, value of uplands portion, where a wetland lot adjacent to coastal single home may be built, was also settled. Hence, lot owner need not pond make further applications to satisfy "final decision" requirement of ripeness doctrine. On the merits, a taking claim is not barred by fact that property was acquired after effective date of state regulation. And, a regulation permitting a landowner to build a substantial house on a 20-acre parcel is not a total taking under Lucas, infra page 6, but must instead be evaluated under the Penn Central test, infra page 10. City of Monterey City's failure to approve Issue of whether city was liable for taking, raised through civil rights v. Del Monte property owner's claim under 42 U.S.C. § 1983, was in this case an essentially fact- D u n e s a t development plans after five, bound one, and thus properly submitted by district court to jury. Suit Monterey, Ltd., progressively scaled-back for legal relief under section 1983 is action at law sounding in tort, and 526 U.S. 687 proposals accommodating is thus within jury guarantee in Seventh Amendment. Also "rough (1999) city's progressively lower proportionality" standard of Dolan, infra page 5, is not appropriate development caps takings test. It was designed to address exactions on development permits, not, as here, denials of development. CRS-5 Case Action attacked Holding/rationale Eastern Enter- Federal statute requiring Coal Industry Retiree Health Benefit of 1992 is unconstitutional as prises v. Apfel, company to fund health applied to Eastern. In opinion accompanying judgment, four justices 524 U.S. 498 benefits of miner who worked find taking because statute imposes severe retroactive liability on a (1998) for it decades earlier, where limited class of parties that could not have anticipated the liability, and company left mining business the extent of liability is substantially disproportionate to the company's before promise of lifetime experience in mining field. This points to a taking under Penn Central benefits in collective test, infra page 10. Also, remedy for taking based on generalized ba rgaining agreements monetary liability is invalidation rather than compensation, supporting became explicit in 1974 jurisdiction in district court. Remaining justice supporting judgment sees instead a substantive due process violation. Phillips v. State's use of interest earned Interest is property of clients, not state. Despite fact that interest would Washington Legal on small or short-lived not exist but for IOLTA program, state's rule that "interest follows Foundation, 524 deposits of lawyers' clients' principal" must be followed. Nor can interest be regarded as mere U.S. 156 (1998) funds to support legal services government-created value. Remanded for decision on whether taking for the poor -- under Interest occurred. on Lawyers' Trust Accounts (IOLTA) program Suitum v. Tahoe Agency's ban on new land Taking claim is ripe despite plaintiff's not having applied for TRPA Regional Planning coverage in "Stream Envi- approval of her sale of transferrable development rights (TDRs). Agency, 520 U.S. ronment Zones," under which "Final decision" requirement of Williamson County, infra page 8, does 725 (1997) plaintiff was barred from not embrace such TRPA approval, since parties agree on TDRs to building home on residential which plaintiff is entitled and no discretion remains for TRPA. TDRs' lot value here is simply an issue of fact, which courts routinely resolve without benefit of a market transaction. Babbitt v. Youpee, Federal statute's ban on Taking occurred. The amendment, made in 1984, did not cure taking 519 U.S. 234 descent or devise of small that Hodel v. Irving, infra page 7, found in pre-amendment version of (1997) interests in allotted Indian statute. Amendment narrowed ban only as regards income-producing land -- as ban was narrowed ability of the land, not its value. More important, amendment's by amendment allowance of devise to current owners in same parcel still offends Hodel by continuing to "severely restrict[]" Indian's right to direct descent of his property. Bennis v. Forfeiture of car, owned No taking (of wife's joint interest in car). To be sure, wife had no prior Michigan, 516 jointly by plaintiff and her knowledge of husband's planned use of car. But government may not U.S. 442 (1996) husband, because of be required to compensate an owner for property which it has already husband's illegal sexual lawfully acquired under authority other than eminent domain. Then, activity in car too, the cases authorizing forfeiture are "too firmly fixed" to be now displaced. Dolan v. City of Conditions imposed by city Taking occurred. While greenway dedication condition rationally Tigard, 512 U.S. for granting building permit, advanced a purpose of permit scheme (flood prevention), requiring 374 (1994) requiring applicant to landowner to allow public access to greenway did not. Hence, latter dedicate public greenway violated "nature of the permit condition" taking criterion in Nollan, along stream and adjacent infra page 6. Other condition, that pathway be dedicated, was not bike/pedestrian pathway shown by city to impose burden on applicant that was "roughly proportional" to impact of applicant's proposed project on community. Hence, it violates the "degree of burden" taking criterion that Court announces here. Also, burden of proof is on government to demonstrate "rough proportionality." CRS-6 Case Action attacked Holding/rationale Concrete Pipe & Federal statute requiring that No taking. Taking claim is not aided by fact that collective bargaining Products, Inc. v. employer who withdraws agreement predating statute protected employer from liability to plan Construction from multi-employer pension beyond specified contributions. Three-factor Penn Central test, infra Laborers Pension plan pay a fixed debt to plan page 10, does not point to taking: (1) government action merely Trust, 508 U.S. adjusted benefits and burdens of economic life; (2) withdrawal liability 602 (1993) was not disproportionate; and (3) given longstanding federal regulation in pension field, employer lacked reasonable expectation it would not be faced with liability for promised benefits. Lucas v. South Development ban imposed on Government regulation of land that completely eliminates economic Carolina Coastal vacant lots under state's use is a per se taking, even when the legislature asserts a prevention-of- Council, 505 U.S. beachfront management harm purpose. There is a prior inquiry, however, as to whether 1003 (1992) statute proposed use is inherent in landowner's title under "background principles of the state's law of property and nuisance" existing when land was acquired. If not, there is no taking, since regulation does not take anything owner ever had. Yee v. City of Mobile home rent-control No physical taking occurred. Neither state nor local law on its face Escondido, 503 ordinance, combined with requires landowner to dedicate his land to mobile home rentals, nor U.S. 519 (1992) state law forcing mobile home overly limits his ability to terminate such use. Per se rule in Loretto, park owner to accept infra page 8, applies only when permanent physical occupation is purchasers of mobile homes coerced. Claim that procedure for changing use of park is overly in park as new tenants burdensome is not ripe, since plaintiff has not gone through procedure. Regulatory taking claim is not properly before Court, since not subsumed by questions in petition for certiorari. Preseault v. ICC, Federal "rails-to-trails" Premature for Court to evaluate taking challenge to statute, because 494 U.S. 1 (1990) statute, under which unused even if it causes takings of reversionary interests, compensation is railroad rights of way are available under Tucker Act (authorizing suits against U.S. for converted to recreational compensation). Nothing in statute suggests the "unambiguous t r a i l s n o t wi t h s t a n d i n g intention" to withdraw Tucker Act remedy which this Court requires. reversionary property For example, Congress' expressed desire that program operate at "low interests under state law cost" might merely reflect its rejection of a more ambitious federal program, rather than withdrawal of Tucker Act remedy. United States v. Statutory 1-1/2% deduction No taking. 1-1/2% deduction is a reasonable "user fee" intended to Sperry Corp., 493 from awards of Iran-United reimburse United States for its costs in connection with tribunal. U.S. 52 (1989) States Claims Tribunal as Amount of fee need not be precisely tailored to use that party makes of reimbursement to United government services. Fee here is not so great as to belie its claimed States for expenses incurred status as a user fee. in the arbitration Duquesne Light State agency's refusal to No taking. Under the circumstances, overall impact of preventing Co. v. Barasch, allow inclusion of cost of amortization of such costs was small, and not shown to be unjust or 488 U.S. 299 canceled nuclear plants in confiscatory. (1989) utility's rate base Pennell v. City of Rent control ordinance Not ripe. There was no evidence that hardship provision had in fact San Jose, 485 U.S. allowing rent increases of ever been relied upon to limit a rent increase. Also, ordinance did not 1 (1988) greater than set percentage require rent limit in event of tenant hardship, only that hardship be only after considering considered. economic hardship caused to tenants Nollan v. State's grant of building Taking occurred. Permit condition (recording easement) did not California Coastal permit on condition property substantially advance a government purpose that would justify denial Comm'n, 483 U.S. owners record easement of permit (ensuring visual access to beach). Where such linkage exists, 825 (1987) allowing public to traverse however, no taking occurs even if outright appropriation of the beach on property property infringement (here, the easement) would be a taking. CRS-7 Case Action attacked Holding/rationale Bowen v. Gilliard, Amendments to federal No taking. Family has no property right to continued welfare benefits 483 U.S. 587 welfare program resulting in at same level. Child receiving support payments suffers no substantial (1987) lower benefits and assignment economic impact, since payments were likely used for entire family of child support payments to before amendments. entire family First English Interim ordinance prohibiting If a regulation is held to have taken property, Takings Clause requires Evangelical construction of any structures compensation for the time during which regulation was in effect -- i.e., Lutheran Church v. in flood zone until date of repeal or judicial invalidation. Mere invalidation of County of Los regulation is not a constitutionality sufficient remedy. (Existence of Angeles, 482 U.S. taking assumed by Court owing to posture of case.) 304 (1987) Hodel v. Irving, Federal statute declaring that Taking occurred. Statute amounts to complete abrogation, rather than 481 U.S. 704 small interests in allotted regulation, of right to pass on property -- a right which, like the right (1987) Indian land may not descend to exclude others, is basic to the concept of property. by intestacy or devise, but must escheat to tribe K e y s t o n e State regulation requiring that No taking. Unlike similar anti-subsidence law held a taking in Bituminous Coal at least 50% of underground Pennsylvania Coal Co., infra page 15, the statute here has a broad A s s ' n v . coal be left in place, where public purpose and does not rule out profitable mine operation. DeBenedictis, 480 mining coal might cause U.S. 470 (1987) subsidence damage to surface structures FCC v. Florida Federal regulation requiring No taking. Per se rule in Loretto, infra page 8, applies only when Power Corp., 480 that utility greatly reduce rent permanent physical occupation is coerced, unlike here where utility U.S. 245 (1987) charged cable TV company voluntarily entered into contract with cable company. And new rent for attaching its cables to ordered by FCC was not confiscatory, hence not a taking. utility's poles MacDonald, County's rejection of Not ripe. Developer must first obtain "final and authoritative Sommer & Frates developer's first-submitted determination" of the type and intensity of development that will be v. Yolo County, subdivision plat permitted. County's rejection of first-submitted plat does not preclude 477 U.S. 340 possibility that submissions of scaled-down version of project might (1986) not be approved. Also, a court cannot determine whether compensation is "just" until it knows what compensation state or local government will provide. Bowen v. Public Statutory repeal of provision No taking. Repealed provision is not "property," since Congress Agencies Opposed in federal-state agreements reserved right to amend agreements in enacting governing statute, and to Social Security allowing states to end social clause was not a debt or obligation of U.S. Entrapment, 477 security coverage of state and U.S. 41 (1986) local employees Connolly v. Federal act requiring that No taking. Taking does not occur every time law requires one person Pension Benefit employers who withdraw to use his assets for benefit of another. Nor can statute be defeated by Guaranty Corp., from a multi-employer pre-existing contract provision protecting employers from further 475 U.S. 211 pension plan pay a fixed debt liability. (1986) to the plan United States v. Corps of Engineers' assertion Not ripe. Mere assertion of regulatory jurisdiction by Corps is not Riverside Bayview of dredge and fill jurisdiction taking; only when permit is denied so as to bar all beneficial use of Homes, Inc., 474 over certain freshwater property is there a taking. Also, fact that broad construction of statute U.S. 121 (1985) wetlands might yield more takings is not reason to construe statute narrowly, since taking is unconstitutional only if no means to obtain compensation exists. Such means does exist here, since Tucker Act authorizes compensation for federal takings. CRS-8 Case Action attacked Holding/rationale Williamson County County's r ejection of Not ripe. Taking claim against state/local government in federal court Regional Planning developer's subdivision plat is not ripe unless (1) there is final and authoritative decision by Comm'n v. government as to type and intensity of development allowed, and (2) Hamilton Bank, avenues for obtaining compensation from state forums have been 473 U.S. 172 exhausted. Here, developer failed to seek variances following initial (1985) denial, thus has not received a final decision. Nor did developer use an available state procedure for obtaining compensation. Absence of exhaustion requirement in 42 U.S.C. § 1983 distinguished. United States v. Federal statute voiding No taking. Loss of claim could have been avoided with minimal Locke, 471 U.S. 84 unpatented mining claims burden. No taking when property can continue to be held through (1985) when claim holder fails to owner's compliance with reasonable regulations. Texaco, Inc., v. make timely annual filings Short, infra page 8, found controlling. Ruckelshaus v. Public disclosure and other Taking occurred. Trade secrets are property, but only those submitted Monsanto Co., 467 use by EPA of industry- 1972-78, when federal pesticide statute contained a confidentiality U.S. 986 (1984) generated trade-secret data guarantee, were taken. Before and after this period, there was no submitted with application for investment-backed expectation of confidentiality, hence no taking. pesticide registration Tucker Act remedy (right to seek money from U.S. in Court of Federal Claims) was not withdrawn by pesticide act. Pesticide act reveals no such intention, and withdrawal would amount to disfavored repeal by implication of Tucker Act. Also, federal pesticide act sets up exhaustion of agency remedies as precondition to any Tucker Act claim. Kirby Forest Filing of condemnation action No taking. Mere act of filing leaves landowner free, during pendency Industries, Inc. v. by U.S. to acquire land for of condemnation action, to make any use of property or to sell it (but United States, 467 national park loss in market value from such action is not compensable). U.S. 1 (1984) United States v. Retroactive use of bankruptcy Statute will not be applied retroactively to property rights established Security Industrial statute to avoid liens on before enactment date, in absence of clear congressional intent. There Bank, 459 U.S. 70 debtor's property that is substantial doubt whether retroactive destruction of liens comports (1982) attached before statute was with Takings Clause, and statutory reading raising constitutional issues enacted should be avoided where possible. Loretto v. State statute requiring Taking occurred. Where as here government causes a "permanent Teleprompter landlords to allow installing physical occupation" of property, it is a per se taking -- no matter how Manhattan CATV of cable TV equipment on important the public interest served or how minimal the economic Corp., 458 U.S. premises, for one-time pay- impact. In contrast, temporary physical invasions must submit to 419 (1982) ment of one dollar balancing of factors. Texaco, Inc. v. State statute extinguishing No taking. It is the owner's failure to use the mineral estate or timely Short, 454 U.S. severed mineral estates file a statement, not the state's imposition of reasonable conditions on 516 (1982) unused for long time unless estate retention, that causes the property right to lapse. owner filed statement within prescribed period Dames & Moore v. President's nullification of No taking. Attachments were revocable and subordinate to President's Regan, 453 U.S. attachments on Iranian assets power under International Emergency Economic Powers Act. Hence, 654 (1981) in U.S., during hostage crisis there was no property in the attachments such as would support claim for compensation. Also, possibility that suspension of claims against Iranian assets may effect taking makes ripe the question whether there is Tucker Act remedy here. We hold there is. Hodel v. Indiana, Restrictions in federal statute No taking. Plaintiffs failed to allege that any specific property was 452 U.S. 314 on surface mining of prime taken. Mere enactment of statute was no taking, since prime farmland (1981) farmlands provisions do not on their face deny landowners all economic use of such land -- e.g., do not restrict non-mining uses thereof. CRS-9 Case Action attacked Holding/rationale Hodel v. Virginia Demand in federal act that No taking. Plaintiffs failed to allege that any specific property was Surface Mining & surface miners restore steep taken. Mere enactment of statute was no taking, since challenged Reclamation slopes to original contour, and provisions do not on their face deny landowners all economic use of Ass'n, 452 U.S. surface mining prohibitions affected land. In any event, taking claim is not ripe, since plaintiffs 264 (1981) therein never used avenues for administrative relief in act -- e.g., variance from original-contour requirement. San Diego Gas & City's adoption of open-space No final judgment by state court below as to whether a taking had Electric Co. v. San plan occurred, hence no Supreme Court jurisdiction under 28 U.S.C. § 1257. Diego, 450 U.S. 621 (1980) Webb's Fabulous County court declaring as Taking occurred. On facts presented, interest could not be viewed Pharmacies, Inc., public money the interest on simply as fee to cover court costs. State may not take interest simply v. Beckwith, 449 interpleader fund deposited by calling a deposited fund "public money." U.S. 155 (1980) by litigants with the court United States v. 1877 statute abrogating Sioux Taking occurred. In giving tribe rations until they became self- Sioux Nation of Nation's rights to Black Hills, sufficient, 1877 statute did not effect a mere change in the form of Indians, 448 U.S. thus abrogating 1868 treaty investment of Indian tribal property (land to rations) by the federal 371 (1980) with tribe trustee. Rather, it effected a taking of tribal property set aside by the 1868 treaty. This taking implied an obligation bv the U.S. to make just compensation to the Sioux. Agins v. City of Municipal rezoning under No facial taking; as-applied claim not ripe. Zoning law effects taking Tiburon, 447 U.S. which property owner could if it does not substantially advance legitimate state interests or denies 255 (1980) build between one and five owner economically viable use of his land. Thus, no facial taking here: houses on his land enactment of ordinance is rationally related to legitimate public goal of open-space preservation, ordinance benefits property owner as well as public, and owner may still be able to build up to five houses on lot. As-applied challenge is premature, since owner never submitted development plan for approval under the new zoning. Prune Yard State constitutional mandate No taking. Will not unreasonably impair value or use of property as a Shopping Center v. that persons be allowed to shopping center, since facility is open to public at large. And owner Robins, 447 U.S. engage in political expression may restrict time, place, and manner of expression. 74 (1980) in private shopping center US v. Clarke, 445 Municipalities' entering into Federal statute providing that allotted Indian lands may be U.S. 253 (1980) physical possession of land "condemned" under state law does not allow cities to take land by without bringing physical possession in absence of formal condemnation proceeding. condemnation action Term "condemned" refers only to filing of condemnation by government, not filing of "inverse condemnation" action by landowner. Kaiser Aetna v. Federal order that owners of Taking occurred. Infringement of marina owner's right to exclude United States, 444 exclusive private marina, others, particularly where there's investment-backed expectation of U.S. 164 (1979) made navigable by private privacy, goes beyond permissible regulation. Navigation servitude funds, grant access to boating does not grant government absolute taking immunity. public Andrus v. Allard, Federal ban on sale of eagle No taking. Denial of one traditional property right (selling) does not 444 U.S. 51 (1979) parts or artifacts made necessarily amount to taking, even if it is most profitable use of therefrom, as applied to stock property. Plaintiff retained right to possess, pass on, or exhibit for an lawfully obtained before ban admission price, the affected inventory. CRS-10 Case Action attacked Holding/rationale Penn Central City's use of historic preser- No taking. Generally, there are three factors of "particular Transp. Co. v. vation ordinance to block significance" in a takings determination: (1) economic impact of New York City, construction of office tower regulation on property owner; (2) extent to which regulation interferes 438 U.S. 104 atop designated historic with distinct investment-backed expectations; and (3) "character" of (1978) landmark government action (meaning principally that regulation of use is less likely to be taking than physical invasion). Here, landmark owner may earn adequate return from building as is, and more modest additions to building still might be approved. City's offering of transferrable development rights to building owner also weighs against a taking. Finally, city cannot segment air rights over building from remainder of property and claim that all use of air rights was taken. CRS-11 II. The Dawn of Regulatory Takings Law: Pennsylvania Coal Co. (1922) to 1978 The principle that government may "take" property in the Fifth Amendment sense merely through regulatory restriction of property use -- that is, without physical invasion or formal appropriation of the property -- was announced in 1922. In Pennsylvania Coal Co. v. Mahon, the redoubtable Justice Oliver Wendell Holmes wrote for the Supreme Court that a state law prohibiting coal mining that might cause surface subsidence in certain areas was a taking of the mining company's mineral estate. The first steps taken by this infant doctrine, however, were unsteady ones. Aside from making clear that takings occur only with the most severe of property impacts, the Court's opinions during this period display little in the way of principled decisionmaking. Moreover, the Court refused at times to part with its longstanding due- process approach to testing property-use restrictions, vacillating between the two theories. Case Action attacked Holding/rationale Duke Power Co. v. Federal statute limiting Where individuals seek declaratory judgment that statute (Price- C a r o l i n a amount recoverable by Anderson Act) is unconstitutional because it does not assure adequate Environmental injured parties in the event of compensation in the event of a taking, rather than seeking Study Group, 438 a nuclear accident compensation, they may do so in district court under 28 U.S.C. U.S. 59 (1978) §1331(a), and may do so before potentially uncompensable damages are sustained. (Footnote 15) Also, it is unnecessary to reach taking claim here, because statute does not withdraw the Tucker Act remedy (right to seek compensation from U.S. in Court of Federal Claims). (Footnote 39) Regional Rail Federal statute directing Availability of Tucker Act remedy (right to seek compensation from Reo r ga nizatio n transfer of bankrupt rail- U.S. in Court of Federal Claims) if rail act effects "erosion taking" is Act Cases, 419 roads' assets to federally ripe issue in view of distinct possibility that compelled rail operations U.S. 102 (1974) created corporation and at a loss would erode railroad's value beyond constitutional limits. forcing continued operation Similarly, issue of remedy's availability if rail act effects "conveyance of unprofitable lines taking" is ripe, since act will lead inexorably to conveyance of assets. On merits, Tucker Act remedy is available for both alleged takings because rail act indicates no contrary intent; availability need not be stated. Calero-Toledo v. Puerto Rico's seizure of No taking. Forfeiture is not rendered unconstitutional because it Pearson Yacht yacht used for unlawful applies to property of innocents. The property itself is treated as the Leasing Co., 416 activity by lessee, but having offender, making owner's conduct irrelevant. Also, owner voluntarily U.S. 663 (1974) innocent lessor entrusted the yacht to the lessee, and there was no allegation that the owner did all it could to avoid having property put to unlawful use. Hurtado v. United Pre-trial detention of federal No taking. There is public duty to provide evidence; fact that pre-trial States, 410 U.S. criminal witnesses who are detention is involved here, and that financial burden may be great, is 578 (1973) likely to flee and cannot post immaterial. Takings Clause does not make U.S. pay for performance bond; payment of only one of duty it is already owed. Hence, issue of whether one dollar is dollar per day adequate compensation need not be reached. CRS-12 Case Action attacked Holding/rationale YMCA v. United Occupation of plaintiff's No taking. Where private party is intended beneficiary of government States, 395 U.S. buildings in Canal Zone by activity, resultant losses need not be compensated even though activity 85 (1969) U.S. troops seeking to was also intended incidentally to benefit public. Also, damage by protect buildings from rioters was not caused directly and substantially by government Panamanian rioters occupation. Heart of Atlanta Federal statute banning racial No taking. "The cases are to the contrary [of the taking claim]." Motel, Inc. v. discrimination in public United States, 379 accommodations U.S. 241 (1964) Dugan v. Rank, Threatened storage and If plaintiffs have valid water rights that are partially taken, their 372 U.S. 609 diversion of water at remedy is not an injunction stopping the reclamation project but a (1963) federally operated Central taking suit against the U.S. under the Tucker Act. Damages are to be Valley Project dam measured by the difference in market value of the plaintiffs' lands before and after the taking. Goldblatt v. Ordinance barring excavation No taking. Fact that ordinance deprives property of its most Hempstead, 369 below water table beneficial use, even an existing one, does not render it a taking. No U.S. 590 (1962) evidence that ordinance will reduce value of lot, and ordinance is valid police-power regulation. Griggs v. Low and frequent flights Taking occurred of an air easement, per rule of United States v. Allegheny County, over home near county- Causby, infra page 13. County, rather than U.S., must assume taking 3 6 9 U .S. 8 4 owned airport liability, since notwithstanding federal airport standards that must be (1962) met for receipt of federal funds, county promoted, built, owns, and operates airport. Armstrong v. Required transfer to U.S. of Taking occurred. Destruction by government of all value of lien United States, 364 title to unfinished boat, (which is property) is not mere consequential injury, hence non- U.S. 40 (1960) making a materialmen's lien compensable, but is rather a direct result of U.S.' exercising option unenforceable under contract to take title to vessel. United States v. Federal wartime order No taking. Government did not occupy, use, or possess mines; rather Central Eureka requiring non-essential gold it sought only to free up essential equipment and manpower for critical Mining Co., 357 mines to close wartime uses. Such a temporary restriction during wartime is not a U.S. 155 (1958) taking. Tee-Hit-Ton Removal by U.S. of timber No taking. Permissive Indian occupancy -- i.e., occupancy not Indians v. United from certain Indian-occupied specifically recognized by Congress as ownership -- may be States, 348 U.S. lands in Alaska extinguished without compensation. 272 (1955) United States v. Destruction by U.S. army of No taking. Wartime destruction of private property by U.S. to prevent C a l t e x private oil terminal, to imminent capture by an advancing enemy is exception to taking (Philippines), Inc., prevent its capture by clause. 344 U.S. 149 advancing enemy (1952) United States v. Temporary seizure and Taking occurred. Government asserted total dominion and control Pewee Coal Co., operation of coal mine by over the mines. 341 U.S. 114 U.S. during wartime to avert (1951) strike United States v. Building of federal dam that Need not reach taking question, since Congress has not attempted to Gerlach Live ended seasonal inundation of take, or authorized the taking without compensation, of any rights Stock Co., 339 plaintiffs' grasslands, turning valid under state law. U.S. 725 (1950) them parched CRS-13 Case Action attacked Holding/rationale United States v. Flooding of land by federal When government takes by a continuing process of physical events, Dickinson, 331 dam in gradual, successive owner is not required to resort to piecemeal or premature taking U.S. 745 (1947) stages actions. Date of taking occurs when situation becomes "stabilized." United States v. Frequent flights of military Taking occurred of air easement. Flights over private land that are so Causby, 328 U.S. aircraft over chicken farm at low and frequent as to be direct and immediate interference with use 256 (1946) low altitude and enjoyment of land effect a taking. United States v. Raising of water level by No taking. Dam operator's interest in river's water level is W i l l o w River U.S., impairing efficiency of subordinate to paramount authority of U.S. to improve navigation. Power Co., 324 upstream hydro- electric dam U.S. 499 (1945) Bowles v. Federal statute authorizing No taking. Impossibility of fixing rents landlord by landlord and Willingham, 321 restriction of rents in existence of war are germane to constitutional issue. Nothing in act U.S. 503 (1944) "defense areas" to levels that requires offering accommodations for rent. Price control may reduce are "generally" fair, rather value of property, but that does not mean there is taking. than fair to each landlord United States v. Raising of water level by No taking. Embankment was built on low-water mark in bed of Chicago, M., St. P. U.S., forcing railroad to incur navigable stream; government's navigation servitude covers entire bed & P. Railroad Co., costs to protect embankment of such streams to high-water mark. 312 U.S. 592 (1941) Danforth v. United Enactment of flood control Mere enactment of statute authorizing future action cannot be taking, States, 308 U.S. statute authorizing con- since "[s]uch legislation may be repealed or modified, or 271 (1939) demnation appropriations may fail." United States v. Enactment of flood control No taking of land within floodway. Improvements under act had not Sponenbarger, 308 act and operations pursuant increased flood hazard. Also, government effort to lessen flood U.S. 256 (1939) to act hazard did not constitute taking of those lands not afforded as much protection as others. Chippewa Indians Federal statute creating Taking occurred. Mere enactment deprived tribe of all its beneficial v. United States, national forest on land held interest in the land. 305 U.S. 479 by U.S. in trust for tribe (1939) Shoshone Tribe v. Federal sanction of Arapahoe Federal guardianship of tribal land does not include requiring tribe to United States, 299 occupancy of land promised which exclusive occupancy has been pledged to share land with U.S. 476 (1937) by treaty to exclusive another tribe absent compensation. occupancy of Shoshone Louisville Joint Federal statute eliminating Taking occurred. Act as applied deprives mortgagee bank of its Stock Land Bank certain rights of mortgagees property rights under state law to retain lien until indebtedness is paid, v. Radford, 295 in property held as security to realize on the security through judicial public sale, to control U.S. 555 (1935) property during default period, etc. Loss of these rights effects substantial impairment of the security. Act has taken from bank, and given to mortgagor, rights in specific property which are of substantial value. R a i l r o a d Required federal retirement Due process violation occurred. Under scheme, a railroad must, in Retirement Bd. v. scheme for interstate carriers addition to making its own contributions to pension fund, act as Alton Railroad insurer of contributions required of other railroads and railroad Co., 295 U.S. 330 employees. Though property of railroads is dedicated to public use, (1935) it remains the private property of its owners, and may not be taken without compensation. CRS-14 Case Action attacked Holding/rationale United States v. Portion of treaty lands taken Federal guardianship of tribal land does not allow appropriation by Creek Nation, 295 by survey error of U.S., U.S. without compensation. U.S. 103 (1935) given to another tribe Norman v. B. & Federal mandate that No taking. Relies entirely on Legal Tender Cases, infra page 19. O. Rd. Co., 294 obligations be dischargeable U.S. 240 (1935) by payment of legal tender, voiding gold clause in pre- existing private contract M u l l e n Acquisition by U.S. of lands, No taking of bonds. No lien remained on land at time of purchase by Benevolent Corp. frustrating the replenishment U.S., and frustration of ability to replenish fund is merely v. United States, of town's fund for repayment consequential damage, hence noncompensable. 2 9 0 U.S. 8 9 of bonds (1933) International Paper Wartime requisition by U.S. Taking occurred. Fact that requisition occurred by contract is of no Co. v. United of all power producible by moment, since power company was bound under governing States, 282 U.S. power company from water requisition statute to obey. Paper company had water right, a property 399 (1931) in canal, cutting off paper right, to use of canal water, and federal action terminated that right in company's lease right to use its entirety. Omnia Commercial Corp., infra page 14, can be portion of such water distinguished, since here government took the property that petitioner owned, rather than merely frustrating future deliveries under contract. Nectow v. City of Euclid-style comprehensive Due process violation occurred. Because of industrial uses to which Cambridge, 277 zoning ordinance, as applied adjoining lands on two sides are devoted, subject land has little value U.S. 183 (1928) to designate portion of for limited purposes permitted in a residential zone. Land-use plaintiff's tract residential restriction cannot be imposed where, as here, it does not bear substantial relation to public health, safety, morals, or general welfare. Miller v. Schoene, State order that cedar trees State did not exceed due process or proper bounds of police power. 276 U.S. 272 infected with infectious rust State may order destruction of one class of private property to save (1928) disease be cut down, so as another of greater value to public. not to endanger nearby cash crop Village of Euclid Comprehensive zoning No violation of due process. Zoning, as a general matter, is v. Ambler Realty ordinance reasonable use of police-power to deal with increasingly crowded Co., 272 U.S. 365 urban conditions. Fact that non-offensive as well as noxious uses are (1926) barred from a zone is not fatal. E v e r a r d ' s Federal statute prohibiting No taking of brewery's property. (No further discussion.) Breweries v. Day, doctors from prescribing 265 U.S. 545 intoxicating malt liquors for (1924) medicinal purposes Brooks-Scanlon Wartime requisition by U.S. Taking occurred. U.S. put itself in plaintiff's shoes and appropriated Corp. v. United of all ships under to its own use all the rights and benefits that an assignee of the States, 265 U.S. construction by shipyard and contract would have had -- such as credit for payments already made 106 (1924) related contracts, including by plaintiff. U.S. sought to enforce the contract. This case is easily plaintiff's purchase contract distinguished from Omnia Commercial Co., infra page 14, where U.S. frustrated, but did not take over, the contract. Omnia Commer- Wartime requisition by U.S. No taking. Though contract rights are property, U.S. did not "take" cial Co. v. United of steel plant's entire output, those rights, but merely frustrated their exercise. The Constitution States, 261 U.S. precluding plaintiff from does not demand compensation for such consequential harm. 502 (1923) buying steel at favorable price under preexisting contract with plant CRS-15 Case Action attacked Holding/rationale Pennsylvania Coal State law barring coal mining Taking occurred. "While property may be regulated to a certain Co. v. Mahon, 260 that might cause subsidence extent, if regulation goes too far it will be recognized as a taking." By U.S. 393 (1922) of overlying land, applicable eliminating right to mine coal, state law leaves the mineral estate only where surface estate owner with nothing. Moreover, because state law applies only where owner is different from surface is in different ownership, it benefits a narrow private interest mineral estate owner rather than a broad public one. And surface owners had expressly contracted away their right to subjacent support. CRS-16 III. Appropriations and Physical Takings Only: 1870 to 1922 The 1870s marked the Supreme Court's first clear acknowledgment that the Takings Clause is not only a constraint on the government's formal exercise of eminent domain, but the basis as well for suits by property owners challenging government conduct not attended by such formal exercise. However, until 1922 the Court believed such "inverse condemnation" suits to be confined to government appropriations or physical invasions of property. Cases involving the impacts of government water projects (flooding, reduced access, etc.) were typical. When cases involving mere restrictions on the use of property reached the Court, they were tested under due process, scope of the police power, or ultra vires theories. Case Action attacked Holding/rationale Portsmouth Positioning of military guns Occasional firings and other evidence showed that U.S. might have Harbor Land & for firing over private resort installed guns not simply as wartime defenses, but to subordinate Hotel Co . v. island, and actual firing on resort to right of government to fire across it at will, in peacetime. If United States, 260 several occasions so, effects an appropriation of a servitude and requires compensation. U.S. 327 (1922) Corneli v. Moore, Federal refusal under No taking. Application of National Prohibition Act to plaintiffs, 257 U.S. 491 National Prohibition Act to despite their purchase of the liquor prior to its enactment, does not (1922) allow plaintiffs to remove effect a taking. Takings argument is "answered ... by the National purchased liquor barrels from Prohibition Cases, 253 U.S. 350, 387." warehouse, despite pre-Act purchase Block v. Hirsh, Statute allowing tenants to No taking. Validity of rate regulation in the public interest is well 256 U.S. 135 remain in possession at same settled. Statute is justified only as temporary measure related to war (1921) rent upon expiration of lease effort. Landlord is assured of rents that are "reasonable." Bothwell v. United Government flooding of No taking as to cattle or business. The U.S. need only pay for States, 254 U.S. private land, forcing sale of property it actually takes. 321 (1920) cattle at low prices and destroying business Walls v. Midland State ban on non-heating Within state's police power and does not take property without due Carbon Co., 254 uses of natural gas, forcing process. State may curtail extravagant uses of a natural resource in U.S. 300 (1920) closing of plant that used gas which many have rights, limiting one person's rights in order that to make carbon black others may enjoy theirs. Jacob Ruppert, Federal statute extending No taking. As in Hamilton, infra page 16, there was no appropriation Inc., v. Caffey, wartime ban on domestic of private property, but merely a lessening of value due to a 251 U.S. 264 liquor sales to beer, including permissible restriction on its use. Nor is it significant that ban took (1920) supplies on hand at effect immediately. enactment Hamilton v. Federal statute imposing No taking. There was no appropriation for public purposes. K e n t u c k y wartime ban on domestic Moreover, statute gave plaintiff nine months after enactment to sell Distilleries & liquor sales, including liquor, and imposed no restriction at any time on export. Finally, Warehouse Co., supplies on hand at restrictions here are less severe than ones upheld in state takings cases 251 U.S. 146 enactment under Fourteenth Amendment. (1919) CRS-17 Case Action attacked Holding/rationale Corn Products State food and drug law No taking. Though plaintiff's syrup is a proprietary food, made under Refining Co. v. requiring that table syrup a secret formula, there is no constitutional right to sell goods without Eddy, 249 U.S. manufacturer affix labels on giving information to purchaser as to what it is that is being sold. 427 (1919) product disclosing Hence, cannot be said that there is "taking of ... property without due ingredients process of law." United States v. Federal lock and dam project Taking of flowage easement occurred. Government's right to make Cress, 243 U.S. that raised water above navigational improvements is subject to taking clause when natural 316 (1917) natural levels, periodically bounds of stream are exceeded. flooding private land H a d ac h e c k v . Ordinance barring brick Police power not exceeded. Only limit on police power is that it not Sebastian, 239 manufacture in residential be exercised arbitrarily. Fact that when brick manufacturing U.S. 394 (1915) section of city, allegedly commenced, residences on surrounding land had not yet been built, reducing site's value by 92- does not avail manufacturer. 1/2% Reinman v. Little Ordinance barring livery Police power not exceeded; due process not violated. It is within Rock, 237 U.S. stables in section of city police power to declare that in certain situations, a type of business 171 (1915) shall be deemed a nuisance and prohibited, even if it is not a nuisance per se, as long as this power is not exercised arbitrarily or with unjust discrimination. Richards v. Harm to property from Property owner's nuisance action against railroad may proceed. Washington operation of nearby railroad While Congress may legalize what would otherwise be a public Terminal Co., 233 located, constructed, and nuisance, it may not immunize congressionally chartered railroad from U.S. 546 (1914) maintained under acts of private nuisance actions so as to amount to taking of private property. Congress Private nuisances amounting to takings in this context are those where railroad operation subjects property owner to more than typical injury, as is the case here. Peabody v. United Positioning of military guns No taking. If U.S. had installed guns to establish right to fire over States, 231 U.S. with capability of firing over land at will in peacetime, would be a taking. But here, practice shots 530 (1913) private resort island, last can be aimed elsewhere, and indeed, guns have not been fired for fired in 1902 many years. Cf. Portsmouth Harbor Land & Hotel Co., supra page 16. Noble State Bank State statute requiring banks No taking. A public advantage may justify a small taking of private v. Haskell, 219 to pay assessment to fund property for what, in its immediate purpose, is a private use. In U.S. 104 (1911) designed to secure full addition, benefit conferred on plaintiff bank through this scheme of repayment of deposits mutual protection is sufficient compensation for correlative burden that it must assume. United States v. Flooding from government Taking occurred. Destruction of an easement is as much a taking of Welch, 217 U.S. dam, cutting off right of way it as is an appropriation. 333 (1910) Welch v. Swasey, State statute limiting height No taking. Height limitation here, even though a discrimination, is 2 1 4 U .S. 9 1 of buildings in area not so unreasonable as to deprive owner of property of its profitable (1909) containing plaintiff's land to use without justification. The discrimination was justified by the lower height than elsewhere police power. Juragua Iron Co. Wartime destruction of U.S. No taking. American company doing business in enemy territory is v. United States, company's property in deemed enemy of the U.S. with respect to its property located in that 212 U.S. 297 enemy territory, on order of territory. No compensation is owed when such property is destroyed (1909) U.S. military officer, to through military action justified under laws of war. prevent spread of yellow fever CRS-18 Case Action attacked Holding/rationale Sauer v. City of Construction of elevated No taking. Under New York law, public-highway abutter has New York, 206 public viaduct in city street, easements of access, light, and air against erection of elevated U.S. 536 (1907) impairing access, light, and roadway by private corporation, but not against erection of same for air reaching plaintiff's public use. property Manigault v. Construction of state- No taking. Flooding effects taking only where there is material Springs, 199 U.S. authorized dam, compelling impairment of flooded land's value -- not, as here, where plaintiff is 473 (1905) plaintiff to raise his dikes and merely put to some extra expense in raising dikes (and even though impairing access to his lands dam's sole purpose is to enhance value of downstream lowlands for agriculture). No compensation for impaired access either, since within state's police power. California Ordinance requiring that No taking. Imposing expense on waste generator (assuming Reduction Co. v. waste generated within city transporter passes on disposal fees) was not taking, since it has always S a n i t a r y be disposed of at designated been generator's duty to have garbage removed from his premises. Reduction Works, site, at transporter's expense Nor did destruction of waste amount to taking, even if some of its 199 U.S. 306 constituents had value. (1905) Bedford v. United Government revetments No taking. Damage to land, if caused by revetment at all, was but an States, 192 U.S. along river to halt widening, incidental consequence; distinguished from instance where 217 (1904) causing river to flow faster government dam in river causes flooding of private land directly. and erode/flood downstream property United States v. Flooding from government Taking occurred. Where government dam floods land so as to Lynah, 188 U.S. dam, completely destroying substantially destroy its value, there is a taking. 445 (1903) land's value M e y e r v . City-authorized railroad No taking. Obstruction was not on plaintiff's land. Hence, impact on Richmond, 172 obstruction to street, plaintiff amounted only to consequential damages, which are U.S. 82 (1898) reducing traffic at plaintiff's noncompensable. properties nearby Gibson v. United Construction of government No taking. No appropriation or direct invasion occurred, only States, 166 U.S. dike near plaintiff's land, incidental injuries from a lawful exercise of federal navigation 269 (1897) preventing ingress and egress servitude. No water was thrown onto plaintiff's land; dike did not of vessels to commercial physically touch the land or cause deposits thereon. wharf on plaintiff's land Mugler v. Kansas, Ban in state constitution on No taking. A prohibition simply upon the use of property for 123 U.S. 623 manufacture or sale of liquor, purposes declared by valid legislation to be noxious cannot be deemed (1887) greatly reducing brewery's a taking. value United States v. Government's offset of its Related discussion asserts that government cannot be charged for Pacific Rd., 120 costs in rebuilding bridges injury to private property caused by wartime operations in the field, U.S. 227 (1887) destroyed in Civil War, or by measures necessary for army's safety. But when property of against railroad's claim for loyal citizens is taken for army's use, it has been practice to services compensate, though "it may not be within the terms of the constitutional clause." United States v. Building of dam, which Taking occurred. Where United States by its agents proceeds under Great Falls Mfg. occupied plaintiff's land and act of Congress to occupy property for public use, it must compensate. Co., 112 U.S. 645 took his water rights (1884) CRS-19 Case Action attacked Holding/rationale Transportation Co. Construction of tunnel under No taking. Acts done in proper exercise of government powers, and v. Chicago, 99 river, temporarily limiting not directly encroaching on private property, are not a taking. U.S. 635 (1878) access to wharf Pumpelly v. Green Dam that flooded plaintiff's Taking occurred. It is not required that property be formally taken in Bay Co., 80 U.S. land continuously order to implicate Takings Clause. Serious interference with the (13 Wall.) 166 common and necessary use of property, as by continuous flooding, (1871) effects a constitutional taking. Legal Tender Federal statutes making U.S. No taking. Takings Clause "has always been understood as referring Cases (Knox v. currency legal tender for only to a direct appropriation"; it has no bearing on laws such as this Lee), 79 U.S. (12 payment of all debts, even one that only indirectly cause loss. Overrules Hepburn v. Griswold, Wall.) 457 (1870) those entered into before 75 U.S. (8 Wall.) 603 (1870) (finding legal tender acts violative of enactment due process, but briefly raising taking issue). ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-97-122