Lucas's unlikely legacy: The rise of background principles as categorical takings defenses

Harvard Environmental Law Review

Volumn 29, Issue 2, 2005, Pages 321-368

  Blumm, Michael C ^a   Ritchie, Lucus ^a  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; LEGAL SYSTEM; PROPERTY RIGHTS;

NORTH AMERICA; SOUTH CAROLINA; UNITED STATES; WESTERN HEMISPHERE; WORLD;

EID: 24044525874     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (520)

1. U.S. 1003 (1992).
2. Id. at 1019.
3. See, e.g., James L. Huffman, Lucas: A Small Step in the Right Direction, 23 Envtl. L. 901, 901-02 (1993) (commenting that Lucas "has promise from the point of view of those interested in maintaining a coherent system of property rights, not to mention those interested in complying with the Constitution");
4. Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 Stan. L. Rev. 1369, 1369 (1993) (arguing that Lucas "represents something of a high water mark in takings jurisprudence" because a six justice majority of the Court "allowed that some restrictions on land use might ... be caught by the Takings Clause").
5. Michael C. Blumm, Property Myths, Judicial Activism, and the Lucas Case, 23 Envtl. L. 907, 916 (1993) (Lucas is a "flawed decision because it assumes that property rights amount to development rights");
6. see, e.g., Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1455 (1993) (arguing that the Lucas Court's "outdated view of property ... is not satisfactory in an age of ecological awareness").
7. Lucas, 505 U.S. at 1029; Lucas, 505 U.S. at 1029; see infra notes 22-31 and accompanying text (introducing Lucas's background principles defense).
8. Lucas, 505 U.S. at 1029.
9. See infra Parts V.A-.B.
10. See infra notes 27-28 and accompanying text.
11. But see infra note 75 (noting the conceptual disconnect between the Lucas categorical background principles defense and the nuisance branch of that defense, which functions as a balancing test).
12. Lucas, 505 U.S. at 1006.
13. I b i d.
14. I b i d.
15. Lucas v. S.C. Coastal Council, 404 S.E.2d 895, 899 (S.C. 1991);
16. see infra Part III.A (discussing the pre-Lucas nuisance exception to takings liability).
17. Lucas, 505 U.S. at 1026 (declaring that a state legislature's "noxious-use logic cannot serve as a touchstone to distinguish regulatory 'takings' - which require compensation - from regulatory deprivations that do not require compensation").
18. Id. at 1015. The Lucas majority opinion did not find that the South Carolina zoning law worked a compensable taking, but instead remanded the case to the South Carolina Supreme Court for a determination on whether the Beachfront Management Act effected a taking by precluding all effective use of Lucas's property. Id. at 1031-32. Due to the procedural posture of the case, Justice Scalia's opinion assumed, but did not hold, that the trial court was correct that the zoning statute deprived the plaintiff of all viable use of his land. Id. at 1020 n.9 (noting that the trial court's finding that the statute made Lucas's land "valueless" was "the premise for the petition for certiorari").
19. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982) (determining that an ordinance requiring installation of cable television boxes in apartment buildings worked a categorical taking and distinguishing limited regulatory property restrictions from permanent physical occupations: "[W]hen the 'character of the government action' ... is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.").
20. 438 U.S. 104 (1978).
21. Id. at 124.
22. See generally Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985);
23. James L. Huffman, A Coherent Takings Theory at Last: Comments on Richard Epstein's Takings: Private Property and the Power of Eminent Domain, 17 Envtl. L. 153 (1986);
24. and Susan Rose-Ackerman, Against Ad-Hockery: A Comment on Michelman, 88 Colum. L. Rev. 1697 (1988) (Epstein, Huffman, and Rose-Ackerman all detail property owners' lack of success in regulatory takings cases under a Penn Central analysis and argue that the balancing test announced in Penn Central is unfair because it does not instruct individual property owners, ex ante, about just what they own and what the rules are for use and exclusion.
25. Lucas, 505 U.S. at 1015,
26. see also supra note 3 (noting scholarly support for the Lucas decision from property rights advocates).
27. See infra notes 26, 32, and accompanying text.
28. Lucas, 505 U.S. at 1029.
29. Id. at 1027.
30. "The term 'denominator,' coined by Professor Frank Michelman in 1967, refers to the total property rights owned by the landowner against which the regulated parcel is compared" in takings analysis. Danaya C. Wright, A New Time for Denominators: Toward a Dynamic Theory of Property in the Regulatory Takings Relevant Parcel Analysis, 34 Envtl. L. 175, 176 n.3 (2004)
31. (citing Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1192 (1967)).
32. While Lucas established that identifying the denominator (also referred to as defining the relevant parcel) is a threshold inquiry, it did not make the task of determining the relevant parcel any easier. Indeed, identifying the denominator "has been a conceptual difficulty since the birth of regulatory takings in 1922 and has remained intractable through the [Supreme] Court's most recent decisions in Palazzolo and Tahoe-Sierra." Id. at 190;
33. see also Michael C. Blumm, Palazzolo and the Decline of Justice Scalia's Categorical Takings Doctrine, 30 B.C. Envtl. Aff. L. Rev. 137, 147 (2002) ("The size of the property under consideration, also known as the 'denominator issue,' is the key remaining unresolved issue in takings jurisprudence.").
34. Lucas, 505 U.S. at 1015.
35. Subsequent Supreme Court decisions have identified just how narrow the Lucas category of takings liability is. In Palazzolo v. Rhode Island, the value of the claimant's land allegedly dropped from $3.15 million to $200,000 due to the state's regulation. 533 U.S. 606, 616 (2001).
36. The Court held that this 93.7% decrease in property value was not sufficient to trigger Lucas's categorical rule. Id. at 631.
37. More recently, the Court reaffirmed in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency [hereinafter " Tahoe-Sierra"] that "our holding [in Lucas] was limited to 'the extraordinary circumstance when no productive or economically beneficial use of land is permitted.' ... Anything less than a 'complete elimination of value,' or a 'total loss,' the [Lucas] Court acknowl edged, would require the kind of analysis applied in Penn Central." 535 U.S. 302, 330 (2002)
38. (quoting Lucas, 505 U.S. at 1017, 1019-20 n.8).
39. The Lucas opinion itself noted the federal navigational servitude may function as a background principle which would defeat an alleged physical occupation taking, 505 U.S. at 1028-29
40. (citing Scranton v. Wheeler, 179 U.S. 141 (1900));
41. see also John R. Sand & Gravel Co. v. United States, 60 Fed. Cl. 230, 235 (2004) (ruling that the background principles defense to liability discussed in Lucas applies to both regulatory and physical takings cases);
42. Kim v. City of New York, 681 N.E.2d 312, 314 (N.Y. 1997) ("A threshold inquiry into an owner's title is generally necessary to the proper analysis of a takings case, whether of a regulatory or physical nature.").
43. See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed. Cir. 2004) ("It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.");
44. Coalition for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 481 (6th Cir. 2004) (stating that the first step in a Penn Central takings inquiry is to determine whether claimant has a cognizable property interest as defined by Lucas);
45. M & J Coal Co. v. United States, 47 F.3d 1148, 1153 (Fed. Cir. 1995) (determining that "the Lucas formulation is useful for analyzing takings claims involving land use restrictions even when deprivation is not complete; specifically, there can be no compensable interference if such land use was not permitted at the time the owner took title to the property.");
46. see also Douglas T. Kendall et al., Takings Litigation Handbook: Defending Takings Challenges to Land Use Regulations 117 (2000) (recognizing that the background principles defense applies to all inverse condemnation claims).
47. Lucas, 505 U.S. at 1029 (explaining that background principles must "inhere in the title" of the property at issue).
48. Kendall et al., supra note 28, at 117.
49. The Lucas Court determined that for South Carolina to avoid compensation on remand, the state "must identify background principles of nuisance and property law that prohibit the [contested] uses." 505 U.S. at 1031.
50. See, e.g., Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing, 12 Va. Envtl. L.J. 439, 458 (1993) (arguing that "the only categorical rule in the Lucas majority opinion is a negative one: If a property restriction repeats limitations inherent in the title to property, as defined by property and nuisance law ... the restriction never effects a taking") (emphasis in original);
51. David Coursen, Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, 22 Envtl. L. Rptr. (Envtl. L. Inst.) 10,778, 10,784 (1992). In the guise of articulating one categorical rule - a denial of all use works a taking - the Court has implicitly established another principle that state-imposed limitations on property use always defeat a takings claim. Moreover, while the articulated rule applies in only a narrow range of circumstances, the implicit rule applies in every case. Finally when the two rules collide, the implicit rule controls: if [the landowner's] property rights are subject to a state property or nuisance-law restriction, his taking claim will be defeated.
52. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1870-1960, at 17 (1992) ("Nineteenth-century legal thought was overwhelmingly dominated by categorical thinking - by clear, distinct, bright-line classifications of legal phenomena. Late-nineteenth-century legal reasoning brought categorical modes of thought to their highest fulfillment.").
53. See id. ("[I]n the twentieth century, the dominant conception of the arrangement of legal phenomena has been that of a continuum between contradictory policies or doctrines. Contemporary thinkers typically have been engaged in balancing conflicting policies and 'drawing lines' somewhere between them."). An example of the Supreme Court's rejection of categorical thinking in favor of balancing is its Commerce Clause jurisprudence beginning in 1937. Until then, the Court limited the federal commerce power through categorical rules that restricted federal regulation to direct effects on commerce (e.g., exchange and distribution).
54. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1935) (explaining that there is a "necessary and well-established distinction between direct and indirect effects" under the Commerce Clause; where "the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power");
55. see, e.g., United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895) (concluding that manufacturing could not be regulated under the Commerce Clause because production did not directly affect interstate commerce).
56. By the late 1930s, the Court realized that "the distinction between direct and indirect effects on commerce was inherently arbitrary." Erwin Chemerinsky, Constitutional Law: Principles and Policy 251 (2d ed. 2002).
57. Consequently, after 1937, the Court rejected its formalistic approach to the Commerce Clause, discarding its direct/indirec effect distinction and adopting the view that Congress could regulate any activity that, when considered cumulatively with other similarly situated activities, had an effect on interstate commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111, 120 (1942) (concluding that "questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce");
58. United States v. Darby, 312 U.S. 100, 113 (1941) (adopting a more flexible approach to the Commerce Clause inquiry and extending Congress's power to include regulation of manufacturing).
59. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989) (advocating, in his Holmes Lecture at Harvard Law School, "clear and definite rules" over "standards" whose meanings vary with the predilections of those who interpret them).
60. The Rehnquist Court's Commerce Clause decisions reflect a revival of formalistic thought, emphasizing differences in kind over differences in degree. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (declaring the Violence Against Women Act unconstitutional because, at least in areas that the Court regards as traditionally regulated by the states, Congress cannot regulate non-economic activity based on cumulative substantial effects on interstate commerce);
61. United States v. Lopez, 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act of 1990 because gun possession is not a commercial activity).
62. Although the Court's recent Commerce Clause jurisprudence reflects judicial activism - striking down federal laws based on principles only lately articulated - the Court's reasoning is formalistic, deciding cases based on categories without balancing. For example, Lopez's distinction between non-economic and economic activity was similar to the 1935 Schechter Poultry Court's distinction between direct and indirect economic effects. See supra note 34
63. James E. Krier, The Takings-Puzzle Puzzle, 38 Wm. & Mary L. Rev. 1143, 1143 (1997);
64. see also Richard A. Epstein, The Seven Deadly Sins of Takings Law: The Dissents in Lucas v. South Carolina Coastal Council, 26 Loy. L.A. L. Rev. 955, 966 (1993) (claiming that Penn Central balancing is "so amorphous as to defy description");
65. Carol M. Rose, Mahon Reconstructed: Why the Takings Doctrine Is Still a Muddle, 57 S. Cal. L. Rev. 561, 566 (1984) (arguing that the analysis for regulatory takings is "deeply flawed");
66. Jed Rubenfeld, Usings, 102 Yale L.J. 1077, 1081 (1993) (claiming that the takings test is the exemplar for "doctrine-in-most-desperate-need-of-a-principle").
67. But see Marc R. Poirier, The Virtue of Vagueness in Takings Doctrine, 24 Cardozo L. Rev. 93, 93 (2002) (arguing that vagueness in takings doctrine is "quite functional and entirely appropriate").
68. 505 U.S. at 1029.
69. Id. at 1028-29
70. (citing Scranton v. Wheeler, 179 U.S. 141 (1900)).
71. See, e.g., Palm Beach Isles Assoc. v. United States, 208 F.3d 1374, 1384 (Fed. Cir. 2000), aff'd on reh'g, 231 F.3d 1354 (Fed. Cir. 2000) ("In light of our understanding of Lucas, we hold that the navigational servitude may constitute part of the 'background principles' to which a property owner's rights are subject.");
72. M & J Coal Co., 47 F.3d 1148, 1155 (Fed. Cir. 1995) (ruling that the federal Surface Mining Control and Reclamation Act was a pre-existing limitation that defeated landowner's takings claim).
73. But see Preseault v. United States, 100 F.3d 1525, 1538 (Fed. Cir. 1996) (en banc) (plurality opinion) (concluding that Lucas limited the background principles defense to state common law nuisance concepts).
74. Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified at 16 U.S.C. §§ 1531-1544 (2000)).
75. 49 Fed. Cl. 313, 324 (2001) (Wiese, J.).
76. I b i d.
77. John D. Echeverria & Julie Lurman, "Perfectly Astounding" Public Rights: Wildlife Protection and the Takings Clause, 16 Tul. Envtl. L.J. 331, 376-81 (2003) (attacking Tulare Lake's determinations that wildlife protection effects a per se physical occupation taking and that the public "ownership" of wildlife is not an argument available to the federal government in takings cases);
78. see also Melinda Harm Benson, The Tulare Case: Water Rights, the Endangered Species Act, and the Fifth Amendment, 32 Envtl. L. 551 (2002) (arguing that the Tulare Lake Court erred by (1) finding that claimants' water contracts constituted protectable property interests given the limited, contextual nature of such rights under California water law, and (2) applying a physical - as opposed to regulatory - takings analysis).
79. 44 Fed. Cl. 366 (1999) (Wiese, J.), aff'd on other grounds, 247 F.3d 1355 (Fed. Cir. 2001).
80. Id. at 366-67.
81. 981 P.2d 833 (Or. Ct. App. 1999), aff'd on reconsideration, 988 P.2d 400 (Or. Ct. App. 1999).
82. Ch. 107, 19 Stat. 377 (1877) (codified as amended at 43 U.S.C. §§ 321-339 (2000)).
83. Kinross Copper, 981 P.2d at 840.
84. Id. at 837
85. (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992)).
86. Id. at 840.
87. I b i d.
88. 505 U.S. at 1029.
89. I b i d.
90. 123 U.S. 623 (1887).
91. Id. at 668.
92. Id. at 668-69.
93. See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 593 (1962) (emphasizing that application of the nuisance exception does not turn on whether the prohibited use is a common law nuisance);
94. Miller v. Shoene, 276 U.S. 272, 280 (1928) (upholding a legislative determination that infected cedar trees were a nuisance and stating "[w]e need not weigh with nicety the question whether the infected cedars constitute a nuisance according to the common law").
95. 480 U.S. 470 (1987).
96. Id. at 491-92.
97. Id. at 491 n.20.
98. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031 (1992).
99. I b i d.
100. see also id. at 1026 (emphasizing that "the legislature's recitation of a noxioususe justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated").
101. Id. at 1031.
102. Id. at 1026;
103. see also id. at 1024 (noting that the "distinction between 'harmpreventing' and 'benefit-conferring' regulation is often in the eye of the beholder"). In his Penn Central majority opinion, Justice Brennan had also expressed dissatisfaction with the public harm versus public benefit distinction, recasting the historic preservation ordinance at issue there as not an attempt to prevent a noxious use but a policy producing widespread benefit and applicable to all similarly situated properties.
104. 438 U.S. 104, 134-35, 135 n.32 (1978).
105. Lucas, 505 U.S. at 1024.
106. Lucas announced that background principles "cannot be newly legislated or decreed," suggesting they must be more than merely "the legislature's declaration that the uses [the property owner] desires are inconsistent with the public interest." Id. at 1028, 1031.
107. Several members of the Court, however, faulted this reasoning. Justices Blackmun and Stevens peppered their dissents with concerns about the majority's attempt to foreclose the legislative role in defining background principles. See id. at 1055-60 (Blackmun, J., dissenting); 1068-71 (Stevens, J., dissenting).
108. Justice Kennedy's concurrence also expressed unease on this point, arguing that "the State should not be prevented from enacting new regulatory initiatives in response to changing conditions." Id. at 1035 (Kennedy, J., concurring).
109. Id. at 1029.
110. Id. at 1027.
111. Kendall et al., supra note 28, at 124.
112. Id. at 123.
113. Lucas, 505 U.S. at 1029.
114. Id. at 1030-31.
115. I b i d.
116. (citing several provisions of the Restatement (Second) of Torts (1979)).
117. Id. at 1032 n. 18.
118. Id. There exists a conceptual disconnect between the Lucas majority's creation of a categorical background principles defense to takings liability and its subsequent definition of the nuisance branch of that defense as a balancing test focusing on the Restatement and a reasonable application of precedent.
119. Id. at 1030-31, 1032 n. 18. Unlike the general application of a categorical rule, which operates without fact-specific inquiry, this framework requires weighing the facts of individual cases, and therefore is arguably as difficult for courts to apply as Penn Central balancing. The balancing inherent in Lucas's nuisance defense test, which is not present in the property law defenses discussed infra, may help to explain why only a handful of cases have been decided under the background principles nuisance analysis.
120. See William W. Fisher III, The Trouble with Lucas, 45 Stan. L. Rev. 1393, 1407 (1993) ("[W]hat is most striking about the holding of Lucas is that it embeds in the already muddy law of takings ... the even muddier law of nuisance.").
121. Lucas, 505 U.S. at 1029.
122. Id. at 1031.
123. Id. at 1035 (Kennedy, J., concurring) (citations omitted). Justice Kennedy's concurrence may be determinative in future cases. As Professor Lazarus has noted, "Justice White, who supplied the necessary fifth vote in Lucas, resigned from the Court less than one year later and was replaced by Justice Ginsberg, whose views on the takings issue have proven much closer to those of Justice Stevens than to those of Justice Scalia."
124. Richard J. Lazarus, Celebrating Tahoe-Sierra, 33 Envtl. L. 1, 12 (2003) [hereinafter Lazarus, Celebrating Tahoe-Sierra];
125. see also Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. Rev. 703, 733 (2000) [hereinafter Lazarus, Restoring What's Environmental] (referring to Justice Kennedy as "the Court's current bellwether Justice" in environmental cases);
126. Richard J. Lazarus, Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases, 38 Wm. & Mary L. Rev. 1099, 1133 (1992) [hereinafter Counting Votes] (suggesting that Kennedy "is the most likely instigator of a new majority" in takings cases).
127. See, e.g., City of Virginia Beach v. Bell, 498 S.E.2d 414, 417-18 (Va. 1998) (determining that because claimants did not acquire title to the land at issue until after passage of a law requiring a permit to alter sand dune areas, they never possessed the right to develop their land);
128. Kim v. City of New York, 681 N.E.2d 312, 315-16 (N.Y. 1997) (rejecting a claimant's takings challenge and stressing that "in identifying the background rules of State property law that inhere in an owner's title, a court should look to the law in force, whatever its source, when the owner acquired the property");
129. Hunziker v. Iowa, 519 N.W.2d 367, 370-71 (Iowa 1994) (holding that a preexisting state statute authorizing protection of important archaeological burial sites was a Lucas background principle). See also infra notes 224-253 and accompanying text (analyzing post- Lucas preexisting regulation takings cases). These decisions seem to be in step with post-Lucas Supreme Court takings jurisprudence that has held that background principles are not confined to the common law. See infra notes 224-253 and accompanying text (explaining the Court's conclusion that at least some statutes function as background principles). At least one court, however, thought that these decisions were at odds with the language in Lucas.
130. See Love-ladies Harbor, Inc. v. United States, 28 F.3d 1171, 1179 (Fed. Cir. 1994) (adopting the narrow view that Lucas limited background principles to common law nuisance).
131. See Brown v. Thompson, 979 P.2d 586, 595, 598 (Haw. 1999) (concluding that state impoundment of a sinking vessel effected a due process violation, but did not result in a taking because the vessel was a public nuisance under state's common law);
132. Aztec Minerals Corp. v. Romer, 940 P.2d 1025, 1032 (Colo. Ct. App. 1996) (determining that state environmental agency did not engage in a taking when it entered a mine site to help a federal agency move a rock waste pile because, under Colorado principles of nuisance law, plaintiffs had no property right to use the site in a way that created significant environmental problems).
133. 887 P.2d 993 (Colo. 1994).
134. Id. at 1002.
135. 38 Fed. Cl. 611 (1997), aff'd, 175 F.3d 1374 (Fed. Cir. 1999).
136. Id. at 615-17.
137. Keshbro, Inc. v. City of Miami, 801 So. 2d 864, 876 (Fla. 2001);
138. see also John R. Sand & Gravel Co. v. United States, 62 Fed. Cl. 556, 589 (2004) (finding no physical taking because claimant's right to mine in area of remediated landfill was precluded by Michigan nuisance statute).
139. Rith Energy, Inc. v. United States, 44 Fed. Cl. 108, 115 (1999) (using Tennessee Water Quality Control Act, Tenn. Code Ann. § 69-3-103(22)(A), to clarify that state's definition of nuisance), aff'd on other grounds, 247 F.3d 1355 (Fed. Cir. 2001).
140. 505 U.S. 1003, 1031 (1992);
141. see also Richard J. Lazarus, Putting the Correct "Spin" on Lucas, 45 Stan. L. Rev. 1411, 1419 (1993) (explaining that application of background principles is a "dynamic rather than static exercise");
142. Glenn P. Sugameli, Lucas v. South Carolina Coastal Council: The Categorical and Other "Exceptions" to Liability for Fifth Amendment Takings of Private Property Far Outweigh the "Rule," 29 Envtl. L. 939, 971 (1999) (describing the evolution of background property and nuisance principles).
143. But see David L. Callies & J. David Breemer, Background Principles: Custom, Public Trust, and Preexisting Statutes As Exceptions to Takings Liability, in Taking Sides on Takings Issues: Public and Private Perspectives 145 (Thomas E. Roberts ed., 2002) (arguing that background principles must be frozen in the common law to maintain the "original thrust of Lucas").
144. Lucas, 505 U.S. at 1031.
145. See also supra note 78 and accompanying text (examining Justice Kennedy's concurrence, which argued that state should be allowed to enact new property limitations to meet changing conditions).
146. Id. at 1029.
147. Kendall et al., supra note 28, at 127 (detailing the flexibility of the nuisance defense).
148. 505 U.S. at 1029.
149. Id. at 1029-30.
150. See, e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1183 (Fed. Cir. 1994) (upholding trial court's finding that a taking occurred when the Corps of Engineers denied a permit to fill a 12.5 acre parcel of New Jersey wetland because the federal government failed to prove that nuisance law could have been invoked to prevent the fill);
151. Bowles v. United States, 31 Fed. Cl. 37, 52 (1994) (concluding, with no significant discussion of hydrological evidence, that "the development of a residential lot does not constitute a nuisance").
152. See, e.g., Forest Props., Inc. v. United States, 177 F.3d 1360, 1366 (Fed. Cir. 1999) (rejecting a takings claim, but concluding that trial court was correct in finding that the dredging and filling of a California lake "to permit its use for building would not constitute a nuisance under California law");
153. see also David S. Coursen, The Takings Jurisprudence of the Court of Federal Claims and the Federal Circuit, 29 Envtl. L. 821, 837 (1999) (observing that "Lucas-type defenses have had limited success in defense of wetlands takings claims").
154. Lucas, 505 U.S. at 1030-31.
155. See 2 D. D. Hook, The Ecology and Management of Wetlands 52-53 (1988) (explaining that wetlands help maintain the integrity of watersheds by mitigating the effect of floods and controlling erosion);
156. Linda A. Malone, The Coastal Zone Management Act and the Takings Clause in the 1990s: Making the Case for Federal Land Use to Preserve Coastal Areas, 62 U. Colo. L. Rev. 711, 712 (1991) (explaining that seventy percent of the nation's fisheries are dependent on estuaries for part of their life cycle);
157. Mary M. McCurdy, Application of the Public Trust: Public Trust Protection for Wetlands, 19 Envtl. L. 683, 696 (1989) (explaining that mammals and reptiles require wetlands for feeding and habitat);
158. S. Wesley Woolf & James E. Kundell, Georgia's Wetlands: Values, Trends, and Legal Status, 41 Mercer L. Rev. 791, 793 (1990) (commenting that wetlands contribute to water quality by filtering nutrients, wastes and sediment from upland runoff);
159. Bhavani P. Nerikar, Comment, This Wetland Is Your Land, This Wetland Is My Land: Section 404 of the Clean Water Act and Its Impact on the Private Development of Wetlands, 4 Admin. L.J. 197, 203 (1990) (noting that almost all freshwater fish are dependent on wetlands).
160. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134-35 (1985) (endorsing regulatory findings on the importance of wetlands and citing Corps of Engineers' regulations discussing how wetlands protect water quality, prevent flooding and erosion, and "serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic ... species,"
161. (citing 33 C.F.R. §§ 320.4(b)(2)(i),(iv)-(v),(vii))).
162. Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 672 (5th Cir. 1992) (noting that wetlands are "critical to flood control, water supply, water quality, and, of course, wildlife");
163. see also Zealy v. City of Waukesha, 548 N.W.2d 528, 535 (Wis. 1996) (stating that "swamps and wetlands serve a vital role in nature and are essential to the purity of the water in our lakes and streams")
164. (quoting Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1972);
165. see also Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 Land & Water L. Rev. 349, 358 (1995) ("[T]he destruction of wetland areas imposes a number of economic and environmental costs on society.");
166. see generally Nat'l Audubon Soc'y, Valuing Wetlands: The Cost of Destroying America's Wetlands (Deanne Kloepfer ed., 1994).
167. 33 U.S.C. § 1344 (2000).
168. See generally Michael C. Blumm, The Clinton Wetlands Plan: No Net Gain in Wetlands Protection, 9 J. Land Use & Envtl. L. 203 (1994);
169. Alyson C. Flournoy, Section 404 at Thirty-Something: A Program in Search of a Policy, 55 Ala. L. Rev. 607 (2004).
170. Most states regulate development of wetlands, though the requirements and types of wetlands regulated vary by jurisdiction. See, e.g., Mass. Gen. Laws ch. 131 §§ 40-40A (2004) (restricting development in coastal wetlands and floodplains);
171. Me. Rev. Stat. tit. 38 §§ 480-A through 480-Z (2004) (mandating state approval for certain alterations to coastal, freshwater, floodplain, and forested wetlands, as well as sensitive mountain areas);
172. N.C. Gen. Stat. §§ 113-229 through 113-230 (2004) (requiring permits for excavation or filling of tidelands and marshlands).
173. For extensive commentary on state wetlands protection statutes, see William L. Want, Law of Wetland Regulation § 13 (2004) (providing all state wetlands laws and state laws implementing the federal Coastal Zone Management Act);
174. 3 Zoning and Land Use Controls § 19.03 (Patrick J. Rohan & Eric Damian Kelly eds., 2004) (discussing specific wetlands conservation statutes, as well as comprehensive state land-use schemes that protect wetlands);
175. and Ausness, supra note 98, at 359 nn.74-79 (listing several states' wetlands regulations by regulatory scope and purpose).
176. See Sugameli, supra note 87, at 967 (arguing that wetlands protection statutes should be immune from takings liability under a nuisance analysis).
177. Lucas, 505 U.S. at 1069-70 (Stevens, J., dissenting);
178. see also Missouri v. Holland, 252 U.S. 416, 432-33 (1920) (recognizing that continued protection of wildlife is a "matter[] of the sharpest exigency for national well being").
179. 130 F.3d 1041 (D.C. Cir. 1997);
180. See generally Michael C. Blumm & George Kimbrell, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provisions, 34 Envtl. L. 309 (2004) (discussing the National Association of Homebuilders case and other decisions interpreting the constitutionality of the Endangered Species Act under the Commerce Clause).
181. 130 F.3d at 1051 (Wald, J.) (citing various Senate and House Reports on the Endangered Species Act).
182. Id. at 1058 (Henderson, J., concurring) (citing scholarly articles focusing on protection of ecosystems and legislative history concerning the Marine Mammal Protection Act of 1972).
183. See Barton H. Thompson, Jr., People or Prairie Chickens: The Uncertain Search for Optimal Biodiversity, 51 Stan. L. Rev. 1127, 1136 (1999).
184. For a detailed discussion reviewing the "manifold contributions of biodiversity and its genetic resources to modern agriculture, medicine, and industry," see Norman Myers, Biodiversity's Genetic Library, in Nature's Services: Societal Dependence on Natural Ecosystems 255 (Gretchen C. Daily ed., 1997) [hereinafter Nature's Services].
185. Thompson, Jr., supra note 106, at 1136-37.
186. See generally Gretchen C. Daily, Introduction: What Are Ecosystem Services?, in Nature's Services, supra note 106, at 1;
187. Gary Paul Nabhan & Stephen L. Buchmann, Services Provided by Pollinators, in Nature's Services, supra note 106, at 133;
188. Rosamond L. Naylor & Paul R. Ehrlich, Natural Pest Control Services and Agriculture, in Nature's Services, supra note 106, at 151;
189. David Tilman, Biodiversity and Ecosystem Functioning, in Nature's Services, supra note 106, at 93 (all demonstrating the value of ecosystem services to human society).
190. A "public nuisance" is defined as "an unreasonable interference with a right common to the general public." Restatement (Second) of Torts § 821B (1979);
191. see also Prosser and Keeton on Torts 645 (W. Page Keeton ed., 5th ed. 1984) ("To be considered public, the nuisance must affect an interest common to the general public."). Use of land in a way that destroys a species and its pharmacological and ecosystem values can be classified as an interference with a right common to the public, especially considering that all states support state "ownership" of wildlife in trust for their citizens, either statutorily or through the common law. See infra notes 205-206 and accompanying text (detailing the American history of public ownership of wildlife).
192. See, e.g., Lynn Graham Cook, Comment, Lucas and Endangered Species Protections, When "Take" and "Takings" Collide, 27 U.C. Davis L. Rev. 185, 212-14 (1993) (arguing that courts should reject takings claims based on endangered species protections under a public nuisance analysis);
193. Paula C. Murray, Private Takings of Endangered Species as Public Nuisance: Lucas v. South Carolina Coastal Council and the Endangered Species Act, 12 UCLA J. Envtl. L & Pol'y 119, 157 (1993) (maintaining that regulations limiting the taking of endangered species are immune from liability under a nuisance defense, and further noting that many environmental hazards should be included in the definition of public nuisance);
194. Sugameli, supra note 87, at 971 (contending that the nuisance doctrine should encompass the destruction of certain species).
195. See 799 A.2d 751 (Pa. 2002).
196. Id. at 775.
197. I b i d.
198. see also John R. Sand & Gravel Co. v. United States, 62 Fed. Cl. 556, 585 (2004) (denying plaintiff's takings claim under a statutory nuisance analysis because "the disturbance [caused by proposed mining activities] could create new pathways for pollution to spread" into an adjacent aquifer).
199. 34 F. Supp. 2d 1226, 1251-55 (D. Nev. 1999), rev'd on other grounds, 216 F.3d 764 (9th Cir. 2000), aff'd, 535 U.S. 302 (2002).
200. Neither the Ninth Circuit nor the Supreme Court addressed the district court's ruling on this issue. See also John R. Sand & Gravel Co., 60 Fed. Cl. at 242-50 (declining to grant government summary judgment based on a nuisance defense in light of disputed issues of fact concerning harm);
201. E. Minerals Int'l, Inc. v. United States, 36 Fed. Cl. 541, 551 (Fed. Cl. 1996) (determining that state's denial of a mining permit due to potential environmental harm resulted in a taking because the alleged harm was never proved and thus did not rise to the level of nuisance), rev'd on other grounds, 271 F.3d 1090 (Fed. Cir. 2001), cert. denied, 535 U.S. 1077 (2002).
202. Tahoe-Sierra, 34 F. Supp. 2d at 1254.
203. The district court also concluded that "the fact that the lake may turn green and opaque, and be reduced to a pale copy of its current self, is abhorrent to think on - yet not, unfortunately, a 'nuisance'" Id. at 1253.
204. See Glenn P. Sugameli, The Supreme Court Confirms That Threshold Statutory and Common Law Background Principles of Property and Nuisance Law Define If There Is A Protected Property Interest, in Taking Sides on Takings Issues: The Impact of Tahoe-Sierra 52 (Thomas E. Roberts ed., 2003) (noting that the Machipongo decision is more in line with general understandings of nuisance law than the Tahoe-Sierra district court opinion).
205. Restatement (Second) of Torts § 821F cmt. b (1979);
206. see also Prosser and Keeton on Torts, supra note 108, at 640 (explaining that situations exist where abatement of public nuisance is warranted absent actual harm). Unlike a motion to enjoin or an action in abatement, recovery of damages under a nuisance action or criminal prosecution for maintaining a public nuisance requires that actual harm be proved.
207. See Restatement (Second) of Torts § 821F cmt. b. Whether an injunction is warranted for an anticipatory nuisance is determined by balancing the factors listed in sections 936-50 of the Restatement.
208. Lucas stipulated that a background principle nuisance must be a nuisance which "could have been achieved in the courts by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complimentary power to abate nuisances that affect the public generally." 505 U.S. 1003, 1029 (1992).
209. Id. at 1030-31.
210. See also supra notes 72-73 and accompanying text (discussing the Court's reliance on the Restatement).
211. The Supreme Court has acknowledged the vague nature of nuisance law. For example, in his Lucas dissent, Justice Blackmun referred to Anglo-American nuisance jurisprudence as an "impenetrable jungle" that "straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste." Id. at 1055 n.19 (Blackmun, J., dissenting) (citations omitted).
212. Similarly, in City of Milwaukee v. Illinois and Michigan, now Chief Justice Rehnquist commented that "nuisance concepts" are "often vague and indeterminate." 451 U.S. 304 317 (1981).
213. See Lucas, 505 U.S. at 1029.
214. 146 U.S. 387 (1892).
215. Id. at 453.
216. See Charles F. Wilkinson, The Headwaters of the Public Trust: Some of the Traditional Doctrine, 19 Envtl. L. 425, 450 (1989) ("Justice Stephen J. Fields' opinion [in Illinois Central]... belongs on any short list of great natural resource opinions.").
217. Joseph L. Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970);
218. see also Michael C. Blumm, Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine, 19 Envtl. L. 573, 574 (1989) (noting that Professor Sax's scholarship revitalized the once dormant public trust doctrine)
219. In 1989, Professor Blumm noted that Professor Sax's 1970 article concerning the public trust had been cited in at least thirty-three judicial opinions. Blumm, supra note 124, at 574 n. 1;
220. see also id. at 576 (arguing that state constitutional provisions reflected the public trust doctrine). In the last fifteen years, six additional courts have cited Professor Sax's seminal article. Westlaw Search (Apr. 15, 2005) (searching "all cases" database).
221. See, e.g., McQueen v. S.C. Coastal Council, 580 S.E.2d 116, 119-20 (S.C. 2003) (rejecting takings claim because landowner's property rights did not include the right to backfill tidelands subject to the public trust);
222. Coastal Petroleum v. Chiles, 701 So. 2d 619, 624 (Fla. Dist. Ct. App. 1997) (denying a takings challenge to prohibitions on offshore drilling because the public trust doctrine permitted the legislature to exercise without compensation its "authority to protect the lands held in trust for all people").
223. 307 F.3d 978 (9th Cir. 2002).
224. Id. at 987.
225. See R.W. Docks & Slips v. Wisconsin, 628 N.W.2d 781 (Wis. 2001).
226. Id. at 788.
227. 583 N.E.2d 894 (Mass. App. Ct. 1992), aff'd, 597 N.E.2d 43 (Mass. 1992).
228. Id. at 901.
229. See, e.g., Hope M. Babcock, Has the U.S. Supreme Court Finally Drained the Swamp of Takings Jurisprudence?: The Importance of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches, 19 Harv. Envtl. L. Rev. 1 (1995) (contending that the public trust doctrine is a defense to takings claims in most beach and wetland areas);
230. Blumm, supra note 124, at 579 (arguing that the public trust is actually "more androgynous than amphibious; it is chameleon-like, its character depending on the context of the dispute at hand");
231. Katherine E. Stone, Sand Rights: A Legal System to Protect the "Shores of the Sea," 29 Stetson L. Rev. 709 (2000) (arguing for an expansive view of the public trust doctrine that shields restrictions on development in non-tidal lands from Fifth Amendment liability).
232. 484 U.S. 469 (1988).
233. Id. at 475.
234. See Nat'l Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983) (upholding the protection of fish habitat in Mono Lake and its tributaries to the potential detriment of vested water rights).
235. See Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984) (determining that the public trust doctrine extends to dry sand beach areas for both access to and limited use of the ocean and foreshore);
236. Nat'l Ass'n of Home Builders of the U.S. v. N.J. Dep't of Envtl. Prot., 64 F. Supp. 2d 354, 358 (D. N.J. 1999) (applying Matthews to review of takings claim);
237. Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, 370 N.J. Super. 171 (App. Div. 2004) (holding that the public trust doctrine guarantees recreational use of dry sand areas in private ownership).
238. See, e.g., Callies & Breemer, supra note 87, at 148 ("[T]he fit between the public trust and the background principles exception fades as the doctrine drifts from its historical moorings...");
239. David J. Callies, Custom and Public Trust: Background Principles of State Property Law, 30 Envtl. L. Rptr. (Envtl. L. Inst.) 10,003 (2000) (opining that many post-Lucas judicial applications of the public trust in the takings context violate the Lucas rule because they deviate from the common law);
240. James L. Huffman, A Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy, 19 Envtl. L. 527 (1989) (arguing that an evolving public trust doctrine cannot be justified in a constitutional democracy because it usurps the legislative power by granting courts flexibility to "convert clearly defined easements into vast public rights").
241. Justice Scalia's majority opinion emphasized the value of longstanding concepts of nuisance and property law in the background principles analysis, but also acknowledged that "changed circumstances may make what was previously permissible [for a landowner] no longer so" under Lucas's threshold inquiry. 505 U.S. 1003, 1031 (1992).
242. Justice Scalia also ruled that the background principles determination must be an "objectively reasonable application of relevant precedents," an inquiry which allows "some leeway in a court's interpretation of what existing state law permits." Id. at 1032 n.18.
243. In addition, Justice Kennedy's concurrence in Lucas suggested that background principles have the ability to evolve, noting that "[t]he common law ... is too narrow a confine for the exercise of regulatory power in a complex and independent society." Id. at 1035 (Kennedy, J., concurring).
244. As stated supra in note 78, Kennedy's concurrence may prove determinative in future cases, considering the change in the Court's composition since the 1992 Lucas decision.
245. Not all states have employed a liberal interpretation of the public trust doctrine. See, e.g., Purdie v. Attorney Gen., 732 A.2d 442, 447 (N.H. 1999) (holding that a legislative extension of the public trust to areas above the mean high water mark would effectuate a taking);
246. Douglaston Manor, Inc. v. Bahrakis, 678 N.E.2d 201, 204 (N.Y. 1997) (refusing to extend the public trust doctrine to rivers not navigable in fact because it "would precipitate serious destabilizing effects on property ownership principles and precedents").
247. 201 N.W.2d 761 (Wis. 1972);
248. see also James M. McElfish, Jr., Property Rights, Property Roots, 24 Envtl. L. Rptr. (Envtl. L. Inst.) 10,231, 10,244 (1994) (discussing Just and its relevance as a background principle).
249. 201 N.W.2d at 768-70.
250. See David P. Bryden, A Phantom Doctrine: The Origins and Effects of Just v. Marinette County, 1978 Am. B. Found. Res. J. 397 (1978).
251. See M & I Marshall & Isley Bank v. Town of Somers, 414 N.W.2d 824, 825 (Wis. 1987).
252. Id. at 830.
253. The court elaborated: [A] parcel of land which consists of continuing wetland which is partly within and partly outside a shoreland area should be treated as if the entire wetland was located within a shoreland area. There would be little value to the wetland within the shoreland if the part of the wetland outside the shoreland area was allowed to be altered. Id. at 831.
254. See Graham v. Estuary Prop., Inc., 399 So. 2d 1374, 1382 (Fla. 1981) (denying tidal land takings challenge and agreeing with the Just Court that a landowner has no absolute right to change the natural character of his land).
255. See Rowe v. Town of North Hampton, 553 A.2d 1331, 1335 (N.H. 1989) (citing Just and rejecting a takings claim when the landowner's actions would substantially change the essential character of a wetland).
256. See Chokecherry Hills Estates, Inc. v. Deuel County, 294 N.W.2d 654, 657 (S.D. 1980) (employing Just to defeat a takings challenge focusing on development restrictions imposed on lake frontage).
257. See Carter v. S.C. Coastal Council, 314 S.E.2d 327, 329 (S.C. 1984) (quoting Just in denying a wetland takings claim).
258. See Pope v. City of Atlanta, 249 S.E.2d 16, 20 (Ga. 1978) (rejecting a Fifth Amendment claim concerning riverside property ("stream corridor") and commenting that the Just analysis "buttresses our conclusion in this case").
259. See Usdin v. State Dep't of Envtl. Prot., 414 A.2d 280, 288-90 (N.J. Super. Ct. Law Div. 1980) (quoting Just and finding that a regulation precluding development of land designated a "floodway" was "a proper exercise of police power to prevent a misuse of nature [and not a] compensable taking").
260. See, e.g., Michael C. Blumm, The End of Environmental Law?: Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 Envtl. L. 171, 176 n.37 (1995) ("'[B]ackground principles' may insulate all wetlands regulation from just compensation claims if courts scrutinize English common law wetland cases.").
261. For a comprehensive and illuminating work detailing the development of wetlands protection in common law England and its continuing relevance in a post-Lucas world, see Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 Stan. Envtl. L.J. 247 (1996).
262. Bosselman, supra note 152, at 331-32.
263. Id. at 337.
264. Id. at 256 n.34 (providing several recent state court decisions that cite English common law nuisance cases for support).
265. 530 S.E.2d 628 (S.C. 2000).
266. Id. at 633
267. (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1018 (1992)) (emphasis added by McQueen Court);
268. see also Sax, supra note 4, at 1440 (conceding that Lucas may have repudiated the natural use defense to takings claims announced by Just).
269. See, e.g., Zealy v. City of Waukesha, 548 N.W.2d 528, 534 (Wis. 1996) (denying takings challenge on other grounds, but specifically noting that "[n]othing in this opinion limits our holding in Just ");
270. City of Riviera Beach v. Shillingburg, 659 So. 2d 1174, 1183 (Fla. Dist. Ct. App. 1995) (dismissing takings claim on ripeness grounds, but citing the Just principle post-Lucas). In the only other post- Lucas decision interpreting Just, Judge Merow of the Federal Court of Claims noted that whether or not the Just line of cases amount to a background principle of state law is unclear.
271. Good v. United States, 39 Fed Cl. 81, 98 n.30 (1997), aff'd, 189 F.3d 1355 (Fed. Cir. 1999).
272. McQueen v. S.C. Dep't of Health & Envtl. Control, 533 U.S. 943 (2001).
273. McQueen v. S.C. Coastal Council, 580 S.E.2d 116, 119-20 (S.C. 2003) (determining that plaintiff did not have a compensable right to backfill tidelands that were subject to the public trust).
274. See Robert Meltz et al., The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation 377 (1999) (explaining that "[a]t least in those states in which the [natural use] doctrine is well-established, it would seem to qualify" as a background principle).
275. See 4 Waters and Water Rights § 35.02 (Robert E. Beck ed., 2004 rep. Vol. to 1991 ed.);
276. A. Dan Tarlock, Law of Water Rights and Resources § 9:13 (2004).
277. See supra note 39 and accompanying text.
278. 505 U.S. 1003, 1028-29 (1992) (stating that the court "assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowner's title," and citing the holding in Scranton v. Wheeler, 179 U.S. 141 (1900), that interests of "riparian owner in the submerged lands ... bordering on a public navigable water" were "subject to Government navigational servitude").
279. See United States v. 30.54 Acres of Land, 90 F.3d 790, 795 (3d Cir. 1996).
280. 834 F. Supp. 19 (D. Me. 1993).
281. Id. at 26.
282. See, e.g., Palm Beach Isles Assoc. v. United States, 208 F.3d 1374, 1384 (Fed. Cir. 2000) ("[N]avigational servitude may constitute part of the 'background principles' to which a property owner's rights are subject, and thus may provide the Government with a defense to a takings claim."), aff'd on reh'g, 231 F.3d 1354 (Fed. Cir. 2000);
283. Marks v. United States, 34 Fed. Cl. 387, 403 (1995) (holding that background principles bar takings claims for property below the high water line).
284. 60 Fed. Cl. 448 (2004).
285. Id. at 459.
286. I b i d.
287. I b i d.
288. I b i d.
289. 854 P.2d 449 (Or. 1993).
290. Id. at 456
291. (quoting State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969)). To reach this conclusion, the court determined that public beach access in Oregon met the Blackstonian elements of custom, which require that: (1) The land has been used in this manner so long "that the memory of man runneth not to the contrary"; (2) without interruption; (3) peaceably; (4) the public use has been appropriate to the land and the usages of the community; (5) the boundary is certain; (6) the custom is obligatory, i.e. it is not up to the individual landowners as to whether they will recognize the public's right to access; and (7) the custom is not repugnant or inconsistent with other customs or laws.
292. Id. at 454
293. (citing 1 William Blackstone Commentaries 76-78 (1778)).
294. 462 P.2d 671 (Or. 1969).
295. Stevens, 854 P.2d at 456.
296. 510 U.S. 1207 (1994) (denying certiorari).
297. Id. at 1209 (Scalia, J., dissenting from denial of certiorari). Justice O'Connor joined Scalia's dissenting opinion.
298. See also David Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375 (1996) (criticizing the Stevens Court's interpretation of custom);
299. Callies & Breemer, supra note 87, at 145 (arguing that the Oregon Supreme Court severely misapplied the Blackstonian criteria for custom in Stevens).
300. For more Supreme Court commentary concerning background principles, see Bush v. Gore, 531 U.S. 98, 115 n.1 (2001): Similarly, our jurisprudence requires us to analyze the "background principles" of state property law to determine whether there has been a taking of property in violation of the Takings Clause. That constitutional guarantee would, of course, afford no protection against state power if our inquiry could be concluded by a state supreme court holding that state property law accorded the plaintiff no rights.
301. James Burling, The Latest Take on Background Principles and the States' Law of Property After Lucas and Palazzolo, 24 U. Haw. L. Rev. 497, 501 (2002). Mr. Burling's assessment that the Supreme Court wishes to curtail lower courts from liberally applying longstanding doctrines of property and nuisance law in takings analysis is not widely shared.
302. See, e.g., Sugameli, supra note 87, at 958-60 (arguing that the Supreme Court has given great deference to lower courts in determining background principles of state and federal nuisance and property doctrine, and noting that the Court has rejected every petition for certiorari that has attempted to challenge decisions that denied takings claims based on background principles);
303. Sax, supra note 4, at 1438 (contending that Lucas provided states with wide latitude in determining the extent to which their "background principles" limit property rights).
304. 903 P.2d 1246 (Haw. 1995).
305. Id. at 1268.
306. I b i d.
307. 517 U. S. 1163 (1996).
308. Public Access Shoreline Hawaii, 903 P.2d at 1268, 1272.
309. See State ex rel. Thornton v. Hay, 462 P.2d 671, 676 (Or. 1969) (determining that the English doctrine of custom granted a public recreational easement to Oregon's beaches).
310. See, e.g., Hawaii County v. Sotomura, 517 P.2d 57, 61 (Haw. 1973) (observing that "long-standing public use of Hawaii's beaches ... has ripened into a customary right");
311. Application of Ashford, 440 P.2d 76, 77 (Haw. 1968) ("Hawaii's land laws are unique in that they are based on ancient tradition, custom, practice and usage.").
312. See, e.g., Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App. 1989) (denying compensation because statutory requirement for landowner to remove obstacles to provide public access to beach merely enforced easements previously acquired in part by custom);
313. Matcha v. Mattox, 711 S.W.2d 95, 98-99 (Tex. App. 1986) (public acquired easement over Galveston's West Beach by doctrine of custom).
314. City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974).
315. State ex rel. Haman v. Fox, 594 P.2d 1093, 1101 (Idaho 1979) (determining that public usage that started in 1912 did not meet the requirement of use "from time immemorial" and that public usage had been interrupted by the landowner).
316. See, e.g., Smith v. Bruce, 244 S.E.2d 559, 569 (Ga. 1978) ("The theory of custom has been adopted in very few jurisdictions, has never been recognized in Georgia and will not be adopted as the law of this state in this case.");
317. Dep't of Natural Res. v. Mayor and Council of Ocean City, 332 A.2d 630, 636-38 (Md. 1975) (refusing to adopt right of public use based solely on custom);
318. see also Bell v. Town of Wells, 557 A.2d 168, 179 (Me. 1989) (declining to determine whether or not Maine recognized the doctrine of custom, but noting that there is a "serious question whether application of the local custom doctrine to conditions prevailing in Maine near the end of the 20th Century is necessarily consistent with the desired stability and certainty of real estate").
319. See generally John D. Leshy, A Conversation About Takings and Water Rights, 83 Tex. L Rev. (forthcoming 2005) (providing analysis on a variety of state-created property restrictions on water use that can defeat a takings claim at the threshold level);
320. Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. Colo. L. Rev. 257, 269-71 (1990) (arguing that water rights can be altered or reduced in the public interest without the payment of just compensation).
321. Virtually every western state has claimed that ownership of water within the state vests in the public or the state itself in trust for its citizens. See, e.g., Mont. Const. art IX, § 3 (vesting ownership of surface, underground, flood, and atmospheric waters in "the state for the use of its people");
322. N.M. Const. art. VI, § 2 (unappropriated water of natural streams "belongs to the public");
323. Wyo. Const. art. VIII, § 1 (water of all natural streams, springs, lakes, or other collections of still water is the property of the state).
324. See also Blumm, supra note 124, at 576 n. 12 (providing an extensive list of western states that have either statutorily or constitutionally codified state ownership of water).
325. All prior appropriation states provide that a reallocation of water rights will be allowed only if other appropriators are not injured. See 2 Waters and Water Rights § 14.04(c) (Robert E. Beck ed., 2001 repl. Vol. to 1991 ed.) (recounting the history of the longstanding "no injury" rule, now codified by statute in almost all western states). A majority of prior appropriation states also require an express form of public interest review prior to conveyance of water rights.
326. Id. § 14.04(d) (noting also that in states without an express public interest requirement, a court might require consideration of the public interest in a reallocation proceeding by implication).
327. These restrictions stipulate that water can only be appropriated for a beneficial purpose. Accordingly, beneficial use restrictions may limit the quantity, time, place, and manner of an appropriator's water right. Tarlock, supra note 162, at § 5:66 (2004);
328. see also Janet C. Neuman, Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use, 28 Envtl. L. 919 (1998) (explaining the history of the beneficial use doctrine and how it has been used, often unsuccessfully, to prevent waste in western water consumption).
329. See, e.g., Nat'l Audubon Soc'y v. Superior Court of Alpine County (Mono Lake), 658 P.2d 709 (Cal. 1983) (holding that the public trust doctrine applies to nonnavigable tributaries affecting navigable waters).
330. See also Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public Trust Doctrine in Western Water, 37 Ariz. L. Rev. 701 (1995) (detailing application of a water-based public trust doctrine in California, North Dakota, Idaho, Washington, Montana, and Alaska);
331. Jan S. Stevens, The Public Trust and In-Stream Use, 19 Envtl. L. 605 (1989) (providing an historical overview of the public trust as it applies to navigable and nonnavigable waters).
332. 26 P.3d 1171 (Ariz. Ct. App. 2001).
333. Id. at 1180.
334. In re Water Use Permit Applications, 9 P.3d 409, 493 (Haw. 2000).
335. See also People v. Murrison, 124 Cal. Rptr. 2d 68, 78 (Cal. Ct. App. 2002) (rejecting takings challenge on other grounds, but indicating that the plaintiff's failure to adequately document the nature and quantity of its alleged appropriation right under relevant California water law would have been fatal to its claim).
336. 49 Fed. Cl. 313 (2001).
337. Id. at 321-24.
338. 16 U.S.C. §§ 1531-1544 (2000).
339. Tulare Lake, 49 Fed. Cl. at 321-24.
340. See supra notes 43-45 and accompanying text (suggesting why Tulare Lake was incorrectly decided). The settlement awarded the Tulare Lake plaintiffs - several California farmers and irrigation districts - $16.7 million, a figure which included compensation for the market value of the water diverted by the federal government in the years 1992, 1993, and 1994, as well as legal costs and interest.
341. Bettina Boxall, U.S. to Pay $16 Million in Water Rights Case, L.A. Times, Dec. 22, 2004, at B1.
342. While some U.S. Supreme Court decisions seemed to dismiss the state ownership doctrine, the holdings of those cases are narrow, overriding states' proprietary interest in wildlife only when it conflicts with federal law. See, e.g., Hughes v. Oklahoma, 441 U.S. 322 (1979) (declaring that the state's proprietary interest in wildlife was preempted by the restraints imposed by the Commerce Clause),
343. Toomer v. Witsell, 34 U.S. 385 (1948) (rejecting the argument that state ownership of wild animals prevented application of the federal Migratory Bird Treaty and its implementing legislation). As Professor Houck has argued, the Supreme Court "did not, and could not, overrule principles dating back to Roman law that wild animals are the common property of the state."
344. Oliver A. Houck, Why Do We Protect Endangered Species, And What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 Iowa L. Rev. 297, 311 n.77 (1995). In fact, the Hughes opinion took care to explain "the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals."
345. 441 U.S. at 335-36. Thus, all states continue to support a public "ownership" of wildlife, either statutorily or through court decisions.
346. See Dale Goble & Eric T. Freyfogle, Wildlife Law: Cases and Materials 381 (2002) (recognizing that the state ownership doctrine "remains vitally relevant because it continues to undergird [modern] wildlife law");
347. Houck, supra, at 311 n.76 (providing statutory codification of the state ownership doctrine for more than thirty states).
348. Fields v. Wilson, 207 P2d 153, 156 (Or. 1949)
349. (quoting Monroe v. Withycombe, 165 P. 227, 229 (Or. 1917));
350. see also Missouri v. Ward, 40 S.W.2d 1074, 1077 (Mo. 1931).
351. For an extensive list of modern cases holding that state governments have a trust duty to protect the wildlife residing within their borders, see Mary Christina Wood, Protecting the Wildlife Trust: A Reinterpretation of Section 7 of the Endangered Species Act, 34 Envtl. L. 605, 609 n.18 (2004) (citing cases from Alaska, Arkansas, California, Colorado, Michigan, Montana, New Jersey, Ohio, Oregon, Texas, Washington, and Wyoming, among other jurisdictions).
352. See generally Echeverria & Lurman, supra note 43 (providing in-depth analysis of the public ownership argument as a defense to takings claims).
353. 714 N.Y.S.2d 78 (2000).
354. Id. at 81.
355. Id. at 84.
356. See Sierra Club v. Dep't of Forestry & Fire Prot., 26 Cal. Rptr. 2d 338, 347 (Cal. Ct. App. 1993). The California Supreme Court denied review of this case without opinion on March 18, 1994, thereby upholding the appellate court's decision. However, in denying review, the Supreme Court also determined, pursuant to California Court Rules 976, 977, and 979, that the lower court decision would not be officially published (even though it was previously published). Consequently, the Sierra Club decision cannot be cited in documents submitted to California courts.
357. I b i d.
358. Hope M. Babcock, Should Lucas v. South Carolina Coastal Council Protect Where the Wild Things Are? Of Beavers, Bob-o-Links, and Other Things That Go Bump in the Night, 85 Iowa L. Rev. 849, 889 (2000) ("The continued vitality of [the state wildlife "ownership" theory] and supportive common law maxims would appear to make them background principles of state common law that arguably inhere in title to property.").
359. See Sugameli, supra note 87, at 965 (arguing for inclusion of Indian treaty rights within Lucas's background principles of property law).
360. See Idaho v. United States, 533 U.S. 262, 280-81 (2001) (determining that the bed of Coeur d'Alene Lake was reserved in trust for the Coeur d'Alene Tribe by Congress via treaty andcongressional negotiations);
361. Confederated Salish & Kootenai Tribes of Flathead Reservation v. Namen, 665 F.2d 951, 962 (9th Cir. 1982) (ruling that under the Hell's Gate Treaty, ownership of the lakebed was in the federal government, in trust for tribes).
362. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (determining that the title acquired by the United States and subsequently transferred to the state and private owners did not include the right to exclude Chippewas exercising treaty hunting, fishing, or gathering rights).
363. See generally Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest, 69 U. Colo. L. Rev. 407 (1998) (arguing that Indian treaty rights to take fish include vested property rights to access historical fishing grounds, to obtain a fair harvest share sufficient to maintain a fishing livelihood, and to protect fish habitat).
364. 505 U.S. 2003, 1029 (1992) (announcing that background principles "cannot be newly legislated or decreed").
365. See supra note 80 and accompanying text (discussing Justice Kennedy's Lucas concurrence).
366. As Professor Wright has observed, "the 'notice rule' posits that acquisition of land after a regulation precludes compensation and symmetrically assumes that preregulation acquisition of land is equally worthy of compensation if it is not excluded for some other reason." Wright, supra note 24, at 176 n.4.
367. See infra note 225 and accompanying text (listing court decisions employing the notice rule to defeat takings claims at the threshold stage).
368. Palazzolo v. Rhode Island, 533 U.S. 606, 630 (2001).
369. See infra notes 230-263 and accompanying text.
370. See infra Part V.C.
371. 533 U.S. 606 (2001).
372. See, e.g., City of Virginia Beach v. Bell, 498 S.E.2d 414, 417-18 (Va. 1998) (holding that because claimants' did not acquire title to the land at issue until after passage of a law requiring a permit to alter sand dune areas, they never possessed the right to develop their land);
373. Kim v. City of New York, 681 N.E.2d 312, 315-16 (N.Y. 1997);
374. Hunziker v. State, 519 N.W.2d 367, 370-71 (Iowa 1994) (ruling that a preexisting state statute authorizing protection of important archaeological burial sites was a Lucas background principle).
375. For more discussion on state law cases defeating takings claims under a preexisting statute analysis, see Robert L. Glicksman, Making A Nuisance of Takings Law, 3 Wash. U. J. L. & Pol'y 149, 169-82 (2000).
376. 679 N.E.2d 1035 (N.Y. 1997).
377. Id. at 1036, 1040-41.
378. See, e.g., Outdoor Graphics v. City of Burlington, 103 F.3d 690, 694 (8th Cir. 1996) (denying a takings claim because city signage ordinance antedated claimant's acquisition of nonconforming billboards);
379. Hoeck v. City of Portland, 57 F.3d 781, 789 (9th Cir. 1995) (rejecting a takings claim on the grounds that the proscribed use violated a municipal regulation regarding vacant buildings);
380. M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed. Cir. 1995) (determining that the federal coal mining statute was a preexisting limitation that defeated landowner's takings claim).
381. But see Preseault v. United States, 100 F.3d 1525, 1538-39 (Fed. Cir. 1996) (en banc) (plurality opinion) ("The background principles referred to by the Court in Lucas were state-defined nuisance rules," and further determining that Lucas did not support the position that background principles include "the sweep of a century of federal regulatory legislation.").
382. 533 U.S. 606, 632 (2001).
383. Id. at 627 (2001)
384. (citing Pennsylvania Coal Co., 260 U.S. 393, 413 (1922) ("Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law")).
385. 535 U.S, 302, 352 (2002) (Rehnquist, C.J., dissenting);
386. see also Sugameli, supra note 115, at 51-56 (discussing Chief Justice Rehnquist's dissent in Tahoe-Sierra).
387. 533 U.S. at 630.
388. 54 Fed. Cl. 652 (2002).
389. Pub. L. No. 94-579, 90 Stat. 2743 (1976) (codified at 43 U.S.C. § 1782(c) (2000)).
390. 54 Fed. Cl. at 671-72.
391. Id. at 674.
392. I b i d.
393. 379 F.3d 1363 (Fed. Cir. 2004).
394. Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified at 16 U.S.C. §§ 1801-1883 (2000)).
395. 379 F.3d at 1379.
396. Id. at 1376.
397. Id. at 1379.
398. I b i d.
399. 54 Fed. Cl. 652, 673 (2002).
400. Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001);
401. American Pelagic, 379 F.3d at 1379 (declaring the MSFA a background principle not merely because of its enactment, but because its provisions mirror "traditional sovereign regulation of navigable waters and fisheries");
402. Reeves, 54 Fed. Cl. at 671-72 (acknowledging Palazzolo's holding that not all statutes function as background principles);
403. see also Glenn P. Sugameli, Threshold Statutory and Common Law Background Principles of Property and Nuisance Law Defines If There Is a Protected Property Interest, in Taking Sides on Takings Issues: Public and Private Perspectives, supra note 115, at 178 (commenting that the "nature of the statutes at issue [in many of the pre-Palazzolo cases] and the concerns that many of these courts expressed should lead to a reaffirmation of these decisions on the facts presented," even under a Palazzolo analysis).
404. See supra note 231 and accompanying text.
405. Tahoe-Sierra a Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 352 (2002).
406. I b i d.
407. See Sugameli, supra note 115, at 54 (noting that wetlands protections "have a similar or longer 'lineage' than the common law and the statutory bases for zoning that Chief Justice Rehnquist cited").
408. See Bosselman, supra note 152, at 282-88 (explaining that enforceable wetlands protection rules have been in place in parts of England since at least 1100).
409. Ch. 425, 30 Stat. 1151 (1899) (codified as amended at 33 U.S.C. § 403 (2000)).
410. See, e.g., Goble & Freyfogle, supra note 205, at 762-68 (analyzing English and early American regulation of the taking of wildlife);
411. James A. Taylor, Who Owns the Wildlife: The Political Economy of Conservation in Nineteenth Century America 139-78 (1981) (providing a broad history of game laws in nineteenth-century America).
412. Houck, supra note 205, at 309;
413. see also William T. Hornaday, Our Vanishing Wild Life: Its Extermination and Preservation 265-303 (1913) (presenting a state-by-state status report on wildlife legislation);
414. Babcock, supra note 213, at 883 (commenting that "wildlife management in this country has been a prerogative of the government since colonial times").
415. See In re Water Use Permit Applications, 9 P.3d 409, 493 (Haw. 2000).
416. Haw. Const. art. XI, § 1.
417. I b i d.
418. In re Water Use Permit Applications, 9 P.3d at 444.
419. Id. at 492.
420. Id. at 445: We need not define the full extent of article XI, section 1's reference to "all public resources" at this juncture. For purposes of this case, however, we reaffirm that, under article XI, sections 1 and 7 and the sovereign reservation, the public trust doctrine applies to all water resources without exception or distinction.
421. Mont. Const. art. IX, § 1. The Supreme Court of Montana has concluded that this provision is a fundamental right and that state or private action that implicates article IX, section 1 is subject to strict scrutiny. Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 1249 (Mont. 1999).
422. See generally Barton H. Thompson, Jr., Constitutionalizing the Environment: The History and Future of Montana's Environmental Provisions, 64 Mont. L. Rev. 157 (2003).
423. Alaska Const. art. VIII, § 3;
424. see also id. § 4 (declaring a sustained-yield principle for all replenishable resources belonging to the state, including fish, forests, and wildlife),
425. id. § 14 (guaranteeing public access to waters within the state).
426. La. Const. art. IX, § 4. This provision further commands that "[t]he legislature shall enact laws to implement this policy." Id.
427. See Blumm, supra note 124, at 576 n.12 (listing various state constitutional grants for public use and enjoyment of natural resources). Not all courts have been persuaded that constitutional provisions amount to background principles.
428. See K & K Constr., Inc. v. Dep't of Natural Res., 551 N.W.2d 413, 417 (Mich. Ct. App. 1996) (determining that "the generalized invocation of public interests in the state constitution and the Legislature's declarations in the [Wetlands Protection Statute] ... do not constitute background principles of nuisance and property law sufficient to prohibit the use of plaintiff's land without just compensation"), rev'd on other grounds, 575 N.W.2d 531 (Mich. 1998).
429. 533 U.S. 606, 633 (2001) (O'Connor, J., concurring). Justice O'Connor's concurring opinion was cited favorably throughout the Tahoe-Sierra majority opinion.
430. See, e.g., 535 U.S. 302, 326 n.23 (2002) (citing O'Connor's concurrence reaffirming the role of investment-backed expectations in takings analysis);
431. id. at 335-36 (quoting O'Connor to the effect that all three Penn Central factors weigh on a takings decision).
432. 533 U.S. at 633.
433. See supra notes 78 and 264 (explaining the importance of Justices Kennedy and O'Connor's votes in Supreme Court takings cases).
434. Palazzolo, 533 U.S. at 635.
435. See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1348-49 (Fed. Cir. 2004) (rejecting a takings claim because of regulations in place when the property was purchased);
436. Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1350 n.22 (Fed. Cir. 2001) (determining that the government cannot defeat takings liability by simply showing that regulatory restrictions were in place at the time of purchase, but recognizing O'Connor's concurrence in Palazzolo and stating, "the regulatory environment at the time of the acquisition of the property remains both relevant and important in judging reasonable expectations");
437. Rith Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed. Cir. 2001) (concluding, post-Palazzolo, that the "absence of a reasonable investment-backed expectation on [plaintiff's] part ... defeats its takings claim");
438. LaSalle Nat'l Bank v. City of Highland Park, 799 N.E.2d 781, 797 (Ill. App. Ct. 2003) (ruling that claimants' reasonable investment-backed expectations, determined by examination of the regulations in place as of the date of purchase, are an "especially important consideration in the takings analysis").
439. 276 U.S. 272 (1928).
440. Id. at 277.
441. 505 U.S. 1003, 1029 n.16 (1992).
442. In re Property Located at 14255 53rd Avenue, 86 P.3d 222, 229 (Wash. Ct. App. 2004).
443. Avenal v. State, 886 So. 2d 1085 (La. 2004).
444. Id. at 1108 n.28
445. (citing Miller v. Schoene, 276 U.S. 272 (1928)).
446. Customer Co. v. City of Sacramento, 895 P.2d 900, 916 (Cal. 1995).
447. 516 U.S. 442 (1996).
448. Id. at 452-53. The husband of the claimant had engaged in sexual activity with a prostitute in the car.
449. I b i d.
450. I b i d.
451. United States v. Various Ukrainian Artifacts, No. 96-3285, 1997 WL 793093 (E.D.N.Y. Nov. 21, 1997).
452. People v. DeLuca, 706 N.E.2d 927, 931 (Ill. App. Ct. 1998).
453. 291 F.3d 1334 (Fed. Cir. 2002).
454. Id. at 1345.
455. Id. at 1345 n.8.
456. 379 F.3d 1363 (Fed. Cir. 2004).
457. Id. at 1383. The American Pelagic court also rejected the plaintiff's takings claims under a statutory background principles analysis.
458. See supra notes 238-242 and accompanying text.
459. Diamond Bar Cattle Co. v. United States, 168 F.3d 1209, 1217 (10th Cir. 1999).
460. See generally Mark J. Baas, Note, Diamond Bar Cattle Co. v. United States: Holders of State Water Rights on Federal Lands Do Not Also Hold Property Interests to Graze Those Lands, 4 Great Plains Nat. Resources J. 296 (2000).
461. Diamond Bar Cattle Co., 168 F.3d at 1217;
462. see also Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1200 (10th Cir. 1999) (ruling that a government grazing permit does not create a compensable property right);
463. Alves v. United States, 133 F.3d 1454, 1457 (Fed. Cir. 1998) (determining that a grazing preference attached to base property owned by a Taylor Grazing Act permit holder is not a compensable property interest);
464. Kunkes v. United States, 78 F.3d 1549, 1550 (Fed. Cir. 1996) (ascertaining that plaintiffs had no valid takings claim because they failed to meet the statutory requirements necessary to maintain their public land mining claim), cert. denied, 519 U.S. 820 (1996);
465. Buse Timber & Sales, Inc. v. United States, 45 Fed. Cl. 258, 263 (1999) (holding that the Forest Service's indefinite suspension of a timber contract was not a taking because the contractor lacked a property interest in the right to perform the contract, where the contract reserved the right to suspend, modify, or cancel the contract);
466. Kerr-McGee Corp. v. United States, 32 Fed. Cl. 43, 49-50 (1994) (concluding that an applicant for a lease under the Mineral Leasing Act, asserting that it discovered a valuable deposit, did not hold a vested property right protected by the federal takings clause).
467. See generally Jan G. Laitos & Richard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L. Rev. 1 (1987) (detailing various types of property interests in public lands and resources, and discussing the extent to which private parties may be protected from federal interference with private interests in federal property);
468. Marla E. Mansfield, When "Private" Rights Meet "Public" Rights: The Problems of Labeling and Regulatory Takings, 65 U. Colo. L. Rev 193 (1994) (evaluating takings claims involving public lands and resources post-Lucas).
469. See United States v. Fuller, 409 U.S. 488, 492 (1973) (rejecting a takings claim concerning loss of property value due to the non-renewal of a federal grazing permit, and determining that "the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created").
470. 533 U.S. 606, 630 (2001) (announcing that a takings claim "is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction"). But a landowner's notice of a pre-existing regulatory restriction is a relevant factor in Penn Central balancing.
471. See id. at 633 (O'Connor, J., concurring).
472. Id. at 636 (O'Connor, J., concurring);
473. see also Blumm, supra note 24, at 149-55 (suggesting that the Palazzolo decision signaled the decline of the categorical takings rule - the so-called economic "wipeout" rule - announced by Justice Scalia in Lucas).
474. 535 U.S. 302, 332 (2002).
475. Id. at 330;
476. see also Lazarus, Celebrating Tahoe-Sierra a, supra note 78, at 13 (arguing that Tahoe-Sierra "likely relegated [the Lucas wipeout rule] to a mere incidental footnote in takings law and the Court's earlier opinion in Penn Central is again the primary judicial text for adjudicating takings claims").
477. Younger v. Harris introduced the modern understanding of "Our Federalism," instructing that the concept represents "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government ... always endeavors to [act] in ways that will not unduly interfere with the legitimate activities of the States." 401 U.S. 37, 44 (1971).
478. For other uses of the term by the Rehnquist Court, see Alden v. Maine, 527 U.S. 706, 748 (1999) ("Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.");
479. Printz v. United States, 521 U.S. 898, 921 (1997) (arguing that separation between state and national government "is one of the Constitution's structural protections of liberty");
480. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) ("[O]ur federalism" allows the states, independent from federal direction, "to devise various solutions where the best solution is far from clear.");
481. Ankenbrant v. Richards, 504 U.S. 689, 705 (1992) (declining to extend the concept of comity, which the Court found "critical to Younger's 'Our Federalism,"' when there was no pending state proceeding);
482. Deakins v. Monaghan, 484 U.S. 193, 208-09 (1988) (White, J., concurring) (opining that "Our Federalism" precludes federal courts from adjudicating damage claims when a state criminal case dealing with the same issue is pending).
483. See also Blumm & Kimbrell, supra note 103, at 314 n.20 (listing recent Supreme Court decisions concerning the constitutional state-federal balance);
484. Lazarus, Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases, supra note 78, at 11-23 (discussing the Rehnquist Court's understanding of federalism in the takings context).
485. Lucas, 505 U.S. at 1027.
486. The Supreme Court has frequently ruled that certain property rights are not constitutionally protected, and thus warrant no compensation under the federal takings clause, even where a claimant has shown a drastic diminishment in property value. As Justice Jackson observed in United States v. Willow River Power Co., "not all economic interests are 'property rights'; only those economic advantages are 'rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion." 324 U.S. 499, 502 (1945);
487. see also Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491-92 (1987) (holding that landowner's property rights did not include the right to mine in a way that damaged neighboring homes);
488. United States v. Fuller, 409 U.S. 488, 492 (1973) (denying a compensable interest in "elements of value that the Government has created," such as revocable federal permits or leases);
489. Goldblatt v. Hempstead, 369 U.S. 590, 592-93 (1962) (holding that plaintiff could not assert a compensable interest in mining activities that posed risks to the common welfare);
490. Hadacheck v. Sebastian, 239 U.S. 394, 410-11 (1915) (holding that operating a kiln within city limits is not a protected property right because it posed a threat to the public);
491. Mugler v. Kansas, 123 U.S. 623, 668 (1887) (holding that claimant lacked a compensable interest to engage in the manufacture of a product - beer - determined to be "injurious to the health, morals, or safety of the community").
492. See generally Jacques B. Gelin & David W. Miller, The Federal Law of Eminent Domain § 2.3 (1982) (listing examples of losses in property value for which no compensation is required);
493. Jan G. Laitos, Law of Property Rights Protection: Limitations on Governmental Powers § 6 (2005) (detailing limitations on the legal stature of private property rights).
494. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 630 (2001) (Kennedy, J.) (rejecting the "notice rule" as a categorical defense to a takings clause challenge in favor of caseby-case balancing);
495. id. at 636 (O'Connor, J., concurring) (arguing that courts should resist adopting per se rules and instead employ balancing tests;
496. see also Lazarus, Celebrating Tahoe-Sierra, supra note 78, at 23 (concluding that Justices Kennedy and O'Connor "have made clear their general support for a Penn Central approach").
497. Rick's Amusement, Inc. v. State, 570 S.E.2d 155, 158 (S.C. 2001) (internal citations omitted);
498. see also supra note 28 (listing other cases determining that the background principles inquiry precedes Penn Central balancing in claims involving less-than-total takings).
499. See supra note 26 and accompanying text.
500. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Council, Inc., 535 U.S. 302, 352 (2002) (Rehnquist, C.J., dissenting) (citing the above passage from Palazzolo favorably, thereby demonstrating widespread agreement among the Court that some statutes and regulations serve as background principles);
501. Palazzolo, 533 U.S. at 627 (noting that "[t]he right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions.") (emphasis added).
502. See Lucas, 505 U.S. at 1032 n.18 (noting that the U.S. Supreme Court role in takings claims review is to ensure that state courts provide an "objectively reasonable application of relevant precedents:" allowing for "some leeway in a court's interpretation of what existing state law permits") (emphasis in original). Justice Scalia once suggested that the Oregon Supreme Court's reaffirmation of the doctrine of custom in public access to ocean beaches may have exceeded that standard, but he could not convince the Court to review the case.
503. Stevens v. City of Cannon Beach, 510 U.S. 1207, 1209 (1994) (Scalia, J., dissenting from denial of certorai);
504. see supra note 174 and accompanying text.
505. See supra notes 162 (discussing the federal navigation servitude) and 233 (discussing background principles federal statutes).
506. Lucas, 505 U.S. at 1027.
507. See supra note 32 and accompanying text (arguing that the takings defense created by Lucas is far more important than the categorical liability rule the case created).
508. See supra notes 72-75 and accompanying text.
509. See supra note 75.
510. Formalistic reasoning promotes "clear, distinct, bright-line classifications of legal phenomena." Horwitz, supra note 34, at 17. Advocates of a classical liberal theory of property have argued that a formalistic approach to takings would benefit private property owners because the liberal idea of the Rule of Law would instruct owners of the relevant rights and restrictions associated with their property prior to purchase, thereby avoiding the unpredictability of the Penn Central balancing test.
511. See also supra note 20 and accompanying text (detailing some scholars' opposition to the Penn Central test because it favors public benefits over individual property rights);
512. see generally Epstein, supra note 19;
513. Huffman, supra note 19;
514. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum. L. Rev. 1667 (1988) (summarizing and critiquing liberal property theories).
515. Formalism developed in the nineteenth century as a response to "result-oriented" judicial reasoning, which formalists thought gave judges too much discretion and inexcusably linked law and politics. Horwitz, supra note 33, at 16-17.
516. Formalism employs deduction from general principles and analogical reasoning to decide disputes without resort to the substantive merits of a case. Id. at 16.
517. According to Morton Horwitz, formalistic thought introduced an efficient, self-contained system of legal reasoning that "[i]n a world of conflicting ends ... aspired to create a system of processes and principles that could be shared even in the absence of agreed upon ends." Id.;
518. see supra notes 33-34 and accompanying text (noting that although categorical rules - a hallmark of formalistic thought - have been discredited historically, they have proved attractive to the Rehnquist Court, especially in the context of the Commerce Clause).
519. The background principles defense is a dynamic area of takings law. For timely updates concerning recent decisions on threshold takings issues, see the Georgetown Environmental Law & Policy Institute's "Snapshots" webpage, at http://www.law.georgetown.edu/ gelpi/takings/courts/snap.htm (last visited May 23, 2005) (on file with the Harvard Environmental law Review), which supplies a monthly summary of important takings decisions and case developments.
520. Also, consult the Community Rights Counsel's "Community Rights Report," available at http://www.communityrights.org/ communityrightsreportnewsletter/newsletter.asp.