The false dichotomy between physical and regulatory takings analysis: A critique of Tahoe-Sierra's distinction between physical and regulatory takings

Ecology Law Quarterly

Volumn 34, Issue 2, 2007, Pages 381-441

  Peterson, Andrea L ^a  

^a NONE

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EID: 36248940678     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (232)

1. 535 U.S. 302 (2002).
2. 544 U.S. 528 (2005).
3. 505 U.S. 1003 (1992).
4. See infra text accompanying notes 9-12.
5. See infra text accompanying notes 6-12 & 27-30.
6. Tahoe-Sierra, 535 U.S. at 322 (emphasis added) (citation omitted).
7. Id. (emphasis added).
8. Id. (emphasis added) (citations omitted).
9. Id. at 323-24.
10. Id. at 331-32 (emphasis added).
11. Id. at 332 (emphasis added).
12. Id. at 324.
13. Id.
14. Id. at 324 n.19.
15. Id. at 321.
16. U.S. CONST. amend. V.
17. Tahoe-Sierra Pres. Council. Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321 (2002).
18. Id. at 322 n.17.
19. Id. (emphasis added).
20. Id. (emphasis added).
21. See, e.g., First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304 (1987); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). See Section III.B.
22. Tahoe-Sierra, 535 U.S. at 324 n.19.
23. Tahoe-Sierra's rejection of functional equivalence analysis and the Court's refusal to analyze physical and regulatory takings in a similar manner have provoked quite different responses from commentators. For example, Professor Richard Lazarus celebrated Tahoe-Sierra's rejection of functional equivalence reasoning: [I]n Tahoe-Sierra, the Court stepped away from [functional equivalence] analysis and characterized physical and regulatory takings as completely distinct and therefore subject to different kinds of constitutional analyses. . . . The majority opinion could hardly have been any clearer in this respect: "[W]e do not apply our precedent from the physical takings context to regulatory takings." . . . The Court's opinion in this respect is no incidental matter. The threshold notion that physical and regulatory takings are constitutionally equivalent under the Takings Clause served as a fundamental premise of Professor Richard Epstein's original manifesto urging the courts to reinvigorate the Clause. His legal theories have long provided academic fuel to property rights advocates. In the aftermath of the Court's ruling in Tahoe-Sierra, however, it is now clear that six Justices on the Court . . . reject Epstein's fundamental premise. Several lower courts have since relied on the Tahoe-Sierra Court's distinction between physical and regulatory takings in rejecting takings claims. Richard J. Lazarus, Celebrating Tahoe-Sierra, 33 ENVTL. L. 1, 9-10 (2003) (footnotes omitted). Professor Richard Epstein, on the other hand, continued to assert that physical and regulatory takings are properly viewed as analogous. Responding to Tahoe-Sierra, he stated that "what is needed is the rejection of any categorical distinction between physical and regulatory takings."
24. Richard A. Epstein, The Ebbs and Flows in Takings Law: Reflections on the Lake Tahoe Case, 2002 CATO SUP. CT. REV. 5, 29 (2002). A number of commentators have noted that the Tahoe-Sierra Court did not fully justify its distinction between physical invasions and use restrictions. For example, Professor John Echeverria stated that the Court in Tahoe-Sierra had clearly taken the position that "a physical appropriation, whether temporary or not, is qualitatively different from a use restriction," and he then characterized the Court's sharp distinction between physical invasions and use restrictions as "problematic," commenting that "[i]t is hardly obvious that physical appropriations . . . actually represent a greater intrusion on private property rights than many landmark use restrictions."
25. John D. Echeverria, A Turning of the Tide: The Tahoe-Sierra Regulatory Takings Decision, 32 Envtl. L. Rep. (Envtl. Law Inst.) 11,235, 11,242, 11,244 (2002). The Tahoe-Sierra Court, he noted, had "explained the distinction largely in practical terms." Id. at 11,243. Professor Andrew Gold commented even more pointedly that "probably the true motivation for drawing its distinction" between physical and regulatory takings was the Tahoe-Sierra Court's concern that otherwise many land use regulations might be found to be takings.
26. Andrew S. Gold, The Diminishing Equivalence Between Regulatory Takings and Physical Takings, 107 DICK. L. REV. 571, 589 (2003). Given the Court's long history of functional equivalence reasoning, Professor Gold viewed the Tahoe-Sierra Court's "reluctance to equate regulatory and physical governmental acts" as "ensur[ing] continued uncertainty in takings jurisprudence." Id. at 571-72.
27. Finally, Professor Steven J. Eagle remarked, "[T]o say that physical invasions usually are more severe than regulations . . . hardly gives rise to confidence in an arbitrary rule stating that physical and regulatory takings claims are to be evaluated by different doctrines." Steven J. Eagle, Planning Moratoria and Regulatory Takings: The Supreme Court's Fairness Mandate Benefits Landowners, 31 FLA. ST. U. L. REV. 429, 455 (2004). Moreover, Eagle asserted that although "Justice Stevens might be correct in asserting that physical seizures 'represent a greater affront to individual property rights' than regulatory seizures," this "is not certain . . . since pride in ownership might be offset by outrage that the owner's only practical indicium of ownership would be the periodic receipt of a real estate tax bill."
28. Steven J. Eagle, Some Permanent Problems with the Supreme Court's Temporary Regulatory Takings Jurisprudence, 25 U. HAW. L. REV. 325, 343 (2003).
29. 458 U.S. 419 (1982).
30. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002).
31. The Court stated in Loretto: [W]e have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, "the character of the government action" not only is an important factor in resolving whether the action works a taking but also is determinative. Loretto, 458 U.S. at 426.
32. 505 U.S. 1003 (1992).
33. In Lucas, the Court held that a taking occurs when "the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good," id. at 1019, unless "inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with," id. at 1027, given the restrictions that "background principles of the State's law of property and nuisance already place upon land ownership," id. at 1029. The "nuisance exception" to the Lucas per se rule is discussed more fully at Section V.B.2.b.
34. Justice Stevens stated that the Lucas per se rule would only apply in the rare case where "a regulation permanently deprives property of all value." Tahoe-Sierra, 535 U.S. at 332 (emphasis added). This disposed of the takings issue, since no takings claim based on the three-factor test set out in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), was before the Court in Tahoe-Sierra. Justice Stevens remarked that "if [the claimants] had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn Central analysis." Tahoe-Sierra, 535 U.S. at 334.
35. For example, Stevens asserted that fairness would not require the payment of compensation for "numerous practices that have long been considered permissible exercises of the police power," including "orders temporarily prohibiting access to crime scenes, businesses that violate health codes, [and] fire-damaged buildings." Tahoe-Sierra, 535 U.S. at 334-35.
36. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
37. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
38. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 n.17 (2002).
39. Id. at 324.
40. 328 U.S. 256 (1946).
41. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
42. The Supreme Court held that a taking occurred in Causby and remanded for a determination of whether the "easement" taken by the government's flights was temporary or permanent. Causby, 328 U.S. at 267-68. On remand, the court held that the easement was temporary, since the flights had stopped. Causby v. United States, 109 Ct. Cl. 768, 771-72 (1948).
43. 480 U.S. 470 (1987).
44. Id. at 488-89 (emphasis added).
45. 482 U.S. 304 (1987).
46. Id. at 327-28 (Stevens, J., dissenting).
47. Id. at 325-26 (quoting Mugler v. Kansas, 123 U.S. 623, 668-69 (1887)).
48. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 335 (2002).
49. Id.
50. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).
51. 276 U.S. 272 (1928).
52. Keystone, 480 U.S. at 489 (emphasis added).
53. First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 325-26 (1987) (Stevens, J., dissenting).
54. See Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles, Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 53 (1990).
55. I use the terms "judgment of blame" and "judgment of wrongdoing" interchangeably.
56. As I explained in my earlier article, a court would rarely find a taking under the principles 1 articulated: This is true for a number of reasons. First, the term "wrongdoing" is used to describe quite weak judgments of condemnation, as in a nuisance case. Second, the reviewing court would not make an independent judgment of whether the public would consider A's conduct to be blameworthy. Rather, the court would consider whether the lawmakers (or other authorized governmental decisionmakers) reasonably believed that the public would consider A's conduct to be blameworthy. Indeed, the reviewing court would give such great deference to the lawmakers' judgment that one might say that no taking will be found so long as the lawmakers made a plausible determination that the public would consider A's conduct to be blameworthy. Moreover, the reviewing court would assume that a judgment of wrongdoing had been made if such a judgment could plausibly have been made, unless the evidence showed that in fact no judgment of wrongdoing had been made. To find a taking, then, the reviewing court would either have to conclude that no judgment of wrongdoing could plausibly have been made, or that in fact no judgment of wrongdoing had been made. Peterson, supra note 49, at 92-93 (footnotes omitted).
57. I explained in my earlier article that a takings claimant must establish that the government forced him to give up his property, since no taking would occur if a claimant gave up his property voluntarily. The government could force someone to give up property in three different ways: First, the government may use an eminent domain proceeding to force A to transfer her claim to an economically valuable resource, such as a parcel of land, to the government. . . . Second, the government may adopt a law that expressly requires A to give up something of economic value. . . . Finally, physical action by the government may force A to give up something of economic value, even though no law requires A to do so. Id. at 76-77 (footnotes omitted). Moreover, to commit a taking, the government must intentionally deprive the claimant of property. Usually, this requirement is easily met: In most takings cases, the government clearly intended to deprive the claimant of her property. When the government formally exercises its eminent domain power, for example, it plainly intends to force A to give up her property. Similarly, when the government enacts a law that expressly requires A to give up her property, no issue of intent arises. The intent issue is most likely to arise when the government engages in physical action that has the effect of forcing A to give up her property. . . . . . . . . . [T]he Court's takings decisions can best be explained by saying that . . . the intent requirement is met if the government made a deliberate decision to act in a manner that would be substantially certain to force A to give up her property, even if that impact on A was not affirmatively desired. Id. at 80-83 (footnotes omitted). Once the claimant establishes that the government intentionally deprived him of property, the critical issue is why the government did so. If the government was merely preventing or punishing wrongdoing, no taking occurred.
58. First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304 (1987).
59. Id. at 316 (emphasis added). The Court explained in United States v. Clarke, 445 U.S. 253 (1980), that "[i]nverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency." Id. at 257 (citations omitted) (internal quotation marks omitted).
60. Id. at 316-17 (quoting Pumpelly v. Green Bay, 80 U.S. 166, 177-78 (1871)).
61. Id. at 317.
62. 260 U.S. 393 (1922).
63. Id. at 414 (emphasis added).
64. 450 U.S. 621, 636 (1981) (Brennan, J., dissenting). The majority in San Diego dismissed the appeal for lack of a final judgment. Justice Brennan, however, addressed the substantive issue presented in the case, arguing that just compensation must be paid for temporary regulatory takings. Justice Brennan's dissent was joined by three other Justices. In addition, Justice Rehnquist wrote in a concurrence: "If I were satisfied that this appeal was from a 'final judgment or decree' . . . I would have little difficulty in agreeing with much of what is said in the dissenting opinion of Justice Brennan." Id. at 633 (Rehnquist, J., concurring). Six years later, Chief Justice Rehnquist wrote the majority opinion in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), adhering to the substantive position set out in Justice Brennan's San Diego dissent.
65. San Diego Gas & Elec. Co., 450 U.S. at 652 (footnote omitted).
66. First English, 482 U.S. 304.
67. As examples of "temporary takings," the Court cited cases in which the government acquired a leasehold interest through a formal exercise of the eminent domain power and cases in which the government committed a taking through physical action, as in Causby. Id. at 316-19. The Court concluded that just as compensation must be paid for those temporary takings, so must compensation be paid if a taking occurs through regulation, even if the taking is temporary. Id. at 318-22.
68. 505 U.S. 1003 (1992).
69. Id. at 1017 (citing San Diego Gas & Elec. Co., 450 U.S. at 652 (Brennan, J., dissenting)).
70. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 323-24. 324 n.19 (2002).
71. Id. at 324 n.19.
72. Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922).
73. Id. at 414.
74. Id. at 415 ("It is true that in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 [(1914)] it was held competent for the legislature to require a pillar of coal to the left along the line of adjoining property, . . . [b]ut that was a requirement for the safety of employees invited into the mine.").
75. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).
76. Id. at 492 n.20.
77. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).
78. The undue narrowness of the Lucas nuisance exception is discussed more fully in Section V.B.2.b.
79. Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922).
80. Id. at 415.
81. Id.
82. 483 U.S. 825 (1987). As discussed in Section V.A.2, the Court emphasized in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), that in determining whether a taking occurred, the Court is not asking whether the government's action promoted the common good.
83. Nollan, 483 U.S. at 841-42 (citation omitted).
84. In some cases, perhaps for political reasons, the government might choose to acquire property through a formal exercise of its eminent domain power, even though it could have achieved the same result through enactment of a law that would not have been considered a taking. For example, the government might choose to pay for diseased plants or animals and then destroy them, rather than requiring the owners to destroy their diseased plants or animals without receiving compensation. If the government chooses to proceed through a formal exercise of its eminent domain power, then the government is simply asserting, "You must transfer your property to us to promote the common good," and the government must pay just compensation for the property it acquires.
85. Pumpelly v. Green Bay, 80 U.S. 166 (1871). In Pumpelly, the Court found that a taking occurred when the government built a dam that resulted in the permanent flooding of the claimant's land. The Court stated that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking." Id. at 181.
86. United States v. Causby, 328 U.S. 256 (1946).
87. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1044 (1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).
88. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 324 (2002).
89. See Peterson, supra note 49, at 98-115 (discussing judgments of wrongdoing).
90. See, e.g., Lawton v. Steele, 152 U.S. 133, 136 (1894) ("It is universally conceded [that the police power] justif[ies] the destruction or abatement . . . of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order . . . the slaughter of diseased cattle."); Johansson v. Bd. of Animal Health, 601 F. Supp. 1018 (D. Minn. 1985) (state statute requiring hog farmers to quarantine or sell for slaughter hogs found to carry an infectious disease did not effect a taking); Loftus v. Dep't of Agric., 232 N.W. 412, 420 (Iowa 1930) ("The right to compensation for diseased animals is not absolute. They, being nuisances, may be destroyed without compensation.").
91. The Court at times has relied on the fiction that the thing itself is guilty of wrongdoing and must give itself up. See, e.g., Bennis v. Michigan, 516 U.S. 442 (1996). However, in my view, the Court should focus on whether the property owner can be considered culpable. In an earlier case, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 690 (1974), the Court was not satisfied with justifying forfeiture by relying on the fiction that the thing itself is the wrongdoer. Toward the end of the opinion, the Court in effect said that the case would have been different if the claimant had not been at fault - that is, if there had been no basis for blaming him for the illegal use of his forfeited yacht.
92. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987).
93. 485 U.S. 1, 15 (1988) (Scalia, J., concurring in part and dissenting in part). The majority in Pennell did not reach the takings issue.
94. Id. at 20.
95. Nollan, 483 U.S. 825.
96. Id. at 838.
97. Id. at 837.
98. Cf. Fred F. French Investing Co. v. City of New York, 350 N.E.2d 381 (N.Y. 1976) (ordinance rezoning two private parks for public park use held to be a violation of substantive due process, on the theory that regulation that goes "too far," as in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), should be regarded as a violation of substantive due process, rather than a taking); City of Plainfield v. Borough of Middlesex, 173 A.2d 785 (N.J. Super. Ct. Law Div. 1961) (zoning ordinance that limited use of plaintiffs' land to either a school or a public park or playground, held to effect a taking).
99. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
100. Loretto v. Teleprompter Manhattan CATV Corp., 423 N.E.2d 320, 328 (N.Y. 1981), rev'd, 458 U.S. 419.
101. The Court concluded that the cable facilities should be considered "permanent," even though under the statute, the cable facilities could legally be removed if the building were no longer rented. Loretto, 458 U.S. at 439 n.17.
102. Justice Blackmun, dissenting in Loretto, acknowledged that the crossover installations might effect a taking, but then argued that the taking could be ignored as "de minimis": "[A]ssuming, arguendo, that the crossover extension in this case works a taking, I would be prepared to hold that [it] is a de minimis deprivation entitled to no compensation." Id. at 448 n.6 (Blackmun, J., dissenting).
103. Id. at 444 n.3.
104. The majority considered it uncontroversial that "if the State required landlords to permit third parties to install swimming pools on the landlords' rooftops for the convenience of the tenants, the requirement would be a taking." Id. at 436 (majority opinion).
105. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 334 (2002).
106. Id. at 335.
107. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).
108. 123 U.S. 623 (1887).
109. Id. at 662.
110. Id. at 657.
111. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 489 (1987) (quoting Mugler, 123 U.S. at 668-69 ) (emphasis added).
112. Pennell v. City of San Jose, 485 U.S. 1, 15 (1988) (Scalia, J., concurring in part and dissenting in part).
113. Id. at 20.
114. Id.
115. Id.
116. Id.
117. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002).
118. Id. at 322 (citing United States v. Gen. Motors Corp., 323 U.S. 373 (1945) and United States v. Petty Motor Co., 327 U.S. 372 (1946)).
119. Id. (emphasis added) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951)).
120. In Pewee Coal, the Court explained that the seizure of the mines "ma[de] the mines governmental facilities 'in as complete a sense as if the Government held full title and ownership.' . . . [Thus,] the Government here 'took' Pewee's property and became engaged in the mining business." Pewee Coal, 341 U.S. at 116-17 (quoting United States v. United Mine Workers, 330 U.S. 258, 284-85 (1947)).
121. Tahoe-Sierra, 535 U.S. at 322.
122. Id. at 335.
123. Id. at 334.
124. 544 U.S. 528 (2005).
125. Id. at 537 (second and third emphasis added) (alteration in original) (citations omitted).
126. Id. at 539.
127. Id. (emphasis added).
128. Id. at 542-43 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
129. In Lingle, the Court held that inquiring whether regulation of private property "substantially advances" a legitimate governmental interest is not an appropriate test for determining whether regulation effects a taking. Id. at 548.
130. Id. at 543.
131. The Takings Clause merely states: "[N]or shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. However, it has been interpreted as prohibiting the government from taking private property if the taking is not for a "public use." See, e.g., Kelo v. City of New London, 545 U.S. 469 (2005). As the Court explained in Lingle, the Takings Clause "presupposes that the government has acted in pursuit of a valid public purpose." Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543 (2005). If the government's action does not meet that requirement, "that is the end of the inquiry. No amount of compensation can authorize such action." Id.
132. 483 U.S. 825 (1987).
133. 512 U.S. 374 (1994).
134. Lingle, 544 U.S. at 547 (quoting Dolan, 512 U.S. at 391) (emphasis added) (alteration in original).
135. 538 U.S. 216 (2003).
136. Id. at 233 (quoting Tahoe-Sierra Pres. Council. Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321-22 (2002)) (quotation marks omitted).
137. Id. (quoting Tahoe-Sierra, 535 U.S. at 323).
138. Id. at 217-18.
139. Although Stevens labeled this a "physical" taking, he concluded that no compensation was due because the claimants had suffered no net economic loss. Id. at 240.
140. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)).
141. Id. at 539 (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)).
142. Id. (emphasis added).
143. See, e.g., Philip Morris, Inc. v. Reilly, 312 F.3d 24, 33 (1st Cir. 2002); Dakota, Minn. & E. R.R. Corp. v. South Dakota, 236 F. Supp. 2d 989, 1026 (D.S.D. 2002), aff'd in part, vacated in part, and remanded by 362 F.3d 512 (8th Cir. 2004); John R. Sand & Gravel Co. v. United States, 60 Fed. Cl. 230, 237 (2004) (pre-trial ruling), 62 Fed. Cl. 556 (2006) (post-trial ruling), vacated and remanded by 457 F.3d 1345 (Fed. Cir. 2006), cert. granted, 75 U.S.L.W. 3636 (U.S. May 29, 2007) (No. 06-1164) (grant of certiorari limited to statute of limitations issue); McCarran Int'l Airport v. Sisolak, 137 P.3d 1110, 1122-23 (Nev. 2006), cert. denied, 127 S. Ct. 1260 (U.S. Feb. 20, 2007).
144. 373 F.3d 1177 (Fed. Cir. 2004).
145. Brief of Plaintiff-Appellee Rose Acre Farms, Inc. at 48, Rose Acre Farms, 373 F.3d 1177 (No. 03-5103), 2003 WL 24305574, at *48 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002)).
146. Rose Acre Farms, 373 F.3d at 1195.
147. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003).
148. See supra note 28 (describing the Lucas rule).
149. Rose Acre Farms, 373 F.3d at 1198 (emphasis added).
150. Earlier, the court had concluded that for regulatory takings analysis, three separate Rose Acre farms infected with salmonella should be combined and treated as a whole. Id. at 1190.
151. Id. at 1197 (emphasis added).
152. Rose Acre's Combined Petition for Panel Rehearing and Rehearing En Banc Brief at 12, Rose Acre Farms, 373 F.3d 1177 (No. 03-5103), 2004 WL 3769761, at *12 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002) (citing Brown v. Legal Found. of Wash., 538 U.S. 216, 233-34 (2003))).
153. Id. at 13.
154. Rose Acre Farms, Inc. v. United States, 373 F.3d 1177, 1192 (Fed. Cir. 2004) (quoting Rose Acre Farms, Inc. v. United States, 55 Fed. Cl. 643, 660 (2003)) (alteration in original).
155. Id. at 1195.
156. 364 F.3d 1356 (Fed. Cir. 2004).
157. Id. at 1366.
158. Id. at 1367.
159. The court also cited with approval its earlier decision in Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002), where the court had stated that "occupation by wild owls" is distinguishable from a "forced government intrusion" like that in Loretto, since "[t]he government has no control over where the spotted owls nest, and it did not force the owls to occupy Boise's land." Id. at 1354-55. However, the government did not force the cable company to occupy Loretto's rooftop, either. It merely authorized the physical occupation and denied Loretto the right to exclude.
160. See Seiber, 364 F.3d at 1367.
161. See, e.g., Rose Acre Farms, Inc. v. United States, 373 F.3d 1177 (Fed. Cir. 2004); Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004).
162. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124-25 (1978).
163. 137 P.3d 1110 (Nev. 2006), cert. denied, 127 S. Ct. 1260 (U.S. Feb. 20, 2007).
164. See id. at 1115.
165. Id. at 1124. The court also emphasized that such overflights were actually occurring.
166. Id. at 1120.
167. The height restrictions were explicitly based on the slope of the projected flight path over Sisolak's land, and the court remarked that "[land] [a]cross the street from Sisolak's property [did] not fall within the critical departure zone [and thus was] subject to less strict height restrictions than Sisolak's property." Id. at 1118 n.13.
168. Id. at 1125 (emphasis added).
169. Id. at 1126.
170. Id. (quoting Griggs. v. Allegheny County, 369 U.S. 84, 90 (1962)) (footnote omitted).
171. Id. at 1124.
172. The court repeatedly cited Tahoe-Sierra. Id. at 1122-24, 1128. The court also asserted that a taking had occurred under Loretto. Id. at 1130. According to the court, the challenged regulation required the owner to suffer a permanent physical invasion of his property. The court described the case as a "regulatory per se taking" case, like Loretto, contrasting it with a regulatory takings case in which the challenged regulation does not authorize a physical invasion of the claimant's property. Id. at 1122. The court also referred to the case as involving a "per se taking by physical invasion." Id.
173. Two justices dissented, arguing that the takings claim should have been analyzed under Penn Central. See id. at 1131 (Becker, J., dissenting in part and concurring in part); see also id. at 1134 (Maupin, J., dissenting).
174. See, e.g., Seiber v. United States, 53 Fed. Cl. 570 (2002), aff'd, 364 F.3d 1356 (Fed. Cir. 2004); McCarran Int'l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006), cert. denied, 127 S. Ct. 1260 (U.S. Feb. 20, 2007).
175. 53 Fed. Cl. 570.
176. Id. at 576.
177. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982) (emphasis added).
178. As discussed at supra text accompanying notes 150-53, the Federal Circuit Court of Appeals also rejected the physical takings claim in Seiber, although it characterized this as a "regulatory" case and asserted that "governmental protection of owls . . . is not comparable to a government authorization to third parties to utilize property." Seiber v. United States, 364 F.3d 1356, 1367 (Fed. Cir. 2004).
179. Loretto, 458 U.S. at 433.
180. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831-32 (1987).
181. John R. Sand & Gravel Co. v. United States, 60 Fed. Cl. 230, 237 (2004) (pre-trial ruling), 62 Fed. Cl. 556 (2006) (post-trial ruling), vacated and remanded by 457 F.3d 1345 (Fed. Cir. 2006), cert. granted, 75 U.S.L.W. 3626 (U.S. May 29, 2007) (No. 06-1164) (grant of certiorari limited to statute of limitations issue). See infra note 190 for a discussion of the court of appeals' decision.
182. John R. Sand & Gravel, 62 Fed. Cl. at 557-58.
183. Id. at 564.
184. Id. at 559-60.
185. John R. Sand & Gravel, 457 F.3d at 1347 (restating facts set forth in Court of Federal Claims decision).
186. Id. at 1348.
187. John R. Sand & Gravel Co. v. United States, 60 Fed. Cl. 230, 237 (2004) (pre-trial ruling), 62 Fed. Cl. 556 (2006) (post-trial ruling), vacated and remanded by 457 F.3d 1345 (Fed. Cir. 2006), cert. granted, 75 U.S.L.W. 3626 (U.S. May 29, 2007) (No. 06-1164) (grant of certiorari limited to statute of limitations issue).
188. Id. (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 323-24 (2002)).
189. Id. at 239 (citation omitted).
190. John R. Sand & Gravel Co. v. United States, 62 Fed. Cl. 556 (2006) (post-trial ruling), vacated and remanded by 457 F.3d 1345 (Fed. Cir. 2006), cert. granted, 75 U.S.L.W. 3626 (U.S. May 29, 2007) (No. 06-1164) (grant of certiorari limited to statute of limitations issue).
191. Id. at 571.
192. Id. at 572 (emphasis added). The court emphasized that "John R. Sand permitted the Landfill to exist on its own leasehold, coordinated landfilling activities with the Landfill operators, and observed barrels containing hazardous materials being dumped on the leasehold property." Id. at 571-72.
193. Id. at 572.
194. The court emphasized that the plaintiff's lack of innocence "defeat[ed] plaintiff's claim in its entirety." Id.
195. On appeal, the Court of Appeals for the Federal Circuit did not reach either basis for the district court's decision on the merits. Rather, the divided panel concluded that the takings claim was barred by the statute of limitations. See John R. Sand & Gravel, 457 F.3d 1345.
196. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992) (emphasis added).
197. Id. (emphasis added).
198. Id. at 1030.
199. Id. at 1028-29.
200. 533 U.S. 606 (2001).
201. Id. at 630.
202. Id. at 629 (emphasis added).
203. Id. at 630.
204. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1026 (1992).
205. If the law deprived the landowner of all economically viable use of his land and the newly enacted environmental law prohibited conduct that did not violate common law nuisance doctrine or other "background principles," then a taking would occur, even if the state legislature was proscribing conduct that it reasonably believed the people of that state considered wrongful.
206. Mugler v. Kansas, 123 U.S. 623, 669 (1887) (emphasis added).
207. Id. at 667 (emphasis added) (quoting Fertilizing Co. v. Hyde Park, 97 U.S. 659, 667 (1878)).
208. Id. at 669 (emphasis added).
209. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1052 (1992) (Blackmun, J., dissenting) (emphasis added).
210. Id. at 1035 (Kennedy, J., concurring in the judgment) (citation omitted) (emphasis added).
211. Id. at 1069 (Stevens, J., dissenting).
212. Id.
213. As I explained in an earlier article, judgments of blame change over time and vary geographically, and the Court's takings decisions take into account that variation. Peterson, supra note 49, at 110-15. For example, the Court found that no taking occurred in Mugler because "the challenged law represented the judgment 'of the people [of Kansas] as expressed by their chosen representatives' that the manufacture of alcoholic beverages should be prohibited 'to guard the community against the evils attending the excessive use of such liquors,' . . . even though that judgment of blame was not in line with national values at the time." Id. at 113 (quoting Mugler v. Kansas, 123 U.S. 623, 662 (1887) (alteration in original)).
214. Moreover, the district court found that the government acted reasonably and in good faith in its planning efforts. See Tahoe-Sierra Pres.
215. It is true that some landowners may have bought land adjoining Lake Tahoe, intending to build on that land, at a time when the harm to the lake caused by building was not evident. Their intentions at that time could fairly be characterized as "innocent." Yet when new information established the harm to the lake caused by building and the landowners nevertheless insisted on building without giving the government time to arrive at a solution to the problem, those landowners could reasonably be blamed. Similarly, suppose a manufacturer invested in a product that originally was not considered unhealthy. Later, new scientific information revealed that the product posed a substantial health risk, and the product was banned. Professor Sax refers to such a case as one involving an "innocent" victim of change. See Joseph L. Sax, Reflections on Western Water Law, 34 ECOLOGY L.Q. 299, 303 (2007). Yet, even if the manufacturer was innocent in producing the product originally, the manufacturer could reasonably be blamed for continuing to produce the product once its health risks became known.
216. Tahoe-Sierra, 34 F. Supp. 2d at 1245, 1248.
217. The Court stated that the Lucas rule applies only to a regulation that "permanently deprives property of all value" and that "[l]ogically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted." Tahoe-Sierra, 535 U.S. at 332 (emphasis added).
218. See, e.g., Philip Morris, Inc. v. Reilly, 312 F.3d 24 (1st Cir. 2002) (considering whether an alleged taking of trade secrets should be analyzed as a physical or a regulatory takings claim and, more particularly, how to analyze a takings case in which the challenged regulation would deprive the claimant of the right to exclude others from its intellectual property only as a condition of selling its products in the state); Dakota, Minn. & E. R.R. Corp. v. South Dakota, 236 F. Supp. 2d 989 (D.S.D. 2002), aff'd in part, vacated in part, and remanded by 362 F.3d 512 (8th Cir. 2004).
219. 236 F. Supp. 2d 989.
220. Id. at 1026 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 323 (2005)).
221. Id.
222. Id.
223. Id.
224. Id. at 1026-29 (citing Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994)).
225. Dolan, 512 U.S. at 391.
226. Dakota, Minn. & E. R.R. Corp. v. South Dakota, 236 F. Supp. 2d 989, 1026 (D.S.D. 2002), aff'd in part, vacated in part, and remanded by 362 F.3d 512 (8th Cir. 2004).
227. Id. at 1029.
228. Id.
229. Dakota, 362 F.3d at 521 (emphasis added).
230. In Loretto, the Court found a per se taking, even though the landlord could avoid the physical occupation, stating that "a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation." Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982). Similarly, the Court might have responded in Nollan that "a [landowner]'s ability to [build on] his property may not be conditioned on his forfeiting the right to compensation for a physical occupation." Instead, however, the Court stated that the Loretto per se rule would have applied if the government had simply required the Nollans to dedicate an easement, but since the Nollans only had to dedicate an easement if they wished to build, the Loretto per se rule did not apply. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831-37 (1987).
231. Dakota, Minn. & E. R.R. Corp. v. Rounds, 422 F. Supp. 2d 1073, 1074 (D.S.D. 2006).
232. As discussed above, the Court in Lingle seemed to be reinterpreting "physical" to mean "permanent physical invasion." See supra text accompanying notes 135-37.