Amdt5.5.4 When Property is Taken

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The issue whether one’s property has been taken with the consequent requirement of just compensation can hardly arise when government institutes condemnation proceedings directed to it. Where, however, physical damage results to property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value, 1 whether there has been a taking in the Fifth Amendment sense becomes critical.

Government Activity Not Directed at the Property

The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.2 Accordingly, a variety of consequential injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street; 3 similar deprivations, lessening the circulation of light and air and impairing access to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street. 4 Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action, such as the expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen, 5 or by a landowner in raising the height of the dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.temple v. c 6

But the Court also decided long ago that land can be taken in the constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently or recurrently. 7 A later formulation was that [p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.8 It was thus held that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired the guns at the fort across the land and had established a fire control service there. 9 In two major cases, the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise, glare, and fear of injury occasioned by the low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it. 10 Eventually, the term inverse condemnation came to be used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming that governmental action or regulation has taken his property. 11

Navigable Waters

The repeated holdings that riparian ownership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liability in the taking area. When damage results consequentially from an improvement to a river’s navigable capacity, or from an improvement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject. 12 This exception does not apply to lands above the ordinary high-water mark of a stream, 13 hence is inapplicable to the damage the government may do to such fast lands by causing overflows, by erosion, and otherwise, consequent on erection of dams or other improvements. 14 And, when previously nonnavigable waters are made navigable by private investment, government may not, without paying compensation, simply assert a navigation servitude and direct the property owners to afford public access. 15

Regulatory Takings

Although it is established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use pursuant to the police power, and for years there was broad dicta that no one may claim damages that result from a police regulation designed to secure the common welfare, especially in the area of health and safety. 16 What distinguishes eminent domain from the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.17 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 18 The older cases flatly denied the possibility of compensation for this diminution of property values, 19 but the Court in 1922 established as a general principle that if regulation goes too far it will be recognized as a taking.20

In Mahon, Justice Holmes, for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds that reserved to the coal companies ownership of subsurface mining rights and that held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that [f]or practical purposes, the right to coal consists in the right to mine, and that the statute, by making it commercially impracticable to mine certain coal, had essentially the same effect for constitutional purposes as appropriating or destroying it.21 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went too far.22 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it, pointing out that, unlike its predecessor, the newer law identified important public interests. 23

The Court had been early concerned with the imposition upon one or a few individuals of the costs of furthering the public interest. 24 But it was with respect to zoning, in the context of substantive due process, that the Court first experienced some difficulty in this regard. The Court’s first zoning case involved a real estate company’s challenge to a comprehensive municipal zoning ordinance, alleging that the ordinance prevented development of its land for industrial purposes and thereby reduced its value from $10,000 an acre to $2,500 an acre. 25 Acknowledging that zoning was of recent origin, the Court observed that it must find its justification in the police power and be evaluated by the constitutional standards applied to exercises of the police power. After considering traditional nuisance law, the Court determined that the public interest was served by segregation of incompatible land uses and the ordinance was thus valid on its face; whether its application to diminish property values in any particular case was also valid would depend, the Court said, upon a finding that it was not clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.26 A few years later the Court, again relying on due process rather than taking law, did invalidate the application of a zoning ordinance to a tract of land, finding that the tract would be rendered nearly worthless and that to exempt the tract would impair no substantial municipal interest. 27 But then the Court withdrew from the land-use scene until the 1970s, giving little attention to states and their municipalities as they developed more comprehensive zoning techniques. 28

As governmental regulation of property has expanded over the years – in terms of zoning and other land use controls, environmental regulations, and the like – the Court never developed, as it admitted, a set formula to determine where regulation ends and taking begins.29 More recently the Court has observed that, “[i]n the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules.” 30 Indeed, “[t]his area of the law has been characterized by ‘ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.’” 31 Nonetheless, the Court has now formulated general principles that guide many of its decisions in the area. 32

In Penn Central Transportation Co. v. City of New York, 33 the Court, while cautioning that regulatory takings cases require essentially ad hoc, factual inquiries, nonetheless laid out general guidance for determining whether a regulatory taking has occurred. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are . . . relevant considerations. So too, is the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.34

At issue in Penn Central was the City’s landmarks preservation law, as applied to deny approval to construct a 53-story office building atop Grand Central Terminal. The Court upheld the landmarks law against Penn Central’s takings claim through application of the principles set forth above. The economic impact on Penn Central was considered: the Company could still make a reasonable return on its investment by continuing to use the facility as a rail terminal with office rentals and concessions, and the City specifically permitted owners of landmark sites to transfer to other sites the right to develop those sites beyond the otherwise permissible zoning restrictions, a valuable right that mitigated the burden otherwise to be suffered by the owner. As for the character of the governmental regulation, the Court found the landmarks law to be an economic regulation rather than a governmental appropriation of property, the preservation of historic sites being a permissible goal and one that served the public interest. 35

Justice Holmes began his analysis in Mahon with the observation that [g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every . . . change in the general law,36 and Penn Central's economic impact standard also leaves ample room for recognition of this principle. Thus, the Court can easily hold that a mere permit requirement does not amount to a taking, 37 nor does a simple recordation requirement. 38 The tests become more useful, however, when compliance with regulation becomes more onerous.

Several times the Court has relied on the concept of distinct [or, in most later cases, ‘reasonable’] investment-backed expectations first introduced in Penn Central. In Ruckelshaus v. Monsanto Co., 39 the Court used the concept to determine whether a taking had resulted from the government’s disclosure of trade secret information submitted with applications for pesticide registrations. Disclosure of data that had been submitted from 1972 to 1978, a period when the statute guaranteed confidentiality and thus formed the basis of a distinct investment-backed expectation, would have destroyed the property value of the trade secret and constituted a taking. 40 Following 1978 amendments setting forth conditions of data disclosure, however, applicants voluntarily submitting data in exchange for the economic benefits of registration had no reasonable expectation of additional protections of confidentiality. 41 Relying less heavily on the concept but rejecting an assertion that reasonable investment backed-expectations had been upset, the Court in Connolly v. Pension Benefit Guaranty Corp.42 upheld retroactive imposition of liability for pension plan withdrawal on the basis that employers had at least constructive notice that Congress might buttress the legislative scheme to accomplish its legislative aim that employees receive promised benefits. However, where a statute imposes severe and substantially disproportionate retroactive liability based on conduct several decades earlier, on parties that could not have anticipated the liability, a taking (or violation of due process) may occur. On this rationale, the Court in Eastern Enterprises v. Apfel43 struck down the Coal Miner Retiree Health Benefit Act’s requirement that companies formerly engaged in mining pay miner retiree health benefits, as applied to a company that spun off its mining operation in 1965 before collective bargaining agreements included an express promise of lifetime benefits.

On the other hand, a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly addressing the ban’s obvious interference with investment-backed expectations. 44 The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that the owner still had viable economic uses for his holdings, such as displaying them in a museum and charging admission, and that he still had the value of possession. 45

The Court has made plain that, in applying the economic impact and investment-backed expectations factors of Penn Central, courts are to compare what the property owner has lost through the challenged government action with what the owner retains. Discharging this mandate requires a court to define the extent of plaintiff’s property – the parcel as a whole – that sets the scope of analysis. 46In Murr v. Wisconsin, the Court stated that, “[l]ike the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property.” 47 In Murr, the owners of two small adjoining lots, previously owned separately, wished to sell one of the lots and build on the other. The landowners were prevented from doing so by state and local regulations, enacted to implement a federal act, which effectively merged the lots when they came under common ownership, thereby barring the separate sale or improvement of the lots. The landowners therefore sought just compensation, alleging a regulatory taking of their property.

In ruling against the landowners, the Supreme Court set forth a flexible multi-factor test for defining “the proper unit of property” to analyze whether a regulatory taking has occurred. 48 The Court continued the approach of prior cases whereby the boundaries of the parcel determine the “denominator of the fraction” of value taken from a property by a governmental regulation, which in turn can determine whether the government has “taken” private property. 49 Under this formula, regulators have an interest in a larger denominator—in the Murr case, combining the two adjoining lots—to reduce the likelihood of having to provide compensation, while property owners seeking to show that their property has been taken have an interest in the denominator being as small as possible. The Murr Court instructed that, in determining the parcel at issue in a regulatory takings case, “no single consideration can supply the exclusive test for determining the denominator. 50 Instead, courts must consider a number of factors,” including (1) “the treatment of the land under state and local law” 51; (2) “the physical characteristics of the land” 52; and (3) “the prospective value of the regulated land.” 53

In the course of its opinion in Penn Central the Court rejected the principle that no compensation is required when regulation bans a noxious or harmful effect of land use. 54 The principle, it had been contended, followed from several earlier cases, including Goldblatt v. Town of Hempstead. 55 In that case, after the town had expanded around an excavation used by a company for mining sand and gravel, the town enacted an ordinance that in effect terminated further mining at the site. Declaring that no compensation was owed, the Court stated that [a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests.56 In Penn Central, however, the Court denied that there was any such test and that prior cases had turned on the concept. These cases are better understood as resting not on any supposed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy – not unlike historic preservation – expected to produce a widespread public benefit and applicable to all similarly situated property.57 More recently, in Lucas v. South Carolina Coastal Council, 58 the Court explained noxious use analysis as merely an early characterization of police power measures that do not require compensation. [N]oxious use logic cannot serve as a touchstone to distinguish regulatory ‘takings’ – which require compensation – from regulatory deprivations that do not require compensation.59

Penn Central is not the only guide to when an inverse condemnation has occurred; other criteria have emerged from other cases before and after Penn Central. The Court has long recognized a per se takings rule for certain physical invasions: when government permanently 60 occupies property (or authorizes someone else to do so), the action constitutes a taking regardless of the public interests served or the extent of damage to the parcel as a whole. 61 The modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings; although the equipment occupied only about 1½ cubic feet of space on the exterior of each building and had only a de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property and thus constituted a taking. 62 Recently, the Court sharpened further the distinction between regulatory takings and permanent physical occupations by declaring it inappropriate to use case law from either realm as controlling precedent in the other. 63 Physical invasions falling short of permanent physical occupations remain subject to Penn Central.

A second per se taking rule is of more recent vintage. Land use controls constitute takings, the Court stated in Agins v. City of Tiburon, if they do not substantially advance legitimate governmental interests, or if they deny a property owner economically viable use of his land.64 This second Agins criterion creates a categorical rule: when, with respect to the parcel as a whole, the landowner has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.65 The only exceptions, the Court explained in Lucas, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations. Regulations so severe as to prohibit all economically beneficial use of land cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts – by adjacent land owners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate [public] nuisances . . . , or otherwise.66 Thus, while there is no broad noxious use exception separating police power regulations from takings, there is a narrower background principles exception based on the law of nuisance and unspecified property law principles.

Together with the investment-backed expectations factor of Penn Central, background principles were viewed by many lower courts as supporting a notice rule under which a taking claim was absolutely barred if based on a restriction imposed under a regulatory regime predating plaintiff’s acquisition of the property. In Palazzolo v. Rhode Island, 67 the Court forcefully rejected the absolute version of the notice rule, regardless of rationale. Under such a rule, it said, [a] State would be allowed, in effect, to put an expiration date on the Takings Clause.68 Whether any role is left for preacquisition regulation in the takings analysis, however, the Court’s majority opinion did not say, leaving the issue to dueling concurrences from Justice O’Connor (prior regulation remains a factor) and Justice Scalia (prior regulation is irrelevant). Less than a year later, Justice O’Connor’s concurrence carried the day in extended dicta in Tahoe-Sierra, 69 though the decision failed to elucidate the factors affecting the weighting to be accorded the pre-existing regime.

The or otherwise reference, the Court explained in Lucas, 70 was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, Inc., 71 the owners of property destroyed by retreating United States armies in Manila during World War II were held not entitled to compensation, and in United States v. Central Eureka Mining Co., 72 the Court held that a federal order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensation for loss of profits. Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken as much for the owners’ benefit as for the general public benefit and the owners must bear the costs of the damage inflicted on the buildings subsequent to the occupation. 73

The first prong of the Agins test, 74 asking whether land use controls substantially advance legitimate governmental interests, has now been erased from takings jurisprudence, after a quarter-century run. The proper concern of regulatory takings law, said Lingle v. Chevron U.S.A. Inc., 75 is the magnitude, character, and distribution of the burdens that a regulation imposes on property rights. In stark contrast, the substantially advances test addresses the means-end efficacy of a regulation, more in the nature of a due process inquiry. 76 As such, it is not a valid takings test.

A third type of inverse condemnation, in addition to regulatory and physical takings, is the exaction taking. A two-part test has emerged. The first part debuted in Nollan v. California Coastal Commission, 77 and holds that in order not to be a taking, an exaction condition on a development permit approval (requiring, for example, that a portion of a tract to be subdivided be dedicated for public roads) 78 must substantially advance a purpose related to the underlying permit. There must, in short, be an essential nexus between the two; otherwise the condition is an out-and-out plan of extortion.79 The second part of the exaction-takings test, announced in Dolan v. City of Tigard80 specifies that the condition, to not be a taking, must be related to the proposed development not only in nature, per Nollan, but also in degree. Government must establish a rough proportionality between the burden imposed by such conditions on the property owner, and the impact of the property owner’s proposed development on the community – at least in the context of adjudicated (rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the breadth of what became known as the heightened scrutiny test. The stakes were plainly high in that the test, where it applies, lessens the traditional judicial deference to local police power and places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 81 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the exaction context that gave rise to those cases. Still unclear, however, is whether the Court meant to place outside Dolan exactions of a purely monetary nature, in contrast with the physically invasive dedication conditions involved in Nollan and Dolan. 82 The Court clarified this uncertainty in Koontz v. St. Johns River Water Management District by holding that monetary exactions imposed under land use permitting were subject to essential nexus/rough proportionality analysis. 83

The announcement following Penn Central of the above per se rules in Loretto (physical occupations), Agins and Lucas (total elimination of economic use), and Nollan/Dolan (exaction conditions) prompted speculation that the Court was replacing its ad hoc Penn Central approach with a more categorical takings jurisprudence. Such speculation was put to rest, however, by three decisions from 2001 to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn Central as the dominant mode of analysis for inverse condemnation claims, confining the Court's per se rules to the relatively narrow physical occupation and total wipeout circumstances, and the special context of exactions. 84

Following the Penn Central decision, the Court grappled with the issue of the appropriate remedy property owners should pursue in objecting to land use regulations. 85 The remedy question arises because there are two possible constitutional objections to be made to regulations that go too far in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. The Court finally resolved the issue in First English Evangelical Lutheran Church v. County of Los Angeles, holding that when land use regulation is held to be a taking, compensation is due for the period of implementation prior to the holding. 86 The Court recognized that, even though government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.87 Outside the land-use context, however, the Court has now recognized a limited number of situations where invalidation, rather than compensation, remains the appropriate takings remedy. 88

The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Takings Clause’s protection against government forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.89 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good. 90 Similarly, the Court looks askance at governmental efforts to secure public benefits at a landowner’s expense – government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.91

On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation sometimes takes on importance. Some strands are more important than others. The right to exclude others from one’s land is so basic to ownership that extinguishment of this right ordinarily constitutes a taking. 92 Similarly valued is the right to pass on property to one’s heirs. 93

Failure to incur administrative (and judicial) delays can result in dismissal of an as-applied taking claim based on ripeness doctrine, an area of takings law that the Court has developed extensively since Penn Central. In Williamson County Regional Planning Commission v. Hamilton Bank, 94 the Court announced a two-part ripeness test for takings actions brought in federal court—although the second part of this test was subsequently overturned by Knick v. Township of Scott. 95 First, for an as-applied challenge, the property owner must obtain from the regulating agency a final, definitive position regarding how it will apply its regulation to the owner’s land. 96 Second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court. 97 Thus, the claim in Williamson County was found unripe because the plaintiff had failed to seek a variance (first prong of test), and had not sought compensation from the state courts in question even though they recognized inverse condemnation claims (second prong). 98 Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 99a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but that denial had not foreclosed the possibility that a scaled-down (though still economic) version would be approved. In a somewhat different context, a taking challenge to a municipal rent control ordinance was considered premature in the absence of evidence that a tenant hardship provision had ever been applied to reduce what would otherwise be considered a reasonable rent increase. 100 Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the final decision rule, while nonetheless explicitly reaffirming it. In Palazzolo v. Rhode Island, 101 for example, the Court saw no point in requiring the landowner to apply for approval of a scaled-down development of his wetland, since the regulations at issue made plain that no development at all would be permitted there. [O]nce it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.102

Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that, without pursuing administrative remedies, a claimant often lacks evidence that a statute has the requisite economic impact on his or her property. 103

As noted, Williamson County also required litigants to exhaust state remedies before bringing a federal takings claim. 104 This aspect of the Court’s decision had significant, and, as the Court came to conclude, “unanticipated” consequences for plaintiffs. 105 In San Remo Hotel, L.P. v. City and County of San Francisco, the plaintiffs had lost an inverse condemnation claim in state court after a federal court dismissed their earlier attempt to file in federal court, citing Williamson County’s exhaustion requirement. 106 When the litigants attempted to return to federal court, the court dismissed their claim, holding that the legal doctrine of issue preclusion prevented the court from relitigating those claims. 107 Under common-law preclusion doctrines, which are “implemented by” the federal full faith and credit statute, 108 federal courts are in some circumstances required to abide by state court decisions that have already resolved the issues presently before the federal court. 109 In San Remo, the Supreme Court held that these preclusion doctrines barred the plaintiffs’ takings claim, declining to create any special exceptions in the context of the Takings Clause. 110 Thus, as the Court later described this outcome, “[t]he adverse state court decision that . . . gave rise to a ripe federal takings claim simultaneously barred that claim.” 111 In a concurring opinion in San Remo, four Justices said that while they agreed that the plaintiffs were precluded from relitigating their takings claim in federal court, they believed that Williamson County “may have been mistaken” in creating an exhaustion requirement. 112 The concurring Justices believed it was “not obvious” that this exhaustion requirement was required by “constitutional or prudential principles,” 113 and they further contended that “Williamson County’s state-litigation rule . . . . all but guarantees that claimants will be unable to utilize the federal courts to enforce the Fifth Amendment’s just compensation guarantee.” 114

The Supreme Court overruled Williamson County’s exhaustion requirement in Knick v. Township of Scott. 115 Instead, the Court held that property owners have a “Fifth Amendment right to full compensation” and a concomitant right to bring a federal suit at the time the government takes their property, “regardless of post-taking remedies that may be available to the property owner.” 116 The Court said its cases had long established that a right to compensation “arises at the time of the taking,” and that Williamson County’s conclusion otherwise had rested on a misunderstanding of precedent. 117 The Supreme Court concluded that Williamson County was wrongly decided and that stare decisis considerations did not preclude it from overruling the exhaustion aspects of that decision. 118


  1.  Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898).
  2.  Armstrong v. United States, 364 U.S. 40, 49 (1960). The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice. United States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition against confiscation of enemy property, but aliens not so denominated are entitled to the protection of this clause. Compare United States v. Chemical Foundation, 272 U.S. 1, 11 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-American Corp. v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings Clause protections for such aliens may be invoked, however, only when they have come within the territory of the United States and developed substantial connections with this country. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).
  3.  Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). The owner’s loss, not the taker’s gain, is the measure of such compensation. Brown v. Legal Found. of Washington, 538 U.S. 216, 236 (2003); United States ex rel. TVA v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943). The value of the property to the government for its particular use is not a criterion. United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); United States v. Twin City Power Co., 350 U.S. 222 (1956). Attorneys’ fees and expenses are not embraced in the concept. Dohany v. Rogers, 281 U.S. 362 (1930).

    Applying the owner's-loss standard, the Court addressed a state program requiring lawyers to deposit client funds that cannot earn net interest in a pooled account generating interest for indigent legal aid. Brown, 538 U.S. at 237. Assuming a taking of the client's interest, his pecuniary loss is nonetheless zero; hence, the just compensation required is likewise. Brown is in tension with the Court's earlier treatment of a similar state program, where it recognized value in the possession, control, and disposition of the interest. Phillips v. Washington Legal Found., 524 U.S. 156, 170 (1998).

  4.  Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 (C.C. Pa. 1795); United States v. Miller, 317 U.S. 369, 373 (1943).
  5.  Regional Rail Reorganization Act Cases, 419 U.S. 102, 150-51 (1974).
  6.  Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226, 250 (1897); McGovern v. City of New York, 229 U.S. 363, 372 (1913). See also Boom Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 U.S. 342 (1936).
  7.  United States v. Miller, 317 U.S. 369, 374 (1943); United States ex rel. TVA v. Powelson, 319 U.S. 266, 275 (1943). See also United States v. New River Collieries Co., 262 U.S. 341 (1923); Olson v. United States, 292 U.S. 264 (1934); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). Exclusion of the value of improvements made by the government under a lease was held constitutional. Old Dominion Land Co. v. United States, 269 U.S. 55 (1925).
  8.  United States v. Miller, 317 U.S. 369, 374 (1943).
  9.  United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) (condemnation of church-run camp); United States v. 50 Acres of Land, 469 U.S. 24 (1984) (condemnation of city-owned landfill). In both cases the Court determined that market value was ascertainable.
  10.  United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Commodities Trading Corp., 339 U.S. 121 (1950). See also Vogelstein & Co. v. United States, 262 U.S. 337 (1923).
  11.  United States v. Cors, 337 U.S. 325 (1949). See also United States v. Toronto Navigation Co., 338 U.S. 396 (1949).
  12.  Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470 (1973). The dissent argued that since upon expiration of the lease only salvage value of the improvements could be claimed by the lessee, just compensation should be limited to that salvage value. Id. at 480.
  13.  United States v. Fuller, 409 U.S. 488 (1973). The dissent argued that the principle denying compensation for governmentally created value should apply only when the government was in fact acting in the use of its own property; here the government was acting only as a condemnor. Id. at 494.
  14.  Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking).
  15.  United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment).
  16.  Albrecht v. United States, 329 U.S. 599 (1947).
  17.  Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States, 274 U.S. 341 (1927).
  18.  United States v. General Motors Corp., 323 U.S. 373 (1945).
  19.  United States v. Welch, 217 U.S. 333 (1910).
  20.  Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341, 351-52, 354 (1903). Where the taking of a strip of land across a farm closed a private right-of-way, an allowance was properly made for the value of the easement. United States v. Welch, 217 U.S. 333 (1910).
  21.  Bauman v. Ross, 167 U.S. 548 (1897).
  22.  Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893).
  23.  Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
  24.  See Horne v. Dep't of Agric., 576 U.S. ___, No. 14-275, slip op. at 5 (2015). In deciding this case, the Court presumably intended to leave intact established exceptions when the government seizes personal property (e.g., confiscation of adulterated drugs). See, e.g., Bennis v. Michigan, 516 U.S. 442, 452 (1996) (Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.).
  25.  Horne, slip op. at 8.
  26.  Id. at 9-12.
  27.  The government’s argument might have carried more weight had the marketing order been viewed as a regulatory taking. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-22 (2002) (The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.); Bowles v. Willingham, 321 U.S. 503, 519 (1944) (rent control cannot be a taking of premises if [t]here is no requirement that the apartments be used for purposes which bring them under the [rent control] Act).
  28.  Horne, slip op. at 13. Here, the Court expressly rejected the argument that the raisin growers could avoid the physical taking of their property by growing different crops, or making different uses of their grapes, by quoting its earlier decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982) ([A] landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.). The Court also distinguished the raisin reserve provisions from the requirement that companies manufacturing pesticides, fungicides, and rodenticides disclose trade secrets in order to sell those products at issue in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). It did so because the manufacturers in Ruckelshaus were seen to have taken part in a voluntary exchange of information that included their trade secrets, recognized as property under the Takings Clause, in exchange for a valuable Government benefit in the form of a license to sell dangerous chemicals. No such government benefit was seen to be involved with the raisin growers because they were making basic and familiar uses of their property.
  29.  Horne, slip op. at 14-16.
  30.  Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp. v. United States, 261 U.S. 502, 508 (1923).
  31.  James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict Mfg. Co., 113 U.S. 59, 67 (1885).
  32.  Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
  33.  Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983).
  34.  Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).
  35.  International Paper Co. v. United States, 282 U.S. 399 (1931).
  36.  Armstrong v. United States, 364 U.S. 40, 50 (1960).
  37.  Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978).
  38.  Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986).
  39.  Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level. Bowen v. Gilliard, 483 U.S. 587, 604 (1987).
  40.  Mitchell v. United States, 267 U.S. 341 (1925); United States ex rel. TVA v. Powelson, 319 U.S. 266 (1943); United States v. Petty Motor Co., 327 U.S. 372 (1946). For consideration of the problem of fair compensation in government-supervised bankruptcy reorganization proceedings, see New Haven Inclusion Cases, 399 U.S. 392, 489-95 (1970).
  41.  United States v. General Motors Corp., 323 U.S. 373, 382 (1945).
  42.  United States v. General Motors Corp., 323 U.S. 373 (1945). In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the Government seized the tenant’s plant for the duration of the war, which turned out to be less than the full duration of the lease, and, having no other means of serving its customers, the laundry suspended business for the period of military occupancy; the Court narrowly held that the government must compensate for the loss in value of the business attributable to the destruction of its trade routes, that is, for the loss of customers built up over the years and for the continued hold of the laundry upon their patronage. See also United States v. Pewee Coal Co., 341 U.S. 114 (1951) (in temporary seizure, Government must compensate for losses attributable to increased wage payments by the Government).
  43.  United States v. Miller, 317 U.S. 369, 375-76 (1943). On the other hand, the Court added, if the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken. Id.
  44.  United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57 (1919).
  45.  28 U.S.C. § 1403. On the other hand, inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491(a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States founded . . . upon the Constitution. See Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998). Inverse condemnation claims against the United States not in excess of $10,000 may also be heard in federal district court under the Little Tucker Act. 28 U.S.C. § 1346(a)(2).
  46.  Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the trial judge is to instruct the jury with regard to the criteria and this includes determination of all issues other than the precise issue of the amount of compensation, so that the judge decides those matters relating to what is computed in making the calculation. United States v. Reynolds, 397 U.S. 14 (1970).
  47.  Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a court-appointed master.
  48.  Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893).
  49.  Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897). In federal courts, reports of Rule 71A commissions are to be accepted by the court unless clearly erroneous. Fed. R. Civ. P. 53(e)(2).
  50.  Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898).
  51.  McGovern v. City of New York, 229 U.S. 363, 370-71 (1913).
  52.  229 U.S. at 371. See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911).