* Attorney, Pacific Legal Foundation (PLF). PLF is a nonprofit public interest legal foundation with offices in Sacramento, CA; Anchorage, AK; Bellevue, WA; Miami, FL; and Honolulu, HI. For more information, visit PLF’s website at http://www.pacificlegal.org and http://www.aboutpalazzolo.com. Mr. Burling argued on behalf of Anthony Palazzolo before the United States Supreme Court.
1 John Locke, The Second Treatise of Civil Government § 123, at 184, in Two Treatises of Government (Thomas I. Cook ed., 1947) (1690).
2 Thomas Hobbes, The Leviathan ch. 18, at 234 (C.B. MacPherson ed., Penguin Books 1968) (1651).
3 Palazzolo v. Rhode Island, 533 U.S. 606, 627 (2001).
4 See generally, e.g., Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. S. C. Coastal Council, 45 Stan. L. Rev. 1433 (1993).
5 533 U.S. 606 (2001).
6 Subsequent to the writing of this Article, the Supreme Court issued an opinion in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465 (2002), which held in a self-described “narrow” decision that a development moratorium that temporarily deprives an owner of all use of property does not constitute a categorical temporary regulatory taking because some value remained and because there was no physical invasion. See Id. at 1470 (noting that the opinion is of “narrow scope”); id. at 1484 (rejecting categorical rule).
7 Locke, supra note 1, § 201, at 224, § 222, at 233–34. Lock explained: “Whenever the legislators endeavor to take away and destroy the property of the people, . . . they put themselves into a state of war with the people who are thereupon absolved from any further obedience . . . .” Id. § 222, at 233 (emphasis added).
8 See generally Hobbes, supra note 2, at ch. 13–19, at 183–239. In contrast to Locke’s “war with the people,” Hobbes wrote: “[W]ithout a common Power to keep them all in awe [i.e. government], they are in that condition which is called Warre; and such a warre, as is of every man against every man. . . . And the life of man, solitary, poore, nasty, brutish, and short.” Id. ch. 13, at 185–86. Thus, it is “necessary[] to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himselfe.” Id. ch. 14, at 190 (emphasis omitted).
9 See, e.g., Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 315 (1996) (stating that Madison “regarded all decisions of economic policy as implicating questions of justice and thus of private rights”).
10 See id. at 314 (asserting that Madison’s “concern about the security of private rights was rooted in a palpable fear that economic legislation was jeopardizing fundamental rights of property”). See, e.g., 2 H. Grotius, De Jure Belli Et Pacis, ch. XIV, § VII (William Whewell trans., Cambridge Univ. Press. 1853) (“When ownership, or any other right, has been legitimately acquired by any one, that it may not be taken away from him without cause, is a matter of Natural Law.”). See generally, e.g., Bernard H. Siegan, Property Rights: From Magna Carta to the Fourteenth Amendment (2001); This natural law tradition of preserving property against the sovereign is reflected throughout the Continental and British legal tradition. Furthermore, when property is taken “by the Force of Eminent Dominion, there is required . . . public utility . . . and . . . if possible, compensation . . . at the common expense.” Id. See also WILLIAM Blackstone, Commentaries, The Rights of Persons, ch. 1, § III, at 135 (Wayne Morrison ed., 2001) (1783) (“So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community . . . [unless] by giving him a full indemnification and equivalent for the injury thereby sustained.”).
11 Locke, supra note 1, §§ 28–51, at 134–46. While this description is admittedly a simplistic gloss of a theory of property rights, it is important for anyone dealing with a property rights argument to have a basic understanding of the fundamentals of that right. This could be especially relevant when arguing that something on the outer limits of property rights theory is or is not a protected property right.
From Hobbes to Locke to Marx to Nozick, many individuals have proposed new theories on the relationships between property and society. There are more recent writings on property theory available to the interested reader. See generally, e.g., Robert Nozick, Anarchy, State, and Utopia (1974) (providing a libertarian approach that augments Locke’s labor theory with a historical expectations theory); Richard Pipes, Property and Freedom (1999); Siegan, supra note 10 (tracing the history of property rights in the law); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967).
12 See generally, e.g., City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) (upholding award of $1.45 million for the temporary taking of 37.5 acres of oceanfront property); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) (upholding $2.6 million damage award for wetlands takings); Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed. Cir. 1991) (awarding $60 million, plus interest, for taking of coal deposit); Cooley v. United States, 46 Fed. Cl. 538 (2000) (awarding $2,065,200.42, plus interest, for taking of thirty-three acres); Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21 (1999) (awarding $752,444, plus interest, from the date of taking); E. Minerals Int’l., Inc. v. United States, 39 Fed. Cl. 621 (1997) (awarding $19.6 million for loss of leasehold interest in coal deposit), judgment rev’d, appeal dismissed sub nom. Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001), cert. denied sub nom. E. Minerals Int’l, Inc. v. United States, 122 S. Ct. 1960 (2002).
13 This is reflected, for example, in modern due process jurisprudence where some courts hold that no due process protection attaches until a permit is vested. See, e.g., Triomphe Investors v. City of Northwood, 49 F.3d 198, 203 (6th Cir. 1995) (stating that the right must be vested for due process to attach); RRI Realty Corp., v. Inc. Vill. of Southhampton, 870 F.2d 911 (2d Cir. 1989). But see DeBlasio v. Zoning Bd. of Adjustment, 53 F. 3d 592 (3d Cir. 1995) (concluding that ownership of property gives rise to due process protection).
14See, e.g., Website of Environmental Policy Project, at http://www.envpoly.org/index. htm.
15 See Policy Guide on Takings: Land Use Regulations and the “Takings” Challenge (2001), at http://www.plannings.org/policyguides/takings.html (discussing how “takings” doctrine is evolving law).
16 533 U.S. 606 (2001).
17 Id. at 607–09.
18 For a more complete rendition of the facts with citations to the record, the reader is invited to examine the briefs. These facts are derived from Petitioner’s Brief on the Merits, 2000 WL 1742033, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047) [hereinafter Petitioner’s Brief on the Merits].
19 Coastal Res. Mgmt. Council, Biologist’s Field Report, reprinted in Joint Appendix at 21, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
20 Palazzolo, 533 U.S. at 613.
21 See id.
22 Id. at 606.
23 See Miller v. Coastal Res. Mgmt., C.A. No. PC 89-2726, 1991 WL 789931, at *3 n.3 (R.I. Super. Ct. Dec. 13, 1991).
24 See id. (emphasis added).
25 See Petitioner’s Brief on the Merits, supra note 18, at *5.
26 Palazzolo v. Coastal Res. Mgmt. Council, C.A. No. 86-1496, 1995 WL 941370, at *3 (R.I. Super. Ct. Jan. 5, 1995) (quoting the decision of the Rhode Island Department of Natural Resources).
27 See Palazzolo v. Rhode Island, 533 U.S. 606, 614 (2001).
28 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 716 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
29 Id. at 711.
30 Id. at 714.
31 Palazzolo, 533 U.S. at 614–15; Tavares, 746 A.2d at 711.
32 Tavares, 746 A.2d at 711.
33 See Coastal Res. Mgmt. Council, Decision on the Petition of Anthony Palazzolo, reprinted in Joint Appendix at 27, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
34 Palazzolo, 533 U.S. at 615 (quoting CRMP § 130(A)(1)).
35 Id. at 616.
36 Id.
37 Tavares, 746 A.2d at 714.
38 Id. In fact, the beach club application sought to fill 11.4 acres.
39 Id.
40 Id. at 714–18.
41 Id. at 716.
42 Id. at 717.
43 Tavares, 746 A.2d at 716.
44 Id. at 711, 715.
45 Id. at 715.
46 Petitioner’s Brief on the Merits, supra note 18, at *i; Tavares, 746 A.2d 707, cert. granted, 531 U.S. 923 (2000) (mem.).
47 Palazzolo v. Rhode Island, 533 U.S. 606, 616 (2001).
48 Id.
49 U.S. Const. amend. V (“[N]or [shall any person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”).
50 San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 656 (1981) (Brennan, J., dissenting); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123 (1978) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)) (alterations in original) (also noting that this is the “principal” rationale for the Takings Clause).
51 447 U.S. 255, 260 (1980) (emphasis added) (citation omitted); accord Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 1987); see also Penn Cent., 438 U.S. at 127.
52 In Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir. 1990), the court characterized takings under the first prong of Agins as “due process takings” claims, as distinguished from other types of takings. Unlike straight due process claims, however, the Court in Nollan made it clear that a heightened level of scrutiny would apply in the context of a takings analysis. See 483 U.S. at 834 n.3. Although the Court has not generally characterized it as such, this test creates a categorical rule: if a regulation which injures a property right does not advance a legitimate governmental interest there will always be a taking. See Joint Ventures, Inc. v. Dep’t of Transp., 563 So. 2d 622, 625 (Fla. 1990). But see Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So. 2d 54 (Fla. 1994) (stating that the first prong is really a due process issue); but see also Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 614 (11th Cir. 1997) (harmonizing the Eleventh Circuit’s previous and somewhat tortured categorization of takings claims including what it called “due process takings claim”). In Villas we now learn that the “Court in recent decisions has likewise abandoned the distinction between takings claims and a due process takings theory.” But see City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) (rejecting federal amici attempt to revisit this takings test and finding that certain jury instructions were consistent with “the requirement that a regulation substantially advance legitimate public interests”).
53 Nollan, 483 U.S. at 834, 837. Nollan struck down a regulatory fiat which required a property owner to give up beach front property in exchange for a building permit. The Court found that the requirement was an “out-and-out plan of extortion” and did not advance a legitimate regulatory goal. Accord Dolan v. City of Tigard, 512 U.S. 374, 398 (1994) (finding that Fifth Amendment’s nexus requirement calls for “individualized” determination of “rough proportionality” between condition and impact from land use). There are examples of courts striking down a regulation because it did not substantially advance a legitimate interest. See Del., Lackawanna & W. R.R. Co. v. Town of Morristown, 276 U.S. 182, 195 (1928) (concluding that the taking of railroad property for a taxi stand failed to advance a legitimate governmental interest); Richardson v. City of Honolulu, 124 F.3d 1150, 1164 (9th Cir. 1997) (striking down a condominium land rent control ordinance because it failed to substantially advance a legitimate governmental interest); Seawall Assocs. v. City of New York, 542 N.E.2d 1059, 1065 (N.Y. 1989) (overturning restrictions against converting single–room occupancy hotel rooms). See generally Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996) (reviewing each reason given for a permit denial and finding inadequate justification for the permit denial, leading to the conclusion that there had been a taking), aff’d, 526 U.S. 687 (1999); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479 (N.Y. 1994) (striking down housing regulation on alternate “substantially advance” and “economic impact” prongs). But see Armendariz v. Penman, 75 F.3d 1311, 1325–26 (9th Cir. 1996) (finding that no due process remedy exists if takings remedy available); Santa Monica Beach, Ltd. v. Superior Court, 968 P.2d 993 (Cal. 1999); Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 721 N.E.2d 971, 974–76 (N.Y. 1999) (equating “substantially advance” standard with more deferential due process standard). But see generally Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851 (Cal. 1997) (finding that allegations that rent control law failed to substantially advance any legitimate governmental interests does not create a cause of action under takings doctrine so long as a due process remedy might exist).
54 482 U.S. 304, 315 (1987).
55 Agins, 447 U.S. at 260–61.
56 438 U.S. 104, 124 (1978); accord Kaiser Aetna v. United States, 444 U.S. 164, 179–80 (1979).
57 Penn Cent., 438 U.S. at 124.
58 505 U.S. 1003, 1015, 1017, 1019 (1992).
59 See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 420 (1982) (finding a taking where a cable television wire was placed on an apartment building); Kaiser Aetna, 444 U.S. at 179–80 (finding a taking where regulation allowed trespasses onto property); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166 (1871) (finding a taking where water from government dam backs upon private property). The existence of a “physical invasion” relates to the “character” prong of the Penn Central test. See 438 U.S. at 124.
60 A 100 percent loss of the beneficial or productive use is a classic example of a regulation that deprives an owner of economically viable use. See Lucas, 505 U.S. at 1015. By “categorical taking” the Supreme Court meant that the other Penn Central balancing factors need not be considered. Id. But see Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999) (holding that an alleged loss of all economically viable use did not obviate a need to consider “investment-backed expectations”).
61 505 U.S. at 1028.
62 Not only did the state court in South Carolina follow this theory in Lucas v. South Carolina Coastal Council, but up until the time of the Supreme Court’s decision, it was becoming the standard in other states as well. See 404 S.E.2d 895, 900 (S.C. 1991), rev’d 505 U.S. 1003 (1992). For example, in Presbytery of Seattle v. King County, 787 P.2d 907, 912–14 (Wash. 1990), the Washington Supreme Court held that there could be no taking if a regulation “prevented harm” because only regulations that “enhance a publicly owned right in property” could give rise to a taking. This analysis could not have survived Lucas, although it was repeated in Margola Associates v. City of Seattle, 854 P.2d 23, 34 n.7 (Wash. 1993). See also Guimont v. Clarke, 854 P.2d 1, 11 n.5 (Wash. 1993).
63 Lucas, 505 U.S. at 1028.
64 Id. at 1022.
65 Id. at 1029–30.
66 Id. at 1021 n.10.
67 Id. at 1029.
68 Agins v. City of Tiberon, 447 U.S. 255, 260 (1980).
69 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 319 (1987). Such compensation may be, for example, the rental value of the property during the time in which the regulation denied use of the property. See, e.g., Yuba Natural Res., Inc. v. United States, 904 F.2d 1577 (Fed. Cir. 1990); Yuba Natural Res., Inc. v. United States, 821 F.2d 638 (Fed. Cir. 1987); see also Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th Cir. 1987) (valuation in temporary taking found by comparing before and after fair market value and multiplying by fair rate of return), on appeal after remand, 896 F.2d 1347 (11th Cir. 1990) (calculation of temporary takings damages). In Del Monte Dunes, the Court upheld an award of damages for a temporary taking. The state had purchased the property while the legal dispute was ongoing; the purchase merely converted the permanent take into a temporary one. See generally 526 U.S. 687 (1999). For a useful discussion of temporary regulatory takings, see Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991), which analogizes the length of time a vehicle is parked on property to the significance of a temporary taking finding de minimis intrusions not to be takings, but long-term, indefinite invasions to be takings. But see Hendler v. United States, 36 Fed. Cl. 574 (1996) (finding only nominal damages on remand), aff’d,175 F.3d 1374 (Fed. Cir. 1999); Bass Enters. Prod. Co. v. United States, 133 F.3d 893 (Fed. Cir. 1998) (denial of drilling permits on leases slated for possible condemnation at some indefinite time in future may be a temporary taking; court notes that “limited duration” of taking relevant to damages but not liability). No taking was found on remand in Bass Enterprises Production Co. v. United States, 48 Fed. Cl. 621 (2001), because drilling permits could not have been profitable. See also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764 (9th Cir. 2000) (rejecting the idea that moratoria can lead to temporary taking), reh’g denied, reh’g en banc denied, 228 F.3d 998 (9th Cir. 2000) (The five judges who joined dissenting in the denial of the rehearing en banc stated that “[t]he panel does not like the Supreme Court’s Takings Clause jurisprudence very much, so it reverses First English . . . and adopts Justice Stevens’s First English dissent.”), aff’d, 122 S. Ct. 1465 (2002).
70 Other courts have offered extensive discussions of valuation in the context of regulatory takings. See generally E. Minerals Int’l, Inc. v. United States, 39 Fed. Cl. 621 (1997) (leasehold interest), judgment rev’d, appeal dismissed sub nom. Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001), cert. denied sub nom. E. Minerals Int’l, Inc. v. United States, 122 S. Ct. 1960 (2002); Fla. Rock Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990), judgment entered by 23 Cl Ct. 653 (1991), vacated, 18 F.3d 1560 (Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153 (1990), aff’d, 28 F.3d 1171 (Fed. Cir. 2994); Whitney Benefits, Inc. v. United States, 18 Cl. Ct. 394 (1989), opinion corrected by 20 Cl. Ct. 324 (1990), aff’d, 926 F.2d 1169 (Fed. Cir. 1991); cf. William W. Wade, Penn Central’s Economic Failings Confounded Takings Jurisprudence, 31 Urb. Law. 277 (1999); William S. Walter, Appraisal Methods and Regulatory Takings, New Directions for Appraisers, Judges, and Economists, 63 Appraisal J. 331 (1995). In analyzing whether a wetland permit denial destroyed the value of property (thereby giving rise to a taking), the Claims Court in Formanek v. United States found that an offer of purchase from the Nature Conservancy was insufficient as a matter of law in refuting a taking presumably because the economic return from using the lands as a nature preserve was unlikely to equal its value for development. See 18 Cl. Ct. 785, 797 (1989). It follows that such an offer would not be useful in establishing fair market value of the property once it is decided that compensation must be paid. See Olson v. United States, 292 U.S. 246, 257 (1934) (speculative value of property does not necessarily determine fair market value); see also United States v. 117,763.00 Acres of Land, 410 F. Supp. 628 (S.D. Cal. 1976), aff’d sub nom. United States v. Shewfelt Invest. Co., 570 F.2d 290 (9th Cir. 1977).
71 See Lucas, 505 U.S. at 1015.
72 Id. at 1019.
73 See id. at 1034 (Kennedy, J., concurring).
74 Id. at 1015.
75 The Court in Lucas expressly deferred consideration of the issue of awarding compensation for partial takings. Id. at 1016 n.7; see Part VIII.C infra. However, in Hodel v. Irving, 481 U.S. 704 (1987), a statute which purported to extinguish certain inheritance rights in Native American allotments was found to be a taking of that particular property right. Accord Youpee v. Babbitt, 519 U.S. 234 (1997) (similar statute struck down). Similarly, First English may be considered as affirmation of a partial taking in time, that is a taking of the property for the period in which a regulation is in effect. 482 U.S. 304, 319 (1987). But see Tahoe-Sierra, 122 S. Ct. at 1483 (rejecting “disaggregating” property into temporal segments”). The Tahoe-Sierra Court did not dispute that damages must be paid for temporary takings, but it did cast doubt on whether a temporary regulation could effect a taking. Lastly, in “physical invasion” cases, even where only a small portion of property is destroyed, the state’s action has always been considered to be a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
76 Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979). For an example of a case where a wetland regulation did not destroy all value of property, but a taking was found nevertheless, see Formanek v. United States, 26 Cl. Ct. 332 (1992). See also Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21 (1999) (finding a 73 percent diminution a taking and awarding $752,000, plus interest, from 1980); infra notes 274, 278.
77 Hage v. United States, 35 Fed. Cl. 147, 150 (1996) (citation omitted). For an extended treatment of the role of the courts in regulatory takings litigation, see Bernard H. Siegan, Property and Freedom, the Constitution, the Courts, and Land-Use Regulation 47–74 (1997).
78 See generally Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990); Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (finding a taking under the Tucker Act).
79 Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 1 (1990). The Tucker Act is codified at 28 U.S.C. § 1491(a)(1) (2001). It is an exclusive remedy for takings claims over $10,000. Id.; see also Gunn v. U.S. Dep’t of Agric., 118 F.3d 1233, 1239–40 (8th Cir. 1997). An exception applies for mining claims located within national parks. Such suits may be brought in federal district court. See Mining in the Parks Act, 16 U.S.C. § 1607 (2001).
80 This rule may be observed more in the breach than reality. See, e.g., Bay View, Inc. ex rel. Alaska Native Vill. Corps. v. Ahtna, Inc., 105 F.3d 1281 (9th Cir. 1997):
The Supreme Court is partly to blame for this confusion, as it has sometimes reached the merits of takings claims against the United States and at other times refused. . . . Adding to the confusion, many courts have viewed the Tucker Act as a jurisdictional hurdle against the payment of damages but not as an impediment to equitable relief. . . . This, of course, is totally wrong.
Id. at 1285–86 (citations omitted); see also Rose Acre Farms, Inc. v. Madigan, 956 F.2d 670, 672 (7th Cir. 1992) (proper remedy to requirement to destroy salmonella infected birds that allegedly takes the birds is suit in the Court of Federal Claims, not having the regulation overturned in district court). In an unusual turn of events, in Cooley v. United States, the government granted the landowner a scaled back development permit, after it had categorically rejected the landowner’s original application, and after the landowner had filed a claim for inverse condemnation. 46 Fed. Cl. 538, 539–41 (2000). The Court of Federal Claims was unimpressed by the government’s attempt to avoid liability, finding that it lacked the authority to grant the permit that had never been sought. Id. at 547–49.
81 E. Enters. v. Apfel, 524 U.S. 498, 520–22 (1998) (O’Connor, J., plurality opinion for four Justices) (5-4 decision).
82 See 28 U.S.C. § 2402 (2000). But see Eric Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U. L. Rev. 144 (1996) (arguing that the history of the Seventh Amendment, as well as the history of condemnation actions under common law, favor the use of jury trials in all inverse condemnation causes of action).
83 See Williamson County Reg’l Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S. 172, 186–94 (1985). The necessity of filing a state takings claim first in state court creates certain difficulties for preserving a federal takings claim for federal court. See, e.g., Saboff v. St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1359–61 (11th Cir. 2000), reh’g en banc denied, 211 F.3d 596 (11th Cir. 2000) (table decision), cert. denied, 531 U.S. 823 (2000) (discusses need to “reserve” federal claims in state court); Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 284 (4th Cir. 1998) (applying Burford abstention in case characterized by court as having “passed through procedural purgatory and wended its way to procedural hell”); Dodd v. Hood River County, 59 F.3d 852, 862 (9th Cir. 1995) (federal claims properly reserved in state proceeding, but collateral estoppel may apply); Mission Oaks Mobile Home Park v. City of Hollister, 989 F.2d 359 (9th Cir. 1993); Palomar Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 364–65 (9th Cir. 1993) (applying res judicata to state takings claim). These issues are addressed by Thomas E. Roberts in Procedural Implications of Williamson County/First English in Regulatory Takings Litigation: Reservations, Removal, Diversity, Supplemental Jurisdiction, Rooker-Feldman, and Res Judicata, 31 Envtl. L. Rep. 10,353 (2001).
For articles discussing the practical difficulties of ripeness in federal court, see generally Michael M. Berger, Supreme Bait and Switch: The Ripeness Ruse in Regulatory Takings, 3 Wash. U. J.L. & Pol’y 99 (2000); Timothy V. Kassouni, The Ripeness Doctrine and the Judicial Relegation of Constitutionally Protected Property Rights, 29 Cal. W. L. Rev. 1 (1992); Gregory Overstreet, The Ripeness Doctrine of the Takings Clause: A Survey of Just How Far Federal Courts Will Go to Avoid Adjudicating Land Use Cases, 10 J. Land Use & Envtl. L. 91 (1994); and Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 Vand. L. Rev. 1 (1995).
84 See, e.g., Williamson County, 473 U.S. 186–87.
85 Id. at 172; MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986). A requirement to sell transferable development credits is not a prerequisite for filing a takings claim. Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 739–40 (1997).
86 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709–11 (1999).
87 926 F.2d 1169, 1178 (Fed. Cir. 1991).
88 Whitney Benefits, Inc. v. United States, 18 Cl. Ct. 394, 417 app. (1989), opinion corrected by 20 Cl. Ct. 324 (1990), aff’d 926 F.2d 1169 (Fed. Cir. 1991).
89 See generally George W. Miller, Regulatory Takings Claims: The Litigation Process, in Inverse Condemnation and Related Government Liability 205 (A.L.I.-A.B.A. Course of Study, Oct. 17, 1996), available in Westlaw, SB14 ALI-ABA 205.
90 16 Cl. Ct. 42 (1988).
91 In geologic terms, a calcareous fen bog is a wetland in limestone topography. See id. at 43 n.2.
92 See Dean Robuffoni, Owner’s Victory Over Land-Use, Minn. Star Tribune, Feb. 24, 1992.
93 31 Fed. Cl. 37 (1994).
94 Id. at 43–4.
95 Id. at 53.
96 28 F.3d 1171 (Fed. Cir. 1994).
97 45 Fed. Cl. 21 (1999).
98 46 Fed. Cl. 538 (2000).
99 16 U.S.C. §§ 1531–1544 (2001).
100 Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 317–20 (2001). But see In re Water Use Permit Applications, 9 P.3d 409, 497 (Haw. 2000) (no taking when water rights denied).
101 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 714 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
102 473 U.S. 172, 194 (1985).
103 Id. at 194–97.
104 Tavares, 746 A.2d at 714.
105 526 U.S. 687 (1999).
106 This is indicated in the exchange between the Court and the counsel for the petitioner-city, George Yuhas:
MR. YUHAS: . . . This case is not atypical in some respects. The city was faced with a complex decision it had to reconcile competing interests, sift through facts, and exercise its discretion and judgment, and it did so.
QUESTION: Five times.
MR. YUHAS: It did so, Your Honor. It was a complicated project . . . .
QUESTION: This was the fifth plan presented, right? Each one was successively rejected for a different reason each time?
MR. YUHAS: The initial rejections were for density, and the fifth one was rejected down for two reasons only. There was access, and there was the restoration plan, and that was the first time that—in fact, the city council had faced the question as to whether there was an adequate recommended plan.
QUESTION: And this is typical, you say?
Transcript of Oral Argument, City of Del Monte v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) (No. 97-1253), 1998 WL 721087, at *4, (Oct. 7, 1998).
107 See Williamson County, 473 U.S. at 191.
108 Id.
109 477 U.S. 340 (1986).
110 Id. at 348.
111 Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 739 (1997) (quoting Williamson County, 473 U.S. at 191) (fourth alteration in original).
112 447 U.S. 255, 260–61 (1980) (holding that enactment of zoning scheme alone does not take property and the owner must apply for permits).
113 474 U.S. 121, 127 (1985) (finding that designation of property as a wetland is not, in and of itself, a taking; the landowner must first apply for permits).
114 See generally 477 U.S. 340 (finding a taking only after a final administrative decision has been rendered).
115 See, e.g., Calprop Corp. v. City of San Diego 91 Cal. Rptr. 2d 792, 800–01 (Cal. Ct. App. 2000) (holding futility exception to be read narrowly; landowners must pursue permit process); Gil v. Inland Wetlands & Watercourses Agency, 593 A.2d 1368, 1375 (Conn. 1991) (citing MacDonald, 477 U.S. at 353 n.9) (finding landowner’s driveway permit application too “grandiose”); Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 714 (R.I. 2000) (holding landowner actually had to complete permitting process despite belief permit would probably be denied), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Alegria v. Keeney, 687 A.2d 1249, 1253 (R.I. 1997) (holding even though wetlands permit denied, other uses still possible).
116 520 U.S. 725 (1997).
117 Id. at 732.
118 Id. at 740–42. But see Good v. United States, 39 Fed. Cl. 81. 108 (1997), aff’d, 189 F.3d 1355 (Fed. Cir. 1999). In Good, the Court of Federal Claims stated that Suitum held that the existence of transferable development rights was relevant to determine whether there had been a taking. However, the Court in Suitum expressly said that it was not reaching that particular issue. 520 U.S. at 728.
119 Palazzolo, 533 U.S. at 619, 221.
120 Id. at 623.
121 Telephone Interview with Anthony Palazzolo (Aug. 30, 2001).
122 Id.
123 See Palazzolo, 533 U.S. at 620–21.
124 See id.
125 See id. at 620 (emphasis added).
126 Id.
127 Id. at 625.
128 See 526 U.S. 687 (1999).
129 134 F.3d 1468 (Fed. Cir. 1998).
130 Id. at 1470–71.
131 Id. at 1471 n.4.
132 See id. at 1471–72.
133 Id. at 1472.
134 30 Fed. Cl. 63 (1993), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (table decision).
135 Id. But see City Nat’l Bank of Miami v. United States, 33 Fed. Cl. 224 (1995) (no taking because local agency would have denied permits); City Nat’l Bank of Miami v. United States, 30 Fed. Cl. 715 (1994) (takings claim cognizable even without state permits because the Army Corps of Engineers would have denied permit with or without the permits); Formanek v. United States, 26 Cl. Ct. 332 (1992) (taking found despite lack of state permits because the evidence was clear that such permits would have been granted if applied for).
136 Plantation Landing Resort, 30 Fed. Cl. at 69 (citing Connolly v. Pension Benefit Guar. Corp., 475 U.S. 224, 224–25 (1986)).
137 30 Fed. Cl. 715.
138 Id. at 720.
139 791 F.2d 893, 904–05 (Fed. Cir. 1986).
140 Fla. Rock Indus., Inc. v. United States, No. 266-82 L, 2000 WL 331830, at *9–*15 (Fed. Cl. Mar. 28, 2000).
141 30 Fed. Cl. at 720–21.
142 Id.
143 Id.
144 City Nat’l Bank of Miami v. United States, 33 Fed. Cl. 224 (1995).
145 See, e.g., Hochne v. County of San Bernadino, 870 F.2d 529, 532 (9th Cir. 1989) (stating that “the final decision requirement can be avoided if attempts to comply with that request would be futile”).
146 35 Fed. Cl. 147 (1996).
147 Id. at 164 (citations omitted).
148 693 A.2d 114 (N.J. Super. Ct. App. Div. 1997).
149 Id. at 122. But since the developer had not begun a meaningful application process his claim was not ripe. Id. at 121–22; accord Palazzolo v. Rhode Island, 533 U.S. 606, 621 (2001). The Court went further stating that “[g]overnment authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.” Palazzolo, 533 U.S. at 621 (citing City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698 (1999)).
150 Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 405 (9th Cir. 1996).”To satisfy this requirement, a California landowner must submit to local decision-makers at least one meaningful application for a development project and a variance.” Id. (quoting S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990)).
151 City Nat’l Bank of Miami v. United States, 33 Fed. Cl. 224, 227–28 (1995).
152 46 Fed. Cl. 538 (2000).
153 Id. at 541.
154 Id. at 549–51.
155 Lakewood Assocs. v. United States, 45 Fed. Cl. 320, 333–34 (1999).
156 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 716 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
157 Id. at 717.
158 Id. at 716.
159 Id. at 716–17.
160 See, e.g., Providence Steam-Engine Co. v. Providence & Stonington S.S. Co., 12 R.I. 348, 363–64 (1879) (upholding right to wharf out and fill wetlands and tidal waters).
161 Preseault v. United States, 100 F.3d 1525, 1540 (Fed. Cir. 1996) (finding there is an expectation to be compensated for a physical occupation of one’s property by the government).
162 Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1030 (1992).
163 See K & K Constr., Inc. v. Dep’t of Natural Res., 551 N.W.2d 413, 418 (Mich. Ct. App. 1996), rev’d on other grounds, 575 N.W.2d 531 (Mich. 1998). In a case where ownership was acquired via a complicated trust ownership, an intermediate appellate court had found that such a change in ownership did not implicate the notice rule. Id.
164 483 U.S. 825 (1987).
165 See id. at 841–42.
166 Id. at 859 (Brennan & Marshall, JJ., dissenting).
167 Id. at 840–42.
168 Id. at 860 (Brennan & Marshall, JJ., dissenting).
169 Id.
170 Nollan, 483 U.S. at 833 n.2.
171 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985).
172 Soon Duck Kim v. City of New York, 681 N.E.2d 312 (N.Y. 1997); In re Gazza v. N.Y. State Dep’t of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997); In re Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870 (N.Y. 1997); Basile v. Town of Southampton, 678 N.E.2d 489 (N.Y. 1997).
173 City of Virginia Beach v. Bell, 98 S.E.2d 414 (Va. 1998).
174 Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999); Forest Props., Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999).
175 Dist. Intown Prop. Ltd. P’ship v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999), cert denied, 531 U.S. 812 (2000).
176 Store Safe Redlands Assocs. v. United States, 35 Fed. Cl. 726, 735 (1996).
177 See Steven J. Eagle, The 1997 Regulatory Takings Quartet: Retreating from the “Rule of Law,” 42 N.Y.L. Sch. L. Rev. 345 (1998).
178 Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001).
179 Id.
180 Id.
181 Id. at 627.
182 Id.
183 See id. at 609, 629–30.
184 505 U.S. 1003, 1030 (1992).
185 See Palazzolo, 533 U.S. at 625–26.
186 See id. at 629.
187 Id. at 629–30.
188 United States v. Gen’l Motors Corp., 323 U.S. 373, 378 (1945).
189 United States v. Willow River Power Co., 324 U.S. 499, 502 (1945) (stating there was no legally protected property interest in maintaining specific water levels in reservoir).
190 See Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1031–32 (1992). Once a mining claim is determined to constitute a valid property interest, then state law will control how it can be sold, transferred, inherited, and the like—unless any particular aspect of that property right is preempted by federal law. See Duguid v. Best, 291 F.2d 235, 239, 242 (9th Cir. 1961).
191 See Lucas, 505 U.S. at 1031–32.
192 480 U.S. 470, 519 (1987) (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)) (alterations in original). See also Palazzolo, 533 U.S. at 630; Lucas, 505 U.S. at 1016 n.7; Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 20–24 (1990) (providing a detailed articulation of the principle that state law defines the nature of property rights); Kinross Copper Corp. v. Oregon, 981 P.2d 833 (Or. App. 1999) (denying a waste water discharge permit for mining on federal mining claims not a taking because there is no right to pollute), cert. denied, 531 U.S. 960 (2000).
193 See, e.g., M & J Coal Co. v. United States, 47 F.3d 1148, 1153 (Fed. Cir. 1995) (discussing the impact of federal law of navigational servitude and submerged lands on property definitions); see also Lucas, 505 U.S. at 1029 (discussing the submerged lands and navigational servitude); Scranton v. Wheeler, 179 U.S. 141, 163 (1900) (defining property rights in the context of submerged lands); Palm Beach Isles Assocs. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) (navigational servitude), aff’d, 231 F.3d 1354 (Fed. Cir. 2000), reh’g en banc denied, 231 F.3d 1365 (Fed. Cir. 2000). In Palm Beach Isles, the court found that a permit denial for environmental reasons, rather than navigational reasons, did not invoke the navigational servitude “background principle.” Id. at 1384.
194 978 F.2d 1269, 1276 (D.C. Cir. 1992).
195 Id. at 1275–76.
196 Id. at 1277–87.
197 278 F.2d 842, 847 n.4 (9th Cir. 1960) (citing United States ex rel. Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 279 (1943)); see also Richmond Elks Hall Ass’n v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th Cir. 1977) (holding that federal courts are not bound by state law but look to it for aid in discerning the scope of property interests). These formulations may be inconsistent with Justice O’Connor’s dissent in Preseault, 494 U.S. at 20–24.
198 Adaman, 278 F.2d at 847.
199 Id.
200 See id.
201 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 1030 (1992) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).
202 See id. at 1028–29.
203 See, e.g., Schneider v. Cal. Dep’t. of Corr., 151 F.3d 1194, 1200–01 (9th Cir. 1998).
The . . . Court’s recognition of the unremarkable proposition that state law may affirmatively create constitutionally protected “new property” interests in no way implies that a State may by statute or regulation roll back or eliminate traditional “old property” rights. As the Supreme Court has made clear, “the government does not have unlimited power to redefine property rights.” . . . Rather, there is, we think, a “core” notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny.
Id. at 1200 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)). Justice Marshall, in his concurrence in Pruneyard Shopping Center v. Robins, noted:
I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. . . . Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.
447 U.S. 74, 93–94 (1980) (Marshall, J., concurring).
The Ninth Circuit observed:
“[T]here is, we think, a ‘core’ notion of constitutionally protected property,” and a state’s power to alter it by legislation “operates as a one-way ratchet of sorts,” allowing the states to create new property rights but not to encroach on traditional property rights.” . . . [W]ere the rule otherwise, States could unilaterally dictate the content of—indeed altogether opt out of¾both the Takings Clause and the Due Process Clause simply by statutorily recharacterizing traditional property-law concepts.
Wash. Legal Found. v. Legal Found. of Wash., 236 F.3d 1097, 1108 (9th Cir. 2001) (quoting Schneider, 151 F.3d at 1200–01), reh’g, 271 F.3d 835, 841 (9th Cir. 2001) (en banc), cert. granted, 122 S. Ct. 2355 (2002) (No. 01-1325).
Lawrence H. Tribe writes:
To the degree that private property is to be respected in the face of republican and positivist visions, it becomes necessary to resist even an explicit government proclamation that all property acquired in the jurisdiction is held subject to government’s limitless power to do with it what government wishes. Indeed, government must be denied the power to give binding force to so sweeping an announcement, . . . if we are to give content to the just compensation clause as a real constraint on [government] power . . . . [E]xpectations protected by the clause must have their source outside positive law.
Laurence H. Tribe, American Constitutional Law § 9-7, at 609 (2d ed. 1988).
204 854 P.2d 449 (Or. 1993).
205 Id. at 456–57.
206 Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (mem.) (Scalia & O’Connor, JJ., dissenting), denying cert. to 854 P.2d 449 (Or. 1993), aff’g, 835 P.2d 940 (Or. Ct. App. 1992).
207 903 P.2d 1246 (Haw. 1995).
208 Id. at 1272–73.
209 See David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375, 1440–42 (1996). See generally David L. Callies, Custom and Public Trust: Background Principles of State Property Law, in Inverse Condemnation and Related Government Liability, 699 (A.L.I.-A.B.A. Course of Study, Sept 30, 1999), available in Westlaw, SF64 ALI-ABA 191. See infra Part V.B.2 for further discussion of public trust doctrine.
210 See Loveladies Harbor v. United States, 28 F.3d 1171, 1182 (Fed. Cir. 1994) (discussing applicability of “nuisance exception”); Formanek v. United States, 26 Cl. Ct. 332, 340 (1992) (rejecting assertion that filling a wetlands would constitute an “extreme threat to public health”); Fla. Rock Indus., Inc. v. United States, 21 Cl. Ct. 161, 168 (1990) (use of wetlands not a nuisance, even if Congress regulated or prohibited use), vacated, 18 F.3d 1560 (Fed. Cir. 1994); Fla. Rock Indust., Inc. v. United States, 8 Cl. Ct. 160, 170 (1985) (making a nuisance exception coterminous with the police power would read the Compensation Clause “out of existence”), aff’d in part, vacated in part, 791 F.2d 893 (Fed. Cir. 1986); see also Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 1177 n.10 (Fed. Cir. 1991) (rejecting nuisance defense to regulatory taking of coal mine); Yancey v. United States, 915 F.2d 1534, 1542 (Fed. Cir. 1990) (takings damages awarded to turkey farmer who had his turkeys quarantined during an outbreak of Asian flu despite obvious nuisance implications).
211 See, e.g., McDougal v. County of Imperial, 942 F.2d 668, 678 (9th Cir. 1991) (“[E]ven in those cases where the activity restrained was akin to a public nuisance and the state’s interest was admittedly substantial, the Court has gone on to weigh the claimant’s showing of diminution of value to his property.”). To be sure, the trial court in Palazzolo decided that the original 1983 proposal of Mr. Palazzolo to fill eighteen acres of wetlands would be a nuisance, but that conclusion was premised upon the construction of seventy-four septic systems, not the proposal to build a beach club, which was the basis of the takings claim.
212 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031 (1992). On remand, the South Carolina Supreme Court did not find a nuisance. Lucas v. S.C. Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992).
213 201 N.W.2d 761, 768 (Wis. 1972); accord Zealy v. City of Waukesha, 548 N.W.2d 528 (Wis. 1996).
214 201 N.W.2d at 768.
215 747 P.2d 1062, 1073 (Wash. 1987).
216 Claridge v. N.H. Wetlands Bd., 485 A.2d 287 (N.H. 1984).
217 791 F.2d 893, 904 (Fed. Cir. 1986).
218 Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381, 395 (1988).
219 See McQueen v. S. C. Coastal Council, 530 S.E.2d 628 (S.C. 2000) (rejecting Just and the notice rule, but ruling against landowner on “expectations” issue), cert. granted and vacated sub nom. McQueen v. S.C. Dep’t of Health & Envtl. Control, 533 U.S. 943 (2001) (remanding to the Supreme Court of South Carolina in light of Palazzolo v. Rhode Island, 533 U.S. 606 (2001)); see also supra note 203 and accompanying text.
220 And, as the dissent in Lucas v. South Carolina Coastal Council suggests, the majority holding in Lucas is inconsistent with the Just principle. 505 U.S. at 1059 (Blackmun, J., dissenting).
221 The public trust doctrine was once only a shorthand way of saying that private individuals could not impose a stranglehold on the public’s use of and access to navigable waterways. Thus, Illinois could not sell the waterfront without first accommodating the interest of the public in access to the commons (navigable waterways). See Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452–54 (1892); see also Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 481 (1988) (holding the doctrine is not confined only to navigable waters).
222 See generally Ill. Cent., 146 U.S. 387. For a comprehensive review of the legal and historical origins of the doctrine in the United States, see generally Bonnie J. McCay, Oyster Wars and the Public Trust: Property, Law, and Ecology in New Jersey History (1998).
223 Based on his early writings on the subject, Professor Sax is widely acknowledged as being the principle advocate for a modern expansion of the public trust doctrine. See, e.g., Joseph L. Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C. Davis L. Rev. 185 (1980); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970) [hereinafter The Public Trust Doctrine].
224 See generally Sax, supra note 4.
225 See generally 146 U.S. 387.
226 See Joseph L. Sax, The Constitution, Property Rights, and the Future of Water Law, 61 U. Colo. L. Rev. 257, 269–70 (1990) (arguing that water rights can be altered or reduced in the public interest without the payment of just compensation). See generally The Public Trust Doctrine, supra note 223. But see generally Lloyd R. Cohen, The Public Trust Doctrine: An Economic Perspective, 29 Cal. W. L. Rev. 239 (1992) (arguing that the proposed expansions of the public trust doctrine are legally and economically insupportable); John S. Harbison, Waist Deep in the Big Muddy: Property Rights, Public Values, and Instream Waters, 26 Land & Water L. Rev. 535 (1991) (arguing application of the public trust doctrine can lead to a taking); James L. Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 J. Land Use & Envtl. L. 171 (1987) [hereinafter Myth of Public Rights]; James L. Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writings of Professors Sax, Wilkinson, Dunning and Johnson, 63 Denv. U. L. Rev. 565 (1986); Alison Rieser, Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory, 15 Harv. Envtl. L. Rev. 393 (1991) (critiquing Professors Sax and Hoffman and suggesting ecological values are clearly within the public trust).
227 See Myth of Public Rights, supra note 226, at 208–10. James L. Huffman argues that “the courts have no capacity to make the kinds of decisions which our Constitution allocates to the legislative branch of government.” Id. at 209. Put another way, Huffman is concerned that activist courts are better suited to protecting private rights against the tyranny of the majority rather than protecting majoritarian public rights by “dredging from the depths of the common law waters old doctrines which function to limit private rights.” Id.
228 Cohen, supra note 226, at 275.
229 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
230 See Hughes v. Washington, 389 U.S. 290, 297–98 (1967) (Stewart, J., concurring) (“[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.”); see also Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) (dealing with the question of whether the Hawaiian courts’ new definition of water rights “takes” old existing rights), vacated and remanded on exhaustion of state remedies issue, 477 U.S. 902 (1986). But see Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 427 & n.4 (1991) (noting that reserved water rights are protected water rights but that courts are not capable of taking property).
231 W. River Bridge Co. v. Dix, 47 U.S. 507, 532 (1848) (emphasis added); see also Dows v. Nat’l Exch. Bank, 91 U.S. 618, 637 (1875) (“[T]he owner of personal property cannot be divested of his ownership without his consent, except by process of law.”).
232 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 717 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
233 438 U.S. 104, 124 (1978).
234 See infra note 236 and accompanying text.
235 Palm Beach Isles Assocs. v. United States, 231 F.3d 1354, 1363 (Fed. Cir. 2000) (“When there is . . . a regulatory taking that constitutes a total wipeout, investment-backed expectations play no role.”), reh’g en banc denied, 231 F.3d 1365 (Fed. Cir. 2000).
236 Penn Cent., 438 U.S. at 116.
237 See Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1014–19 (1992); Agins v. City of Tiberon, 447 U.S. 255, 260 (1980); Armstrong v. United States, 364 U.S. 40, 49 (1960).
238 189 F.3d 1355 (Fed. Cir. 1999).
239 Id. at 1357.
240 Id.
241 Id. at 1359.
242 Id. at 1358.
243 Id. at 1359.
244 Good, 189 F.3d at 1358.
245 Id. at 1359.
246 Id.
247 Id. at 1363.
248 Id. at 1361–62.
249 Id. at 1362.
250 Forest Props., Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999); accord Broadwater Farms Joint Venture v. United States, 45 Fed. Cl. 154, 156 (1999) (holding that owner had actual and constructive knowledge of Clean Water Act of 1972 when property purchased in 1987); see also Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1177 (Fed. Cir. 1994) (noting that the landowner had purchased before the wetlands regulations were adopted).
251 530 S.E.2d 628 (S.C. 2000), cert. granted and vacated sub nom. McQueen v. S.C. Dep’t of Health & Envt’l Control, 533 U.S. 943 (2001) (remanding to the Supreme Court of South Carolina in light of Palazzolo v. Rhode Island, 533 U.S. 606 (2001)).
252 Id. at 631.
253 Id. at 631–33.
254 Id. at 634.
255 See id.
256 McQueen v. S.C. Dep’t of Health & Envt’l Control, 533 U.S. 943 (2001); Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
257 Soon Duck Kim v. City of New York, 681 N.E.2d 312 (N.Y. 1997); In re Gazza v. N.Y. State Dep’t of Envt’l Conservation, 679 N.E.2d 1035 (N.Y. 1997); In re Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870 (N.Y. 1997); Basile v. Town of Southampton, 678 N.E.2d 489 (N.Y. 1997).
258 See Anello, 678 N.E.2d 870. Anello purchased the property after a steep slope ordinance was adopted. When the application of ordinance and denial of variance precluded all use of the lot, Anello was found not to be entitled to takings damages. See generally id.
259 See generally Soon Duck Kim, 681 N.E.2d 312. Kim purchased a car wash and service station after a city passed a charter amendment creating a “duty” to provide lateral support for roadways. When road grade was raised owner had duty to sacrifice her land to provide lateral support for the raised roadway. See generally id.
260 See generally Gazza, 679 N.E.2d 1035 (purchaser of wetland not entitled to condemnation award because when he purchased property he could not have purchased right to use wetlands contrary to potential application of regulation); Basile, 678 N.E.2d 489 (when city condemned wetlands parcel it only had to pay nominal fair market value because owner did not have right to put property to its highest and best use; the land was purchased after wetlands regulations were adopted).
261 122 S. Ct. 1465 (2002).
262 Id. at 1483. See also the discussion in Part VIII.B infra.
263 See Lopes v. City of Peabody, 629 N.E.2d 1312, 1315 (Mass. 1994) (finding that rule prohibiting purchaser from challenging existing regulations would have adverse policy impacts).
264 498 S.E.2d 414 (Va. 1998).
265 Id. at 417–18.
266 See Carson Harbor Vill., Ltd. v. City of Carson, 37 F.3d 468 (9th Cir. 1994), overruled on a different holding by WXM Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); Vatalaro v. Dep’t of Envtl. Regulation, 601 So. 2d 1223, 1229 (Fla. Dist. Ct. App. 1992); Karam v. State, 705 A.2d 1221 (N.J. Super. Ct. App. Div. 1998), aff’d, 723 A.2d 943 (N.J. 1999).
267 705 A.2d 1221.
268 Id. at 1229.
269 37 F.3d at 476–77.
270 95 F.3d 1422 (9th Cir. 1996), aff’d, 526 U.S. 687 (1999).
271 See id.
272 601 So. 2d 1223, 1229 (Fla. Dist. Ct. App. 1992). In State, Department of Environmental Protection v. Burgess, the court declined to follow the “flawed” reasoning of Vatalaro, holding that even though Burgess purchased property before the wetlands regulations were adopted, he had no reasonable investment-backed expectations to develop this remote and isolated parcel. See 772 So. 2d 540, 542 n.1 (Fla. Dist. Ct. App. 2000), appeal denied sub nom. Burgess v. State, 791 So. 2d 1095 (Fla. 2001) (table decision), cert. denied sub nom. Fla. Dep’t of Envtl. Prot. v. Burgess, 122 S. Ct. 615 (2001).
273 Vatalaro, 601 So. 2d at 1229.
274 See id; see also Cottonwood Farms v. Bd. of County Comm’rs, 763 P.2d 551, 555 (Colo. 1988) (“The majority of courts have held that the fact of prior purchase with knowledge of applicable zoning regulations does not preclude a property owner from challenging the validity of the regulations on constitutional grounds, but does constitute a factor . . . .”).
275 See Palazzolo v. Rhode Island, 533 U.S. 606, 629–30 (2001).
276 Id. at 630.
277 Id. at 633 (O’Connor, J., concurring).
278 Id. (O’Connor, J., concurring). Justice O’Connor’s focus on the continuing importance of investment-backed expectations was adopted by the Court in its dicta in Tahoe-Sierra. See 122 S. Ct. 1465, 1486 (2002).
279 Palazzolo, 533 U.S. at 635 (O’Connor, J., concurring).
280 Id. at 637 (Scalia, J., concurring) (citations omitted).
281 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 716 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
282 Id. at 715.
283 Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1016 n.7 (1992).
284 Tavares, 746 A.2d at 710 n.1.
285 “[O]ne of the critical questions in determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987) (quoting Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1192 (1967)).
286 28 F.3d 1171 (Fed. Cir. 1994).
287 Id. at 1178, 1183.
288 Id. at 1180.
289 Id. As the Federal Circuit observed in Loveladies Harbor, Inc. v. United States:
If the tract of land that is the measure of the economic value after the regulatory imposition is defined as only that land for which the use permit is denied, that provides the easiest case for those arguing that a categorical taking occurred. On the other hand, if the tract of land is defined as some larger piece, one with substantial residuary value independent of the wetlands regulation, then either a partial or no taking occurred. . . . This is the denominator problem.
Id.
290 Id. at 1181.
291 Id.
292 22 Cl. Ct. 310, 318–19 (1991).
293 Id. at 320. As to whether a taking had occurred, the court observed:
Factors such as the degree of contiguity, the dates of acquisition, the extent to which the parcel has been treated as a single unit, the extent to which the protected lands enhance the value of remaining lands, and no doubt many others would enter the calculus. The effect of a taking can obviously be disguised if the property at issue is too broadly defined. Conversely, a taking can appear to emerge if the property is viewed too narrowly. The effort should be to identify the parcel as realistically and fairly as possible, given the entire factual and regulatory environment.
Id. at 318–19.
294 Id. at 320.
295 42 Fed. Cl. 340 (1998), vacated, 208 F.3d 1374 (Fed. Cir. 2000), aff’d, 231 F.3d 1354 (Fed. Cir. 2000), reh’g en banc denied, 231 F.3d 1354 (Fed. Cir. 2000). The trial court found of some significance the purchase of the property after the adoption of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (2001). See id. at 361. But on appeal the Federal Circuit rejected this theory, finding that the existence of navigational servitude does not defeat takings claim because the permit was not denied in order to protect navigation. See 208 F.3d at 1385–86.
296 208 F.3d at 1381.
297 Id. The court found that:
The regulatory imposition that infected the development plans for the 50.7 acres was unrelated to [Palm Beach Isles Associates’] plans for and disposition of the 261 acres of beachfront upland on the east side of the road. The development of that property was physically and temporally remote from, and legally unconnected to, the 50.7 acres of wetlands and submerged lake bed on the lake side of the spit. Combining the two tracts for purposes of the regulatory takings analysis involved here, simply because at one time they were under common ownership, or because one of the tracts sold for a substantial price, cannot be justified.
Id.
298 See 10 F.3d 796, 802 (Fed. Cir. 1993) (finding that it would not consider every lot where a permit had been denied as a separate parcel; otherwise every permit denial would result in a taking).
299 See 177 F.3d 1360, 1365–67 (Fed. Cir. 1999) (joining together nine acres of submerged lakebed with a sixty-two-acre tract of upland that the owner had already sold, as part of single development scheme).
300 See generally 693 A.2d 114 (N.J. Super. Ct. App. Div. 1997).
301 Id. at 119.
302 Id. at 128–29.
303 See, e.g., Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 643–44 (1993). Although this was a pension liability case, unrelated to real property, the Court concluded that the relevant question is whether the property taken is all or only a portion of the whole. Id. at 644; Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104, 138 (1978) (finding that air rights over train station not considered a separate parcel).
304 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n.7 (1992).
305 See, e.g., Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum. L. Rev. 1667, 1676–77 (1988). Conceptual severance refers to the division of property into its component parts in accord with common law principles of interests in property. See id. at 1676. Some criticize the idea of conceptual severance, suggesting that all such interests should be lumped together in a takings analysis. See id. at 1676–77.
306 See Raymond R. Coletta, The Measuring Stick of Regulatory Takings: A Biological and Cultural Analysis, 1 U. Pa. J. Const. L. 20, 36 (1998) (“In the vertical dimension, the relevant parcel is viewed columnally from the depths of the earth to the heights of the sky.”).
307 122 S. Ct. 1465, 1483 (2002).
308 Id.
309 Steven J. Eagle, Regulatory Takings § 64(c)(2)(iii) (1996).
310 See Daniel R. Mandelker, New Property Rights Under the Taking Clause, 81 Marq. L. Rev. 9, 19 (1997) (recognizing the inability of courts to apply a consistent theory of segmentation, this commentator suggests abandoning segmentation theory in favor of “fairness”).
311 122 S. Ct. 1465, 1483 (2002).
312 See id.
313 548 N.W.2d 528 (Wis. 1996).
314 See id. at 533.
315 575 N.W.2d 531, 538 (Mich. 1998); see also Volkema v. Dep’t of Natural Res., 542 N.W.2d 282 (Mich. Ct. App. 1996), aff’d in part, disapproved in part, 586 N.W.2d 231 (Mich. 1998) (table decision).
316 See 575 N.W.2d at 534, 537–38.
317 See id. at 537. The court remanded the case to determine whether a separate 9.6-acre parcel should be combined, and, if combined, whether the destruction of the use and value of the twenty-seven or twenty-eight acres out of the whole constituted a taking. Id. at 540.
318 723 A.2d 943 (N.J. 1999).
319 198 F.3d 874 (D.C. Cir. 1999), cert. denied, 531 U.S. 812 (2000).
320 Id. at 876–77.
321 Id. at 889 (Williams, J., concurring) (citing John E. Fee, Comment, Unearthing the Denominator in Regulatory Taking Claims, 61 U. Chi. L. Rev. 1535, 1557–58 (1994)). See generally Machipongo Land & Coal Co., Inc. v. Commonwealth, Dep’t of Natural Res., 719 A.2d 19 (Pa. Commw. Ct. 1998), aff’d in part, rev’d in part, remanded by 799 A.2d 751 (Pa. 2002), petition for cert. filed, (U.S. Aug. 27, 2002) (No. 02-321).
322 799 A.2d at 766–68.
323 Id. at 768.
324 Id. (citing Loveladies Harbor v. United States, 28 F.3d 1171, 1181 (Fed. Cir. 1994)).
325 935 P.2d 411 (Or. 1997). In a subsequent decision, the same court found the takings claim was not ripe. See Boise Cascade Corp. v. Oregon, 991 P.2d 563, 574 (Or. Ct. App. 1999), appeal denied sub nom. Boise Cascade Corp. v. Bd. of Forestry, 18 P.3d 1099 (Or. 2000) (table decision), cert. denied sub nom. Boise Cascade Corp. v. State ex rel. Or. State Bd. of Forestry, 532 U.S. 923 (2001).
326 Boise Cascade Corp. v. Bd. of Forestry, 935 P.2d 411, 414, 415–16 (Or. 1997).
327 217 Cal. App. 3d 71, 85–88 (Cal. Dist. Ct. App. 1990).
328 See id. But see Ramona Convent of the Holy Names v. City of Alhambra, 26 Cal. Rptr. 2d 140, 145 (Cal. Dist. Ct. App. 1993) (finding no taking of 1.97-acres of a 19.17-acre parcel).
329 653 F.2d 364 (9th Cir. 1981).
330 Id. at 366–67.
331 542 N.E.2d 1059, 1060–61 (N.Y. 1989).
332 45 F. Supp. 2d 19, 31 (D.D.C. 1999) (finding a taking when a construction project prevented reasonable access to parcels).
333 Id. at 30.
334 Fee, supra note 321, at 1557. This analysis enables courts to make a rational distinction between small setbacks and more significant amounts of land.
335 719 A.2d 19, 28 n.22 (Pa. Commw. Ct. 1998), aff’d in part, rev’d in part, remanded by 799 A.2d 751 (Pa. 2002).
336 Machipongo Land & Coal Co., Inc. v. Commonwealth, Dep’t of Natural Res., 799 A.2d 751, 768 (Pa. 2002).
337 See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 137 (1978); supra note 303 and accompanying text.
338 Penn Cent., 438 U.S. at 137.
339 Penn Cent. Transp. Co. v. City of New York, 366 N.E.2d 1271, 1277–78 (N.Y. 1977), aff’d, 438 U.S. 104 (1978).
340 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n.7 (1992).
341 For example, there was this exchange between the Attorney General of the State of Rhode Island and the Court:
QUESTION: Is it—is it your position, General Whitehouse, if someone has, say a section of land, a square mile, either—a square mile. And picks out a 10-acre plot at one edge of that and applies for zoning use and claims that it’s denied, he claims to have been denied all economic use. That the fact that he has a remaining everything square mile minus 10 acres means that that has to be taken into consideration, too?
GENERAL WHITEHOUSE: Yes, I think it is, Your Honor.
QUESTION: I don’t think our cases support that.
GENERAL WHITEHOUSE: Well, the most recent—I would go back to, for instance, at the earliest expression the Penn Central case, which used the term parcel-as-a-whole and from which the parcel-as-a-whole discussion has emerged and then most recently in Justice Scalia’s concurring opinion in the Suitum [v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997),] decision, you referred to the relevant property as the aggregation of all the owners property subject to the regulation at least those that are contiguous.
QUESTION: We don’t generally get our law out of concurring opinions.
GENERAL WHITEHOUSE: That’s correct, Your Honor. But I believe—
QUESTION: But in the Chief’s hypothetical, what if he then sells off all except the 10-acre plot and then reapplies, and the 10-acre plot is again denied to development, then there’s been a taking. It’s such a silly result. There is not in the first case, because he hasn’t yet sold off the rest of the one square mile, but if he sells off the rest of the one square mile, and makes the very same application, gets the very same result, then there’s been a taking. That seems to me very strange.
Transcript of Oral Argument, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 196990, at *29–30 (Feb. 26, 2001) (italics added).
342 Palazzolo v. Rhode Island, 533 U.S. 606, 631–32 (2001). Indeed, the issue of the denominator was not included in the questions presented, and only raised by counsel for Mr. Palazzolo in the brief on the merits as an analog to the doctrine of physical invasions, Petitioner’s Brief on the Merits, supra note 18, at *45, and when responding to an amicus brief that suggested no compensation is due whenever anything of value remains on the property. See Petitioner’s Reply Brief, 2001 WL 57593, at *19, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
343 See generally Palazzolo, 533 U.S. 606.
344 Id. at 631 (citing Fee, supra note 321). The Palazzolo majority further stated: “Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole . . . ; but we have at times expressed discomfort with the logic of this rule, . . . a sentiment echoed by some commentators.” Id. (citations omitted).
In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Court backtracked a bit, restating in dicta the parcel-as-a-whole rule as articulated in cases like Andrus v. Allard, 444 U.S. 51 (1979), and Concrete Pipe & Products of California, Inc. v. Construction Laboreres Pension Trust, 508 U.S. 602 (1993). See 122 S. Ct. 1465, 1481–83 (2002).
345 See Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1019 n.8 (1992).
346 See id. at 1064 (Stevens, J., dissenting).
347 Id. at 1019 n.8.
348 See id. at 1015–19 nn.6–8.
349 Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21, 23–24 (1999).
350 21 Cl. Ct. 161 (1990), judgment entered by 23 Cl. Ct. 653 (1991), vacated and remanded by 18 F.3d. 1560 (Fed. Cir. 1994).
351 See id. at 176.
352 See Fla. Rock Indus., Inc. v. United States, 18 F.3d 1560, 1567–68 (Fed. Cir. 1994).
353 See id. at 1563.
354 See discussion infra Part II.
355 18 F.3d 1560, 1573 (Fed. Cir. 1994).
356 See id. at 1565–66.
357 See id. at 1568–69.
358 438 U.S. 104 (1978).
359 See Fla. Rock Indus., Inc. v. United States, 18 F.3d 1560, 1570–71 (Fed. Cir. 1994).
360 But see Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1577 (10th Cir. 1995) (rejecting the partial takings analysis of Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), in the context of an alleged taking of big game hunting rights).
361 Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21, 43–44 (1999).
362 49 Fed. Cl. 248, 271–72 (2001).
363 See id. at 271 n.37.
364 No. 266-82 L, 2000 WL 331830 (Fed. Cl. Mar. 28, 2000).
365 26 Cl. Ct. 332, 332 (1992). The federal government declined to appeal this award.
366 Id. at 341.
367 Id. at 337.
368 See id. at 340.
369 Id. at 341.
370 See id. at 340.
371 801 F. Supp. 185 (N.D. Ind. 1992).
372 See id. at 187.
373 See id. at 197–98.
374 Id. at 198.
375 See id.
376 705 A.2d 1221 (N.J. Super. Ct. App. Div. 1998), aff’d, 723 A.2d 943 (N.J. 1999).
377 See id. at 1228. See also East Cape May Associates v. State, New Jersey Department. of Environmental Protection, 693 A.2d 114, 124–29 (N.J. Super. Ct. App. Div. 1997), for a particularly detailed discussion of the relevant parcel issue.
378 747 A.2d 192 (Me. 2000).
379 See id. at 193–94.
380 772 So. 2d 540 (Fla. Dist. Ct. App. 2000), appeal denied sub nom. Burgess v. State, 791 So. 2d 1095 (Fla. 2001) (table decision), cert. denied sub nom. Fla. Dep’t of Envtl. Prot. v. Burgess, 122 S. Ct. 615 (2001).
381 Id. at 543.
382 See, e.g., Douglas T. Kendall et al., Takings Litigation Handbook 196–204 (2000).
383 Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1034 (1992) (Kennedy, J., concurring).
384 See, e.g., Richard J. Lazarus, Putting the Correct “Spin” on Lucas, 45 STAN. L. REV. 1411, 1427 (1993) (“Instead, the negative implication of the category’s nonapplicability will dominate the lower courts’ takings analyses. These courts will likely apply the opposite presumption that no taking has occurred.”). This is also, of course, what the Rhode Island Supreme Court essentially did in Palazzolo when it concluded its evaluation of economic impact upon finding that some value remained in the property. See Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 717 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001); see also Plantation Landing Resort, Inc. v. United States, 30 Fed. Cl. 63, 69 (1993) (finding that the court need not explore other factors referred to in Penn Central and later cases because there was no denial of economically viable use), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (table decision).
385 See Lucas, 505 U.S. at 1012 (finding that “temporary deprivations of use are compensable”); id. at 1013 (commenting on “beneficial use of . . . land”); id. at 1014 (“If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared.’” (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)); Lucas, 505 U.S. at 1015 (finding “categorical treatment appropriate where regulation denies all economically beneficial or productive use of land”); id. at 1016 (“[T]he Fifth Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests or denies an owner economically viable use of his land’” (quoting Agins v. Tiburon, 447 U.S. 255, 260 (1980)) (emphasis added)); Lucas, 505 U.S. at 1016 n.6 (commenting on “economically beneficial use of . . . land”); id. at 1016 n.7, 1017 (stating that “deprivation of all economically feasible use” and “all economically beneficial use” and “total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation”) (quoting San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 652 (1981) (Brennan, J., dissenting)); Lucas, 505 U.S. at 1018 (discussing “all economically beneficial uses” of land and “economically beneficial or productive options for its use”); id. at 1019 (commenting on “preventing developmental uses” and concluding that to “sacrifice all economically beneficial uses in the name of the common good, that is, to leave . . . property economically idle” would result in a taking); id. at 1027 (discussing “all economically beneficial use” of land); id. at 1030 (discussing “all economically productive or beneficial uses of land”); id. at 1031(noting that although “common-law principles would have prevented the erection of any habitable or productive improvements on petitioner’s land; they rarely support prohibition of the ‘essential use’ of land”).
386 Lucas, 505 U.S. at 1007 (stating that regulation has a “dramatic effect on the economic value”); id. at 1016 n.7 (discussing property interest “against which the loss of value is to be measured” and concluding that it is “unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole”); id. at 1026 (holding that regulation “wholly eliminated the value of the claimant’s land”).
387 Palazzolo v. ex rel. Tavares, 746 A.2d 707, 713–157 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
388 Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001) (quoting Lucas, 505 U.S. at 1019).
389 Id. at 632.
390 Id.
391 Id.
392 505 U.S. at 1017 (alterations in original) (quoting 1 Edward Coke, The First Part of the Institutes of the Laws of England ch. 1, § 1 (1st Am. ed. 1812)).
393 See, e.g., Kendall et al., supra note 382, at 197. This rationale was also adopted by the Ninth Circuit. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 781 (9th Cir. 2000) (equating “profits” with value), reh’g denied, reh’g en banc denied, 228 F.3d 998 (9th Cir. 2000), aff’d, 122 S. Ct. 1465 (2002).
394 Coke, supra note 392, ch. 1, § 1.
395 For a more extended treatment of the use versus value debate, see James Burling, Can the Existence of Value in Property Avert a Regulatory Taking When Economically Beneficial Use Has Been Destroyed?, in TAKING SIDES ON TAKINGS ISSUES 451 (Thomas E. Roberts ed., 2002).
396 45 Fed. Cl. 21 (1999).
397 See Palazzolo v. Rhode Island, 533 U.S. 606, 632 (2001).
398 See id. at 618 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).