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 128586 (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 landowners original application, and after the landowner had filed a claim for inverse condemnation. 46 Fed. Cl. 538, 53941 (2000). The Court of Federal Claims was unimpressed by the governments attempt to avoid liability, finding that it lacked the authority to grant the permit that had never been sought. Id. at 54749.
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 thatin 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).
The . . . Courts 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, 9394 (1980) (Marshall, J., concurring).
[T]here is, we think, a core notion of constitutionally protected property, and a states 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 ofindeed altogether opt out of¾both the Takings Clause and the Due Process Clause simply by statutorily recharacterizing traditional property-law concepts.
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 governments 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).
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.
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 31819.
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.
QUESTION: Is itis it your position, General Whitehouse, if someone has, say a section of land, a square mile, eithera square mile. And picks out a 10-acre plot at one edge of that and applies for zoning use and claims that its 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 dont think our cases support that.
GENERAL WHITEHOUSE: Well, the most recentI 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 Scalias 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 dont generally get our law out of concurring opinions.
GENERAL WHITEHOUSE: Thats correct, Your Honor. But I believe
QUESTION: But in the Chiefs 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 theres been a taking. Its such a silly result. There is not in the first case, because he hasnt 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 theres 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 *2930 (Feb. 26, 2001) (italics added).