The Property Rights Issue

Robert Meltz
Legislative Attorney
American Law Division

January 20, 1995

95-200 A

CONTENTS

SUMMARY

I. Some Basics
A. Public Goals and Private Rights
B. Whys and Whos of the Property Rights Debate
C. The Concern with Land
D. Unresolved Threshold Issues

II. Takings Law Overview
A. History
B. Supreme Court Takings Law Today
C. Takings Law in the Lower Courts of Greatest Interest to the Federal Government

III. Federal Programs That Raise Takings Issues

IV. Federal Property Rights Legislation
A. Before the Property Rights Movement
B. Property Rights Movement Approaches
C. Pros and Cons: Assessment Bills
D. Pros and Cons: Compensation Bills

V. Elaboration on Two Key Issues Underlying Property Rights Legislation
A. Whether Amendments to the Federal Programs of Greatest Concern Might Be Sufficient
B. Adequacy of the Constitutional Remedy

VI. Conclusion

SUMMARY

The property rights issue arises because societal goals are sometimes pursued through government restrictions on the use of private property. At bottom, it is the age-old conflict between public goals and private rights.

The property rights issue has flared up because of (1) an increase in government restrictions on private land use in recent decades, (2) increased Supreme Court protection of private property, and (3) the political appeal of the property rights issue as an indirect means for easing regulatory controls. Almost always, it is land, rather than some other form of property, on which the debate centers. Two threshold issues deserving treatment in the debate are the definition of a property right, and how much such rights actually are being affected by federal programs.

The property rights issue should not be confused with the takings issue, which deals solely with how the courts interpret the Takings Clause of the Fifth Amendment. The issues are linked, however, since a premise of the property rights movement appears to be that relegating owners to their constitutional remedy is unjust.

As it applies to real property, Supreme Court takings law requires plaintiff to first show a cognizable property interest, and then to satisfy ripeness requisites. As to the taking question itself, plaintiff must show that the effect of the government use restriction on his property is severe, as measured by case-by-case application of the "Penn Central factors." In a few circumstances, a per se taking rule applies, as when government effects a permanent physical occupation or complete elimination of economic use (without implicating the "nuisance exemption"). If a taking is found, compensation must be paid.

Recent takings lawsuits against the United States stem from a wide range of federal programs, though Congress focuses chiefly on the environmental ones. Federal environmental programs involved in a significant amount of takings litigation in recent years include the wetlands program, mining restrictions, rails to trails, and Superfund cleanups. The Endangered Species Act has generated only a handful of cases, but one cannot necessarily infer therefrom that the Act is having little impact on private property.

Most property rights legislation falls into either the assessment bill or compensation bill category. Assessment bills call on federal agencies to evaluate the takings implications of their proposed actions, while compensation bills set a statutory threshold for compensation independent of the Constitution. Intense policy arguments swirl around each. Two issues worthy of special attention are whether amendments to the federal programs of greatest property rights concern might obviate any need for free-standing property rights legislation, and whether the constitutional compensation remedy is adequate.

We've always had property rights. But now we have a property rights movement and a property rights issue. In just a few years, the notion that government efforts to protect environment, public health and safety, natural resources, historic sites, and so on may threaten the rights of property owners has gone from occasional mention to ubiquitous political presence. Roughly two dozen bills containing provisions explicitly directed at protecting property rights were introduced in the 103rd Congress. (1) Most observers believe that the new political makeup of the 104th Congress and the existence of a property rights provision in the House Republican "Contract with America" signal even greater congressional attention to the issue.

I. Some Basics

A. Public Goals and Private Rights

The property rights issue arises because societal goals are sometimes pursued through government restrictions on the use of private property. Reduced to its essentials, the issue is but another aspect of the multifaceted tension in any society between public goals and private rights. The property rights controversy is made particularly intractable by the fact that some of the public goals (such as environmental integrity) and the private right (in property) are among our most fundamental and broadly supported.

Assuming that Congress continues to embrace regulatory means for achieving these goals, the property rights issue will remain with us. Stated in economic terms, as the issue often is, the question is where the cost burden of public programs should fall. If Congress does not intervene and leaves property owners to their constitutional remedy in the courts, some costs will inevitably fall on property owners. This is because landowner wins in constitutional "taking' lawsuits are few. On the other hand, if Congress creates a generous compensation remedy for landowners, the costs will fall more heavily on the taxpaying public, or alternatively produce a major rollback in regulatory programs affecting private land.

Striking this balance between public and private costs is inevitably bound up with political philosophy -- with one's view of the proper balance between the interests and responsibilities of society on the one hand, and those of the individual on the other.

B. Whys and Whos of the Property Rights Debate

Certainly a key reason for the burgeoning property rights movement is that at all levels of government, restrictions on the use of private land have become more common in recent decades. Such regulation has long existed; indeed, it was well established in colonial times. (2) Yet today these controls --federal, state, and local -- appear to be more pervasive, and are often accused of being vague and arbitrarily enforced. The filling in of certain wetlands, the serious modification of endangered species habitat, the strip mining of land, the use of contaminated land -- all of these activities have been subjected to federal restriction only since the 1970s. Two high-profile incidents that catalyzed the property rights movement were the federal government's adoption in 1989 of an expansive definition of wetlands (since abandoned) and the designation of the northern spotted owl as a threatened species in 1990, requiring logging restrictions on old-growth forest in the Pacific Northwest.

A second reason for the movement's ascendancy, obviously an outgrowth of the first, is the drift of the U.S. Supreme Court in recent years toward expanded protections for property owners under the Takings Clause of the Fifth Amendment. (3) These decisions of the High Court have been subjected to intense media and scholarly scrutiny. In a related vein, the movement has drawn inspiration from a prominent libertarian reinterpretation of the Takings Clause by Professor Richard Epstein. (4)

A third factor is the political appeal of the property rights issue as an indirect mechanism for bringing about legislative retrenchment of environmental and other federal programs. Some scholarly comment on President Reagan's "federal takings" executive order of 19885 saw the order in this light, as aimed at regulatory reductions as much as protecting property rights, (6) and its legislative counterparts today may serve the same dual function. Prior to the Republican electoral sweep in 1994, the perception was that a Democrat-controlled Congress would be unlikely to significantly curtail regulatory environmental programs. Hence, bills aimed nominally at protection of property rights, but likely as well to bring about an easing of environmental regulation, became appealing vehicles to some Members.

By and large, supporters of the property rights agenda come from three identifiable groups. (7) The first consists of landowners -- sometimes of modest means, sometimes not -- who have personally experienced governmental frustration of proposed land uses, or fear they someday might. In addition, this group includes those who do not wish their lands condemned for inclusion in national parks, wild and scenic rivers, etc. -- the assurance of compensation through the condemnation proceeding notwithstanding. Descriptions of encounters between individual landowners and the government provide the property rights movement with its most emotionally appealing, though often most anecdotal, cases in point.

The second group embraces industries with direct economic interests in reducing government regulation of land -- both their own and federally owned. Most obviously, it includes real estate developers, farmers, ranchers, and the extractive industries (mining, timber, oil and gas). (8) The third group consists of those who come to the property rights issue as a matter of political philosophy -- conservatives, libertarians, certain economists, and others who adopt a platform of minimal government presence and/or market (rather than regulatory) solutions.

Opposed to property rights legislation are a wide array of groups that stress the societal benefits deriving from government's ability to regulate private property use, and regard such legislation as hindering that ability. While environmentalists are undoubtedly key players, there are many others. Also included are certain groups representing hunters and fishermen, historic preservationists, labor, the handicapped, senior citizens, consumers, architects and planners, and scientists. Some civil rights and public health organizations have voiced opposition as well, as have some religious groups. Finally, several groups representing state and local governments have urged Congress not to enact property rights legislation. (9)

C. The Concern with Land

Typically, when property rights proponents plead their case, the focus is on direct government interference with the use of privately owned land --secondarily, perhaps, water rights. Only rarely is it suggested that the countless actions taken by government that indirectly affect property value -- taxes, interest rates changes, trade policy, relocation of government employees, permitting of locally undesired facilities, highway construction, etc. -- should figure in the debate. Neither is it often claimed that property other than land and water rights should be of major concern.

Why this focus on land, rather than personal property, is itself a fascinating question. No one appears to advocate that when the Federal Reserve Board hikes the federal funds rate and stock prices tumble, the government should compensate for the diminution of stock value. To what extent are the reasonable expectations of a stock owner, in terms of future value fluctuations, different than those of a landowner? Is it that the stock owner may be assumed to know that the risk of substantial losses is part of the game, while such risk traditionally has not been a concern of the landowner? Or should the landowner, too, be held to expect wide fluctuations, given the ubiquity of government land-use regulation today? (10)

A major factor explaining the land emphasis in the property rights debate is the unique status of land among species of property. Questions of land use "are inexorably tied up with issues about the nature of society, issues of freedom and responsibility, community and democracy." (11) A key attraction of the New World to Europeans prior to the Twentieth Century was land, often granted by the Crown or colonial and federal governments on generous terms. (12) Indications are that the Framers, most of them major landowners, viewed private property as securing a sphere of personal liberty against arbitrary government. (13) More recently, the Supreme Court indicated it would be less deferential to government regulation of real property, as contrasted with personal property, in adjudicating takings challenges. (14)

In any event, there are two principal ways that government programs in the United States directly affect private land use. First, government may physically invade private land, by its own agents or by external forces set in motion by government actions. The classic example, amply reflected in the early Supreme Court takings cases, is when government dams, levees, etc., cause flooding of private land lying outside the flowage easement condemned. A contemporary illustration is the Superfund cleanup, in which a private landowner may be required to allow installation of monitoring equipment for an indefinite period.

It is not physical invasions, however, but rather use restrictions, that are the flash point in the property rights controversy. The targeting of use restrictions may be because permanent physical invasions, no matter how minor, are per se compensable under constitutional takings law. Hence, invasive government actions are usually accompanied by formal condemnation proceedings in which the landowner is compensated. By contrast, for a mere use restriction to trigger constitutional compensation the drop in land value must be severe. The contention of the property rights movement is that government has become callous to such non-physical, regulatory impacts on landowners because it knows that few will meet the constitutional threshold for compensation. Environmentalists and others dispute the charge, however, and argue that forcing government to pay for less-than-severe restrictions on land use would be prohibitively expensive, compromising the achievement of social goals that polls indicate are widely endorsed by the American public.

D. Unresolved Threshold Issues

The property rights debate tends to mire down in part because no one knows precisely how much adverse (or beneficial) impact on private landowners federal programs are having. Property rights groups tell of small landowners being robbed of any economic use of their property, and developers being needlessly delayed, by arbitrary federal bureaucrats; environmental groups assert that such instances are relatively few and that in any event there is no right to put one's land to harmful use. The Corps of Engineers notes that out of 15,000 individual wetlands permits applied for each year, only 500 are denied, but opponents allege that many wetland owners withdraw their applications out of frustration with the process, or because they believe the permit will be denied. No detailed survey of the private property impacts of any federal program appears to exist, and given the complexity of the issue, there may never be one.

Yet another basic issue -- what is a property right? -- is often left entirely unmentioned in the property rights debate. Almost no one asserts that property rights are absolute and unqualified, such that the purchase of land confers upon its owner a right to compensation for any subsequently adopted use restriction. Most property rights advocates acknowledge that the right to use one's land is limited by the ancient common law maxim "Sic utere too at alienum non laedas" -- one should use his own property so as not to injure others. But the range of injuries conceded to condition property rights under this maxim is narrow --often, only direct, physical impacts on the property of one's neighbors such as would constitute common law nuisance. (15)

By contrast, those more kindly disposed to government programs that may restrict property use point out that property rights historically have evolved. Such evolution, it is contended, has been driven by new societal understandings and values, even when to the disadvantage of existing owners. (16) The evolving-rights view is embodied in the Supreme Court's Lucas decision, which teaches that no taking occurs when a government restriction could have been imposed under nuisance or property law existing when the plaintiff's land was acquired. (17) Under this rule, a change in the law means that a subsequent buyer of an affected parcel obtains a different bundle of property rights than his predecessor had. 18 Regulatory advocates also cite the adage about the landowner's rights being limited when harms may result, but for them the range of conditioning harms is broader than for property rights advocates, embracing not only direct harms to one's neighbors but also indirect impacts on endangered species, ecosystem services, and biodiversity. (19)

Each side has a weakness. That of the property rights position is its resistance to acknowledging the historical mutability of property rights as societal values and priorities change. That of the other side is its resistance to accepting any bounds on that mutability -- that is, on the government's ability to define which property uses will be deemed harmful, hence regulable without compensation.

II. Takings Law Overview

The property rights issue should not be confused with the "takings" issue. The takings issue, strictly speaking, deals with how the courts determine when the Takings Clause of the Fifth Amendment demands compensation. It is a matter of constitutional law. By contrast, the property rights issue is much broader, embracing a lengthy agenda of proposals by which government interferences with private land use might be minimized, or might trigger compensation beyond what is constitutionally required. It is a matter of policy.

But while the two issues are different, they are inextricably linked. The takings issue may be regarded as the point of departure for the property rights issue, since a premise of the property rights movement is that the current system of redressing landowners by requiring them to file "taking" suits against the government has not proved fair and just to landowners. Thus, a brief sketch of the case law interpreting the Takings Clause is needed at this point. (20)

A. History

The Takings Clause is a late bloomer. It was almost a century after the Bill of Rights' adoption before the Supreme Court, in 1871, granted that the Takings Clause could be invoked by the landowner against the government, as contrasted with its traditional use in an eminent domain action by the government against the landowner. (21) After that, it was another half century, until 1922, before the Court was willing to expand the availability of such landowner "taking" actions from physical invasions and outright appropriations of land to mere regulation of land use, the hot topic today. (22) And after taking that bold step -- the birth of the "regulatory taking" concept -- the Court largely ignored the land use aspects of its new doctrine for yet another half century.

It was not until 1978 that the Supreme Court began a sustained effort to inject order into this frustrating area. In that year, in Penn Central Transportation Co. v. New York City, the Court found that application of New York City's historic preservation ordinance so as to block the construction of a 40-story office tower atop Grand Central Station effected no taking. (23) In reaching its holding, the Court set out a comprehensive, yet vague, list of "influential factors" for fixing the line between compensable and noncompensable regulation. These factors, repeated mantra-like since 1978 by almost every court deciding a regulatory taking case, are (1) the economic impact of the government action, (2) the extent to which the government action interfered with reasonable investment-backed expectations, and (3) the "character" of the government action. (24)

At the same time as it announced the above three factors, the Penn Central court reiterated that whether a government regulation is a taking cannot be based on mechanical application of fixed principles. Rather, it is a determination based on "fairness and justice," combining close scrutiny of the facts with ad hoc, case-by-case analysis. (25) Thus, Penn Central factors notwithstanding, takings law continued to be sensitive to the balancing of interests and harms in each particular case, though inevitably at the expense of clarity and predictability of outcome.

In the seventeen years since Penn Central, the Supreme Court has maintained its presence in the takings area through more than two dozen decisions. This case law began what will doubtless be a continuing effort by the Court to lend greater clarity to this murky -- some would say incoherent -- realm of constitutional law. Decisions during this period tackled a variety of questions as to ripeness (When is a taking claim sufficiently concrete to warrant judicial intervention?), standards for determining takings (as for physical invasions, complete elimination of economic use, conditions on permits, etc.), and remedy (Once a court finds a taking, what response does the Takings Clause require?). Despite its general preference for ad hoc analysis of takings claims, the Court in these decisions identified several circumstances where a "bright line" rule applies -- that is, where the complex balancing of Penn Central factors can be bypassed.

With some exceptions, one may say that the Court's more recent decisions (1987 to the present) moved Takings Clause jurisprudence toward greater protection of property rights. However, this move has been modest -- much less than many conservatives might desire. To date, for example, the Court has never found a regulatory taking in the absence of a governmental physical invasion of land or a virtually total elimination of a tract's economic use.

As, for the future, the balance between the Court's conservatives, moderates, and liberals will be key. Votes in several of the Court's recent land use/taking cases make unequivocally plain that where a justice stands on the taking question may depend largely on his or her political philosophy. Justices Rehnquist and Scalia, generally regarded as among the Court's most conservative members, have emerged as strong advocates for greater private property protection. Justices generally regarded as liberal or moderate, such as Stevens and Blackmun, have usually taken the government side. Compounding the importance of this ideological element is the fact that many of the recent land use/taking cases in the Court were decided on razor-thin margins. (26) Thus, future appointments to the Court may be pivotal.

B. Supreme Court Takings Law Today

Given the ambiguity of some Supreme Court takings decisions, here is as clear a synthesis of the Court's takings law that one can offer -- as it applies to real property.

First, plaintiff must demonstrate the existence of a property interest, one which he or she owned on the date of the alleged taking. (Lately, the lower federal courts, perhaps taking a cue from the Lucas rationale, have added a requirement that plaintiff show a "compensable expectancy" in the use sought to be made of the property.)

As a second threshold matter, the takings plaintiff has to avoid dismissal on ripeness grounds. To succeed in this, plaintiff must, before suing, obtain a final and authoritative determination from government as to what use may be made of the land. The fact that a government agency has merely asserted jurisdiction over a property is not by itself a basis for a taking, since the requisite agency approval, once applied for, may be granted. Showing merely that one's first choice for how to develop a tract has been rejected also is not enough, since scaled-down (yet still economically viable) versions of the project may be approved. If approval is denied, plaintiff must exhaust all possibilities of variances or other administratively granted exceptions, unless pursuing them would be futile under the circumstances. Finally, plaintiff must exhaust any avenues for administrative compensation (rarely available at the federal level).

Once these hurdles are surmounted, the case moves to the taking issue itself. Here, it is useful to organize discussion around the Penn Central factors noted above.

First, the "economic impact" factor. The Court has been emphatic that not all economic impacts and diminutions in land value as a result of government action are takings. In fact, the recitation of economic impact as a taking factor notwithstanding, it seems that very few such injuries are. For example, there is no right to put land to its most profitable ("highest and best") use. Rather, it seems that all, or nearly all, economic uses of a parcel must be eliminated by a regulation before the taking claim is viable. Using the parallel concept of value loss, the Court has said that diminutions in land value, standing alone, are never sufficient to ground a taking claim, and has upheld government regulation subjecting properties to 92-1/2 and 75 percent value loss.

When, however, the economic impact of the government's action reaches the degree that all use of a parcel has been destroyed, there is a categorical taking -- no other Penn Central factors need be considered. Even in this extreme case, however, there is an exception. If the uses proposed by the landowner could have been prevented under background principles of nuisance and property law existing at the time the land was acquired, there is no taking. One should not be compensated, reasons the Court, for the denial of a right one never had. Apparently, such "background principles" may be drawn from both common law and statutory law, both federal and state.

Second, the "interference with reasonable investment-backed expectations" factor. Though actually a corollary of the economic impact factor, investment-backed expectations are usually discussed separately. Underlying this factor is a land purchaser's reliance interest in being able to realize the lawful use or uses of the tract that motivated the purchase. This factor has been developed chiefly in the land use/taking decisions of the lower courts.

In gauging either economic impact or interference with investment-backed expectations, courts look at the "parcel as a whole," not merely the affected portion.

Third, the "character of the government action" factor. First and foremost, this factor subsumes the great divide in takings law between physical and regulatory interferences with private property. Because a physical invasion undermines the most precious property right -- the right to exclude others -- it has consistently been subjected to greater judicial scrutiny in takings cases. Physical occupations, when they are permanent and not consented to, are per se takings in most instances. On the other hand, temporary physical invasions may or may not be takings, depending on which way the other Penn Central factors point.

A second major component of the "character" factor is the rules for the dedication and exaction conditions often imposed by governments as preconditions for granting a development permit. Such conditions must address the same problems as the permit scheme itself, and may not impose a burden on the permit applicant that is greater than "roughly proportional" to the burden that the proposed land use would impose on the community. A failure to meet these mandates is a per se taking.

A third major component is interest balancing. Though often only implicit in the Court's decisions, it seems that a weighing of the government purpose being advanced by the property restriction against the burden on the property owner remains part of takings law.

Often part of "character" analysis, too, is the degree to which impacts on landowners are accompanied by offsetting benefits; the phrase "average reciprocity of advantage" is often mentioned by the Supreme Court in this regard. The classic illustration is zoning law, which may limit the use of a parcel but benefit it as well, by similarly restricting the use of neighboring properties. Still other judicial inquiries often made under the rubric of "character" analysis are whether the burdens of the government act are borne by a few but the benefits shared in by many, and whether a property owner has been singled out to bear greater burden under the regulatory program than others similarly situated.

If after applying these factors or per se rules a court discerns a taking, the property owner must be compensated. But the government has options. At least where practical, it may rescind its offending action and pay the owner solely for the temporary taking during the time that the action was in effect. Or, it may leave the action in place, accepting liability for the permanent taking of property.

C. Takings Law in the Lower Courts of Greatest Interest to the Federal Government

While the Supreme Court's decisions on takings are obviously important, only a miniscule portion of litigation ever reaches that stratospheric level. For takings claims against the United States, the large majority of cases are finally determined in the U.S. Court of Federal Claims, a trial court, and the U.S. Court of Appeals for the Federal Circuit, with appellate jurisdiction over the Court of Federal Claims. Under the Tucker Act, almost all takings claims against the federal sovereign must be filed in the Court of Federal Claims, (27) placing this once-obscure court at the eye of the storm.

For two additional reasons, the takings decisions of these two lower courts have taken on particular significance. First, there are elephant-sized gaps in the Supreme Court's case law on takings -- major issues that the Court has not yet had the opportunity or will to resolve. This provides a vacuum for the lower courts to fill. Second, where the High Court has spoken, there have been a number of takings law assertions by the Court of Federal Claims and Federal Circuit that are not easily reconciled with Supreme Court jurisprudence. (28)

III. Federal Programs That Raise Takings Issues

Even a quick scan of the court decisions reveals that takings issues may arise, if circumstances are right, in a broad array of federal programs. Judicial takings decisions from 1990 on implicate roughly twenty federal programs, most of them but once or twice. About a half of these decisions involve land, and about one third involve environmental regulation. But the largest single category of takings court decisions -- and of currently pending takings cases as well -- arises in a context quite remote from land or the environment: federal involvement with failing financial institutions. (29)

In contrast with this wide spectrum in the court cases, congressional attention to property rights often targets one area in particular: environmental regulation. Much of the property rights debate on Capitol Hill has been over the federal wetlands program and the Endangered Species Act. Indeed, in every instance where a property rights bill in the 103rd Congress was made applicable less than governmentwide, application was restricted to one or more federal environmental programs. (30)

Following is a list of the federal environmental programs that have generated a significant amount of takings litigation in recent years:

1. Wetlands protection. Under the Clean Water Act, covered wetlands cannot be filled without a permit from the Corps of Engineers. (31) But about 75 percent of these "jurisdictional wetlands" are in private ownership, and a wetland that cannot be filled often has little residual economic value. As a result, permit denials by the Corps have prompted the filing of taking actions in about 40 instances since the program's inception, more than for any other federal environmental program. A fair portion of permit-denial cases that have generated a decision have yielded property owner victories. The Supreme Court quite recently declined to hear a wetlands/taking case, (32) but another is being considered for petition to that Court by the Department of Justice. (33)

2. Mining regulation. Holders of mineral rights in lands to which the United States owns the surface are often restricted or regulated in the exercise of those rights. Moratoria on processing of claims under the General Mining Law (34) have also affected mining companies. Still further, restrictions on coal mining in the Surface Mining Control and Reclamation Act (35) (SMCRA) may thwart the plans of mine operators on or off federal lands. SMCRA provisions that have sparked takings challenges include the restrictions on surface mining on prime farmlands or on alluvial valley floors, agency declarations of unsuitability, and the general authority of the Department of the Interior to protect public health and safety.

Takings attacks on federal mining regulations have been to the Supreme Court several times, but have never resulted in a ruling for plaintiffs in that court. (36)

3. Rails to trails. Concerned about the continuing loss in railroad trackage, Congress in 1983 amended the National Trails System Act to create a procedure whereby unused railroad rights of way might be converted into recreational trails pending possible reactivation for railroad use. (37) Where the railroad owns only an easement in the right of way, however, conversion to trail use arguably may take the reversionary interests of the owner of the underlying title to the right of way -- depending on the terms of the easement and other factors. A key decision in this area is expected from the Federal Circuit soon. (38)

4. Supefund cleanups. Site cleanups under the Superfund Act (39) may involve use of monitoring devices and servicing personnel on contaminated property against the wishes of the landowner, and also may interfere with economic activity. Administrative settlements may seek to deny causes of action claimed to have property status. (40) As a result, several takings actions are now pending. The only federal appellate decision in the field, based on coercive installation of groundwater monitoring wells, went against the United States. (41)

Conspicuously absent from the list above is the Endangered Species Act (42) (ESA), a statute often in the sights of the property rights movement. Unlike the statutes above, the ESA has produced only a handful of constitutional taking actions in its 22-year history -- none of them finding a taking. However, what this dearth of cases signifies is hotly debated. Property rights activists suggest that the practical and jurisprudential difficulties of winning a taking action are the culprits, but this does not explain why the wetlands program has generated so much takings litigation, difficulties notwithstanding. Also suggested is that the ESA's costly procedural hoops and wide latitude for agency interpretation discourage land users from even initiating projects, so that court-case statistics do not accurately reflect private property impacts. (43)

An ESA case recently accepted by the Supreme Court goes to the very heart of the Act's intersection with private land use, though it does not raise a constitutional taking issue. In Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, the D.C. Circuit held 2-1 that the ESA prohibition on "taking" endangered animals (unrelated to constitutional taking) does not authorize the Fish and Wildlife Service to prohibit adverse modification of species habitat per se. (44) Rather, the court held that the "take" prohibition is much narrower, reaching only the application of force directly to a covered animal. If the D.C. Circuit's view is upheld over the contrary ruling of another circuit, the impact will be significant. Almost all observers believe that the ESA's impact on private property will be greatly reduced, while many question whether the program can remain effective. A decision by the Court is likely in June, 1995.

Like the ESA, many other environmental programs that have yet to generate much takings litigation may be drawn into the property rights debate, highlighting again that the debate goes well beyond the litigation. Candidates include the nonpoint-source provisions of the Clean Water Act and the wellhead protection requirements of the Safe Drinking Water Act, among others.

IV. Federal Property Rights Legislation

The bills described today as "property rights bills" use certain characteristic approaches to minimize the impact of government programs on private property and compensate owners. Long before the property rights movement emerged, however, provisions to ease impacts on property owners were common in congressional enactments.

A. Before the Property Rights Movement

In contrast with the new generation of property-rights bills, almost all the older congressional approaches applied narrowly within a specific program. In dozens of laws, for example, Congress has barred the application of regulatory restrictions to "valid existing rights" -- an effort to leave the settled economic expectations of property owners undisturbed (and to avert takings liability). Illustrations of the grandfathering of valid existing rights include SMCRA, the Wilderness Act, and the Wild and Scenic Rivers Act. Other times, Congress has instructed that property owners are entitled to "just compensation" or compensation based on some other formula -- in some cases where the Constitution likely would demand compensation as well, (45) in some cases not. (46)

In the realm of formal condemnations too, Congress has long been codifying its concerns about property owners. Beginning in the nineteen-sixties, Congress took to routinely attaching preconditions and limits on the authority of federal agencies to condemn land. The reasoning was plain enough. Though the Constitution demands that condemnees be paid for the land itself, it does not defray the attendant costs, loss of business, and emotional disruption of having one's land taken. For this reason, Congress on occasion has prohibited agencies from condemning after a specified maximum acreage has been taken, or until all reasonable efforts to acquire land by negotiation have failed, or as long as the land continues to be used as it was on the date a conservation area was created, or until Congress has specifically approved the condemnation in question.

Recognizing that incidental losses to the condemnee can be high, yet are not constitutionally compensable, Congress in 1970 enacted the Uniform Relocation Act (URA) (47). The Act instructs that federal programs (or federally assisted state programs) be planned so as to minimize adverse impacts on persons displaced by acquisition of their property for such programs. Further, the Act mandates compensation of such displaced persons for various incidental losses (expenses for moving, reestablishing a displaced business, etc.), recognizing the constitutional noncompensability of such items. Thus, the URA can be seen as a distant precursor of both the assessment and compensation genres of property rights bills so intensely debated today.

B. Property Rights Movement Approaches

The current generation of bills, associated with the property rights movement, falls largely into two categories. Assessment legislation takes a "front end" approach, requiring federal agencies to assess the takings implications of their proposed actions. Often, as in the Symms prototype discussed below, the chosen means is to prohibit an agency's new regulations from taking effect until its compliance with the 1988 federal-takings executive order (48) or "similar measures" is certified by the Attorney General. Assessment bills do not in any way modify the constitutional standard for what constitutes a taking.

By contrast, compensation legislation takes a "back end" approach, prescribing a statutory standard for compensating property owners once the agency action is taken. Being statutory, this compensation standard is independent of that in the Fifth Amendment of the Constitution. In almost all bills so far, the standard is stated as a percentage of property value lost as a result of final agency action, and is considerably more generous to the property owner than Supreme Court takings jurisprudence. Of course, it is fully within Congress' power to diverge from the Constitution by offering property owners more compensation than does the Takings Clause. (49)

Bills not fitting into either of the above categories include most prominently a proposed requirement that federal agents seeking to enter upon private property to collect information about it obtain the written consent of the owner, and notify the owner of the availability of raw data collected. (50) In some cases, these requirements were supplemented by a prohibition on use of the collected data unless the landowner has been given an opportunity to dispute its accuracy. (51) Also pertinent here was a proposal that certain federal programs be required to comply with state property laws. (52)

The current generation of legislation has a four-year history, beginning with a floor amendment offered in 1990 by now-retired Senator Steve Symms (Republican, Idaho). That proposal sought greater compliance by federal agencies with President Reagan's "federal takings" executive order, issued in 1988. Both the executive order and the Symms amendment had the stated goal of sensitizing federal agencies to the "takings" implications of their proposed actions and avoiding inadvertent drains on the federal disc from taking liability. Environmentalists and others, however, saw in these documents a thinly veiled anti-regulatory agenda.

The Symms amendment of 1990 was rejected, but the issue returned in greater force the following year, when a dozen or so property rights bills were introduced in the 102nd Congress. Indeed, in that year Senator Symms' proposal was passed twice by the Senate, as floor amendments to unrelated bills. In the 103rd Congress, the issue appeared to accelerate further, with some two dozen bills being introduced and the first congressional committee hearing ever devoted exclusively to a free-standing property rights bill. (53) Several key environmental reauthorization bills were blocked by Members, including key committee chairmen, out of concern that property rights and other undesired amendments would be adopted. A Symms-type proposal passed the Senate for a third time (as a Dole/Bumpers/Administration compromise), (54) and a land valuation provision supported by the property rights movement became law as part of the California Desert Protection Act (CDPA). (55) The CDPA provision gave the property rights movement its first, and as yet only, enactment victory at the federal level.

In the 104th Congress, property rights bills are among the first out of the starting gate. Most attention has focussed on the House Republican Contract with America proposal, where provisions for compensating property owners constitute Title IX of the Job Creation and Wage Enhancement Act (introduced in modified form as H.R. 9). Other early entries are the compensation bills of Senator Hatch (S. 135), Senator Gramm (S. 145), and Representative Lamar Smith (H.R. 489), and the assessment bills of Senator Dole (S. 22) and Representative Solomon (H.R. 130). The introduction of more property rights bills in this Congress is nearly certain.

C. Pros and Cons: Assessment Bills

As for assessment legislation, proponents argue that the "federal takings" executive order of President Reagan, together with its implementing Department of Justice guidelines, have been only half-heartedly implemented by the executive branch. And of course, an executive order is easily rescinded. Hence, they say, it is necessary to endorse statutorily the approach of that order (requiring preparation of takings impact assessments before agency action), and to add what the executive order lacks: strong incentives for agency compliance. In the earlier assessment bills, the compliance incentive was a moratorium on new regulations from an agency until it was certified as in compliance with the executive order. More recently, Senator Dole's assessment bills have dropped the regulations moratorium in favor of an express or implied private cause of action to enforce the impact assessment requirement.

Likening the function of a takings impact assessment to that of an environmental impact statement, assessment-bill proponents contend that federal encroachments on private property use would be minimized if agencies had to consider such impacts in advance. The bedrock importance of private property to our society and economic system, they assert, supports a high priority for that goal. They concede that property owners have a constitutional remedy for the more serious such impacts, but point out the limited nature of that remedy, and the practical difficulties of obtaining it.

Opponents of assessment legislation say it imposes yet another layer of red tape (together with proposed risk assessments and cost/benefit analyses) to discourage agencies from acting. Agencies are already sensitive to private property consequences, they assert, owing to public and political awareness of the issue. (56) Moreover, the private property impacts of federal programs are claimed to be overstated.

Nor can takings impact assessments achieve their intended purpose, opponents contend. Courts instruct that whether a government action causes a taking usually can be evaluated only after close scrutiny of how that action affects a specific site. Opponents conclude that assessing the takings implications of proposed regulations of wide application, in the abstract, will be little more than guesswork. It is contended further that any disclosure of impact assessments (as required by S. 22, 104th Congress) would merely augment, rather than reduce, the decibel level of the takings debate, by providing landowners with a litigation roadmap. Finally, allowing a private cause of action to enforce the impact assessment requirement, opponents argue, would generate prodigious litigation and further delay agency action.

D. Pros and Cons: Compensation Bills

Supporters of compensation legislation assert the previously discussed litany of charges against the constitutional remedy: too time-consuming, too expensive, too unpredictable, and requiring too severe an impact on the landowner for success. Having a single, unvarying value-loss threshold as a trigger for compensation, proponents say, would afford greater certainty to both landowner and government agency. And, setting that threshold much lower than the constitutional trigger (as all compensation bills to date have done) would instill a proper respect for private property in federal agencies. To many property rights activists, government elimination of a modest percentage of land value is just as much a taking as are greater interferences.

Supporters are not unmindful of the charge that compensation legislation may be quite costly, and is thus in tension with deficit-reduction goals. They respond, however, that this fiscal drain would be substantial only if agencies continue doing business as usual. More likely, they contend, is that the prospect of massive compensation liability would cause agencies to "mend their ways" and be more cautious when considering actions that may affect private property. (57) Particularly is this so if the legislation demands that compensation payments come out of the agency's appropriated funds, rather the current system whereby takings judgments and settlements are paid from the GAO-administered Judgment Fund. (58)

Opponents charge that compensation bills would eviscerate federal programs that affect the use of private property. Often cited is Justice Oliver Wendell Holmes' observation that "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." (59) They object to the notion that owners be paid for not putting their land to harmful use, (60) and assert that compensation bills do not take into account the offsetting benefits a landowner reaps from environmental or other laws. Most basically, they argue that some modest level of private property impact is the necessary price for achieving broadly supported collective goals, and that the constitutional remedy for the harshest landowner impacts embodies a proper balance between the common good and private rights.

Opponents further stress that to a large extent a property's value derives from the quality of its natural and built environment. Thus, discouraging government from acting against a proposed harmful use of land, they say, results in the harm from that use being visited upon the downwind, downslope, or downstream lands of others. Based on this argument, opponents characterize environmental laws as protective of property values, and property rights legislation as undermining them. Further, opponents assert that three-quarters of the private land in the United States is owned by 5% of the landowning population Thus, compensation bills are predicted to inure largely to the benefit of wealthy interests, not the "little guy."

Finally, opponents raise the "givings" argument. In innumerable ways, they assert, federal actions increase the value of private property -- obvious examples include agricultural subsidies, highway construction, and proximity to federal installations and parks. Since the federal government doesn't require landowners to reimburse it for the enhanced value, why, they ask, should the government have to pay for every reduction in value it brings about?

V. Elaboration on Two Key Issues Underlying Property Rights Legislation

Of the many points of difference noted above between partisans of the property rights debate, two of the more fundamental warrant additional remarks.

A. Whether Amendments to the Federal Programs of Greatest Concern Might Be Sufficient

Assuming that federal programs are causing widespread interference with private property use, (62) as the property rights movement asserts, the issue arises whether such interferences could be adequately minimized solely by amendments changing how the pertinent federal programs operate. Or are statutory provisions explicitly addressing property rights, inserted in program statutes or applied governmentwide, needed in addition?

One difficulty with free-standing compensation legislation, if applied governmentwide, is the careful drafting required so that only those government impacts desired to be covered are in fact so. This is a problem that has plagued past governmentwide bills, which often, and presumably inadvertently, included impacts such as the reduction in real estate values when a military base closes, or when agricultural subsidies are reduced. On the other hand, some proponents of compensation bills argue that this problem can be surmounted, and that a bill restricted to the ESA and wetlands programs, for example, would not address the full extent of the problem.

Here we note only that a variety of landowner-friendly provisions were included in proposed ESA and wetlands program amendments in the 103rd Congress -- often under the label "administrative reform." Several of the leading wetlands bills included provisions that would have set more precise deadlines for Corps of Engineers processing of wetlands permit applications, created an administrative appeals mechanism for permit rulings, and made general permits (involving greatly simplified procedures) more widely available. Likewise, leading ESA bills would have allowed landowners to learn in advance whether a proposed activity was prohibited, authorized habitat conservation plans (HCPs) for candidate species (so that post-HCP listings do not change the ground rules for the landowner), and as an incentive for private species conservation authorized the Secretary to compensate landowners for non-mandatory protection measures.

B. Adequacy of the Constitutional Remedy

Certainly one of the most fundamental arguments advanced for property rights legislation is that for a variety of reasons, relegating property owners to their constitutional remedy under the Takings Clause is unsatisfactory.

Time and expense. One reason for the constitutional inadequacy, property rightists claim, is that takings litigation takes too long and costs too much. To be sure, there are cues suggesting that takings litigation may be more expensive and time-consuming than many other types of litigation. In contrast with petitions for review of agency action, for example, takings litigation is not record-based; the case comes to court with no developed facts. Given judicial insistence that takings determinations are fact intensive, that may preclude resolution by summary judgment, requiring a full trial. Moreover, the law of takings is confused and evolving so that appeals, consuming further time, are commonplace. Property rights advocates have pointed to the existence of multiple appeals in several takings cases. (63) Some takings cases against the United States remain unresolved more than a decade after the action was filed. (64)

A response to this argument, however, is that it may obtain as well for other types of litigation. No systematic study appears to exist of the resource intensiveness or duration of different types of federal litigation, but one suspects that complex commercial and patent litigation, and perhaps others, are on a par with takings litigation.

Data are also scarce on attorney and witness fees. Property rights groups cite the more than one million dollars in fees billed to the plaintiff in one major federal wetlands/taking case, and fees of more than $100,000 appear to be not uncommon. The argument is that only the deep-pockets plaintiff -- big landowners and developers -- can afford to vindicate their property rights in court. The counter-argument is that successful plaintiffs typically get such fees reimbursed by the United States, under the Uniform Relocation Act. (65) But the riposte of the property rights side is that owing to the protracted nature of litigation, reimbursement comes only years after the fees must be paid, restricting the takings field to those who have the ability to front the cash. Again, however, one may ask how true these points are of other litigation areas, too.

Jurisdiction and ripeness. Here, property rights activists make additional points. Before a court can reach the taking claim itself, jurisdiction and ripeness hurdles must be cleared. As to jurisdiction, the property owner cannot challenge the validity of the federal action and claim compensation should its validity be upheld, both in the same court. Rather, separate lawsuits must be filed: the invalidation claim in federal district court, the compensation case in the U.S. Court of Federal Claims. Thus far in the current Congress, only the Hatch bill (S. 135) and its House companion (H.R. 149) have addressed this situation, and it is not clear whether opponents of property rights bills will make it a priority. In any event, a more serious problem for the takings plaintiff, a jurisdictional limitation effectively forcing property owners to choose between their invalidation and compensation claims, was recently eliminated by the Federal circuit. (66)

As to ripeness, Supreme Court takings law does demand that the property owner show at the outset that he or she has obtained a "final and authoritative" government determination as to precisely what development will be allowed, and has exhausted all possibility of special exceptions. Only then is the taking issue properly before the court. This aspect of takings law, however, has been much more of a factor in takings suits over local zoning practices than in challenges to federal programs. In the latter, courts have been quick to accept the initial federal response (e.g., a ruling on a first application for a permit) as satisfying ripeness requirements.

Substantive aspects. More significant than the jurisdictional and ripeness concerns at the federal level are the substantive hurdles of takings law. As noted previously, the challenged use restriction must have a severe impact on the landowner -- eliminating all or nearly all economic use (equivalently, all or nearly all market value) -- before the courts will find a taking. Even then, the restriction is noncompensable if the proposed use is one that could have been prohibited under nuisance or property law existing when the land was acquired. In addition, the court's determination as to how much economic use or value remains once the restriction takes effect is made with reference to the "parcel as a whole." Complete elimination of use or value in only a portion of a contiguous parcel is not compensable. This rule effectively bars constitutional redress in most cases of wetlands permit denials, for example, since the wetland typically is part of a larger parcel still available for economic use.

Any dialogue as to whether this stringent standard is equitable to the property owner is necessarily subjective. Certainly the standard will seem too high to the aggrieved property owner -- indeed, a moderate-diminution-in-value standard probably would. In the past year, a few judges on the Federal Circuit have signalled in dicta that they, too, believe that lowering the current threshold would be appropriate. One has said that regulatory takings should be recognized in some cases even when significant beneficial uses of a property remain ("partial regulatory takings"), (67) while another has endorsed this view. (68)

On the other side of this debate, favoring retention of the current high threshold, are considerations rarely made explicit by courts. Recall Justice Holmes' comment that "[g]overnment hardly could go on" if compensation were routinely Given the expansive coverage of some regulatory programs, it could be asserted more strongly that they "hardly could go on" -- in their current form, at least -- if even a moderate fraction of use limitations triggered compensation. There is a pragmatic concern in the courts that congressional mandates not be undermined without clearcut reason, and a conviction that major programmatic adjustments are the province of the legislature, not the courts. This judicial deference, often expressed through the general rule that government actions are to be presumed valid, may underlie the high constitutional threshold.

Then, too, the regulatory takings concept emerged at a time when the Supreme Court accepted only appropriation and physical invasion as a basis for compensation under the Takings Clause. Thus, it was natural that courts would view only the most severe regulatory interferences with property, arguably the equivalents of government appropriation and physical ouster, as similarly worthy of constitutional cognizance.

However one views the current jurisprudence, there is no arguing with one fact: only a small portion of takings lawsuits against the United States, or involving federal statutes, yield property-owner victories. CRS reports reveal the following figures: (70)

Takings challenges to state and local government actions historically have produced a similar pattern.

VI. Conclusion

More than most policy issues, the property rights matter implicates philosophical first principles. Still, most parties to the debate probably would agree that if congressional goals can be achieved by more than one course of action, the legislature and agencies should at least take private property concerns into account.

Beyond this, the path becomes harder to make out. The questions that property rights bills (especially compensation bills) raise for Congress are none of them easy ones: What is a property right? How much are federal programs actually affecting them? Assuming that there is substantial effect, is the constitutional remedy adequate? If not, should Congress intervene through programmatic adjustments aimed at minimizing property impacts, program-specific compensation provisions, or free-standing property rights bills of governmentwide application -- or some combination? And if governmentwide compensation laws are favored, can they be drafted so as to leave affected programs still viable, be affordable, and avoid sweeping in government actions not desired to be covered?

Endnotes

1. See Robert Meltz, Property Rights Legislation in the 103rd Congress (CRS Report No. 94-588). Subsequent to the July 22, 1994 release of that report, three additional property rights bills were introduced in the 103rd Congress: S. 2410 (mandating compensation when federal law results in 25% or $10,000 loss, whichever is less, in real property value; introduced by Senator Gramm); S. 2451/H.R. 5073 (mandating compensation when designation of critical habitat under Endangered Species Act reduces value of non-federal land within designated area; introduced by Senator Hutchison and Congressman Smith of Texas).
2. See, e.g., Fred Bosselman, David Callies, and John Banta, THE TAKING ISSUE 84 (1973) (use of land, both in rural and urban areas, was extensively regulated in the American colonies). Modern land-use controls began with the advent and legal vindication of comprehensive municipal zoning in the 1910s and 1920s.
3. "[N]or shall private property be taken for public use, without just compensation."
4. Richard Epstein, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). No work of comparable scope appears to exist for the center or left of the political spectrum.
5. Executive Order No. 12630, 3 C.F.R. 554 (1988), reprinted in 5 U.S.C. § 601 note.
6. Jerry Jackson and Lyle Albaugh, A Critique of the Takings Executive Order in the Context of Environmental Regulation, 18 Envtl. Law Rptr. 10463 (1988); James McElfish, The Takings Executive Order: Constitutional Jurisprudence or Political Philosophy?, 18 Envtl. Law Rptr. 10474 ( 1988).

7. See generally Fighting to Keep U.S. Rules from Devaluing Land, N.Y. Times, Jan. 9, 1995, at A1.

8. Supporters of property rights legislation often highlight the first group, particularly those landowners of modest means. See, e.g., 140 Cong. Rec. S 14945 (daily ed. October 7, 1994) (floor statement of Senator Hatch referring to "a nationwide property rights movement -- a revolt of small landowners, farmers and ranchers, and owners of 'mom and pop' businesses"). By contrast, opponents of such legislation often highlight the "big business" second group and allege an unadorned profit motive behind the legislation. See, e.g., Doug Harbrecht, A Question of Property Wrongs And Rights, Nat'l Wildlife 5 (Oct./Nov. 1994) (suggesting that timber and mining companies, agri-businesses, developers and energy conglomerates are the "prime movers behind the property-rights movement").

9. See resolutions adopted by the National League of Cities (1994), National Conference of State Legislatures (1994), and National Governors Association (1992), and letter to Members of Congress signed by 33 state Attorneys General.

10. See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 (1992) (" ... property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers ....")

11. Dennis Coyle, PROPERTY RIGHTS AND THE CONSTITUTION 19 (1993). See generally Robert C . Ellickson, Property in Land, 102 Yale L.J. 1315 (1993).

12. See generally James W. Ely, Jr., THE GUARDIAN OF EVERY OTHER RIGHT ch. 1 (1992).

13. Id. at ix.

14. Lucas, 112 S. Ct. at 2899-900.

15. An eighteenth-century legal dictionary, possibly one familiar to the convention delegates debating the Takings Clause, states this do-not-injure-others constraint as follows:

1st, No man is to deprive another of his Property, or disturb him in enjoying it. Secondly, Every person is bound to take due care of his own Property, so as the neglect thereof may not injure his neighbor. Thirdly, all persons must so use their right, that they do not ... damage their neighbor's Property.

Giles Jacob, NEW LAW DICTIONARY (9th ed. 1772).

16. In his dissenting opinion in Lucas, Justice Stevens opined:

Legislatures implement ... new learning; in doing so they must often revise the definition of property .... [O]ur ongoing self-education produces ... similar changes in the rights of property owners: New appreciation of the significance of endangered species, the importance of wetlands, and the vulnerability of coastal lands, shapes our evolving understandings of property rights.

Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2921-22 (1992) (citations omitted). See also Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1446-49 (1993) (property definitions historically have evolved to reflect new economic and social values, often to the disadvantage of existing owners); John R. Nolon, Private Property Investment, Lucas, and the Fairness Doctrine, 10 Pace Envtl. L. Rev. 43, 46-47 (1992) (efforts to define property rights precisely are in vain).

17. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899-900 (1992).

18. Thus, a gradual incremental tightening of regulation can, over successive conveyances of an affected parcel, substantially whittle down what is passed on. yet because only a modest amount is lost by each successive owner, a taking never occurs -- until perhaps the last rights are regulated away. While a possible emanation of the Lucas rationale, however, this issue has been pressed in few takings cases to date.

19. See James McElfish, Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 Envtl. Law Rptr. 10231 (1994) (most environmental law based on restrictions implicit in the nature of private property).

20. For a more detailed review, see Robert Meltz, When the United States Takes Property: Legal Principles (CRS Report No. 91-339). The reader is also advised to review the Supreme Court takings rulings handed down after that report's release: Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992); Concrete Pipe and Products v. Construction Laborers Pension Trust, 113 S. Ct. 2264 (1993); and Dolan v. City of Tigard, 114 S. Ct. 2309 (1994).

21. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871) (regular flooding of plaintiff's land by government dam effected taking).

22. Pennsylvania Coal co. v. Mahon, 260 U.S. 393 (1922) (state law barring coal mining that might cause subsidence, applicable only where surface estate has been severed, caused a taking).

23. 438 U.S. 104 (1978).

24. Id. at 124.

25. Id.

26. Decided on 5-4 votes were Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) (no taking); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (taking); and Dolan v City of Tigard, 114 S. Ct. 2309 (1994) (taking).

27. 28 U.S.C. §§ 1491(a), 1346(a). Under § 1346(a), the Court of Federal Claims shares jurisdiction over takings claims against the United States with federal district courts when the amount in controversy does not exceed $10,000. Very few takings suits involve such a small amount.

28. A recent decision of the Federal Circuit illustrating this divergence is Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (1994), cert. denied, 63 U.S.L.W. _ (Jan. 17, 1995) (No. 94-511). There, a panel majority stated that as with formal condemnations and physical takings, regulatory takings are not confined to instances where government has taken plaintiffs entire interest in a property. Rather, deprivation of less-than-total interests in property also may give rise to a taking. The decision further elaborates that whether there has been such a "partial regulatory taking' should be determined without reference to plaintiff's remaining rights in the property.

In so asserting, however, the panel appeared to contradict Supreme Court teaching that the argument that one "may establish a 'taking' simply by showing that [he has] been denied the ability to exploit a property interest is quite simply untenable [T]his Court focuses rather... on ... the interference with rights in the parcel as a whole ...." Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130-31 (1978).

29. The reader may do his or her own scan of federal takings decisions since 1990 by consulting CRS reports. Beginning in 1991, CRS has prepared annual summaries of court rulings in which a constitutional taking claim involving a federal action or federal statute was resolved on the merits. CRS Report No. 94-728 A (covering 1993 court rulings), CRS Report No. 93-779 A (covering 1992 rulings), CRS Report No. 92-337 A (covering 1991 rulings), and CRS Report No. 91-171 (covering 1990 rulings).

30. See, e.g., H.R. 1388 (compensation bill applicable solely to endangered species, wetlands, surface mining, and rails-to-trails programs); H.R. 3875 (compensation bill applicable solely to endangered species and wetlands programs).

31. Clean Water Act § 404, 33 U.S.C. § 1344, read together with Clean Water Act § 301(a), 33 U.S.C. .§ 1311(a).

32. Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 63 U.S.L.W. (Jan. 17, 1995) (No. 94-511).

33. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994). For further reading on wetlands, see Jeffrey Zinn and Claudia Copeland, Wetlands Issues in the 103rd Congress (CRS Issue Brief No. IB93025).

34. 30 U.S.C. § 22 et seq.

35. 30 U.S.C. §§ 1201-1328.

36. See, e.g., Hodel v. Indiana, 452 U.S. 314 (1981); Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264 (1981). Also worth mention is a pending takings case involving SMCRA's alluvial valley floor restriction, in which the United States' liability has been adjudicated at roughly $300 million (including compounded interest). Whitney Benefits, Inc. v. United States, 18 cl. Ct. 394 (1989), affirmed, 926 F.2d 1169 (Fed. Cir.), cert. denied, 112 S. Ct. 406 (1991).

37. National Trails System Act § 8(d), 16 U.S.C. § 1247(d).

38. Preseault v. United States, No. 93-5067 (argued Dec.. 9, 1993).

39. 42 U.S.C. §§ 9601-9675.

40. See Superfund Act § 308, 42 U.S.C. § 9657 (suggesting possibility that limitations on contribution rights in administrative settlements under Act might cause taking).

41. Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).

42. 16 U.S.C. §§ 1531-1544.

43. For further reading, see Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, 24 Envtl. L. 369 (1994); M. Lynne Corn and Pamela Baldwin, Endangered Species Act: The Listing and Exemption Processes (CRS Rep. No. 90-242); M. Lynne Corn, Endangered Species: Continuing Controversy (CRS Issue Brief No. 95003).

44. 17 F.3d 1463 (D.C. Cir. 1994), cert. granted, 63 U.S.L.W. 3500 (Jan. 6, 1995) (No. 94-859).

45. See, e.g., 28 U.S.C. § 1498 (authorizing claims against the United States for "reasonable and entire compensation" when United States infringes a patent).

46. In many of these extra-constitutional cases, there is a congressional recognition that the injury to the property owner resulted from his or her reliance on a federal approval. See, e.g., 7 U.S.C. § 136m (requiring EPA to make an "indemnity payment" for existing stocks when cancelling a pesticide registration); 7 U.S.C. § 450j (authorizing Secretary of Agriculture to make "indemnity payments" to dairy farmers and dairy manufacturers directed to remove products from market because of residues of chemicals approved for use by federal government).

47. More formally, the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. §§ 4601-4655.

48. Supra note 5.

49. United States v. 50 Acres of Land, 469 U.S. 24, 30 n.14 (1984).

50. H.R. 1845 (National Biological Survey Act), H.R. 2473 (Montana Wilderness Act), H.R. 3875 (Private Property Owners Bill of Rights) -- all of the 103rd Congress.

51. H.R. 1845, H.R. 3875 -- 103rd Congress.

52. H.R. 1845, H.R. 2473, H.R. 3875 -- 103rd Congress.

53. Private Property Protection Act of 1993 (H.R. 561), Hearing before the Subcomm. on Department Operations and Nutrition, House Comm. on Agriculture, 103rd Cong., 1st Sess. 1993.

54. 140 Cong. Rec. S 5926 (daily ed. May 18, 1994).

55. Pub. L. No. 103-433, § 710, 16 U.S.C. § 410aaa-80. The provision instructs that lands acquired pursuant to the CDPA must be appraised without regard to the presence of species listed as endangered or threatened under the Endangered Species Act.

56. For at least one federal program in the eye of the property rights storm, that protecting wetlands, agency consideration of private property impacts is required by existing regulations. 33 C.F.R. § 320.4(a)(1).

57. A question arises as to whether program statutes always will allow an agency to avoid any curtailment of private property use, even if the agency should so desire.

58. 31 U.S.C. § 1304.

59. Pennsylvania Coal co. v. Mahon, 260 U.S. 393, 413 (1922).

60. In the 104th Congress, the nuisance exemptions in the Gramm bill (S. 145), Hatch bill (S. 135), and Contract with America bill (H.R. 9) partially undercut this point. For example, the Contract with America bill exempts from its compensation requirement a federal limitation on any proposed use of property that "would constitute a nuisance under state or local law," or has been determined by the President "to pose a serious and imminent threat to public health and safety .... " A difficulty of the nuisance exemption, however, is the vagueness and incoherence of nuisance law.

61. U.S. Dep't of Agriculture (Economics Research Service), Who Owns the Land?: A State and Regional Summary of Land Ownership in the United States (1983).

62. This report takes no position on this fundamental, but difficult to answer, question.

63. See, e.g., Whitney Benefits, Inc. v. United States, 752 F.2d 1554 (Fed. Cir. 1985) (first appeal), 926 F.2d 1169 (Fed. Cir. 1991) (second appeal), cert. denied, 112 S. Ct. 406 (1991), appeal docketed, No. 94-5129 (Fed. Cir. 1994) (third appeal); and Florida Rock Industries, Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986) (first appeal), cert. denied, 479 U.S. 1053 (1987), 18 F.3d 1560 (Fed. Cir. 1994) (second appeal), cert.. denied, 63 U.S.L.W. (Jan. 17, 1995). Florida Rock now appears headed back to the Court of Federal Claims, possibly for a third trial.

64. Examples include Loveladies Harbor, Inc. v. United States and Florida Rock Industries, Inc.. v. United States, two of the more prominent wetlands/taking cases.

65. 42 U.S.C. § 4654(c).

66. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (1994) (reinstating "Casman exception" to jurisdictional rule in 28 U.S.C. § 1500 that effectively had required election between compensation and invalidation claims).

67. Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 63 U.S.L.W. (Jan. 17, 1995). See supra note 28.

68. Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994).

69. Supra note 59.

70. Supra note 29.