The New "Takings" Executive Order and Environmental Regulation -- Collision or Cooperation?

The New "Takings" Executive Order and Environmental Regulation — Collision or Cooperation?

Roger J. Marzulla

Editors' Summary: In 1987, the Supreme Court issued two blockbuster regulatory takings decisions. The decisions provide some much-needed guidance for deciding when government regulation constitutes a taking of private property requiring just compensation under the Fifth Amendment. However, the decisions have also raised concern among federal agencies about the takings implications of their actions. In response to these decisions, a presidential task force drafted an Executive Order, signed by President Reagan on March 15, 1988, that requires federal agencies to review their actions to prevent unnecessary takings and to budget for those actions that necessarily involve takings. The author, head of the Land and Natural Resources Division of the U.S. Department of Justice, describes the genesis of the executive order, its requirements, and how it might affect environmental regulation. He concludes that the Order can provide an orderly method to account for the takings implications of government regulation without necessarily hindering the vigorous enforcement of environmental laws.

Roger J. Marzulla is the Assistant Attorney General for the Land and Natural Resources Division of the United States Department of Justice. The author expresses his appreciation to Mark L. Pollot, Special Assistant to the Assistant Attorney General, Land and Natural Resources Division; and James E. Brookshire, Deputy Section Chief, General Litigation Section, Land and Natural Resources Division, for their contributions to the research and writing of this Article.

[18 ELR 10254]

On March 15, 1988, President Reagan signed an Executive Order imposing upon government agencies a new duty to protect property rights in the course of administering their regulatory programs.¹ The obligations imposed by the Executive Order upon environmental protection programs will substantially change the way the administering agencies do business. However, environmental protection need not suffer from compliance with restraints imposed upon government by the Bill of Rights. Whether environmental enforcement can retain its vitality in the face of constitutional limitations depends upon the creativity and dedication of those who administer such programs throughout government.

Through Congress, this nation has expressed as clearly as a republic can its commitment to a clean and healthy environment. As head of the Land and Natural Resources Division of the United States Department of Justice, I bear ultimate responsibility for enforcing the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Endangered Species Act; the National Environmental Policy Act; the Coastal Zone Management Act; and a dozen other environmental and land management statutes. During the past 12 months, we have filed over 300 enforcement cases, collected $ 13.8 million in civil fines, and obtained hundreds of millions of dollars worth of injunctive relief.² And for more serious violations during the last year, we obtained 94 criminal indictments resulting in 81 convictions or pleas of guilty, for which sentences were imposed of over 10 years actual imprisonment and $ 6.8 million in criminal penalties.³

Impressive as these figures are, they represent only that small fraction of instances in which court-ordered compulsion was necessary to attain environmental compliance. They [18 ELR 10255] tell us little of the $ 67.3 billion per year spent by law-abiding citizens to comply with the Clean Air Act and Clean Water Act alone. Thus, we can confidently say that most in our nation attempt to comply with the myriad of environmental obligations confronting them by statute and regulation. At the same time, some who have attempted compliance have asserted that these statutory schemes have often been enacted, and their regulatory programs promulgated, with little or no consideration of takings implications under the Fifth Amendment to the United States Constitution. That provision declares that private property shall not "be taken for public use, without just compensation." Consequently, the Land and Natural Resources Division has a claims court docket assigned to it of approximately $ 1 billion in takings claims presently pending against the United States. For the most part, the plaintiffs in those cases do not challenge the right of the federal government to require the degree of environmental protection Congress has found desirable; they do assert that our use of increasingly comprehensive regulatory solutions to the problem of environmental degradation sometimes assaults the liberties protected by the just compensation guarantee of the Fifth Amendment and other constitutional guarantees.⁴

This Article describes the executive branch's implementation of recent Supreme Court decisions reconciling the sometimes conflicting demands of environmental regulation and constitutionally protected rights. By implementing an Executive Order, we shall be able to identify takings implications at the outset. This will allow Congress and the executive branch to minimize the impact of government policies upon private property, and to budget for those regulatory "takings" that will inevitably occur as a result of government regulation.

The Supreme Court and the Doctrine of Regulatory Takings

The Evolution of the Doctrine (1922-1987)

The right of the sovereign to take private property for a public use (the "power of eminent domain") antedates the adoption of the United States Constitution. Although this power was historically exercised by institution of a condemnation action, the Supreme Court early recognized that physical invasion by a government officer may work a taking just as surely as does a court order vesting title in the United States.⁵ Thus, owners of land flooded by the government could recover just compensation in an action for "inverse condemnation."

The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment.⁶

Today, it is now also recognized that a government regulation that deprives the owner of use of his property for the benefit of the public may, in appropriate circumstances, constitute a taking. Unlike physical takings decisions, however, formulating a general rule for regulatory takings cases has proved extraordinarily difficult.

The Court grappled with this thorny issue in the landmark case, Pennsylvania Coal v. Mahon.⁷ Recognizing that "government 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,"⁸ the Court realized at the same time that "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."⁹ To reconcile the conflicting demands of governmental programs and private property rights, Justice Holmes penned the classic formulation of the doctrine of regulatory taking that "the general rule at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."¹⁰ Although the rule has been restated and explained in hundreds of subsequent cases, the fundamental inquiry in such cases remains whether the governmental program "goes too far" and thus constitutes a taking without just compensation.

The most notable recasting of the Pennsylvania Coal doctrine is found in Penn Central Transportation Co. v. New York,¹¹ in which the Court sets forth a three-pronged ed test for determining whether a government regulation has violated the Fifth Amendment's guarantee that is "designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."¹² That test looks to (1) the character of the governmental action, (2) the economic impact of the action on the claimant, and (3) the extent to which the regulation has interfered with the distinct, investment-backed expectations of the owner.¹³

The Pennsylvania Coal and Penn Central formulas, however, proved inadequate to avoid a period of ferment during which the Court struggled to evolve a clearer statement of the doctrine of regulatory takings. During this time, the Court had little difficulty with a line of cases in which the "regulation" actually looked more like a physical invasion. In Kaiser Aetna v. United States,¹⁴ the Court ruled that the assertion of a public navigation servitude over a private pond that was connected by an artificial channel to navigable waters would have been an actual physical invasion. Similarly, in Loretto v. Teleprompter Manhattan,¹⁵ it found a taking because of an actual physical invasion attributable to the mandatory requirement [18 ELR 10256] that a cable television electronic device be placed on the exterior of plaintiff's apartment house. But, the Court was unable to reach the ultimate issue in a series of more traditional land use restriction cases, disposing of them on the basis of preliminary legal issues such as ripeness and exhaustion of remedies.¹⁶ Perhaps the most revealing glimpse of the debate taking place within the Court during the nine years between Penn Central and the three landmark cases of the 1986 term discussed below is the vehement dissent of Justice Brennan in San Diego Gas & Electric.

Police power regulations such as zoning, ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property. From the property owner's point of view, it may matter little whether his land is condemned or flooded, or whether it is restricted by regulation to use in its natural state…. From the government's point of view, the benefits flowing to the public from the preservation of open space through regulation may be equally as great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property…. "[T]he Constitution measures a taking of property not by what a state says or by what it intends, but by what it does." [citation omitted].¹⁷

By the 1986 term, the ferment had subsided sufficiently that the Court was prepared to issue a series of regulatory takings opinions that resolved some of the uncertainty revealed in the cases since Penn Central. First, Keystone Bituminous Coal Association v. DeBenedictis¹⁸ suggested that much of the Pennsylvania Coal opinion might be dictum. In the process of rejecting a facial challenge to a state statute, the Court actually questioned the past tendency to give minimal scrutiny to police power actions that were alleged to have infringed upon constitutionally protected property rights. Thereafter, in Hodel v. Irving,¹⁹ the Court held that an Indian landowner may not be deprived of the right to will property to his legatees, even if only small fractionated interests that were an administrative nightmare to track were at stake. By the close of the 1986 term, the stage was set for two blockbuster opinions that would address head-on collisions between government regulations and constitutionally protected property rights.

A Regulatory Taking Is Constitutionally Compensable — First English Evangelical Church of Glendale v. County of Los Angeles

On June 9, 1987, the Supreme Court decided the most important regulatory takings case since Pennsylvania Coal —First English Evangelical Lutheran Church of Glendale v. County of Los Angeles.²⁰ It explicitly rejected the "California rule" that a regulation that "goes too far" may be invalidated by court order but compensation may never be recovered. Rather, the Court held that a complaint alleging that a county flood control ordinance forbidding virtually all construction on the landowner's property supported a request for just compensation under the Fifth and Fourteenth Amendments to the United States Constitution. "Invalidation of the ordinance or its successor ordinance … is not a sufficient remedy to meet the demands of the Just Compensation Clause," said the Court.²¹

Analogizing to thetemporary physical occupation cases,²² the opinion stated that an ordinance that deprives the property owner of all viable economic use works a taking from the date the ordinance becomes effective, even though a court may subsequently invalidate it on the grounds that it failed to provide just compensation. Stressing that the state court remains free to prospectively invalidate the ordinance and thus free the property from the regulatory taking, the Court said that "[w]e merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of duty to provide compensation for the period during which the taking was effective."²³

The Court was not unmindful of the practical results of its decision:

We realize that even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land-use planners and governing bodies…. But such consequences necessarily flow from any decision upholding a claim of a constitutional right; many provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities and the Just Compensation Clause of the Fifth Amendment is one of them.²⁴

Lurking unresolved within the opinion is the issue of whether governmental delays in processing permits or taking other actions might constitute a taking. The Court's view on this matter is foreshadowed, however, by its analogy to the physical takings cases and by its determination that the taking occurred at the time the flood control ordinance became effective. Although ordinary administrative delays are probably not compensable, we may assume that lengthy moratoria or other unreasonable refusals to allow property use for an extended period of time risk giving rise to a takings claim that, under First English, would commence at the time the moratorium or the unreasonable delay began.

Toward Defining What Is a Taking — Nollan v. California Coastal Commission

Three weeks after the First English decision, the Supreme Court handed down a second landmark regulatory takings case, Nollan v. California Coastal Commission,²⁵ holding that a permit to allow construction of a home adjacent to [18 ELR 10257] the ocean could not be conditioned upon the requirement that the landowner relinquish to the public an easement for access over his private beach. Citing Loretto (quoting Kaiser Aetna) for the proposition that "the right to exclude [others is] 'one of the most essential sticks in the bundle of rights that are commonly characterized as property,'"²⁶ the Court declared that "[h]ad California simply required the Nollans to make an easement across their beach front available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking."²⁷ The crucial question before the Court was whether the state's police power authority to regulate (and possibly forbid) construction along its coast could be used to pry the easement away from the property owners in return for permission to construct the new home.

The Court conceded the Commission's argument that "a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found a taking if the refusal to issue the permit would not constitute a taking."²⁸ Nevertheless, the Court recognized that "[o]ur cases have not elaborated on the standards for determining what constitutes a 'legitimate state interest' or what type of connection between the regulation and the state interest satisfies the requirement that the former 'substantially advanced' the latter."²⁹

In the end, the Court found itself "left, then, with the Commission's justification for the access requirement unrelated to land use regulation." Admitting that an unbroken stretch of public beach along the California coast might be "a good idea," the Court sounded a variation upon Justice Holmes' pronouncement that acquiring property rights without just compensation was an impermissible constitutional short cut: "California is free to advance its 'comprehensive program,' if it wishes, by using its power of eminent domain for this 'public purpose,' … but if it wants an easement across the Nollans' property, it must pay for it."³¹

The Nollan decision contributes to the evolution of regulatory takings law by setting forth the principles of "nexus" and "proportionality."³² Thus, the owner may not constitutionally suffer an uncompensated taking of property rights to advance one government interest (e.g., public beaches) if it is justified on the basis of a different governmental purpose (e.g., regulating construction). Nor may a single property owner be required to relinquish a major property interest (e.g., the right to exclude others) in order to remedy a problem (e.g., a "wall" of structures up and down the California coastline) to which his contribution is rather minimal (e.g., a mere "brick" in that wall). Thus, government agencies must use finer tools to shape their regulations if they are to avoid severing constitutionally protected property rights for which they may ultimately be required to pay.

The Executive Branch Implementation of the Takings Decisions

The Birth of an Executive Order

Nothing in the First English or Nollan decisions affords to the federal government an argument that it is somehow sheltered from exposure to the same type of liability imposed by those decisions upon state and local governments. Indeed, given its far-flung regulatory programs and its billion dollar Tucker Act docket, the Justice Department and the White House quickly recognized the need to undertake the arduous task of trying to alter the path of mammoth government programs so as to avoid trampling upon property rights that would, in the end, have to be paid from the public treasury. Rejecting as too timid and ineffectual various proposals for guidelines or opinions of counsel interpreting the change in the law, the President's Task Force on Regulatory Relief had received tentative approval in December 1987 to proceed with the option of drafting a presidential Executive Order that would protect the federal fisc by minimizing governmental intrusion upon private property rights and, by instituting a budgetary planning process, to pay just compensation when such intrusions were inevitable.

The coming of this Executive Order was foretold in President Reagan's legislative and administrative message to the Congress of January 25, 1988. Embracing the Supreme Court's decisions, which in large part had adopted the position set forth in the government's amicus briefs in the two cases, the President said:

It was an axiom of our Founding Fathers and free Englishmen before them that the right to own and control property was the foundation of all other individual liberties. To protect these rights, the Administration has urged the courts to restore the constitutional right of a citizen to receive just compensation when government at any level takes private property through regulation or other means. Last spring, the Supreme Court adopted this view in Nollan v. California Coastal Commission. In a second case, the Court held that the Fifth Amendment requires government to compensate citizens for temporary losses that occur while they are challenging such a government regulatory "taking" in court.

In the wake of these decisions, this Administration is now [18 ELR 10258] implementing new procedures to ensure that federal regulations do not violate the Fifth Amendment prohibition on taking private property; or if they do take a citizen's property for public use, to ensure that he receives constitutionally required just compensation.

The presidential Executive Order draws heavily upon the regulatory coordination function of the Office of Management and Budgetestablished early in the Administration by Executive Order 12291³³ and the recent Executive Order on federalism.³⁴ Threads of the environmental assessment process under the National Environmental Policy Act are woven into the fabric of this Order, as are aspects of the budgetary planning process. The Executive Order reflects thoughtful consideration and vigorous debate throughout the affected government agencies, establishing a practical and workable procedure for implementing last term's holdings in Nollan and First English.

Executive Order 12630: "Governmental Actions and Interference With Constitutionally Protected Property Rights"

The legitimacy of the Executive Order is premised both upon the duty of the government to respect constitutional protections afforded by the Bill of Rights and upon the management principle that government should not undertake programs without knowing and planning for their potential costs:

Responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights. Executive departments and agencies should review their actions carefully to prevent unnecessary takings and should account in decision-making for those takings that are necessitated by statutory mandate.³⁵

The Executive Order requires that "[i]n formulating or implementing policies that have takings implications, each Executive department and agency shall be guided" by the principles established in Nollan and First English. These "general principles," set forth in Section 3 of the Executive Order, include the doctrines of nexus and proportionality established by Nollan and the self-actuating right to just compensation set forth in First English. Although some actions are exempted from coverage,³⁶ most traditional government regulatory functions fall within the scope of the Order. The presidential Order singles out permitting processes and the creation of restrictions upon private property use, requiring that all departments and agencies observe the doctrines of nexus and proportionality and that they minimize processing delays.

Perhaps the most challenging of the Order's requirements, however, is the takings impact analysis (or "TIA," as it has already been nicknamed), which must be prepared "before undertaking any proposed action regulating private property use for the protection of public health or safety" or for other purposes.³⁷ When regulations focus on public health and safety purposes, the TIA must identify "with as much specificity as possible" the public health and safety risk created by the proposed private property use, establish that the proposed governmental action "substantially advances the purpose of protecting public health and safety against the specifically identified risk," establish that the proposed restrictions are "not disproportionate" to the landowner's contribution to the overall risk, and "estimate, to the extent possible, the potential cost to the government in the event that a court later determines that the action constituted a taking." To encourage thoroughness and candor, the TIA will normally be considered an internal deliberative document not subject to production under the Freedom of Information Act, and, in any event, the Executive Order "is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person."³⁸

Finally, the Order requires that the attorney general promulgate guidelines for the evaluation of risk and the avoidance of unanticipated takings "to which each Executive department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order."³⁹ This guidance, expected this summer, discusses both the principles that Nollan and First English have clarified and, to a more limited degree, also addresses issues such as delay compensation on which the Supreme Court has not yet opined. To avoid obsolescence, expected subsequent revisions to the guidance will ensure consistency with developments in the law of takings.

This Executive Order is a bold effort to seize the initiative in a field where governmental ineptitude, intransigence, or uncertainty can be very costly. Property owners and taxpayers alike should welcome this attempt to assume some control over the massive engine of government so as to protect their interests without unnecessarily interfering with important government programs. Indeed, proper implementation of the Executive Order should avoid disruption in the operation and funding of these programs — the appropriate goal of sound executive branch management.⁴⁰

Environmental Regulation and the Just Compensation Clause

The modern law of health and safety regulation finds its roots in the venerable doctrine that a landowner may not suffer a nuisance to persist upon his land to the detriment of his neighbors in the community. Since there is no right [18 ELR 10259] to commit a nuisance upon one's land, the abatement of such a nuisance was not a "taking" of any property right. Thus, once the 1887 Supreme court decided that production of alcoholic beverages was "a noxious use" calculated "to inflict injury upon the community," it followed that the state of Kansas could shut down plaintiff's brewery without compensation.⁴¹ Early zoning regulations were upheld on the basis of the nuisance doctrine, for uses that might in one district be "entirely unobjectionable" could "very nearly be a public nuisance in another."⁴² Soon, however, the courts began to uphold land use regulation against takings challenges on the grounds that the conferring of public benefits under the police power was the equivalent, for Fifth Amendment purposes, of avoiding noxious uses.⁴³ This approach reached its zenith in Goldblatt v. Hempstead,⁴⁴ which, in saying that "the term 'police power' connotes the time-tested conceptual limit of public encroachment upon private interest," was widely interpreted to hold that private property rights began only where the state's regulatory authority terminated. Thus, California could argue that regulation could never give rise to a compensable taking, since any regulation that "goes too far" would be ultra vires and thus void from its inception.⁴⁵

Goldblatt represents the high water mark of deference to governmental regulatory authority under the Fifth Amendment, from which the Court thereafter began to recede. By the time of the Keystone Coal decision last term, Justice Stevens could agree with Justice Rehnquist's dissent in Penn Central Transportation Co. that "the nuisance exception to the taking guarantee is not coterminous with the police power itself."⁴⁶ And three months later, Justice Scalia in the Nollan opinion could lay the matter to rest: "Goldblatt v. Hempstead [citation omitted] does appear to assume that the inquiries are the same, but that assumption is inconsistent with the formulations of our later cases."⁴⁷ Although the recognition that police power apples could not be compared with property rights oranges was crucial to the holding in First English that property regulation could constitute a compensable taking, Keystone and Nollan provide only general guidance with respect to which health and safety regulations may escape takings liability by virtue of the nuisance doctrine.⁴⁸

While the Mugler Court's conclusion that the production of beer is a per se nuisance may now be questioned, the Keystone Coal opinion assures us that Mugler's fundamental holding remains correct:

The special status of this type of state action can also be understood on the simple theory that since no individual has a right to use his property so as to create a nuisance or otherwise harm others, the state has not "taken" anything when it asserts its power to enjoin the nuisance-like activity.⁴⁹

Although more sophisticated analyses such as "offsetting benefits" may still respectably be asserted in defense of takings challenges to government regulations, the Nollan requirements of nexus and proportionality may well prove easier to apply. The Order embraces this approach without forgetting the origins of regulatory authority in the nuisance doctrine.

In my judgment, it is possible that philosophical grounds could be invoked to explain the sharp contrast between the federal government's position on the compensability of regulatory takings and the "California view" that they are not compensable. But I also believe that the disagreement may be explained in terms of institutional dissimilarities, particularly regarding the respective court systems of the two sovereigns. California's unitary court system requires that a plaintiff bring both his injunctive and damages claims in the same case and in the same court of general jurisdiction. In sharp contrast, the federal scheme places jurisdiction over equitable claims in the district court while Tucker Act claims for more than $ 10,000 must be brought in the claims court. As a result, federal environmental laws have been uniformly protected from facial challenges under the Just Compensation Clause by the simple response that, if the plaintiff's property has been taken, he should go to the claims court and request compensation. This defense has proved unbeatable in defending against facial attacks upon the Surface Mining, Control, and Reclamation Act;⁵⁰ the Federal Insecticide, Fungicide, and Rodenticide Act;⁵¹ and § 404 of the Clean Water Act.⁵² In United States v. Riverside Bayview Homes, the Court stated:

We have held that in general, "[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereigns subsequent to a taking" [citing Monsanto]. This maxim rests on the principle that so long as compensation is available for those whose property is in fact taken, governmental action is not unconstitutional [citing Williamson County]. For precisely the same reason, the possibility that the application that of a regulatory program may in some instances result in a taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred.⁵³

[18 ELR 10260]

Having succeeded so well in the Supreme Court, the United States could hardly go back to the claims court and assert that the Tucker Act afforded landowners no remedy for regulatory takings. Thus, in Florida Rock Industries v. United States⁵⁴ (decided before First English) the issue presented on appeal from the claims court was not whether the denial of a wetlands permit to mine limestone could constitute a taking, but the more narrow question of whether plaintiff proved a sufficient diminution in the value of the property to satisfy the "denial of all economically viable use" requirement. And in Hendler v. United States,⁵⁵ the question is not whether the issuance of an administrative order under Superfund requiring an adjacent property owner to allow the installation of groundwater monitoring wells on his property can constitute a taking, but whether in fact such action has taken his property. One may speculate whether, had California provided a tribunal similar to the federal claims court, cases such as Agins, MacDonald, First English, and Nollan might never have arisen.⁵⁶

Some of the most interesting and provocative Fifth Amendment taking problems arise in the context of federal protections for wildlife species and their habitat. Obviously, conservation-oriented regulatory schemes may substantially constrain property owners' development opportunities or other efforts to make profitable use of their land. The cases decided to date have uniformly rejected landowners' claims that their losses on account of measures imposed to safeguard wildlife are constitutionally compensable. However, it is also clear that these decisions are generally reflective of overbroad landowner assertions that the government is responsible for any economic disadvantage worked by such laws.

The courts early rejected arguments that Interior Department regulations under the Migratory Bird Treaty Act prohibiting waterfowl harvests adjacent to a wildlife refuge confiscate a property right.⁵⁷ From this it was no large jump to hold that a bar to the hunting of geese did not constitute a taking of crops they damaged.⁵⁸ Then, in Andrus v. Allard,⁵⁹ The Supreme Court went still further in ruling that the federal ban on trade in certain avian artifacts did not implicate Fifth Amendment protections. The Court reasoned that even though the eagles whose parts were involved might have at the time been legally hunted, their owners could still derive some economic benefit from retaining them, such as exhibiting them for an admission fee. In other words, at least where an "owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety."⁶⁰

More recently, the Tenth Circuit held that ranchers in Wyoming could not recover compensation for the forage consumed by federally protected wild horses, which they were forbidden by law from "harassing" by removal from their lands. The court found the legitimate governmental interest in the preservation of these living symbols of the Old West dictates the harsh result, especially since the ranchers did not allege that they were deprived of economically viable use of their tracts.⁶¹ And the federal court in Montana refused to allow a sheep rancher to recover for animals killed by grizzly bears, since he knowingly located his operations on an Indian reservation in the midst of prime habitat for the bears.⁶²

Conclusion

Neither the Supreme Court's decisions, nor the Executive Order, nor the attorneygeneral's guidance, will eliminate all uncertainty with respect to compensable regulatory takings protected by the Fifth Amendment. But protection of the nation's health and environment cannot await the arrival of absolute certainty. We lawyers have learned from the doctors and scientists that risk assessments can be made in the face of uncertainty, and that the "no action" option is rarely the responsible one. The duty to advise government with respect to the takings implications of its regulatory programs is an ongoing process that thrives upon lusty debate. We can have a clean and healthful America, which, at the same time, respects traditional constitutional liberties. And that, in the end, is the true genius of our governmental system.

1. Exec. Order 12630, 53 Fed. Reg. 8859, ELR ADMIN. MATERIALS 45037 (Mar. 18, 1988).

2. The actual penalties by media for May 1987 to May 1988 are:

CWA $ 7,429,961

CAA $ 5,724,914

TSCA $ 147,200

RCRA $ 385,994

FIFRA $ 16,150

Although CERCLA does not provide for judicial penalties, the Department of Justice has obtained over $ 400 million in both injunctive relief and reimbursements to the fund since the statute was enacted.

3. Between May 1987 and May 1988, we have obtained 394 indictments and 296 convictions or pleas of guilty for which sentences of over 59 years of actual jail time and fines of over $ 12.5 million have been imposed through our environmental criminal program. Furthermore, of the 296 pleas and convictions, over two-thirds have been against individuals of whom many were high-ranking corporate officers.

4. These constitutional guarantees include the Fourth Amendment right against search and seizure (Dow Chemical Co. v. United States, 476 U.S. 227, 16 ELR 20679 (1986)); Sixth Amendment right to jury trial (Tull v. United States, 107 S. Ct. 1831, 17 ELR 20667 (1987)); and Fifth Amendment due process (Ruckleshaus v. Monsanto, 467 U.S. 986, 14 ELR 20539 (1984)).

5. United States v. Lee, 106 U.S. 196 (1882).

6. Jacobs v. United States, 290 U.S. 13, 16 (1933).

7. 260 U.S. 393 (1922).

8. Id. at 413.

9. Id. at 416.

10. Id. at 415.

11. 438 U.S. 104, 8 ELR 20528 (1978).

12. Id. at 123.

13. Id. at 124.

14. 444 U.S. 164, 10 ELR 20042 (1979).

15. 458 U.S. 417 (1982).

16. See, e.g., Agins v. City of Tiburon, 447 U.S. 225, 10 ELR 20361 (1980); San Diego Gas & Electric v. City of San Diego, 450 U.S. 621, 11 ELR 20345 (1981); Williamson County Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985); and MacDonald, Sommer & Frates v. Yolo County, 474 U.S. 917, 16 ELR 20807 (1986).

17. San Diego Gas & Electric, 450 U.S. at 652-53, 11 ELR at 20353. Perhaps the best example of the evolution taking place within the Justices' own minds during this time is the complete reversal of Justice Brennan in his dissent in Nollan v. California Coastal Commission, in which he argues that a legitimate exercise of the police power does not constitute a taking. Justice Stevens, also dissenting, remarks, "I like the hat that Justice Brennan has donned today better than one he wore in San Diego …," 107 U.S. at 2388, 17 ELR at 20929.

18. 107 S. Ct. 1232, 17 ELR 20440 (1987).

19. 107 S. Ct. 2076 (1987).

20. 107 S. Ct. 2378, 17 ELR 20787 (1987).

21. 107 S. Ct. at 2388, 17 ELR at 20791.

22. E.g., United States v. Dow, 357 U.S. 17 (1958).

23. First English, 107 S. Ct. at 2389, 17 ELR at 20791.

24. Id. (cites omitted).

25. 107 S. Ct. 3141, 17 ELR 20918 (1987).

26. Id. at 3145, 17 ELR at 20919.

27. Id.

28. Id. at 3147, 17 ELR at 20921.

29. Id. at 3147, 17 ELR at 20920.

The Court thus reached the pivotal issue in the case: whether the easement requirement bore a sufficient nexus to a police power interest so that it could be characterized as "mere regulation" rather than as a taking. Defining the state's interest to include the protection of visual and physical access to the shoreline, the Court agreed that the Coastal Commission could legitimately deny permission to build a structure that would unreasonably interfere with that access. But, the Court said (analogizing Fifth Amendment property rights to the First Amendment's protection of freedom of speech), an absolute prohibition upon shouting "fire" in a crowded theater permissibly advances a state's interest in safety, while conditioning the right to do so upon payment of $ 100 to the state treasury is not. The Court concluded, "[I]n short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but 'an out-and-out plan of extortion.'"³⁰

30. Id. at 3147, 17 ELR at 20921 (quoting J.E.D. Associates, Inc. v. Atkinson, 432 A.2d 12, 14-15 (N. 1981)).

31. Id. at 3150, 17 ELR at 20922.

32. The dissenters do not find these rules particularly helpful. Justice Stevens, for example, still feels that "[e]ven the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence." Id. at 3163, 17 ELR at 20929.

33. Exec. Order 12291, 3 C.F.R. 127 (1982), ELR ADMIN. MATERIALS 45025.

34. Exec. Order 12612, 52 Fed. Reg. 41685, ELR ADMIN. MATERIALS 45035 (Oct. 30, 1987).

35. Exec. Order 12630, Section 1(b), ELR ADMIN. MATERIALS 45037.

36. The Executive Order exempts from coverage, inter alia, military or foreign affairs functions and seizure of property by law enforcement officials for forfeiture or evidence in a criminal proceeding. Section 2(a), ELR ADMIN. MATERIALS 45037.

37. Section 4(d), ELR ADMIN. MATERIALS 45038.

38. Section 6, ELR ADMIN. MATERIALS 45039.

39. Section 1(c), ELR ADMIN. MATERIALS 45037.

40. The Executive Order also provides, in Section 5(e)(2)

In addition to the Guidelines required by Section 1 of this Order, the Attorney General shall jointly, with each Executive department and agency to which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency.

A meeting of general counsels of affected agencies and departments, and their staffs, was held on May 25 to provide the agencies with additional information on the Executive Order and the attorney general's guidelines and as part of the consultation requirement provided for the Order. Additional meetings are scheduled with individual agencies and departments to assist them with the implementation of the Order and the promulgation of their individual guidelines.

41. Mugler v. Kansas, 123 U.S. 623 (1887).

42. Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).

43. While the line between the prevention of affirmative harm and the promotion of public good is not always clear, as the Penn Central Court indicated, regulations that "destroyed" or "adversely affected" recognized real property interests had been found not to take property when "state tribunal[s] reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted" by the regulation in question. Penn Central Transportation Co. v. New York City, 438 U.S. 105, 125, 8 ELR 20528, 20533 (1978) (emphasis added), and cases cited therein.

44. 369 U.S. 590 (1962).

45. Agins v. City of Tiburon, 24 Cal. 3d 266, 272, 276, 757 Cal. Rptr. 372, 598 P.2d 25, 9 ELR 20260 (1979) (invalidation, rather than forced compensation, the remedy for legislative excesses).

46. Keystone, 107 S. Ct. at 1245, 17 ELR at 20445, n.20.

47. 107 S. Ct. at 3147, 17 ELR at 20920, n.3.

48. California Coastal Commission v. Granite Rock, 107 S. Ct. 1419, 17 ELR 20563 (1987), is an interesting illustration of the difficult questions posed by the nexus requirement of Nollan. Faced with the issue of whether a California Coastal Commission permitting requirement was a preempted land use regulation or a permissible environmental one, the Court split. Admitting that "the line between environmental regulation and land use planning will not always be bright," the majority found that the state wished to regulate mining on federal land to assure compliance with air and water quality standards, while the dissenters argued that denying permission to conduct mining operations necessarily regulated the use of the land.

49. Keystone, 107 S. Ct. 1232, 1245, 17 ELR at 20445, n.20 (1987).

50. Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 11 ELR 20569 (1981).

51. Ruckelshaus v. Monsanto, 467 U.S. 986, 14 ELR 20539 (1984).

52. United States v. Riverside Bayview Homes, 474 U.S. 121, 16 ELR 20086 (1985).

53. 16 ELR at 20086, 20087. The Court adopted this same approach in Keystone Coal, upholding Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act.

54. 791 F.2d 893, 16 ELR 20671 (Fed. Cir. 1986).

55. 11 Cl. Ct. 91, 17 ELR 20678 (1986).

56. In a recent case, Glosemeyer v. Missouri-Kansas-Texas Railroad Co., No. 86-2508C(6), the United States District Court for the Eastern District of Missouri considered a takings challenge to 16 U.S.C. § 1247(d). Plaintiffs in Glosemeyer, like the plaintiffs in the cases cited above, raised a facial challenge to § 1247(d), seeking invalidation of the statute. The statute provided for interim use for trail purposes of what might otherwise be considered abandoned railroad rights-of-way. Plaintiffs alleged an unconstitutional taking of their reversionary interests. The court rejected their arguments, pointing out the existence of a Tucker Act Remedy.

57. Bailey v. Holland, 126 F.2d 317, 324 (4th Cir. 1942).

58. Bishop v. United States, 126 F. Supp. 449, 452 (Ct. Cl. 1954), cert. denied, 349 U.S. 955 (1955). The Bishop court cited with approval an even more venerable New York Court of Appeals decision that stated:

Wherever protection is accorded, harm may be done to the individual. Deer or moose may browse on his crops; mink or skunks kill his chickens; robins eat his cherries … no one can complain of the incidental injuries that may result. Barrett v. State, 220 N.Y. 423, 116 N.E. 99, 100 (1918).

See also Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S. 939 (1950).

59. 444 U.S. 51, 66-67, 9 ELR 20791 (1979).

60. Id.

61. Mountain States Legal Foundation v. Hodel, 799 F.2d 1423, 1430-31, 17 ELR 20380 (10th Cir. 1986) (en banc), cert. denied, 107 S. Ct. 1616 (1987).

62. Christy v. Hodel (D. Mont. 1987), appeal docketed, No. 87-3998 (9th Cir.).