Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law

David Coursen

Editors' Summary: On the last day of its 1992 Spring Term, the U.S. Supreme Court announced its long-awaited decision on land-use regulation in Lucas v. South Carolina Coastal Council, 22 ELR 21104. In Lucas, a 5-4 majority of the Court ruled that the Fifth Amendment requires states to pay compensation when regulations enacted for public purposes, such as environmental protection, deprive landowners of all economically beneficial uses of their property. The Court reviewed a ruling by the South Carolina Supreme Court that state restrictions on the use of the plaintiff's oceanfront property did not work a compensable taking. The Court reversed the South Carolina Supreme Court's holding that no compensation is due a landowner whose private use threatens serious public harm.

Under the majority's opinion in Lucas, authored by Justice Scalia, Fifth Amendment takings analysis begins with the categorical rule that total regulatory takings must be compensated. The factors to be considered under the Lucas total takings inquiry include the degree of harm to public lands and resources or adjacent private property posed by the landowner's proposed activities; the social value of the landowner's activities and their suitability to the locality in question; and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government or adjacent private landowners. The Court further held that if a regulation prohibits all economically beneficial use of land, compensation is required unless the restriction is inherent in background principles of state nuisance and property law.

This Article explores the facts, holdings, and underlying actions leading up to the Lucas decision and examines the majority's and four other Justice's opinions. The Article analyzes the Court's categorical rule that total regulatory takings must be compensated and assesses the implications of the Lucas decision for common-law nuisance doctrine, partial takings, and valuation questions. The author concludes that the Court, in articulating a special rule for total takings, creates other implicit rules, suggesting that takings claims will be defeated for property rights subject to state nuisance or property law and that partial takings may be compensable. The danger of these implicit rulings, the author cautions, is that absent clear limiting guidelines, a wider universe of regulations and burdens will become subject to regulatory takings analysis.

David Coursen has been an attorney for the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C. for the last five years. Previously, he was a staff attorney for the U.S. Court of Appeals for the Fifth Circuit. He graduated from the University of Oregon Law School. The views expressed in this Article are solely the author's and do not represent the views of EPA.

[22 ELR 10778]

Under the Fifth Amendment, private property may not be takenfor public use without just compensation.¹ For many years, it was generally thought that the Fifth Amendment's Takings Clause "reached only a 'direct appropriation' of property … or the functional equivalent of a 'practical ouster of … possession.'"² In 1922, however, the U.S. Supreme Court recognized that a regulation could also work a taking: "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking."³ Since that time, Fifth Amendment takings jurisprudence has been predominately a process of exploring how to decide when a regulation goes too far. In 1978, the Court, established a test for takings analysis, which involves case-specific balancing of various factors, such as the nature of the government action, its economic impact, and its effect on the owner's investment-backed expectations.⁴ That same year, in finding a taking, the Court declined to employ balancing analysis in articulating a categorical rule that government action that compels a permanent physical occupation of property works a taking.⁵ In 1987, the Court found two regulatory takings,⁶ citing the categorical rule to support one of those findings.⁷ In its [22 ELR 10779] 1991-1992 Term, the Court engaged in another foray into takings jurisprudence in Lucas v. South Carolina Coastal Council.⁸

Background

The case originated in 1986,⁹ when David Lucas, a developer, purchased two vacant oceanfront lots on a barrier island in South Carolina, intending to construct a residence for himself on one and a home for sale on the other. The lots adjoining his, and most of the other lots in the vicinity, already contained residences. In 1988, the state adopted a Beachfront Management Act (Act) which effectively prohibited the construction of any permanent structure on either lot; the Act provided no exceptions.

Lucas commenced a taking action in state court. The state trial court made a factual determination that the building prohibition precluded all economic use of the lots and made them valueless. The court further held that this finding established a denial of all use and, under existing takings doctrine, worked a taking, without regard to the nature or purpose of the government's action.

The South Carolina Supreme Court reversed,¹⁰ finding that Lucas' failure to challenge the validity of the Act precluded him from challenging the factual accuracy of the findings the legislature had made to support the Act. The court held that it was bound by the legislature's finding that discouraging new construction in close proximity to the beach/dune area was necessary to prevent a public harm.¹¹ Based on this finding, the court further held that the regulation was imposed for the purpose of protecting public health and safety, and thus, under existing takings doctrine, was insulated from takings liability, regardless of its economic impact.

The outcome in the state supreme court presented the U.S. Supreme Court with a bald conflict between two absolute rules of takings jurisprudence: (1) governmental regulatory action works a taking if it denies an owner economically viable use of his land;¹² but (2) a state need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance.¹³ In the past, the Court had recognized, but not addressed, the possible tension between these two rules.¹⁴

The Decision

Before the U.S. Supreme Court could reach the merits, it assessed the relevance of the fact that in 1990, before the state supreme court rendered its decision, the Act had been amended to allow property owners to seek variances from its construction prohibition. Lucas had not sought such a variance, and the state supreme court had decided the case without requiring that he do so. The U.S. Supreme Court recognized that a takings claim is ordinarily not ripe until the full effects of the state action are established. Since it was unclear whether Lucas could still obtain a variance, the claim would ordinarily not be ripe. The Court noted, however, that the state court had not rested its decision on ripeness grounds, but had addressed the merits. Accordingly, the Court concluded, unless it entered a decision, Lucas would be "practically and legally" precluded from pursuing a claim for any temporary taking that might have resulted before the variance process was established.¹⁵ The Court therefore addressed the merits and reversed and remanded.

Categorical Rule

The Court's analysis in Lucas begins by recognizing that the question of whether a regulation goes too far in burdening property and becomes a taking ordinarily requires a fact-specific inquiry. However, prior cases have identified at least two discrete categories of regulatory action as compensable without case-specific inquiry. The first category, permanent physical occupations, had been the basis for the decision in an earlier case.¹⁶ The second category, regulations that deny "all economically beneficial or productive use of land,"¹⁷ had been identified but never expressly relied on as the basis for finding a taking. The Court's use of the second category in Lucas effectively announces a new rule identifying a class of actions as categorical takings.

The Court discusses several rationales for its rule. It points first to the extreme nature of the burden imposed on a landowner prevented from using property; as a practical matter, there is little to distinguish a denial of all use from an outright physical appropriation.¹⁸ Moreover, the Court, without support from its own case law, characterizes as a "fact" its conclusion that

regulations that leave the owner of land without economically beneficial or productive options for its use — typically, as here, by requiring land to be left substantially in its natural state — carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm.¹⁹ The Court then analyzes how the categorical rule applies when a stated purpose of the government action is to protect public health and safety.

[22 ELR 10780]

Noxious Use and Nuisance Doctrine

The Court in Lucas recognizes that prior cases "have suggested that 'harmful or noxious uses' of property may be prohibited by government regulation without the requirement of compensation."²⁰ Although these early cases often involved challenges to state efforts to regulate uses that were harmful or noxious, they were not "premised on, and thus limited by, some objective conception of 'noxiousness.'"²¹ Instead, harmful use doctrine was merely an "early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value,"²² and cannot provide a basis for determining whether a regulatory action works a taking.²³

In addition, the Court observes, the focus on nuisance has led to a corollary emphasis on distinguishing between government actions to prevent a harm (which would not be compensable) and actions to create a benefit (which would be). The distinction between the two, however, is difficult to draw objectively, since many regulations will be seen as mitigating harm or securing a benefit, depending on the observer's assessment of the value of the activities at issue.²⁴ Accordingly, acourt cannot rely on how a legislature characterizes the purpose of a regulation, like the state supreme court did in Lucas, as the basis for denying compensation to a landowner deprived of all use of property.²⁵

Nuisance doctrine is relevant to a total takings inquiry, however, and nuisance abatement is noncompensable. The Court determines in Lucas that a state regulation that deprives land of all economically beneficial use will resist compensation, but "only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with."²⁶ This occurs if the use restrictions "inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."²⁷ The Court holds that a regulation cannot work a taking if it does no more than duplicate the result that could have been achieved in the courts under the state's law of private nuisance, or under the state's complementary power to abate nuisances that affect the public generally, or to forestall other grave threats to lives and property, for example, by preventing a fire from spreading.²⁸

A restriction on use may be implicit, as well as explicit:

On this analysis, the owner of a lake bed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault. Such regulatory action may well have the effect of eliminating the land's only economically productive use, but it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles. The use of these properties for what are now expressly prohibited purposes was always unlawful, and (subject to other constitutional limitations) it was open to the State at any time to make the implication of those background principles of nuisance and property law explicit.²⁹

The Court describes in some detail how to analyze nuisance law to determine if there is a limitation on land-use rights, citing nine portions of the Restatement (Second) of Torts.³⁰ Interestingly, although the Court elsewhere consistently identifies state property law as a potential source of limitations on the rights of property owners, it does not describe how to apply this law.

The Court notes that, to defeat a taking claim on remand, the state must make the same showing that would be necessary to "restrain Lucas in a common-law action for public nuisance [by] … identify[ing] background principles of nuisance andproperty law that prohibit the uses he now intends in the circumstances in which the property is presently found."³¹ This will require that the state "do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest."³²

Total Takings

The Lucas categorical rule applies only to real property, not to other types of property, for which the Court recognizes that even a complete extinction of value may not be compensable.³³ Moreover, the rule applies only "in the extraordinary circumstance when no productive or economically beneficial use of land is permitted."³⁴ Anytime there is less than a total loss, even a 95 percent diminution in value, traditional takings analysis, which involves balancing the nature of the government action, its economic impact, and its effect on the owner's investment-backed expectations,³⁵ must be used to determine if there has been a taking.³⁶

The Kennedy Concurrence

Justice Kennedy concurred in the judgment, finding the case ripe for decision, and the question of whether a taking, perhaps a temporary one has occurred, to be properly before the Court. In writing separately, he emphasizes that the current record is not adequate to resolve this question. He also expresses skepticism, shared by three other Justices writing separately, about the accuracy of the factual finding "that a beach front lot loses all value because of a development [22 ELR 10781] restriction."³⁷ Justice Kennedy also emphasizes the importance of investment-backed expectations to takings analysis. Those who acquire property have ample reason to be aware of the state's broad power to regulate property use; such awareness qualifies and limits expectations. Finally, he suggests there may be cases, involving fragile land systems, for example, in which "the State can go further in regulating [the land's] development and use than the common law of nuisance might otherwise permit."³⁸

Justice Blackmun's Dissent

Justice Blackmun, in a heated dissent, suggests that the majority's opinion "launches a missile to kill a mouse."³⁹ He argues that the case is neither ripe nor appropriate for review. By addressing the merits, he contends that the Court ignores its jurisdictional limits and remakes its traditional rules of review. The decision itself "creates simultaneously a new categorical rule and an exception (neither of which is rooted in our prior case law, common law, or common sense.)"⁴⁰ He also suggests that the Court's decision discards what he characterizes as two previously unassailable premises: "the State has the power to prevent any use of property it finds to be harmful to its citizens, and [ [ a state statute is entitled to a presumption of constitutionality."⁴¹ He further observes that common-law principles, under which courts define nuisance, may be as manipulable as, and no more value-free than, a harm-benefit distinction drawn by legislatures, which have historically been responsible for determining whether particular uses of property are dangerous or harmful.

Justice Stevens' Dissent

Justice Stevens would have declined to address the case, based on ripeness; he also rejects the categorical rule as inconsistent with precedent and arbitrary in effect.⁴² He suggests that the decision "effectively freezes the State's common law, denying the legislature much of its traditional power to revise the law governing the rights and uses of property."⁴³ This, in turn, is "likely to impede the development of sound land-use policy."⁴⁴ He suggests that a more productive focus for takings analysis is on the generality of a regulation; the more narrowly a regulation applies, the more likely it is that individual owners are being singled out to bear the burden of government action.⁴⁵

Justice Souter's Statement

Justice Souter would have dismissed the writ of certiorari as improvidently granted, because the unreviewable factual determination that the property was valueless is "highly questionable."⁴⁶ In his view, this prevents the Court from fully developing the meaning of the concept of total deprivation, which is a critical component of the Court's categorical rule.⁴⁷ He argues that "it is difficult to imagine property that can be used only to create a nuisance, such that its sole economic value must presuppose the right to occupy it for such seriously noxious activity."⁴⁸ Additionally, Justice Souter observes that "the upshot is that the issue of what constitutes a total deprivation is being addressed by indirection."⁴⁹

Reach of the Total Takings Rule

Lucas directly addresses only regulation that precludes all use of land. On its face, therefore, it is narrow and will apply directly in only a few cases. Total deprivations are rare; in no recent federal case has a court found that land has been rendered valueless by government action.⁵⁰

However, the extent to which the Court's analysis in Lucas is restricted to cases involving total takings is unclear. The Court describes a broad inquiry into limitations on property rights as part of "the 'total taking' inquiry we require today."⁵¹ However, analysis of limitations on property rights may apply beyond the total takings area. For example, if a limitation on the rights of the owner can preclude a taking where there is a total deprivation of use, logically it must also preclude takings liability if the deprivation is less than total. Thus, a Lucas analysis of limitations on property rights is mandatory in all takings cases, not merely those in which there is a denial of all use, and effectively constitutes a bright-line or categorical rule. Indeed, Lucas may ultimately prove most significant for emphasizing and clarifying that property rights are never absolute, but are qualified by both implicit and explicit limitations on use.

[22 ELR 10782]

Search for a Bright-Line Rule

The Court's decision in Lucas reflects an impatience with the ad hoc, factual inquiries that takings balancing analysis generally requires. Its search for a bright-line rule may reflect concern that the Court's recent takings jurisprudence has done more to confuse than to clarify takings law.

However, Lucas itself reflects this confusion. First, the trial court entered factual findings on a critical issue, the lack of remaining value in oceanfront property, that appeared sufficiently implausible to attract the comment of four justices. The state supreme court, in turn, fundamentally misconstrued takings law by ruling that Lucas' failure to challenge the validity of the Act precludes any challenge to the factual accuracy of the legislative findings in support of the Act.⁵² Ironically, the Court itself is not immune to the confusion endemic to takings jurisprudence. At one point, the Court describes the harmful use doctrine, which dates at least to 1887,⁵³ as "the Court's early attempt to describe in theoretical terms why government may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate."⁵⁴ The Court does not reconcile this with its earlier observation, which until 1922, the Court assumed that a regulation could not work a taking at all; nor does it explain how compensation questions could have arisen in pre-1922 cases.⁵⁵

Movement Away From Balancing

Justice Scalia, in his two takings decisions for the Court, has focused not on ad hoc balancing analysis, but on two categories of actions.⁵⁶ In Nollan v. California Coastal Council, the Court focused on the requirement that a regulation advance a legitimate state interest and found a benchmark for a taking where a regulatory action causes a permanent physical occupation without substantially advancing the state interest it purports to serve.⁵⁷ Lucas, focusing on use denial, establishes a categorical rule that actions which deny all use constitute takings. Despite this apparent analytical clarity, however, Lucas does not address how to determine whether an action denies all use, or how to analyze a taking claim where there is less than such a denial.⁵⁸

Effects on Nuisance Doctrine

Applying traditional nuisance doctrine has been particularly troubling for government actions with multiple-stated purposes. Those of the Act at issue in Lucas range from the prevention of harm to the promotion of tourism, tax revenues, and leisure time opportunities,⁵⁹ and it may be difficult to determine which purpose is actually being served in a particular case. Indeed, in Keystone Bituminous Coal Ass'n v. DeBenedictis,⁶⁰ the majority found that a state law prohibiting coal mining that would cause certain surface properties to subside was insulated from takings challenge by its health and safety purpose. The dissent in Keystone saw no such insulation, characterizing the statute as "much more than a nuisance statute," whose purposes, though including public safety, reflect a concern for preservation of buildings, economic development, and maintenance of property values.⁶¹

Lucas attempts to avoid this issue by placing the analytical focus solely on the nature of the property right, regardless of the purpose of the government action. Lucas permits this radical shift in focus, however, only when there is a total taking. In all other cases, courts must engage in balancing, which will require a thorough examination of the nature and purpose of the government's action. Moreover, this examination apparently should be conducted with little or no reliance on or deference to statements of legislative purpose, which, according to the Court, may be false or misleading.⁶²

Partial Takings, Valuation, and Footnote 7

Lucas may prove most significant for reasoning that is [22 ELR 10783] implicit, rather than explicit. The establishment of a separate, categorical rule for total takings implicitly recognizes that less than a total taking may be compensable. Indeed, the Court expressly rejects an assumption that "the landowner whose deprivation is one step short of complete is not entitled to compensation"⁶³; it concedes, however, that such a claim must be analyzed under traditional three-part balancing analysis rather than under the categorical total taking rule.⁶⁴ This is consistent with the results in some lower federal court decisions: the Federal Circuit has found a taking, although not of land, from a loss of less than 55 percent of property's value,⁶⁵ and the Claims Court found a taking where land had a post-taking value of $120,000.⁶⁶

The Court's decision is voluminously footnoted. Of particular interest is footnote 7, which suggests, but does not explicitly endorse, the possibility of treating regulation that prevents use of one area of an owner's property but permits beneficial use of other areas as taking the burdened area.⁶⁷ However, the U.S. Supreme Court has yet to find a taking of land based on a partial denial of use.

The Court's significant takings findings have been based on permanent physical occupations,⁶⁸ or outright appropriations of property.⁶⁹ For the Court to hold, as footnote 7 suggests it might, that a taking can occur when there is less than a denial of all use, raises conceptual and practical difficulties. Conceptually, the word "taking" implies an appropriation or physical seizure. Accordingly, for almost a century-and-a-half, the Court did not believe that a regulatory action could give rise to a compensable taking at all.⁷⁰ Absent the prerequisite that there be a taking of all use, it may prove "difficult, if not impossible, to discern on an objective, value-free basis,"⁷¹ a standard for determining whether a taking occurs. This will enhance neither clarity nor predictability.

The Court also suggests an alternative approach to the issue of remaining value that could have a dramatic impact on takings doctrine. The Court raises first the possibility of characterizing a restriction on the use of one part of an owner's property as either a noncompensable burden on the entire property or a denial of all use of the burdened part of the property, which might also constitute a categorical total taking. While the Court concedes uncertainty as to how to analyze the "parcel to be considered" or identify the "denominator" in the takings fraction, it dismisses as "unsupportable" a focus on the "total value of the taking claimant's other holdings in the vicinity."⁷² Further, it commends an approach that focuses on "whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land" alleged to have been taken.⁷³

The plain purpose of footnote 7 is to suggest that if Lucas obtains a permit to build on one of his lots, he should not be precluded from proving a taking of the other lot merely because it happens to be in the same vicinity as the permitted lot. Similarly, the discussion of the level of protection state law provides to particular interests may signal skepticism of any finding that Lucas, who holds fee title, possesses an interest which is not fully protected. However, the footnote raises broader possibilities as well. It could be read to suggest that any regulation preventing the use of any part of an owner's total holdings constitutes a total, categorical taking of that part. This would represent a significant departure from traditional takings analysis, which has typically focused on the owner's entire property.⁷⁴ Similarly, the discussion in Lucas of zoning and open space, suggesting that a taking may occur for any individual section of property that cannot be used, contrasts starkly with the discussion of zoning and setback ordinances in prior precedent.⁷⁵

Further, although the Court hypothesizes a denial of use of 90 percent of a parcel,⁷⁶ it identifies no principles that would limit its reasoning to cases where the burdened parcel is a substantial portion of the whole. The same reasoning that would find a total taking of a 90 percent area could also be used to find a taking if the burdened area were 5 percent. Indeed, the Claims Court has already done precisely that.⁷⁷ This result seems inevitable once the focus of the inquiry shifts from the whole of the property originally acquired; denial of the use of any specific area, no matter how small a part of plaintiff's original acquisition, becomes compensable.

Footnote 7's attention to "the particular interest in land" suggests that something less than full fee title might be sufficient to support a total taking. Far from being a potential source for clarifying takings calculations, focus on "particular interests in land" has already proven a source of confusion in cases where a state creates a narrow [22 ELR 10784] interest in land that recognizes and protects specific uses.⁷⁸ Justice Stevens cautions that a rule with such a focus might be manipulated by developers and investors who may market specialized estates to take advantage of this rule, recognizing that "[t]he smaller the estate, the more likely that a regulatory change will effect a total taking."⁷⁹

Federal Uniformity and State-Use Restrictions

Lucas arose in state court as a challenge to a state action. Federal restrictions on use can also be the source of limitations on substantive rights, when they can fairly be characterized as part of "the understandings of our citizens regarding the content of, and the State's power over, the 'bundle of rights' that they acquire when they obtain title to property."⁸⁰ Due to variations in state laws, however, a property owner might have the right to particular uses of property in some states but not in others, and a federal attempt to regulate uses that rendered real property valueless might therefore be exempt from takings challenge in some states but not in others. Thus, the outcome in Lucas could potentially disrupt comprehensive and national environmental management and undercut the purpose of enacting federal environmental laws rather than relying on state or local regulation.

The Court also implicitly assumes broad consistency, if not uniformity, among the nuisance doctrines of the various states but does not examine whether this assumption is valid. In describing how to analyze state-law restrictions on use, the Court refers only to common-law nuisance principles as reflected in the Restatement (Second) of Torts. More importantly, the Court's exclusive focus on nuisance doctrine implicitly overlooks variations in other bodies of state common law, including property law. For example, the common law of some states limits property use,⁸¹ and public trust doctrine may limit property rights.⁸²

Lucas may also affect state-law emergency doctrine. The Court expressly reaffirms the state's power to act without compensation in "'cases of actual necessity, to prevent the spreading of a fire' or to forestall other grave threats to the lives and property of others."⁸³ Different states may define "actual necessity" or "grave threats" differently. The Court's reference to emergency doctrine constitutes a recognition of limitations on property rights not based on either property law or on the common-law nuisance maxim sic utere tuo ut alienum non laedas: Use your own property in such a manner as not to injure that of another.⁸⁴ Unlike nuisance abatement powers, the power to respond to an emergency does not arise from or in any way depend on the owner's harmful or inappropriate use of property, but is based solely on the state's paramount power to act for the public good. This vindicates the Court's suggestion that the harmful use doctrine cannot serve as a "touchstone"⁸⁵ for takings analysis.⁸⁶

Conclusion

The defining characteristic of Lucas may be indirection.⁸⁷ In the guise of articulating one categorical rule — a denial of all use works a taking — the Court has implicitly established another principle that state-imposed limitations on property use always defeat a taking claim. Moreover, while the articulated rule applies in only a narrow range of circumstances, the implicit rule applies in every case. Finally, when the two rules collide, the implicit rule controls: if Lucas' property rights are subject to a state property or nuisance-law restriction, his taking claim will be defeated.

Indirection may be the standard for assessing Lucas' significance for issues it discusses but does not resolve. The Court, by articulating a special rule for total takings, implicitly suggests that partial takings may be compensable. Similarly, by raising the possibility of a taking from restrictions on one portion of an owner's property, while other portions can be used without restriction, the Court invites departure from the well-established rule that takings inquiries focus on the impact of a regulation on an owner's property as a whole.

The danger of indirection is unintended consequences. One potential unintended consequence of recognizing partial takings or of takings of less than the whole of an owner's property is the lack of clear limiting principles. Absent such principles, regulatory takings doctrine may apply to a much wider universe of regulations and burdens, but decisions will continue to be governed primarily by ad hoc factual inquiries. This will increase uncertainty and variability in takings jurisprudence. Lucas implicitly suggests that courts applying common law, rather than legislatures applying electoral mandates, are best suited to decide which uses of private property government may regulate without compensation. However, in the absence of clear legal principles courts can apply in a reasoned fashion, neither government nor private property owners will have a basis for ordering their affairs and framing their expectations with any measure of confidence.

1. U.S. CONST. amend. V.

2. E.g., Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879).

3. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

4. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978).

5. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

6. Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987); Hodel v. Irving, 481 U.S. 704 (1987).

7. Nollan, 483 U.S. at 832, 17 ELR at 20919.

8. 112 S. Ct. 2886, 22 ELR 21104 (U.S. June 29, 1992).

9. See generally, 112 S. Ct. at 2889-90, 22 ELR at 21105-06.

10. Lucas v. South Carolina Coastal Council, 404 S.E.2d 895, 21 ELR 20837 (S.C. 1991).

11. 404 S.E.2d at 898, 21 ELR at 20838 (1991) (emphasis added).

12. Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980) (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 8 ELR 20528 (1978)).

13. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 492 n.22, 17 ELR 20440, 20445 n.22 (1987). See also id. at 511, 17 ELR at 20451 (Rehnquist, C.J., dissenting) ("a taking does not occur where the government exercises its unquestioned authority to prevent a property owner from using his property to injure others without having to compensate the value of the forbidden use.").

14. Compare First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 313, 17 ELR 20787, 20789 (1987) (Rehnquist, C.J, writing for the Court recognizing possibility of defeating a taking claim "by establishing that [a] denial of all use was insulated [from a takings challenge] as a part of the State's authority to enact Safety regulations.") with Keystone, 480 U.S. at 513, 17 ELR at 20451 (Rehnquist, C.J., dissenting) (the Court has never "accepted the proposition that the State may completely extinguish a property interest or prohibit all use without providing compensation.").

15. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2891, 22 ELR 21104, 21106 (U.S. June 29, 1992).

16. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

17. See Lucas, 112 S. Ct. at 2893, 22 ELR at 21107.

18. Id. at 2894, 22 ELR at 21108.

19. Id. at 2894-95, 22 ELR at 21108.

20. Id. at 2897, 22 ELR at 21109.

21. Id.

22. Id. at 2898-99, 22 ELR at 21110.

23. Id. at 2899, 22 ELR at 21110.

24. Id.

25. Id.

26. Id.

27. Id. at 2900, 22 ELR at 21111.

28. Id. at 2900 & n.16, 22 ELR at 21111 & n.16. Curiously, the Court does not identify state criminal law as a potential source of noncompensable restrictions on property use.

29. Id. at 2900-01, 22 ELR at 21111.

30. Id. at 2901, 22 ELR at 21111.

31. Id. at 2901-02, 22 ELR at 21111.

32. Id. at 2901, 22 ELR at 21111.

33. Id. at 2899, 22 ELR at 21110 (owner of personal property "ought to be aware of the possibility that new regulation might even render his property economically worthless.").

34. Id. 2894, 22 ELR at 21108.

35. See, e.g., Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978).

36. Lucas, 112 S. Ct. at 2895 n.8, 22 ELR at 21108 n.8.

37. Id. at 2903, 22 ELR at 21112 (Kennedy, J., concurring).

38. Id. at 2903, 22 ELR at 21112 (Kennedy, J., concurring).

39. Id. at 2904, 22 ELR at 21112 (Blackmun, J., dissenting). But see id. at 2900 n.15, 22 ELR at 21110-11 n.15 (dismissing as irrelevant Blackmun's argument that the majority's description of the understanding of land ownership that informs the Takings Clause is not supported by early American experience).

40. Id. at 2904, 22 ELR at 21113 (Blackmun, J., dissenting).

41. Id.

42. Id. at 2919, 22 ELR at 21120 (Stevens, J., dissenting).

43. Id. at 2921, 22 ELR at 21121 (Stevens, J., dissenting).

44. Id. at 2922 n.6., 22 ELR at 21122 n.6 (Stevens, J., dissenting).

45. Id. at 2924, 22 ELR at 21123 (Stevens, J., dissenting).

46. Id. at 2925, 22 ELR at 21123 (statement of Souter, J.).

47. Id. ("Because that concept is left uncertain, so is the exception to the compensation requirement that the Court proceeds to recognize.").

48. Id. at 2926, 22 ELR at 21123 (statement of Souter, J.).

49. Id.

50. Land use rights, however, have been found lacking in value. See Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 21 ELR 20806 (Fed. Cir. 1991) (no remaining value in coal rights as result of mining prohibition); Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381, 19 ELR 20092 (1988) (interlocutory order finding almost total elimination of the value of the property involved from regulation that precluded filling of wetlands; reducing value of land purchased in 1959 for $1,200 per acre to 1982 value of less than $1,100 per acre).

51. Lucas, 112 S. Ct. at 2901, 22 ELR at 21111 (taking inquiry entails analysis of the degree of harm to public lands and resources or adjacent private property posed by the claimant's proposed activities; the social value of the claimant's activities and their suitability to the locality in question; and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government, or adjacent private landowners).

52. This confuses two separate issues: a challenge to the validity of the Act asserting that it is not within the government's power to adopt, and thus must be set aside (freeing the owner from the restriction with a Fifth Amendment claim for no more than a temporary taking), with a takings challenge conceding the validity of the action but asserting that the owner must be compensated. It is difficult to discern how a failure to challenge the validity of an action could be dispositive to the factual question of the rationale for that action in a particular case.

53. See Hadacheck v. Sebastian, 239 U.S. 394 (1915); Mugler v. Kansas, 123 U.S. 623 (1887).

54. Lucas, 112 S. Ct. at 2897, 22 ELR at 21109 (emphasis added).

55. See id. at 2892-93, 22 ELR at 21107.

56. See Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980) (citing Nectow v. City of Cambridge, 277 U.S. 183 (1928); Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (regulation works taking if it fails to advance state interest, denies economically viable use)).

57. 483 U.S. 825, 841-42, 17 ELR 20918, 20922 (1987).

58. The effect of Lucas on recent federal case law is also uncertain. Since 1987, the Federal Circuit has found regulatory takings from various causes. See, e.g., Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 21 ELR 20806 (Fed. Cir. 1991) (enactment of the Surface Mining and Reclamation Act, 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA 001-066); Hendler v. United States, 952 F.2d 1364, 22 ELR 20646 (Fed. Cir. 1991) (installation of wells to monitor groundwater contamination near a Superfund site); and Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990) (a quarantine of breeding turkeys). The U.S. Claims Court found takings from denials of permits to fill wetlands in three cases, Formanek v. United States, 22 ELR 20893 (Cl. Ct. May 14, 1992); Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 20 ELR 21207 (Cl. Ct. 1990); and Florida Rock Indus. v. United States, 21 Cl. Ct. 161, 20 ELR 21201 (Cl. Ct. 1990); but not inanother, Ciampitti v. United States, 22 Cl. Ct. 310, 21 ELR 20866 (Cl. Ct. 1991); and rejected two claims for temporary takings, 1902 Atlantic v. United States, No. 637-87L (Cl. Ct. June 19, 1992); and Dufau v. United States, 22 Cl. Ct. 156 (1990). Although Lucas discusses or identifies issues relevant to several of these decisions, of the recent federal decisions not currently on appeal, Lucas is most likely to affect Hendler v. United States, 952 F.2d at 1364, 22 ELR at 20646, which held that government actions to evaluate hazardous wastes in contaminated groundwater under the plaintiffs' property worked a taking by physical occupation. The court in Hendler conducted no inquiry into "the restrictions that background principles of [applicable] law … place upon land ownership," which Lucas now mandates as a necessary precondition to any takings finding, 112 S. Ct. at 2900, 22 ELR at 21111, including one based on a permanent physical occupation. Hendler is also eroded by its facile extension of the per se rule of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), which expressly applies only to physical occupations that are "permanent," id. at 426-39. In Yee v. City of Escondido, 112 S. Ct. 1522 (1992), the Court rejected any extension of the Loretto rule beyond permanent physical occupations and overruled two appellate decisions that had extended Loretto.

59. See Lucas, 112 S. Ct. at 2896 n.10, 22 ELR at 21108-09 n.10.

60. 480 U.S. 470, 17 ELR 20440 (1987).

61. Id. at 513, 17 ELR at 20451 (Rehnquist, C.J., dissenting).

62. Lucas, 112 S. Ct. at 2898 n.12, 22 ELR at 21110 n.12.

63. Id. at 2895 n.8, 22 ELR 21108 n.8.

64. Id.

65. Yancey v. United States, 915 F.2d 1534, 1536, 1539 (Fed. Cir. 1990).

66. Formanek v. United States, 22 ELR 20893 (Cl. Ct. May 14, 1992).

67. Lucas, 112 S. Ct. at 2894 n.7, 22 ELR at 21107-08 n.7.

68. Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR at 20918 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

69. Hodel v. Irving, 481 U.S. 704 (1987).

70. See Lucas, 112 S. Ct. at 2892-93, 22 ELR at 21107. Regulatory taking doctrine rests on the premise that regulation may be so burdensome that what begins as a metaphor — "You have taken my property" — may, for constitutional purposes, become literal. Logically, therefore, a "partial taking" is an oxymoron; when the owner retains some value, the property is shared, not taken. Eliminating the limitation that a taking can occur only when the metaphor becomes literal, and the government actually "takes" property, detaches regulatory takings doctrine from its jurisprudential roots.

71. Id. at 2898-99, 22 ELR at 21110 (describing the difficulty in making a distinction between regulation that prevents harmful use and that which confers benefits).

72. Id. at 2894 n.7, 22 ELR at 21107-08 n.7.

73. Id.

74. E.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 17 ELR 20440 (1987).

75. Id.

76. Lucas, 112 S. Ct. at 2894 n.7, 22 ELR at 21107-08 n.7.

77. In Loveladies Harbor, Inc. v. United States, plaintiffs purchased 250 acres for $300,000, developed and sold 199 acres, and successfully argued that 12.5 of the remaining 51 acres had been taken as a result of a development prohibition; neither the fact that the burdened area was only 5 percent of the original acquisition, nor the fact that, after the alleged taking plaintiffs sold part of a 6.4-acre parcel from the remaining 51 for $2.19 million was sufficient to defeat a taking claim as to the 12.5 acres. Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 20 ELR 21207 (1990), appeal docketed, No. 91-5050 (Fed. Cir. Apr. 1991) (see Appellant's Brief, Loveladies Harbor, Inc. v. United States, No. 91-5050 (Fed. Cir. Apr. 1991), ELR PEND. LIT. 66143; United States' Motion Suggesting Lack of Jurisdiction in the Claims Court, Loveladies Harbor, Inc., No. 91-5050 (Fed. Cir. Apr. 1991), ELR PEND. LIT. 66203).

78. Compare Keystone, 580 U.S. at 470, 17 ELR at 20440 (1987) (no taking from prohibition of exercise of support estate rights in certain areas) with Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) (taking from prohibition of exercise of support estate rights in certain areas); see also Whitney Benefits v. United States, 926 F.2d 1169, 21 ELR 20806 (Fed. Cir. 1991) (finding taking from destruction of all value in plaintiffs' coal mining rights, regardless of possibility of other uses of real property where mining was intended).

79. Lucas, 112 S. Ct. at 2919-20, 22 ELR at 21120 (Stevens, J., dissenting).

80. Lucas, 112 S. Ct. at 2899, 22 ELR at 21110. The Court recognizes this when it cites a case in which a federally created "limitation upon the landowners' title" defeated a taking claim based on a physical occupation. Id. at 2900, 22 ELR at 21111 (citing Scranton v. Wheeler, 179 U.S. 141, 163 (1900)).

81. See Just v. Marinette County, 201 N.W.2d 761, 3 ELR 20167 (Wis. 1972).

82. See, e.g., Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); National Audubon Soc'y v. Superior Court of Alpine County, 33 Cal. 3d 419, 13 ELR 20272 (Cal. 1983).

83. Lucas, 112 S. Ct. at 2900 n.16, 22 ELR at 21111 n.16.

84. Id. at 2901, 22 ELR at 21111.

85. Id. at 2899, 22 ELR at 21110.

86. It may also render irrelevant the question, raised in 1922 in Pennsylvania Coal v. Mahon, of whether the emergency cases have a sound basis in harm prevention doctrine or rest as much upon tradition as upon principle. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 416 (1922).

87. As Justice Souter observes, "the upshot is that the issue of what constitutes a total deprivation is being addressed by indirection." Lucas, 112 S. Ct. at 2926, 22 ELR at 21123 (statement of Souter, J.).