In the Wake of Lucas v. South Carolina Coastal Council: A Critical Look at Six Questions Practitioners Should Be Asking

Barry I. Pershkow and Robert F. Housman

Editors' Summary: Lucas v. South Carolina Coastal Council evoked great interest during the U.S. Supreme Court's 1991-92 Term, attracting dozens of amicus briefs and producing speculation about whether the case would be a referendum on the entire environmental movement. In Lucas, the Court reversed the South Carolina Supreme Court's ruling that no compensation is due under the Fifth Amendment of the U.S. Constitution when a landowner's private use threatens serious public harm. Writing for the five-member majority, Justice Scalia set forth a new two-part takings standard. First, compensation is due under the Fifth Amendment when regulations enacted for public purposes deprive landowners of all economically beneficial use of their property. Second, under the nuisance exception to compensable takings, regulation may do no more than duplicate the result that the courts would reach under traditional principles of nuisance and property law. Before Lucas, courts used the nuisance exception to excuse the payment of compensation if the state action was within the broad scope of its police power. Now, the takings inquiry is limited to an assessment of the property's value before and after the alleged taking occurs, and the government may avoid compensation for a regulation that deprives landowners of all economic value of their property only when the government acts to prevent a traditional nuisance.

The two Dialogues below evaluate Lucas' impact on takings law. In the first, Barry M. Hartman argues that the Court's decision in Lucas represents a necessary departure from a policy-based takings jurisprudence to an objective approach more consonant with the courts' proper constitutional role. In the second, Barry I. Pershkow and Robert F. Housman contend that the decision's impact will be minimal, assuming that courts will correctly apply Lucas only when a total loss of economically viableuse occurs. Ultimately, Lucas' impact on challenges to land use regulations will hinge on two questions: what constitutes a total loss of economically viable use, and when does a regulation go beyond traditional principles of nuisance and property law? Finding the answers will test the relationship of public and private interests in land use and environmental protection into the next century.

Mr. Pershkow is a Law Fellow with the Center for International Environmental Law in Washington, D.C. Mr. Housman is a staff attorney with the Center for International Environmental Law. He is also an Adjunct Professor of Law at the American University — Washington College of Law.

[23 ELR 10008]

On the day Lucas v. South Carolina Coastal Council¹ was handed down, a wide spectrum of interested parties claimed victory. Environmentalists, who expected the worst but had silently hoped for the best, cautiously rejoiced over the Court's seemingly narrow holding. Property rights advocates, who were confident that the days of uncompensated regulatory burdens had come to an end, celebrated with David Lucas their apparent success. While both groups claimed victory, however, they also knew that Lucas would not be the end, for the case raised more questions than it answered. This Dialogue explores six of the most pressing of these questions and analyzes the ramifications of the holding for both state and federal environmental law.

What Is Lucas' Effect on Takings Analysis in General?

Directly applied, Lucas has little effect on the overall scheme of takings analysis. The majority's opinion in Lucas limits the application of the Court's holding to only those cases in which government regulation has deprived a landowner of virtually all economic value in the affected parcel of land. Although Lucas' broader applicability will largely be determined by how courts choose to read the requirement that Lucas applies only when virtually all value has been lost, the test for a regulatory taking, nonetheless, remains restrictive.² Assuming that courts will read the Lucas total economic deprivation test correctly and will apply Lucas only when a total loss of economically viable use has occurred, the decision's impact on takings law will be minimal. It is rare that even the most restrictive of environmental statutes, or other government land use regulations, deny property owners all value in their land.

For example, in Lucas, the finding that a total taking had occurred rested on the trial court's misdirected and hasty conclusion that the Beachfront Management Act³ had "'deprive[d] Lucas of any reasonable economic use of the lots, … eliminated the unrestricted right of use, and render[ed] them valueless.'"⁴ Only through unflagging deference to the arguably incorrect findings of the trial court was the majority able to find that Lucas was the victim of a total taking. In reality, as Justices Kennedy, Blackmun, and Stevens point out, Lucas' land was not without value, even with the regulation in place. He could exclude others from the property,⁵ and his property could be used for bathing, camping, or as a domicile without a permanent structure. While these alternative uses may not fit the Court's perception of the highest use, they are nonetheless uses to which economic value may be assigned.

Moreover, highly regulated land of the type addressed by environmental statutes, such as largely untouched wetlands or endangered species' critical habitat, almost always has value to speculators — individuals willing to gamble on the possibility that the regulatory burdens will someday be lifted or altered.⁶ Consider, for example, Lucas' land in its current condition. Lucas holds prime beachfront property and has the possibility of obtaining a variance allowing him to build the American-dream, single-family homes he so desires. To say that such land has no value and no market exists for it, is woefully erroneous. The same speculative value exists for much, if not a majority, of the land on which environmental, health, safety, and other land use laws preclude substantial development.⁷

Lucas likely will do little to change the status quo of property rights jurisprudence. However, the majority's willingness to establish a new and more restrictive takings test is troubling because, if the Lucas nuisance-based line of analysis is expanded to a wider range of takings cases, the result could be the hobbling of many important environmental, health, safety, and land use laws. Lucas' progeny may force governmental entities to justify the wide range of existing health, safety, and environmental protections under nuisance law, and most assuredly some of these protections will be found not to fit within the narrow and [23 ELR 10009] amorphous confines of nuisance doctrines. Moreover, the prospect of having to "pay for the adverse economic consequences of … 'every … change in the general law'" will have a substantial chilling effect on the government's willingness to protect its citizens and their environments.⁸

Politically speaking, the prospect that Lucas will be read to apply to a wide range of takings cases is doubtful. For over a year, property rights aficionados and Court watchers looked to Lucas as the opportunity for the Court's conservative cabal to recast the takings doctrine to reflect a pro-property rights approach. First, although the decision is a six-to-three majority,⁹ Justice Kennedy's concurrence openly questions the Court's new test, making the decision closer on critical issues.¹⁰ Second, while the decision moves takings jurisprudence closer to the path that the Court's conservatives would like to follow, the decision does not reach the level many property rights advocates had hoped it would, indicating reluctance among members of the majority to fully cast aside existing takings principles.¹¹

Do We Still Defer to the Legislature?

Justice Scalia, writing for the majority, adopts a categorical rule that where all economic use of one's land is eliminated by regulation, a state may avoid compensating the property owner only if the state can prove that the proscribed use — in this case building a house on the beach — was not part of the title to the land. Thus, a state may deny compensation only if the prohibited use was already forbidden by common-law nuisance or some other state-law property doctrine. The Court thereby creates an exception to the general rule of judicial deference to legislative determinations.¹²

While nuisance typically has been defined by both common-law precedent and legislative ordinance, today it primarily emanates from the legislature. Thus, if the state of South Carolina adopts the Beachfront Management Act prohibiting certain uses, the legislature is making a determination that those uses or activities constitute a nuisance — a tort which presumably has been defined in earlier legislation. Curiously, however, the Court's new rule asks reviewing courts to analyze the statute in question within the framework of existing state nuisance law, of which the statute is presumably a part, without the benefit of referring to the statute itself.

The Court, then, has significantly diminished the legislature's discretion to regulate activities injurious to the community.¹³ In his dissent, Justice Blackmun argues that the majority's approach "alters the long-settled rules of [judicial] review."¹⁴ Scalia indeed concedes that this new rule has not previously been justified in takings jurisprudence, but he explains that in the "extraordinary circumstance when no productive or economically beneficial use of land is permitted, it is less realistic to indulge our usual assumption that the legislature is simply 'adjusting the benefits and burdens of economic life.'"¹⁵ This sudden distrust of state motives in property cases may simply be an aberration, attributable to the fact that takings analysis is ultimately, as Justice Holmes noted 70 years ago, an ad hoc factual inquiry¹⁶ into the fairness of the regulatory scheme. Though the Court may simply have felt that South Carolina went "too far"¹⁷ in effectively depriving Mr. Lucas of $ 1.2 million, the Court's adoption of a categorical rule has not only forced the Court to couch its true sense of injustice in terms of whether a title was conveyed with certain expectations, but also has sent broader, and perhaps unintended, messages to state governments.¹⁸ Again, however, these issues become relevant only in those few instances when government regulation deprives individuals of all economically viable uses of their land.

Does Lucas Apply to Federal Laws?

Property rights advocates have expressed concern over a host of federal environmental statutes that regulate the uses of private properties. The two most contentious of these are the Endangered Species Act (ESA), which prohibits the destruction of the critical habitat of species designated as endangered,¹⁹ and the Clean Water Act, which prohibits the filling of wetlands without a § 404 permit.²⁰ Determining Lucas' effect on such federal statutes is integral to assessing its overall ramifications.

The Lucas decision relies on the nature of the owner's estate when ascertaining whether a taking has occurred. This analysis turns on an inquiry into the applicable "background principles" of state property and nuisance law.²¹ Such heavy reliance on state law leaves uncertain the decision's [23 ELR 10010] effect on federal statutes, with at least three results being plausible.

First, the Lucas analysis potentially will be applied directly in determining whether a federal statute effects a complete regulatory taking of private real property. Remember that the Lucas takings analysis turns on what property rights exist in a private property owner's bundle of rights. Since property rights are generally defined by state law,²² whether a statute affecting such rights is a state or federal statute need not play a role in the post-Lucas takings analysis; the owner's property rights as defined by state law remain constant.

Although the Lucas decision may be applied directly in determining whether a federal statute effects a taking, this is not to say that the decision should be so applied. Applying the decision directly to federal laws would essentially create a patchwork quilt of federal takings jurisprudence across the 50 states. The result of this approach would be that, as applied, a federal statute could be found to effect a taking in state A, whereas the application of the same statute, under identical factual circumstances, would result in no taking in neighboring state B. Such disparate results make this approach untenable.

Second, Lucas' analytical framework potentially could be applied to federal statutes through reference to existing background principles of the federal common law of nuisance. Using this approach to analyze whether a federal statute effects a taking, a federal court would look to see if the statute was justified under existing federal common-law nuisance provisions, rather than referring to state-law nuisance principles to justify a regulatory limitation on the use of real property.²³

The application of Lucas to federal statutes through federal common-law nuisance provisions is dubious, however. Existing federal common-law nuisance provisions are generally applicable only in interstate cases.²⁴ Thus, the federal common law of nuisance is ill-suited to application beyond interstate cases. Moreover, federal common-law nuisance provisions are preempted where federal legislation occupies the field.²⁵ Thus, when a federal statute occupies a field of inquiry, the federal common law of nuisance should not be relied on to justify the same federal statute, because the applicable federal common-law nuisance provisions have been preempted by the very statute which now looks to these common-law provisions for justification.

Third, and perhaps most appropriate, the Lucas takings framework may be wholly inapplicable to federal statutes. This approach recognizes the difficulties inherent in seeking state-law bases for federal statutes and analyzing a myriad of federal statutes under the narrow doctrinal foundation underlying the federal common law of nuisance. This third view of the application of Lucas would, however, simply add one more distinction — federal versus state — to the already convoluted realm of takings jurisprudence.²⁶

What Does the Phrase "Background Principles of Property and Nuisance" Mean?

The majority opinion in Lucas provides that no compensation is due for a regulatory taking that deprives a property owner of all value in her land if the regulation is justified under the "background principles of the State's law of property and nuisance…."²⁷ Accordingly, to determine the government's permissible scope of regulation without having to provide compensation, it is necessary to define what legal doctrines fall within this newly crafted term of art — "background principles of property and nuisance law."

Despite the majority's repeated reference to background principles of property and nuisance law, its analysis is restricted to traditional principles of nuisance law. For example, the majority posits that an owner of a lake bed is not due compensation for having been denied a permit to fill the lake bed.²⁸ The Court's discussion is limited, however, to only those cases in which the filling of the lake bed will flood neighboring land — an action [23 ELR 10011] prohibited under traditional nuisance doctrine.²⁹ Thus, unfortunately, the Court seems to ignore the vast array of other property statutes and common-law principles that have an impact on the bundle of property rights a landowner holds in a given jurisdiction.

Further, the Court's lake-bed hypothetical reflects the inherent flaw in its nuisance-based opinion. While the majority recognizes the need for the state to prevent one property owner from harming her neighbors, the majority fails to recognize that a state's police powers necessarily extend to preventing more generalized harms to the community that do not fit within the amorphous confines of the nuisance doctrine. Consider the Court's hypothesis that no compensation would be due if a state's goal in prohibiting a landowner from filling a lake bed is to prevent the flooding of a neighbor's land. If the same prohibition is intended to preserve wetlands, apart from the harms their destruction may bring on neighboring landowners, the majority's decision leaves open the question of compensation. As Justice Kennedy's concurrence recognizes, the majority's opinion relies too heavily on the principles of nuisance law as the sole justification for uncompensated regulatory takings.³⁰

Even confining the majority's new term of art to its true nuisance roots, the Lucas decision does little to clarify just when a regulatory action, even one which deprives a landowner of all economic use of her land, is a taking. Nuisance law, as Justice Blackmun's dissent rightfully provides, is anything but an example of doctrinal clarity. On an anecdotal scale, the definition of nuisance has been applied indiscriminately to activities ranging from an "alarming advertisement to a cockroach baked in a pie."³¹

Recognizing that its nuisance-based takings analysis does little to clarify the current state of takings jurisprudence, the majority attempts to define what it means when it says "nuisance." Justice Scalia, writing for the majority, emphasizes that a state legislature cannot ipse dixit define an otherwise allowable and acceptable action into a nuisance.³² Additionally, the majority provides a list of factors to be reviewed in determining if a statute falls within the traditional precepts of nuisance law:³³ the degree of harm to public or other private property posed by the claimant's proposed activities; the social value of the claimant's proposed activities and their suitability to the locale in question; the relative ease with which the harm can be avoided through measures taken by the claimant, the government, or other property owners; whether the proposed activity complained of has long been engaged in by other similarly situated individuals in the locale — though change in circumstances or new knowledge may make what was previously permissible no longer so; and whether such similarly situated landowners are allowed to continue the activity.³⁴

This list of factors fails, however, to give much guidance. Factors one and two — the weight of the harm versus the benefits from the activity — do little more than fold the past burden/benefit test found in a long line of prior takings cases³⁵ into the phraseology of nuisance.³⁶ Factor three — the relative ease with which the harm can be avoided through other actions — is simply an excuse for courts to second guess regulators and legislators, who are more experienced with local circumstances, as to how a harm might best be avoided. As such, factor three is little more than an ex post facto device for finding a taking and does little to differentiate between when a taking has or has not taken place. Read together, factors four — whether the activity has long been engaged in by similarly situated landowners, and five — whether such similarly situated landowners are allowed to continue the activity, place regulators in a terrible Catch 22. A regulator, with new information or changed circumstances in hand, may prohibit an activity in the future. Thus, a change in circumstances or new knowledge can make past permissible activities now impermissible.³⁷ However, if a regulator prospectively bans an activity as a nuisance, the regulator runs head first into a conflict between factors four and five. The regulator may ban the activity in its entirety, even among past users — for example, tearing down existing homes — but only by creating a potentially more egregious taking by discontinuing a long-standing permissible activity.

Moreover, the question of timing complicates the determination of which "background principles of nuisance and property law" would justify a restriction on property. Justice Scalia's opinion for the majority emphasizes that restrictions on a use of private real property "must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already [23 ELR 10012] in place on landownership" at the time the owner took title to the land.³⁸

This limitation "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."³⁹ Moreover, this time limitation on land use restrictions contradicts the majority's own pronouncement that "changed circumstances or new knowledge may make what was previously permissible no longer so…."⁴⁰ Most importantly, the requirement that restrictions must inhere at the time of title directly contradicts the long-standing principle that "all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it."⁴¹

The effect of such a time-of-title limitation can already be seen in the majority's dictum concerning the fate of South Carolina's Beachfront Management Act. While there was no restriction on Lucas' right to build on the lots in question when he took title, the Beachfront Management Act was already in place and enforced against other landowners. Lucas was simply fortunate that regulated lands, at the time he took title, did not include his land. Presumably, this existing regulatory framework was actually known to Lucas, a developer in the area. Based on a study of the effects and threats from beachfront erosion — new knowledge — South Carolina expanded the definition of regulated properties placing Lucas' land under the Act's umbrella.⁴² Despite notice of the potential regulation of Lucas' land, the majority expresses doubt as to whether South Carolina can justify the Act under the nuisance-based test the majority constructs.⁴³ As the Lucas example shows, this strict reading of the time-of-title limitation can have a significant detrimental effect on the ability of governments to respond to the ever-expanding understanding of the environment and the newly developing threats to it.

How Do You Define "Economic Use" and the "Parcel"?

For the Court to have found that the state of South Carolina had taken David Lucas' land, Lucas had to show that he had been deprived of all economic or productive use of his land. On Lucas' facts, it was relatively easy for the Court to find that Lucas had been deprived of all economic use of his land, since the trial court had concluded that nothing else could be done with the land, save building a campfire, and that all of his land — that is, the whole plot — was regulated. In the vast majority of cases, however, a regulation will apply only to a portion of the land and not deny all economic use. Many of the battles after Lucas may be won or lost on how the reviewing court defines "all economic use" and the "parcel."

Traditionally in regulatory takings cases, the Court has required that to recover compensation, all of the claimant's property rights must be completely destroyed.⁴⁴ When judging the economic effects, the Court has held that the parcel should be considered as a whole, relying on cases in which allegations of diminution in value of 75 percent and 87.5 percent were held not enough to constitute a taking.⁴⁵ Though the Court in Lucas does not squarely confront the issue,⁴⁶ it gives some inkling as to whether it will adhere to the traditional rule of defining the parcel as a whole — finding only a diminution in the land's value rather than an unconstitutional and compensable taking, or whether the regulated portion of the land — perhaps as little as 5 percent — will be considered a whole parcel completely taken by regulation.

The Court's reluctance to choose a bright-line rule is obvious.⁴⁷ Justice Scalia's footnote 7, however, provides some guidance, declaring "insupportable" a takings calculus that examines the diminution in a parcel's value in light of surrounding land holdings.⁴⁸ This statement does not answer whether the Court would be willing in the future to [23 ELR 10013] define the "parcel" as a portion of the property and not the whole, but it may indicate that a majority is not yet ready to open the door to hundreds of thousands of takings claims. Nevertheless, Justice Scalia's intimation in footnote 7 that one whose land is parceled may be compensated for a diminution in value as a result of a regulation, may have already opened the door to a whole new wave of takings claims. Recasting the rules for defining the "parcel as a whole" would have dramatic effects on takings analysis. For example, whereas today an FWPCA § 404 permit denial for property containing developable uplands would not constitute a taking,⁴⁹ focusing exclusively on the wetlands' portion of the property greatly increases the likelihood that a taking would be found.

Adding to the difficulty in defining the "parcel" is the related problem of defining a "productive use." When, as in Lucas, one is unable to build on a beachfront property, and the property was bought with the intention to build a house, the highest and most productive use of the property has probably been lost. But one has not lost the right to possession, the right to exclude, the right to alienate, or the right to enjoy the property in its undeveloped state. Whether these rights have "value" within the formulation of "economically viable use" is unclear from the decision. Further muddying the waters, Justice Scalia uses different phraseology throughout the opinion to describe what kind of loss must be suffered: loss of economic use,⁵⁰ economically beneficial use,⁵¹ economically viable use,⁵² economically feasible use,⁵³ economically valuable use,⁵⁴ and economically beneficial or productive options for use.⁵⁵ Whether one has suffered such loss when a state law, for example, does not allow the property owner to build a house but does not prohibit the owner from farming that portion of the land or from enjoying its undisturbed aesthetic quality, remains unclear in Lucas' wake. Reviewing courts will likely continue an ad hoc factual inquiry, balancing, as always, notions of injustice, fairness, and state police powers.

What Happened to Injury-in-Fact?

Just a few days before the Court handed down its decision in Lucas, it decided Lujan v. Defenders of Wildlife,⁵⁶ denying standing to an environmental group that challenged the U.S. Department of the Interior's regulation providing that agencies need not consult with each other under the ESA⁵⁷ when undertaking actions abroad.⁵⁸ Despite the fact that the ESA's citizen suit provision confers standing on all persons to challenge a regulation promulgated under the Act,⁵⁹ the Court held that Defenders of Wildlife had failed to meet the strict injury-in-fact requirement for standing and thus had not presented a case or controversy to the court as required by Article III of the U.S. Constitution.⁶⁰

The outcome concerning injury-in-fact in Lujan v. Defenders of Wildlife is instructive for evaluating Lucas. Despite the fact that David Lucas had testified at trial that he had no intention of selling or building on his property during the period between the passage of the Beachfront Management Act and the filing of his lawsuit, the Court decided to hear the case on the merits, noting that the property was "temporarily taken"⁶¹ during this same period. Justice Blackmun's vigorous dissent in Lucas suggests a specific bias against environmental plaintiffs, objecting to the Court's lack of concern for the very rule it had created days earlier in Lujan v. Defenders of Wildlife.⁶² The new standard crafted in Lujan v. Defenders of Wildlife requires much more than a "some day intention" to build a house to meet Article III's case-or-controversy requirement,⁶³ and by his own admission at trial, David Lucas had not intended to either sell or develop his property. In response, Justice Scalia asserted that because of the South Carolina Supreme Court's "dismissive foreclosure of further pleading and adjudication with respect to the pre-1990 component of Lucas' taking claim, it [was] appropriate … to address that component as if [it had arrived] on the pleadings alone"⁶⁴ and disregard conflicting testimony actually given at trial. Though Justice [23 ELR 10014] Scalia attempts to differentiate the level of specificity of injury one must sustain at the pleading stage (Lucas) from that required at the summary judgment stage (Lujan), one is left with the distinct impression that, in the majority's view, and in contravention to the view espoused by the Court in Sierra Club v. Morton, environmental injury may no longer be equal to economic harm.⁶⁵

Conclusion

It is too soon to know whether Lucas foreshadows a newly emerging approach to takings or is simply an aberration in a long line of takings cases. The effects of the Lucas decision, particularly on environmental protection, are difficult to assess, because Lucas provides only muddy answers to the many questions it raises. As a result, reviewing courts will be left to do what they have always done best — balance interests and dispense justice.

1. 112 S. Ct. 2886, 22 ELR 21104 (1992).

2. See Lucas, 112 S. Ct. at 2918-20, 22 ELR at 21120-21 (Stevens, J., dissenting); see also David Coursen, Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, 22 ELR 10778 (Dec. 1992); Jeremy Paul, After Dust Settles Not Much Change in Property Rights, LEGAL TIMES, July 13, 1992, at 17, 20. Justice Stevens also points out that by manipulating the types of estates created, developers can give broader application to the Lucas decision. Lucas, 112 S. Ct. at 2919-20, 22 ELR at 21120-21 (Stevens, J., dissenting).

3. Beachfront Management Act, S.C. Code § 48-39-250 (Supp. 1990).

4. See Lucas, 112 S. Ct. at 2890, 22 ELR at 21105.

5. See Kaiser Aetna v. United States, 444 U.S. 164, 176, 10 ELR 20042, 20045 (1979) (the right to exclude others is one of the most essential sticks in the bundle of rights commonly characterized as property).

6. The United States Claims Court has, however, held that the speculative value of land is not germane to a court's consideration of whether an economically viable use remains after a regulatory burden has been imposed on a given parcel of land. See Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161, 173, 20 ELR 21201, 21205 (1990). The Claims Court's approach to speculative value is misguided and fails to recognize the fact that a speculative market in property exists that gives regulated land real market value. The role of speculative value in the economically viable use analysis has not, however, been addressed by the U.S. Supreme Court.

7. In assessing the effect of the Lucas decision, one commentator distinguishes between typical zoning, environmental, and other land use regulations, and those regulations like wetlands' provisions, flood control, and the endangered species' protections, where the government is forced to ban all construction. Jeremy Paul, After Dust Settles Not Much Change in Property Rights, LEGAL TIMES, July 13, 1992, at 17, 20. "Typical" regulations do not deprive all value and so should be free from Lucas' effects, whereas complete development ban statutes deprive landowners of a higher degree of benefit and so may be judged under Lucas' effects, whereas complete development ban statutes deprive landowners of a higher degree of benefit and so may be judged under Lucas' effects, whereas complete development ban statutes deprive landowners of a higher degree of benefit and so may be judged under Lucas' line of analysis. This distinction may appear in Lucas' progeny but fails to recognize that even complete development ban statutes do not typically deprive landowners of all value in their land.

8. Lucas, 112 S. Ct. at 2921, 22 ELR at 21121 (Stevens, J., dissenting) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)). See also infra 18.

9. It is debatable whether, given the statement of Justice Souter, the decision is really 6-2, 6-3, or 5-3-1.

10. Lucas, 112 S. Ct. at 2902, 22 ELR at 21111 (Kennedy, J., concurring).

11. The 1991-92 Term included several important and politically charged cases in addition to Lucas. Given the number of significant decisions handed down late in the Term, it is possible that the demands on the so-called centrist Justices played a role in shaping the majority's opinion, and provided Justice Scalia greater leeway in crafting that opinion. This factor also mitigates toward assuming a limited future applicability of Lucas.

12. See Euclid v. Ambler Realty, 272 U.S. 365, 388 (1926) ("If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control."). See also United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).

13. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491-92, 17 ELR 20440, 20445 (1987) ("[P]roperty … is held under the implied obligation that the owner's use of it shall not be injurious to the community….") (quoting Mugler v. Kansas, 123 U.S. 623, 665 (1887)).

14. Lucas, 112 S. Ct. at 2909, 22 ELR at 21115 (Blackmun, J, dissenting). The majority notes that to win its case, "South Carolina must do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest…." Id. at 2901, 22 ELR at 21111.

15. Id. at 2894, 22 ELR at 21108 (emphasis omitted).

16. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

17. Id. at 415 ("[I]f the regulation goes too far it will be recognized as a taking.").

18. After Lucas was decided, Massachusetts lawmakers filed a bill to repeal the state's Watershed Protection Act, citing the Court's holding as the reason. Repeal Sought for Watershed Act: New England News Briefs, THE BOSTON GLOBE, July 1, 1992, at 50.

19. Endangered Species Act § 9, 16 U.S.C. § 1538, ELR STAT. ESA 017.

20. Federal Water Pollution Control Act § 309, 33 U.S.C. § 1319, ELR STAT. FWPCA 038.

21. Lucas, 112 S. Ct. at 2900, 22 ELR at 21111.

22. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980); Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

23. This discussion does not address whether the provisions of federal statutes, such as the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-071, are part of the common law that inheres in the title of a purchaser who takes title after the enactment date of the respective statutes.

24. See, e.g., Missouri v. Illinois, 406 U.S. 91 (1972); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 1 ELR 20124 (1971); New Jersey v. New York City, 283 U.S. 473 (1931).

25. See International Paper Co. v. Ouellette, 479 U.S. 481, 17 ELR 20327 (1987); Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981).

26. Whether Lucas can be applied to federal law may, however, be less important than in which court the takings case is brought and ultimately heard. Ordinarily, the plaintiff chooses the forum by deciding where to bring the case. In takings cases, a claimant can file the substantive federal question case (i.e., whether a taking has been effected) either in federal district court or U.S. Claims Court, though the ultimate "claim" — a separate issue — must be filed in the Claims Court, which is vested by the Tucker Act, 28 U.S.C. §§ 1346, 1491, with exclusive jurisdiction to hear all claims in the nature of contract seeking judgment against the United States in excess of $ 10,000. Because the U.S. Claims Court has already applied takings analysis to federalenvironmental law, see Florida Rock Indus. v. United States, 8 Cl. Ct. 160, 15 ELR 20626 (Cl. Ct. 1985), aff'd in part, vacated in part and remanded, 791 F.2d 893, 16 ELR 20671 (Fed. Cir. 1986) and Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381, 19 ELR 20992 (Cl. Ct. 1988), just compensation awarded, 21 Cl. Ct. 153, 20 ELR 21207 (Cl. Ct. 1990), claimants have considered the Claims Court a pro-property rights forum; thus, they have often litigated both the issue of whether a taking has been effected and whether a "claim" against the government exists in the Claims Court.

Under a recent case from the Federal Circuit Court of Appeals, however, the U.S. government (or another party), may now be able to file a suit for declaratory relief in federal district court and, by such action, divest the Claims Court of jurisdiction, effectively preempting the claimant's choice of forum. In UNR Indus., Inc. v. United States, 962 F.2d 1013, 22 ELR 21413 (Fed. Cir. 1992), cert. granted sub nom. Keene Corp. v. United States, 61 U.S.L.W. 3301 (U.S. Oct. 19, 1992), the court held that 28 U.S.C. § 1500 divests the Claims Court of jurisdiction when a claim originally filed in Claims Court is, at any time before or during the proceeding, filed in federal district court. Thus, if a plaintiff files a case in Claims Court and raises substantive Fifth Amendment issues, the U.S. government may then seek declaratory relief from a federal district court, asking the court to find that a regulatory measure under a given environmental law does not constitute a taking. The action by the U.S. government would divest the Claims Court of jurisdiction and force the takings issue into federal district court. The government may also preempt any Claims Court jurisdiction over an issue by first filing a suit for declaratory relief. The Claims Court would then have to dismiss its case for lack of jurisdiction, leaving the government (or any named party seeking to defeat the claim) with the upper hand.

27. Lucas, 112 S. Ct. at 2900, 22 ELR at 21111.

28. Id.

29. Id. The underlying premise in nuisance is the maxim sic utere tuo ut alienum non laedas ("Use your own property in such a manner as not to injure that of another"). BLACK'S LAW DICTIONARY 1238 (5th ed. 1979). See Lucas, 112 S. Ct. at 2901, 22 ELR at 21111. The outcome on remand to the South Carolina Supreme Court demonstrates the problem Justice Kennedy foresaw. See Lucas v. South Carolina Coastal Council, No. 23342 (S.C. Nov. 20, 1992) (no basis exists in common-law nuisance for concluding that Lucas' intended use of his land was not part of the bundle of rights inhering in his title).

30. Lucas, 112 S. Ct. at 2903, 22 ELR at 21112 (Kennedy, J., concurring) ("The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society.") (citations omitted); Daniel J. Popeo & Paul D. Kamenar, For Regulators, Courts Ruling Spells Trouble, LEGAL TIMES, July 13, 1992, at 17, 21 (1992).

31. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 616 (5th ed. 1984).

32. See Lucas, 112 S. Ct. at 2901, 22 ELR at 21111.

33. Ironically, while the Court bases its analysis on each state's background principles of nuisance law, the Court sees no difficulty in telling the states what factors their courts should look to in determining the background principles of their own nuisance laws.

34. See Lucas, 112 S. Ct. at 2901, 22 ELR at 21111.

35. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 17 ELR 20918, 20920 (1987); Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980). For an excellent discussion of the benefit/burden approach, see David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311 (1988).

36. Compare Lucas, 112 S. Ct. at 2897, 22 ELR at 21109, with id. at 2901, 22 ELR at 21111.

37. The vast majority of land use statutes, and in particular environmental statutes, regulate some use of property on the basis of some new information or circumstances. Thus, while the cutting of forests has long been permitted, where new knowledge indicates such cutting may be placing in jeopardy an already endangered species, such logging may be prohibited. Similarly, while the building ofhomes, even on beaches, has long been allowed, where new knowledge links such building to substantial harm to tidal zone environments, and to the public safety, such building may be prohibited.

38. Lucas, 112 S. Ct. at 2900, 22 ELR at 21111. This time-of-title limitation appears to fit into the "reasonable investment-backed expectations" analysis that the Claims Court has taken up. See Ciampitti v. United States, 22 Cl. Ct. 310, 321, 21 ELR 20866, 20871 (1991). The interference with reasonable investment-backed expectations has, however, been found not to effect a taking where economically viable uses of the land remain. See Deltona Corp. v. United States, 657 F.2d 1184, 1193, 11 ELR 20905, 20909 (Cl. Ct. 1981). Moreover, the Claims Court in Deltona further emphasized that the mere interference with a previously unrestricted developable property interest is not proof of a taking. Id.

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

40. Lucas, 112 S. Ct. at 2901, 22 ELR at 21111.

41. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491-92, 17 ELR 20440, 20445 (1987) (citations omitted).

42. See Lucas, 112 S. Ct. at 2904-06, 22 ELR at 21113-14 (Blackmun, J., dissenting).

43. See id. at 2903-04, 22 ELR at 21111.

44. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978) (no taking was found where a New York regulation restricted building above a New York City landmark. The Court held that the landmark designation did not constitute a taking, relying heavily on the beneficial use of the property left to the owners); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (no taking was found where a Pennsylvania regulation only restricted certain subsurface rights — namely, the amount of coal a property owner could mine).

45. Penn Central Transp. Co., 438 U.S. at 131, 8 ELR at 20535.

46. Justice Souter recognizes that the concept of total taking (i.e., defining the parcel) is "so uncertain under existing law as to have fostered inconsistent pronouncements by the Court itself." Lucas, 112 S. Ct. at 2925, 22 ELR at 21123 (statement of Souter, J.). Because he similarly recognizes that defining the parcel may be the ultimate question and that because the issue had not been fully briefed and thus not squarely faced by the Court, he would have dismissed the writ of certiorari and waited to face the total deprivation question forthrightly in a future case. Id.

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

48. Lucas, 112 S. Ct. at 2894, n.7, 22 ELR at 21107-08 n.7. The now infamous footnote 7 provides in pertinent part:

Regrettably, the rhetorical force of our "deprivation of all economically feasible use" rule is greater than its precision, since the rule does not make clear the "property interest" against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole. (For an extreme and, we think, insupportable view of the relevant calculus, see Penn Central Transportation Co. v. New York City … where the state court examined the diminution in a particular parcel's value produced by a municipal ordinance in light of total value of the taking claimant's other holdings in the vicinity.)

Id. (citations omitted).

49. See, e.g., Deltona Corp. v. United States, 657 F.2d 1184, 1192, 11 ELR 20905, 20909 (Cl. Ct. 1981); Jentgen v. United States, 657 F.2d 1210, 1213, 11 ELR 20910 (Cl. Ct. 1981).

50. Lucas, 112 S. Ct. at 2893, n.6, 22 ELR at 21107 n.6.

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

52. Id. at 2893 n.6 & 2894, 22 ELR at 21107 & n.6 (citation omitted).

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

54. Id. at 2900, 22 ELR at 21110.

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

56. 112 S. Ct. 2130, 22 ELR 20913 (1992).

57. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 001-027.

58. Writing for the Court, Justice Scalia denied standing, focusing on two individual affidavits which alleged that the United States' activities abroad would injure the affiants' ability to observe endangered species in certain parts of the world. Their alleged injury, the Court held, was too tenuous and remote, because they had not expressly intended to travel abroad immediately or made specific arrangements to return to the sites they had previously visited.

59. Endangered Species Act § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025-026.

60. U.S. CONST. art. III.

61. The Court has held that temporary takings, limited in duration, are as protected by the U.S. Constitution as are permanent ones. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318, 17 ELR 20787, 20791 (1987). Even a temporary taking, however, still requires that the property was "in fact" taken.

62. See Lucas, 112 S. Ct. at 2908 n.5, 22 ELR at 21114 n.5 (Blackmun, J., dissenting).

63. "Such 'some day' intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the 'actual or imminent' injury that our cases require." Lujan v. Defenders of Wildlife, 112 S. Ct. at 2138, 22 ELR at 20916. In addition to the Article III requirements that there be injury-in-fact caused by defendant's behavior and that the injury can be redressed by a favorable court decision, there are also prudential considerations, such as mootness or ripeness, that a judge may invoke to deny the plaintiff a hearing. Even if Justice Scalia could justify hearing the case under Article III, he simply brushes aside any concern that Mr. Lucas had not exhausted all of his administrative remedies, noting that "we do not think it prudent to apply that prudential requirement here." Lucas, 112 S. Ct. at 2892, 22 ELR at 21106.

Typically, a plaintiff's claim is unripe unless and until he seeks a variance from the state that denied him use of his land. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985). In this case, there is evidence that South Carolina specifically passed the 1990 amendment to its Beachfront Management Act (which provided for special permits), to specifically avoid litigating takings claims; Mr. Lucas would have more likely than not received such a variance. One can only surmise that the Court's refusal to dismiss the case and issue a statement that it had improvidently granted certiorari, as it had in a takings case accepted earlier in the Term — P.F.Z. Properties, Inc. v. Rodriguez, 112 S. Ct. 1151 (Mar. 9, 1992) — meant that the Court was indeed "eager" to hear the case on its merits.

64. Lucas, 112 S. Ct. at 2891-92 n.3, 22 ELR at 21106 n.3.

65. The Court in Sierra Club v. Morton noted that aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972).