Extrajurisdictional Takings After SWANCC

Timothy S. Bishop and Kermit Roosevelt

The authors are environmental litigators with the Chicago office of Mayer, Brown & Platt. Mr. Bishop briefed and argued the SWANCC case in the U.S. Supreme Court. The SWANCC briefs are available at http://www.mayerbrown.com/propertyrights.

[31 ELR 11225]

In January 2001, the U.S. Supreme Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),¹ held that the U.S. Army Corps of Engineers (the Corps) lacks jurisdiction under the Clean Water Act (CWA) to require landowners and developers to obtain § 404 permits to dredge or fill isolated ponds and wetlands which are not navigable and not connected to navigable waters, but are used by migratory birds that fly across state lines. Since 1996, the Corps had asserted jurisdiction over isolated ponds and wetlands based on their actual or potential use by migratory birds. Thus the result of the SWANCC decision is that for the past 15 years, the Corps has been reviewing projects and issuing and denying permits despite having no jurisdiction to do so. Without having jurisdiction, the Corps has put landowners and developers to the often considerable delay and expense of seeking § 404 permits, has insisted on significant project modifications and costly mitigation, and has denied some permits outright. Furthermore, in some states (reportedly, for example, Indiana and Wisconsin), the jurisdiction of state agencies over isolated waters and wetlands piggybacked on the Corps' CWA jurisdiction; if there was no CWA jurisdiction, there was no state jurisdiction either. In those states, agency demands associated with CWA § 401 water quality certifications or otherwise, with regard to the fill of isolated waters, have similarly been outside the agency's jurisdiction and were improper.

This Dialogue explores whether agency-imposed limitations on land use that are later adjudicated to have been beyond the agency's jurisdiction—such as the Corps' improper assertion of regulatory jurisdiction over isolated waters and wetlands—may be takings under the Fifth Amendment to the U.S. Constitution. We call these "extra-jurisdictional takings." Whether there can be such a thing is a subject of a dispute that, after SWANCC, is no longer "just academic."

Jurisdiction With No Statutory Basis: The Migratory Bird Rule

The CWA gives the Corps jurisdiction over "navigable waters," defined in the statute as "waters of the United States."² The Corps has defined navigable waters in regulations to include any water or wetland—navigable or not—"the use, degradation or destruction of which could affect interstate or foreign commerce."³ And in the preamble to regulations promulgated in 1986, the Corps purported to "clarify" that waters and wetlands covered by that rule include waters "which are or would be used as habitat by … migratory birds which cross state lines" or are protected by migratory bird treaties.⁴ The Corps' theory was that any actual or potential use of any water or wetland by migratory birds affects interstate commerce because people engage in interstate commerce—travel interstate and spend money interstate—to hunt and watch migratory birds.⁵ In this way, the federal government asserted jurisdiction over tens of millions of acres of isolated, non-navigable intrastate ponds, mudflats, vernal pools, prairie potholes, and wetlands. Landowners were required to obtain permits from the Corps for any activity that filled jurisdictional water—activities that the Corps interpreted broadly to include not merely building upon or regrading a wetland, but even "walking, bicycling[,] or driving a vehicle through a wetland."⁶

Having claimed jurisdiction, the Corps required landowners to obtain a CWA § 404 permit to fill isolated ponds or wetlands. SWANCC illustrates how lengthy and expensive a process that could be. The administrative record in SWANCC is 47,000 pages long and took about four years (and millions of dollars) to compile. That was followed, after the permit was twice denied, by seven years of costly litigation. Often, as in SWANCC, profitable or otherwise beneficial uses of the land are delayed or denied as a result of the Corps' permit review. Even more often, a landowner simply gives up its plans once the horrors of the § 404 process become evident, withdrawing its permit applications or being deterred from filing an application in the first place.

In SWANCC, the Court, by a 5 to 4 vote reflecting the Court's conservative-liberal divide, disapproved both the "migratory bird rule" and, we believe, the underlying regulation that purports to reach any water or wetland with some commerce connection. Rejecting the Solicitor General's arguments in defense of federal jurisdiction, the Court held that § 404 (by its plain terms) applies only to waters that are navigable in fact or with improvements and to waters and wetlands that have a "significant nexus" to and are "inseparably bound up with" navigable waters—such as tributaries of navigable rivers and wetlands "adjacent to open water."⁷ Chief Justice William H. Rehnquist, in his opinion for the Court, found no evidence that in the CWA "Congress intended to exert anything more than its commerce power over navigation," and approved the Corps' original 1974 interpretation of the Act that "it is the water body's capability [31 ELR 11226] of use by the public for purposes of transportation or commerce which is the determinative factor."⁸ The Court observed that the Corps' claim to have power over any water with a commerce connection of any kind "is a far cry, indeed, from the 'navigable waters' and 'waters of the United States' to which the statute by its terms extends."⁹

In addition—continuing a recent but pronounced trend of rejecting overly expansive interpretations of the federal commerce power and preserving the powers of states in our federalist system—the Court held that the migratory bird rule raised "significant constitutional and federalism questions."¹⁰ There were, the Court observed, serious questions whether the activity regulated by the rule "substantially affects interstate commerce."¹¹ In addition, the rule usurped "the States' traditional and primary power over land and water use."¹² This had two consequences. First, because the Corps' interpretation of the CWA was constitutionally suspect, it was not entitled to Chevron, U.S.A., Inc. v. Natural Resources Defense Council¹³ deference. Second, the Court construed the CWA narrowly to avoid the constitutional and federalism questions raised by the Corps' expansive view of its own powers, pursuant to the Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council¹⁴ "avoidance principle."¹⁵ Following the Court's decision, the case was remanded to the district court and judgment was entered for SWANCC on its jurisdictional challenge.

The Corps' Unauthorized Exercise of Jurisdiction May Have Effected a Taking

Could the Corps' improper exercise of jurisdiction over wholly isolated waters and wetlands, because they did (or might) provide habitat for migratory birds, amount to a Fifth Amendment taking? Any such claim would probably be for a temporary taking—for the period during which the barrier to economic use of the property was in place—because now, after SWANCC, productive use may presumably once again be made of the land. There would also (at least on the second theory discussed below) be all the usual issues about whether the regulatory imposition amounts to a taking—issues that implicate "defining the relevant parcel," "diminution of value," "investment-backed expectations," and all the other serious substantive questions that arise under either the Lucas v. South Carolina Coastal Council¹⁶ "total loss of value or use" or the Penn Central Transportation Co. v. City of New York¹⁷ "balancing" tests. Such a takings claim against the Corps would be brought in the Court of Claims, with appeal to the Federal Circuit—courts with special expertise in takings.

Here, we focus not on the substantive rules of takings or the takings jurisprudence of the Federal Circuit, but on one critical, contested, and logically prior question—the effect on a takings claim of a holding, like the Court's in SWANCC, that the regulating agency lacked jurisdiction. One prominent environmental activist, Prof. John Echeverria of Georgetown University Law Center, has recently argued that an agency's lack of jurisdiction necessarily precludes a successful takings claim.¹⁸ We demonstrate below that, to the contrary, regulation without jurisdiction typically is a taking or, at minimum, is irrelevant to whether or not a taking has occurred.

Jurisdictionless Regulation Is a Taking Under Agins

In Agins v. City of Tiburon,¹⁹ the Court stated that government action "effects a taking" if it "does not substantially advance legitimate state interests."²⁰ The Court has restated this "means-end" alternative to the Lucas and Penn Central tests in many cases since Agins—for example, in both Lucas and Nollan v. California Coastal Commission.²¹ Even before Agins, the Court had observed that the poor fit between regulatory means and ends is an alternative way in which a taking may be found.²² Lower courts have applied the Agins test to find that a taking has occurred. Recently, for instance, the Ninth Circuit in Richardson v. City of Honolulu²³ struck down a rent control ordinance as a taking under the Agins standard.

Where an agency imposes land use restrictions without jurisdiction to do so, it seems clear to us that there has been a taking under Agins. The goals of such regulation are not "legitimate state interests." On the contrary, they are wholly illegitimate and unauthorized. Because the ends of regulation are illegitimate, the illicit regulation inevitably fails the Agins means-end test.

Though this seems clear enough, environmentalists have launched an all-out attack on Agins recently, contending that it is not a takings test at all but a due process test. This is odd because, as Professor Echeverria acknowledges, the Agins test is all of a piece with the Court's recent "exactions" takings jurisprudence.²⁴ The Court recognized in Nollan and Dolan v. City of Tigard²⁵ that exactions imposed on developers in exchange for their permits (whether in the form of monetary payments or easements and the like) must be [31 ELR 11227] "roughly proportional" to the impacts of the development and must further a proper legislative goal—or as the exactions cases put it, bear an "essential nexus" to a legitimate government purpose.²⁶ Otherwise, those exactions are takings. Thus, there is nothing unusual about the idea that a regulation's failure to withstand "means-end" scrutiny can result in it being held a taking.

As support for their attack on Agins, environmentalists have pointed to the Court's fractured decision in Eastern Enterprises v. Apfel,²⁷ where four Justices found the Coal Industry Retiree Health Benefits Act worked a taking. Justice Anthony M. Kennedy, concurring, found it violated due process, and four dissenters thought it was neither a taking nor a due process violation. This heavy reliance on Eastern Enterprises is misplaced, because even those who make this argument agree that "Eastern Enterprises has no precedential value because the Court could not agree upon a single rationale for the result."²⁸

More important, the Court since Eastern Enterprises has passed over a direct challenge to the Agins means-end test for a taking. In City of Monterey v. Del Monte Dunes at Monterey, Ltd.,²⁹ the Court for the first time upheld a takings judgment that was based on the Agins test.³⁰ The $ 1.45 million takings verdict against the city of Monterey was rendered by a jury that had been instructed on this and another takings theory and had entered a general verdict. Under well-established law, the Court in those circumstances could not affirm unless it determined that the jury's verdict was proper under each theory.³¹ Furthermore, Justice Kennedy's majority opinion explicitly approves the Agins jury instruction as "consistent with our previous general discussions of regulatory takings liability."³²

Nor was the Del Monte Dunes ruling made in ignorance of the attack on the Agins means-end takings test. Far from it. The Clinton Administration argued vigorously in its brief that there is no "substantially advance" takings test.³³ Various environmental groups made the same argument.³⁴ Yet the Court affirmed a substantial takings award based on that test anyway. While the Agins test was not strictly an issue in Del Monte Dunes, because the defendant had failed to challenge the jury instructions, nevertheless the Court could easily have said something to cast doubt on the test's legitimacy, as the United States urged, had it wished to do so.³⁵ The fact that no one in the majority criticized the test suggests that takings plaintiffs should continue to rely on it. It is wishful thinking on the part of environmentalists to find any comfort in Del Monte Dunes.

The "substantially advance" test is therefore still alive and well as a takings test. It can be argued that the Corps' interference with land use under the migratory bird rule or "other waters" regulation necessarily violated that standard and is a temporary taking—as is any substantial, extrajurisdictional restriction on land use.

Extrajurisdictional Government Regulation May Be a Taking Under Other Regulatory Takings Tests

Even if it were not the case that an agency's action transgressing the limits of its statutory jurisdiction necessarily constitutes a taking under Agins, it is nevertheless clear that this sort of government mistake is no barrier to a regulatory takings claim that may otherwise be brought under Lucas or Penn Central. In suggesting that extrajurisdictional government action can never constitute a taking, commentators have relied on three imaginative arguments. None withstands scrutiny.

Agency Law, State Action, and Sovereign Immunity

The first argument against extrajurisdictional takings blends concepts from three different doctrinal sources—agency law, the state action requirement, and the principle of sovereign immunity—to argue that "there is no taking by the government when the official's actions are unauthorized."³⁶ Closer inspection reveals that none of the doctrines supports this theory.

[] Agency Law. Professor Echeverria first turns to the legal rules governing a principal's liability for his agent's torts. He asserts that "the principal generally is not liable for the agent's actions outside the scope of its authority"³⁷ and argues that, analogously, the government should not be liable for an official's ultra vires or extrajurisdictional act. There is nothing wrong with drawing parallels between a takings claim and a tort claim. A suit for just compensation is conceptually similar to a tort claim, the more so when the taking exceeds the agency's authority. Indeed, historically, the Court observed in Del Monte Dunes, damages actions for uncompensated takings "were understood to sound in tort."³⁸ The problem with the argument is not that it draws an analogy to a principal's tort liability but that it misstates applicable agency law. Professor Echeverria fails to distinguish between an agent's "scope of authority"—the realm of acts authorized by the principal—and the agent's "scope of employment"—the realm of acts undertaken to further the principal's purpose. The latter is significantly broader [31 ELR 11228] than the former, and it is the controlling factor for a principal's tort liability. Under the doctrine of respondeat superior, a principal is liable for an agent's torts committed within the scope of the agent's employment, regardless of whether those acts exceed the authority granted by the principal. A principal is not liable, we all recall from law school, for the torts of an agent engaged in "a frolic of his own." But a principal is liable for unauthorized acts done to serve the principal's interests.³⁹

To be sure, some courts have said that a takings claim will not lie for "unauthorized" actions.⁴⁰ But those cases are about takings, not agency law, and it is perilous to assume that the terminology in these two areas is identical. Just how perilous is clear when those cases are examined. In each, the court's concept of "authority" is equivalent to "scope of employment" in agency law, not "scope of authority." As the Federal Circuit put it in Del-Rio Drilling Programs v. United States,⁴¹ "government agents have the requisite authorization if they act within the general scope of their duties."⁴² "Neither the Supreme Court nor this court," the court of appeals continued in Del-Rio Drilling, "has held that government conduct is 'unauthorized,' for purposes of takings law, merely because the conduct would have been found legally erroneous if it had been challenged in court."⁴³

The fundamental error in the agency theory is that it supposes retrospective adjudication of an act's "authorization" or "legality" determines whether a principal may be liable for the agent's actions. That error is magnified when the focus turns from private agency law to the issue of whether a government official was acting ultra vires. The Court has repeatedly made clear that "a state officer may be said to act ultra vires only when he acts 'without any authority whatever,'" that is, without even a colorable claim of legality.⁴⁴ The test, in short, is whether a reasonable official might have believed his actions were authorized at the time he acted, not whether a court might subsequently conclude he erred in his analysis.⁴⁵ A government official who acts to carry out his official duties—for example, by interpreting and applying the CWA broadly to maximize protection of waters and wetlands—acts within the scope of his employment regardless of whether subsequent adjudication determines that he was mistaken as to the scope of his authority, and agency law will hold his principal liable.

[] State Action. Related to the agency theory is the claim that actions in excess of jurisdictional authority cannot constitute takings because they cannot be attributed to the government, by analogy to the question of whether state action exists for purposes of the Fourteenth Amendment and 42 U.S.C. § 1983. Like the agency theory, this claim is wrong as a matter of law. Government officials—and even private parties—acting under color of state law are state actors, regardless of whether a court subsequently determines that the law under which they acted is unconstitutional or whether it finds that they overestimated the authority granted by the law. Again, the Court has made this clear, holding that "the actions of a state officer who exceeds the limits of his authority constitute state action for purposes of the Fourteenth Amendment."⁴⁶ If illegality defeated the state action requirement, it would be literally impossible for police officers, prison guards, and other government officials ever to violate individuals' constitutional rights or for wronged individuals to recover compensation under § 1983, an absurd result.

[] Sovereign Immunity. A third, equally misplaced strand of the argument against the possibility of extrajurisdictional takings springs from sovereign immunity cases such as Larson v. Domestic & Foreign Commerce Corp.⁴⁷ and Land v. Dollar.⁴⁸ Those decisions focus on the availability of equitable relief against individual government officials, concluding that such relief does not run against the government (and is therefore not barred by sovereign immunity) if the officials' acts are determined to be beyond their authority.⁴⁹ The rationale is that if the action is unauthorized, reversing it interferes with no purpose of the sovereign. It might seem to follow that an official's unauthorized act is not the act of the government; indeed, Matthew D. Zinn draws this conclusion explicitly.⁵⁰ But as we saw earlier with the attempt to derive agency principles from takings cases, the appropriate characterization of governmental action is a legal issue highly sensitive to doctrinal context. The doctrine of sovereign immunity is far removed from takings jurisprudence, and statements about governmental authorization cannot simply be transported from one context to another. As the D.C. Circuit recently held, "whether [an official] should be treated as the [government] depends on the context."⁵¹

Given the purpose and origins of the tests enunciated in Larson and Land, the idea that an official's error should bar relief under the Fifth Amendment's Just Compensation Clause is more than insensitive to doctrinal context; it is downright perverse. The purpose of the doctrine that grew from Larson, like the related fiction of Ex parte Young⁵² was [31 ELR 11229] to allow individuals to obtain relief from illegal actions when sovereign immunity would otherwise be a bar. By pretending that the acts enjoined or compelled were those of the officials alone, and not the state, the fiction allowed litigants to sue for equitable remedies when damages against officials in their private capacities were inadequate; it opened up one more avenue of relief against official illegality.⁵³ Opponents of extrajurisdictional takings, by contrast, would use the fiction to shut down an express constitutional remedy specifically designed to pierce the immunity shield. That is not just a misapplication of the doctrine; it is a travesty.

[] Perverse Incentives. There is, in any event, a more fundamental conceptual error at work. The environmentalists' agency theory, in all its variants, suggests that a government official—acting in good faith and under a colorable claim of authority—is nonetheless no more than a naked tortfeasor if a court subsequently decides that his claim of authority was legally mistaken. This may be a useful fiction for some purposes. Its primary use has been the laudable one of allowing private citizens remedies for wrongs that would otherwise be shielded by sovereign immunity.⁵⁴ But it is only a fiction. A government official acting under a colorable claim of authority differs fundamentally from a tortfeasor in that he is cloaked with the authority of government. "As he acts in the name and for the State, and is clothed with the State's power, his act is that of the State,"⁵⁵ and a property owner has no privilege to resist his demands. The environmentalists' theory suggests, to the contrary, that a government official who exceeds his jurisdiction thereby ceases to be a state actor and no longer wields the state's power. If that were right, property owners who suspected a government official's interpretation of his authority was a reasonable and good-faith mistake would not only be legally entitled to resist any trespass or other wrong with force, and to ignore orders relating to the use of his property, but might be wise to do so. Acquiescence would lead to irreparable injuries: the mistake would prevent a takings remedy, and the official's reasonableness and good faith would defeat an action under § 1983 or Bivens v. Six Unknown Named Federal Agents.⁵⁶ In addition, the existence of discretion in the decision whether to take private property would prevent a Federal Tort Claims Act (FTCA) suit.⁵⁷ Penalizing acquiescence to reasonable but mistaken official orders in this way, while creating incentives for resistance and disobedience is, to put it mildly, a very bad idea.

[] A Better Approach. More to the point, the theory that a government official who exceeds his authority is no longer backed by state power and authority is simply wrong, as anyone who tried to eject state officials as trespassers would soon find out. Action taken by government officials under color of law is presumptively correct and entitled to deference from private citizens. Such an official (even if mistaken) acts with the authority of the government behind him, and in this sense, a taking based on a reasonable mistake of law is never unauthorized. The practically sensible and doctrinally proper way to frame the question of governmental authority in the takings context is to ask whether the official has the authority to perform the generic category of action taken—whether the action is a sufficiently plausible exercise of government power to demand obedience. The Corps, for example, may send a cease and desist order to a developer; the Food and Drug Administration (FDA) may not. Such an order from the FDA might not constitute a taking, since it would be entirely unauthorized, i.e., without a colorable basis in law. Coming from the Corps, it would be authorized, and it would constitute a taking, regardless of whether a court subsequently reversed the order.

Courts have in fact recognized that there is a qualitative difference between an erroneous exercise of authority and the absence of authority. In Eberle v. Dane County Board of Adjustment,⁵⁸ for example, the Wisconsin Supreme Court held that because the board "had the legal authority to grant and deny special exception permits," its denial constituted a sufficient "legally imposed restriction" to support a takings claim even though the denial was held legally erroneous and was reversed.⁵⁹ This is the only approach that makes sense from the perspective of a property owner faced with the overwhelming coercive power of the state. It is also the approach taken by the majority of cases addressing the question, including Del-Rio Drilling.⁶⁰

Public Use

The Constitution does not require compensation for all takings, only takings "for public use." A second challenge to the possibility of extrajurisdictional takings focuses on the "public use" requirement and argues that official action founded on a mistake of law cannot be a taking for a public use. This theory faces an uphill struggle, for the Court made it clear in Hawaii Housing Authority v. Midkiff⁶¹ that the scope of "public use" is as broad as the general police power. To reach the conclusion that an erroneous government action does not serve a public use, the theory starts with an error of logic and compounds it with one of legal analysis.

Professor Echeverria restates Midkiff's pronouncement that any object of the police power is a public use as the principle that "a government action serves a public use if the legislature has authorized it."⁶² "It logically follows," he continues, [31 ELR 11230] "that an action which is not authorized by the legislature … cannot serve a public use."⁶³ But this is not so. The proposition that an unauthorized action cannot serve a public use is the converse of the proposition that any authorized action serves a public use, and as any elementary logic textbook will tell you, the converse cannot be inferred.⁶⁴

Far more significant than this logical misstep, however, is the accompanying legal error. The thesis that an official's good-faith mistake places an act outside the scope of public use makes sense only if the public use requirement is taken as something that can be defeated by any sort of illegality or error in any aspect of a taking. That is simply not what "public use" means, and in supposing that any sort of error will be relevant to the public use question, Professor Echeverria infects his second theory with the same defect as the first: while it may well be correct in the most extreme cases, it simply cannot be extended to cover reasonable mistakes by agency officials. It may well be the case, for example, that an official who confiscates an individual's beachfront cottage and uses it for his own vacations has not committed a taking. There is no colorable claim of public use and indeed no colorable claim of authorization. But this surely does not imply that an official who in the course of his duties forbids development on a particular piece of property in the mistaken belief that it falls within his jurisdiction has not taken it for a public use. The "public use" requirement looks to the purpose of a government action, and only an illegal purpose (such as the personal gain of an individual official) will place an official act outside its bounds. A legal purpose, such as protecting the integrity of waters and wetlands so that they may serve as habitat for migratory birds or serve other ecological functions, is a "public use." The Court has explicitly held as much; in Midkiff it stated that "it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause."⁶⁵

Both logic and Court precedent, then, suggest that the "public use" requirement demands only that official action be intended to serve a legitimate goal. If a government agency charged with protecting the environment takes private property in order to fulfil that duty, the taking is obviously for a public use, regardless of whether a court eventually decides that the property did not fall within the agency's jurisdiction. A mistake of law does not ipso facto create an illegal purpose, and a mistake as to jurisdiction will typically have no bearing at all on the public use requirement.

Normal Delay

Extrajurisdictional takings are by their nature limited in time. That a government official has exceeded his jurisdictional authority means that his action may be reversed. It does not mean that the government need not pay compensation for the value of the use of the property in the interim. The Court in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles⁶⁶ held that "invalidation of the [restrictive] ordinance …, though converting the taking into a 'temporary' one, is not a sufficient remedy to meet the demands of the Just Compensation Clause."⁶⁷ The Court pointed out, however, that its holding was limited to a situation in which an ordinance denied the owner "all use of its property" and did not address "the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like."⁶⁸ Following First English, some courts have concluded that erroneous assertions of jurisdiction by government officials and subsequent judicial correction are simply part of the unactionable "normal delay."⁶⁹

The conclusion is unsound, with no basis in controlling precedent or the purposes of the Just Compensation Clause. The factor that First English pointed to as distinguishing the facts before it from a case of normal delay was that the ordinance "denied appellant all use of its property." It distinguished, in other words, between delay and denial. A permit refusal by a government body, First English suggests, starts the temporary takings clock running; a normal delay in approval does not. It is clear on this reading that an agency that erroneously asserted jurisdiction and denied a permit would have taken the property for as long as it took for a court to undo the restriction.

But beyond that, any delay imposed by an erroneous assertion of jurisdiction should constitute a taking. The First English Court's exclusion of "normal delay" from the class of temporary takings reflects a recognition that property rights are creatures of law, and that the use of property may legitimately be subjected to reasonable procedural requirements, such as obtaining a building permit before construction. Governmental error, however, is not part of this background of reasonable procedural requirements, and it does not bear equally on all property owners. The imposition of a special procedural burden—an unlawful one at that—on a property owner in order to benefit the public at large is the paradigmatic taking, demanding compensation. There is nothing "normal" about government exercising control over how a landowner uses its property when it has no lawful jurisdiction whatever to do so.

Treating delays imposed by denials based on erroneous assertions of jurisdiction as temporary takings rather than normal delays also makes better sense in light of the purposes of the Just Compensation Clause. This clause, which, [31 ELR 11231] as the Court held in Armstrong v. United States,⁷⁰ is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." When the government, acting for the public good, denies a property owner use of his property, fairness and justice demand that as the benefit is distributed, so should be the burden; that is the lesson of Armstrong. If the government's action turns out to have been based on an overestimation of its jurisdiction, this does not change the fact that the act was taken to benefit the public; nor does it change the fact that, without compensation, the burden will fall on the property owner alone. There is, in short, nothing about a jurisdictional error that makes the purposes behind the Just Compensation Clause any less applicable.

Conclusion

There is simply no legal basis for the theory that an official's action cannot be a taking if it exceeds his jurisdictional authority. As demonstrated above, the doctrines that environmentalists offer in support of this theory do not in fact support it, nor do many of the cited authorities. In fact, most of the cases that directly address the consequences of extrajurisdictional acts in the takings context reach the unsurprising conclusion that illegality is no defense to a takings claim. As the Eleventh Circuit put it, "if official authorities act on behalf of the state so as to take private property for public use without just compensation, even if they are acting outside of the scope of their official powers, they have violated the Fifth and Fourteenth Amendments and are subject to an inverse condemnation suit."⁷¹ Courts have reached this conclusion because there is neither a legal reason, nor any justification in the history and purpose of the Takings Clause, to exempt extrajurisdictional actions from its scope. Except in the most outrageous cases of individual misconduct, such actions are nonetheless attributable to the state, and they are nonetheless taken to serve public purposes. Allowing the state to avoid Takings Clause liability on the basis of a taking's illegality would have the "bizarre consequence" of "allowing the government to profit from its own error."⁷²

The significance of this question is not merely academic. Recovery for extrajurisdictional takings by other means—such as a Bivens action or a suit under § 1983 or the FTCA—is chancy and in some cases may be limited to the assets of the individual officers. These modes of recourse will frequently be inadequate, and it is part of the wisdom of our Constitution to provide a remedy specifically tailored to a particular violation of individual rights. When a government official acting to fulfill his duties takes private property, he has taken it for public use within the meaning of the Takings Clause, and that clause provides the appropriate source of remedy. That the official's action exceeded his jurisdiction makes compensation no less appropriate. Indeed, suggesting that such an added layer of injury precludes recovery is an insult to the careful design of our Constitution.

1. 121 S. Ct. 675, 31 ELR 20382 (2001). The facts of SWANCC are described in Timothy S. Bishop et al., One for the Birds: The Corps of Engineers' "Migratory Bird Rule," 30 ELR 10633 (Aug. 2000).

2. 33 U.S.C. §§ 1311(a), 1344(a), 1362(7) & (12), ELR STAT. FWPCA §§ 301(a), 404(a), 502(7) & (12).

3. 33 C.F.R. § 328.3(a).

4. 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986).

5. Id.

6. 58 Fed. Reg. 45008, 45020 (Aug. 25, 1993).

7. 121 S. Ct. at 680, 31 ELR at 20383.

8. Id. at 680 & n.3, 31 ELR 20383 & n.3 (emphasis added).

9. Id. at 683, 31 ELR at 20384.

10. Id. at 684, 31 ELR at 20385; see, e.g., Board of Trustees v. Garrett, 121 S. Ct. 955 (2001); Jones v. United States, 529 U.S. 848 (2000); United States v. Morrison, 529 U.S. 598 (2000); Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995).

11. 121 S. Ct. at 683, 31 ELR at 20384.

12. Id. at 684, 31 ELR at 20384.

13. 467 U.S. 837, 14 ELR 20507 (1984); see also 121 S. Ct. at 683, 31 ELR at 20384.

14. 485 U.S. 568 (1988).

15. 121 S. Ct. at 683, 31 ELR at 20384.

16. 505 U.S. 1003, 22 ELR 21104 (1992).

17. 438 U.S. 104, 8 ELR 20528 (1978).

18. John D. Echeverria, Takings and Errors, 51 ALA. L. REV. 1047 (2000).

19. 447 U.S. 255, 10 ELR 20361 (1980).

20. Id. at 260, 10 ELR at 20362.

21. 483 U.S. 825, 17 ELR 20918 (1987).

22. See Penn Central, 438 U.S. at 127, 8 ELR at 20533.

23. 124 F.3d 1150, 1165-66 (9th Cir. 1997). The Ninth Circuit held that a Honolulu, Hawaii, ordinance that limited increases in ground rents for land on which condominiums had been built "will not substantially further its goal of creating affordable owner-occupied housing" and hence was a taking because nothing prevented condominium owners (the land lessees) "from capturing the net present value of the reduced land rent in the form of a premium … for the benefit of living in a rent controlled condominium," so that "the price of housing ultimately will remain the same." Id.

24. Echeverria, supra note 18, at 1051.

25. 512 U.S. 374, 24 ELR 21083 (1994).

26. Id. at 386, 24 ELR at 21086.

27. 524 U.S. 498 (1998).

28. Echeverria, supra note 18, at 1059.

29. 526 U.S. 687, 29 ELR 21133 (1999).

30. See Timothy S. Bishop, Some Practical Implications of Del Monte Dunes, Presentation at Georgetown University Law Center: Litigating Regulatory Takings Claims Seminar (1999).

31. See, e.g., Mills v. Maryland, 486 U.S. 367 (1988); Cronin v. Washington Nat'l Ins. Co., 980 F.2d 663, 669 (11th Cir. 1993).

32. 526 U.S. at 704, 29 ELR at 21136.

33. See Brief for the United States as amicus curiae in support of petitioner, City of Monterey v. Del Monte Dunes at Monterey, Ltd., No. 97-1235, at 21-30 (labeling the Agins means-end test as "dictum" and "unfounded insofar as it suggests that land-use regulation may be deemed a taking that requires the payment of just compensation if it fails substantially to further a legitimate governmental objective").

34. See Brief of the League for Coastal Protection et al., as amici curiae in support of respondents, City of Monterey v. Del Monte Dunes at Monterey, Ltd., No. 97-1235, at 14 (arguing "that means-end analysis is [not] a free-standing test for determining whether a restriction on land use effects a taking").

35. See, e.g., H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989), where the Court addressed at length, and rejected, an argument made only by amici.

36. Echeverria, supra note 18, at 1055-56. To the same effect is Matthew D. Zinn, Ultra Vires Takings, 97 MICH. L. REV. 245, 250-60 (1998).

37. Echeverria, supra note 18, at 1055-56.

38. 526 U.S. at 716, 29 ELR at 21138. Zinn oddly looks instead to the different rules controlling a principal's liability for contracts entered into by an agent. See Zinn, supra note 36, at 251-58 (discussing actual and apparent authority).

39. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998) ("The Restatement defines conduct, including an intentional tort, to be within the scope of employment when 'actuated, at least in part, by a purpose to serve the [employer],' even if it is forbidden by the employer.") (quoting RESTATEMENT (SECOND) OF AGENCY §§ 228(1)(c), 230 (1957)).

40. See Echeverria, supra note 18, at 1056 n.33 (citing Del-Rio Drilling Programs v. United States, 146 F.3d 1358, 1362-63, 28 ELR 21564, 21566 (Fed. Cir. 1998); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1523 (D.C. Cir. 1984), vacated on other grounds, 471 U.S. 1113 (1985); Landgate, Inc. v. California Coastal Comm'n, 953 P.2d 1188, 1201 n.7 (Cal. 1998)).

41. 146 F.3d 1358, 28 ELR 21564 (Fed. Cir. 1998).

42. Id. at 1362-63, 28 ELR at 21566.

43. Id.

44. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 n.11 (1984) (quoting Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982)).

45. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (discussing scope of qualified immunity).

46. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928-29 (1982).

47. 337 U.S. 682 (1949).

48. 330 U.S. 731 (1947).

49. See Larson, 337 U.S. at 701-02:

The action of an officer of the sovereign … can be regarded as so "illegal" as to permit a suit for a specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.

50. Zinn, supra note 36, at 253.

51. Auction Co. of Am. v. Federal Deposit Ins. Co., 132 F.3d 746, 748 (D.C. Cir. 1997).

52. 209 U.S. 123 (1908).

53. This laudable stretch, everyone understands, results in some inconsistencies across constitutional provisions. E.g., Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982) ("There is a well-recognized irony in Ex parte Young; unconstitutional conduct by a state officer may be state action for purposes of the Fourteenth Amendment yet not attributable to the State for purposes of the Eleventh [Amendment]."). That these oddities are tolerated to do justice to individuals oppressed by government hardly suggests that the Ex parte Young and related doctrines ought to be expanded to protect government from liability.

54. Of course, imposing liability on government officers for good-faith mistakes may seem harsh, and the Court has responded to this concern by crafting a qualified immunity for parties whose acts do not violate clearly established law. See generally Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).

55. Ex parte Virginia, 100 U.S. 339, 347 (1880).

56. 403 U.S. 388 (1971). See Harlow, 457 U.S. at 815.

57. See 28 U.S.C. § 2680(a).

58. 595 N.W.2d 730 (Wis. 1999).

59. Id. at 740; see also Sea-Land Serv., Inc. v. Department of Transp., 137 F.3d 640, 644 (D.C. Cir. 1998) (distinguishing between an agency's authority to issue orders and the correctness of a particular order).

60. 146 F.3d at 1362-63, 28 ELR at 21566.

61. 467 U.S. 229, 240 (1984).

62. Echeverria, supra note 18, at 1067. Zinn is guilty of precisely the same mistake (see Zinn, supra note 36, at 264), but we focus on Echeverria for convenience.

63. Echeverria, supra note 18, at 1067.

64. See Dale A. Nance, A Comment on the Supposed Paradoxes of a Mathematical Interpretation of the Logic of Trials, 66 B.U.L. REV. 947, 951 n.15 (1986) (noting that lawyers tend to commit the logical error of inferring the converse depending on "whether it [gets them] where [they want] to go").

65. 467 U.S. at 244. Professor Echeverria suggests that in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), a majority of the Court endorsed his conclusion that an illegal act cannot be a taking for public use. Echeverria, supra note 18, at 1069. Echeverria pieces together his majority by adding Justice Kennedy, who concurred, to the four dissenters and asserting that all five believed that the Takings Clause did not apply "because a takings claim presupposes a valid government action." Id. That misreads the opinions. Both Justice Kennedy's concurrence and Justice Stephen Breyer's dissent rejected application of the Takings Clause. But each did so not on the grounds that the law at issue did not serve a public purpose, but because they believed that the interest allegedly taken did not fit with the clause's concept of "private property." See 524 U.S. at 540 (Kennedy, J., concurring in the judgment and dissenting in part) ("The Coal Act … does not operate upon or alter an identified property interest"); id. at 554 (Breyer, J., dissenting) ("This case involves not an interest in physical or intellectual property, but an ordinary liability to pay money, and not to the Government, but to third parties.").

66. 482 U.S. 304, 17 ELR 20787 (1987).

67. Id. at 319, 17 ELR at 20791.

68. Id. at 321, 17 ELR at 20791.

69. See, e.g., Landgate, Inc. v. California Coastal Comm'n, 953 P.2d 1188 (Cal. 1998).

70. 364 U.S. 40, 49 (1960).

71. Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1043 (11th Cir. 1982); see also, e.g., Del-Rio Drilling Programs v. United States, 146 F.3d 1358, 1362, 28 ELR 21564, 21566 (Fed. Cir. 1998); Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir. 1990); Osprey Pacific Corp. v. United States, 41 Fed. Cl. 150 (1998); and Eberle v. Dane County Bd. of Adjustment, 595 N.W.2d 730, 740 (Wis. 1999).

72. Osprey Pacific, 41 Fed. Cl. at 157.