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Federal District Court Awards $36 Million in Compensation for a Regulatory Taking Claim:

Legal scholar and eminent domain expert Gideon Kanner has two interesting posts (here and here) on a recent case in which a federal district judge awarded a property owner over $36 million in compensation for an inverse condemnation claim. For nonexperts, an inverse condemnation action is a claim by a property owner that the government has taken his property, and that he is therefore entitled to "just compensation" under the Takings Clause of the Fifth Amendment.

As Kanner explains, the City of Half Moon Bay, California flooded the owner's 24 acre tract and then forbade all development on it, citing its newly created "wetland" status as justification. As a matter of constitutional law, this is a relatively easy case. The Supreme Court made clear in Lucas v. South Carolina Coastal Council that a regulatory action that wipes out 100% of a property's economic value automatically constitutes a taking under the Fifth Amendment except under rare circumstances that probably don't apply to this case. In addition, the Court has also held that any permanent physical invasion of property by the government (see Loretto v. Teleprompter) counts as a taking, and you don't have a to be a takings law maven to figure out that deliberate flooding counts as a "physical invasion."

What is unusual about the case is the extremely large compensation award. Supreme Court precedent holds that government must pay "fair market value" compensation for a taking. Without studying the evidence closely, I can't tell whether this particular award is excessive or not, given the market value of the land in question. It will be interesting to see if the award is upheld on appeal to the Ninth Circuit Court of Appeals, which is not exactly known for its solicitude towards property rights. For now, I will only point out that the difficulty (often the impossiblity) of determining appropriate compensation levels is one of several reasons for limiting the use of eminent domain as much as possible, an argument I developed in greater detail in Part II of this article.

If the award does stand up on appeal, Half Moon Bay may find it hard to pay. As Kanner notes in his first post, the city's annual budget is only $10 million. Perhaps the city fathers should have weighed their potential legal liability more carefully before deciding to cause the flooding of the property in question in the first place.

UPDATE: The court's opinion is available here.

UPDATE #2: My use of the term "deliberate flooding" may have been somewhat misleading. In reality, as the court explains in its opinion (pp. 35-37), city officials were aware that the area in question would flood if they failed to perform proper maintenance on their own nearby facilities; yet they chose not to do so. It is therefore fair to say that they deliberately caused the area to be flooded as a consequence of their alteration of nearby property. However, it is not clear whether that was their preferred outcome, or merely a byproduct of their pursuit of other objectives. The difference between these two scenarios is legally immaterial.

Thomas_Holsinger:
Professor Somin,

There is a basis for comparable valuation concerning the immediately adjacent properties.

One of those was developed using dirt which the City of Half Moon Bay permitted to be exavated from the plaintiff's property, without his knowledge or consent. Leaving large holes in the ground on the plaintiff's property. Which then filled with water from the lousy drainage system the City made the plaintiff pay for.

The City then claimed those ponds, which it had created by physically invading the plaintiff's property and permanently taking away portions of it, made it a federally protected wetland.

After creating a perfectly comparable development on the immediately adjacent property using dirt stolen from the plaintiff.
12.9.2007 11:36pm
tsotha:
Half Moon Bay is one of those scenic seaside towns near San Francisco that's full of the very wealthy and old hippies that have been there for forty years. I wouldn't be surprised at all a 24 acre plot would be fairly valued at 32 million.
12.9.2007 11:37pm
ReaderY:
I don't see this as a regulatory taking case.

Flooding has long been recognized as a kind of physical intrusion that represents a classic kind of trespass. It has been held to violate the right to exclude intrusions on ones land that at the heart of physical possession. Flooding has been recognized as a species of physical during the height of the Penn Central era, long before the concept of regulatory taking ever came into existence.

Clever lawyerering may possible transmogrify this into a regulatory taking argument, but needn't be so.
12.9.2007 11:37pm
Sean M:
More likely, I imagine, the city will settle on appeal. Plaintiff may well not want to try his chances with CA9, but neither would the city.
12.9.2007 11:45pm
Thomas_Holsinger:
Sean,

One of the advantages of an appeals court having a loose cannon reputation is that it encourages settlement.
12.9.2007 11:52pm
SPQR (mail) (www):
I read the district court's memorandum opinion, and I would dispute the characterization that the city deliberately flooded the property. The property was flooded because of the actions of the city's contractor who made excavations and grading when it installed a flood control structure in an easement on the property and the fact that the city did not do any maintenance of the flood control system for years (i.e., failed to clear debris from the intake structures thereby causing diversion of flows ).

When the property owner attempted to remedy the situation the city did affirmatively forbid it, threatened prosecution, and denied applications for permits to remedy the flooding.

There were other intentional acts interfering with development of the property by the city into which one can read some malicious acts by the city.
12.9.2007 11:57pm
Avatar (mail):
Wouldn't it discourage settlement instead?

I remember Ramseyer making a big deal of this in my Japanese Law textbook - his contention that one of the reasons that Japanese legal cases were settled at higher rates than American ones (or just never filed, heh) was because of the high degree of predictability offered by the relatively consistent, jury-free trial environment. Because both parties could reasonably estimate the expected outcome, including the amount of damages, from a given claim, those parties could then find a settlement value for which both were better off than risking litigation. At any number where the plaintiff would gain more money than his expected award minus legal costs of going to trial, the plaintiff will be encouraged to settle. At any number where the defendant will need to pay less money than the expected reward minus the legal costs, the defendant will be encouraged to settle.

If the expected outcome is very narrow, it's easy to come to a settlement figure - there will be a range that is better than anything the plaintiff can expect to win, but less than what the defendant will have to pay, if the case goes to trial.

On the contrary, if the expected range of the outcome is very wide (the very definition of a court with a reputation as a loose cannon), both parties can expect outcomes wildly divergent from each other. In this case, the property owner can expect a significant proportion of his award to stand up on appeal, while the city can expect the whole case to be overturned by the 9th; in those circumstances, the city is definitely going to be encouraged to stick to its legal guns and pay for the appeal, rather than just fork over the cash. If the city had a reasonable expectation of how the 9th would rule that coincided with the plaintiff's expectations, then both of them would be able to settle.

(Ramseyer also stated that Japanese courts, due to the nature of the trial process, tended to give signals to both sides of how a particular trial was going - such that the outcome is rarely a surprise when the trial is carried to its conclusion. That makes it a lot easier for the parties to get together and agree on a settlement number, because it's hard to keep up an irrational expectation when the judge in charge of making the ruling is feeding you hints that it's not going to happen. Can't do that in the US, of course...)
12.10.2007 12:07am
Dave Hardy (mail) (www):
Any consideration of settlement must bear in mind one party is a government. Ordinarily, it would be a simple matter of estimating probability and loss. But include that, and you have to include human factors such as reluctance to change positions, nobody wanting to be the first to suggest "we were wrong," etc., etc..
12.10.2007 12:13am
J.W. (mail):
Fair market value is a poor judge of just compensation. In a case like this, where the city appears to have acted so egregiously, more than fair market value (what a willing buyer would be willing to pay a willing seller) seems to be appropriate.

Posner suggested fair market value include the "personal value," (844 F.2d 461, 464), but the Supreme Court has rejected the idea because of the "practical difficulties in assessing the worth an individual plces on particular propery at a given time," (441 U.s. 506, 511).

Here, it's unclear if the value awarded was more than "fair market," but if it was, and it was punitive, because of Half Moon Bay's behavior, would it hold up? If it would, could it be the start of allowing for more than fair market value depending on the circumstance?

That would make it possible to begin to think about something Jim Krier and Christopher Serkin talked about in their article Public Ruses (2004 Mich. St. L. Rev. 859), where they suggest a sliding scale of payment from FMV (for pure public takings) to a higher and higher payout that eventually includes gain-based compensation for the "ruses," or naked transfers from private party to private party via the government.
12.10.2007 12:14am
Ilya Somin:
I don't see this as a regulatory taking case.

Flooding has long been recognized as a kind of physical intrusion that represents a classic kind of trespass.


I noted that flooding is a physical invasion in the post. However, the subsequent ban on development is a regulatory taking.
12.10.2007 12:38am
Ilya Somin:
I read the district court's memorandum opinion, and I would dispute the characterization that the city deliberately flooded the property. The property was flooded because of the actions of the city's contractor who made excavations and grading when it installed a flood control structure in an easement on the property and the fact that the city did not do any maintenance of the flood control system for years (i.e., failed to clear debris from the intake structures thereby causing diversion of flows ).


This is a valid point. However, the court's opinion also notes that City officials knew that lack of a proper maintenance plan would cause flooding, yet chose to do nothing to prevent it(pp. 35-37). Thus, the City deliberately chose to allow flooding to occur.
12.10.2007 12:50am
Thomas_Holsinger:
Avatar,

Also consider the 10,000 year-old man's answer to the question, "What was the most common means of transportation in your day?" "Mostly fear."

One of my wife's trials was of a combination marital and partnership dissolution. The judge was a newly appointed former DA whose last contacts with family and partnership law had been a bar review course. My wife and opposing counsel discussed the case with the judge in chambers, then went out and screamed at their clients in unison to settle because ANYTHING might happen at trial, with awful tax consequences that would take years to fix.

The clients, who hated each other, settled because their attorneys were so obviously terrified about how bad the judge might screw things up.
12.10.2007 1:01am
Random Numbers (mail) (www):

Supreme Court precedent holds that government must pay "fair market value" compensation for a taking.


I think this precedent needs to be reconsidered. The "fair market value" is by no means just compensation for forcibly taking someone's proprty, as if it were a voluntary transaction rather than an invoultary mandate backed by threat of losing one's liberty or life. Compensation should be greater than "fair market" when the State takes the property of the citizen, the employment of Government force demands it.
12.10.2007 2:35am
David M. Nieporent (www):
Any consideration of settlement must bear in mind one party is a government. Ordinarily, it would be a simple matter of estimating probability and loss. But include that, and you have to include human factors such as reluctance to change positions, nobody wanting to be the first to suggest "we were wrong," etc., etc..
And more importantly, the fact that the people representing the government are playing with someone else's money.

(In this case, the amount is so high relative to the budget that there may be political repercussions for those representing the government, so this factor may not be as big of a deal.)
12.10.2007 3:32am
godelmetric (mail):
By that logic, wouldn't a failure to maintain the New Orleans levees amount to "deliberate flooding"?

Seems to me that we're talking about gross negligence, not a "regulatory taking." Ilya, you're merely trying to shoehorn the facts into a topic that interests you, but there's no need to get fancy here. Calling this sort of incompetence a "regulatory taking" merely dilutes the meaning of the term.

The officials should be on the hook for the FMV of the property (pre-flooding), the future value of the property, the FMV of the current property if it is condemned, and possibly other punitive damages -- but now that the property's been ruined, I don't see why a redevelopment plan isn't the rational thing to do.
12.10.2007 4:58am
godelmetric (mail):
Also, that opinion most certainly does not indicate the difficulties with valuation questions. The Court's discussion of the damages issue is extensive, and even the city's appraiser puts the damages at $26M at the low end. This is an an entire 83-house subdivision that got destroyed here.
12.10.2007 5:07am
Frog Leg (mail):
I agree with godelmetric. This case has nothing to do with a taking; it should only be a negligence action.
12.10.2007 6:48am
Sk (mail):
"As Kanner notes in his first post, the city's annual budget is only $10 million. Perhaps the city fathers should have weighed their potential legal liability more carefully before deciding to cause the flooding of the property in question in the first place."

Why? They flooded the land that they wanted, and don't have to pay for it. What's the down side from the city fathers' perspective?

Sk
12.10.2007 9:28am
Per Son:
I would agree that takings awards should consider "personal value" as soon as conservatives stop insisting on capping non-economic damages for tort claims.
12.10.2007 10:37am
Adam J:
godelmetric - Why would it be negligence if they knew that their failure to maintain equipment would result in flooding. The only unusual thing about this case is it occurred from nonfeasance, not malfeasance.
12.10.2007 11:09am
Gideon Kanner (mail):
The flooding of property has always been considered a taking. Pumpelly v. Green Bay Canal Co., 80 US 166 (1872).

When a taking occurs it does not matter whether the property was taken deliberately, or negligently, or in a non-negligent but mistaken belief that the government already owned what it took. The plaintiff may sue in tort or in inverse condemnation. The damages are higher in tort, but you have to prove negligence. In inverse condemnation you get attorneys fees and other litigation expenses. So it's atrade-off.

When sued in tort, the government can in some cases does defend on the grounds that it took (or where appropriate, damaged) the subject property and should pay only "just compensation," i.e., FMV. These fights used to arise commonly where a public ustility would enter remote farmland and put in a power line and the farmer then sued in trespass. Also, where the government pirates intellectual property it defends on the grounds that it took the patent etc. and should pay only FMV (meaning royalties that it would have paid in a market transaction). See the Tektronix v. US series of Court of Claims cases.

So whether Half Moon Bay flooded the subject properrty deliberately or negligently, is irrelevant to the issue of liability.
12.10.2007 11:12am
Gideon Kanner (mail):
A word on valuation.

With all due respect to Ilya's intellect, the concern voiced in his article that valuation is "impossible" is overstared. We value all sorts of things in the law, and many of them do not even come close to the degree of accuracy achievable in valuing proprty -- e.g., pain &suffering and the value of unique art works, to name a couple of conspicuous examples. In the case of real property, there is a huge market out there that manages to value land and structures satisfactorily. This is not a precision sort of things; it may be a guess by informed persons as the US Supreme Court once put it, but it's the best we have.

In eminent domain, the courts have mistakenly forced the valuation process into the simplistic "three approaches" (i.e. market data, capitalization, and reproduction) when in fact the market uses other methods as well, that are more sophisticated, and more satisfactory to their users. But that's another story for another blog.
12.10.2007 11:34am
Justin (mail):
Under federal law, there would seem to be two cases here - one, the trespass caused by the city's actions, and two, the regulatory taking. The court is completely wrong to read the first as a regulatory taking. The actions that the city did to its own facilities are actions that are functionally private - they should be read as private actions, with a suit in tort, subject to the city's limited immunity. Note that the California constitution has the "damaged" language, which seems to merge the two. At first this seemed to me like a technical issue, but the way they deal with damages makes it seem like they legitimately need to be carved out.


Paragraph 270 of the opinion seems remarkably dismissive -if I were an appellate attorney, that looks like a place I'd want to know more about the law.

What would concern me if I was a liberterian, btw - is that ultimately, the reason the Court found a cause of action is (at least in part) because the city FAILED TO MAINTAIN certain facilities that were protecting the area when bought. See Paragraphs 278-80.

Looks like the land was just really valuable. I'm hardly a real property or takings expert, but I don't understand the whole "value" of the property as of 2006. As of March 2006, the real value of the property was - 0, no? Otherwise, how does the case go forward?

It seems like they are creating an entirely fictional presentation of damages - what would the value of the place be if it didn't have wetlands that were a cause of the city's public works, but did benefit from the city works themselves. The more obvious way to deal with this situation is to use the value of the land when they "damaged" the land by flooding it, which contempoarenously caused it to fall under the wetlands statute and thus be worthless. Then from there, one can add punitive/treble damages, interest, fees, or whatever.

But letting the land "appreciate" in value from the time of the taking until the filing of the action: (1) gives the plaintiff a ROI based on his or her choice of a filing date, (2) leaves the city to suffer from an unpredictable rise in market values, and (3) allows the plaintiffs to BENEFIT from the tortious act by getting the increased value of the very action which is the source of his complaint. None of this seems correct under traditional legal philosophy.
12.10.2007 11:44am
Justin (mail):
Gideon, good find, although dicta - that case involved the Supreme Court interpreting the Wisconsin constitution, based on its view of Wisconsin state law. I'd also be surprised if that case is still good law, even in dicta, for the proposition you are taking it for - it seems very poorly and summarily reasoned.
12.10.2007 11:49am
Justin (mail):
edit: substitute "curious" for "surprised" - does anyone have any source to the modern understanding of whether a tortious action upon a land is a (federal, 5th Amendment) taking?
12.10.2007 11:50am
godelmetric (mail):
Justin is correct. My point was merely that there's no need to characterize this situation as a "regulatory taking." This isn't the case of a government appropriating part of a land's value due to a regulation (which is the case in the Green Bay Canal case Gideon cites). The clearest cause of action here is a simple tort, subject to the municipality's immunity, which I don't think gets them very far in this case.

Adam J -- the state of mind of the decisionmaker is not relevant. The word you are looking for is misfeasance.
12.10.2007 12:52pm
DiverDan (mail):
I think a lot of posters here are missing the point when they assert that this was just a plain vanilla negligence (or gross negligence) case on the part of the city, and not a regulatory takings case. Yes, the causes and incidence of the flooding in the first instance was negligence on the part of the city. But the Landowner could have avoided a complete loss of value if he had been permitted to go in and (a) clean out the intake grates of the drainage facilities built by the city; and (b) developed the property by regrading the low spots (including replacing the fill dirt that the City's contractor took from his land without consent or compensation). HOWEVER, it became a regulatory takings case when the City refused him the necessary permits and development approvals to do those things by relying upon Federal Wetlands regulations. The City by its own actions caused the developable land to become wetlands by screwing up the drainage improvements, then insisted that the land STAY wetlands by refusing to allow the owner to fix the problems which the City created. THAT is the regulatory takings issue.
12.10.2007 1:26pm
Adam J:
I'm confused Godelmetric, you're the one who found issue with the decisionmaker's state of mind and now you claim it is irrelevant.
12.10.2007 1:50pm
Richard Aubrey (mail):
It would be interesting to look at the placement of the new wetland and surrounding residences.
It is not uncommon for a homeowner to be grateful that nobody is going to build in front of his place because it's a wetland. Good view and hence higher sale price.
If the new wetland did that favor for a number of residents, providing them with some nature and an assurance of no neighbors between them and the scenery, and if it were done at the behest of the neighbors, it would seem more like highway robbery.
12.10.2007 1:52pm
Gideon Kanner (mail):
In no particular order:

I believe you are mistaken, Justin. As I recall, it was the defendant in the Pumpelly case who raised a state statute as a defense, but the Supreme Court rejected that defense and held the flooding to be a constitutional taking that could not be immunized by a state statute.

As for value, any diminution in value caused by the defendant-inverse condemnor may not be considered in fixing compensation. That rule goes back to the 1930s and is codified in the Uniform Relocation Assistance Act. The government cannot devalue property and then take it at its lowered value. See Cal. Code Civ. Proc. Sec. 1263.330.

The Uniform Act also requires the government to take the initiative and file a condemnation action to acquire whatever interest in the subject property it wants. It may not act so as to compel the owner to have to sue for compensation. Thus, it follows that any diminution in value due to the defendant's actions must be borne by it. Conversely, any upward change in value before the formal (as opposed to the extralegal) takig inures to the benefit of the owner, not the government. The property is valued as of the time of trial. Otherwise, in a rising market the government would profit from its own violation of the law.

That's the California rule. The federal rule calls for valuing the property as of the time of taking (formal or extralegal) and adding interest to the award.

You are right that there were actually two cases here. A physical (flooding) taking, and a regulatory taking in the form of denying the owners their right to use their property. This is not unprecedented. In Ali v. Los Angeles the city subjected the owner to a variety of administrative abuses and also fenced him out of his own land. Held: a taking, proving that there are some things that even California courts won't swallow.
12.10.2007 2:37pm
godelmetric (mail):
I'm confused Godelmetric, you're the one who found issue with the decisionmaker's state of mind and now you claim it is irrelevant.

I don't believe that I said that, but in any case that is incorrect -- state of mind is not an operative issue in a negligence tort. The distinction between nonfeasance, misfeasance, and malfeasance turns on dereliction of duty, not state of mind.
12.10.2007 2:57pm
godelmetric (mail):
Gideon,

Thank you; that is a much clearer characterization (for me) of the regulatory-taking issue here. I am still not completely convinced that it stands on it own, as it seems to have merely facilitated the physical taking, which strikes me as so egregious that it tends to overwhelm the other issues, so to speak.

That is, the "regulatory taking" doesn't seem to hold up as an independent claim. It affects the municipal duties and immunities w/r/t to the vanilla takings claim, but doesn't lead to any additional, cognizable damages, so far as I can tell.
12.10.2007 3:28pm
Adam J:
godelmetric- I'm sorry, I thought your talk of deliberate flooding &incompetence meant you thought it shouldn't be characterized as a taking because it was merely negligent conduct, not intentional conduct by the City.
12.10.2007 4:12pm
SPQR (mail) (www):
Ilya Somin,
I brought up the issue only because I saw the potential for people to mischaracterize the issues based on the way you described the flooding and miss the real issues. Legally, I agree the difference is not material here.

Godelmetric, the reason that this is a regulatory taking, is that the flooding as trespass did not cause very much damage to the property, it would have been simple to drain the few ponds and correct the grading to remove the low points that the city's contractor created. What caused the damage to the property was the city's declaration that the property could not be developed as a result of the creation of wetlands by its own action. That was a regulatory taking.
12.10.2007 4:52pm
guy in the veal calf office (mail) (www):
I recently prevailed in an inverse condemnation case by means of settlement and have anecdotal contribution to some of the strains here.

You can definitely add negligence claims to an inverse case, like construction defect, trespass, etc. Our lawyers piled it on and the settlement amount exceeded the fair market value of the taken property. If teh gov't "had its hands on the property", as our attorney said, you can almost tack on a construction or property related tort.

But the takings action is best, because the gov't pays attorney's fees, which are not income and subject to deductibility limits.

We expected that the City would most likely drag its feet, force discovery and mediation before settling despite obvious culpability because the council members wanted an illusion of diligence and prudence. The case settled for what we requested, the mediator couldn't believe they disputed anything and it was all an expensive bit of showmanship.

It is very easy to value real property. There are various well-developed methods.
12.10.2007 6:07pm
Justin (mail):
Gideon,

You may want to reread the case. From the decision:

This requires a construction of the Constitution of Wisconsin; for though the Constitution of the United States provides that private property shall not be taken for public use without just compensation, it is well settled that this is a limitation on the power of the Federal government, and not on the States.
12.10.2007 7:47pm
Thomas_Holsinger:
I wonder if the City of Half Moon Bay can mitigate its damages by the following means:

1) acquire a comparable parcel elsewhere;

2) offer to swap the comparable parcel to the feds as a new wetland, made so at City expense, if the feds will let the City regrade this parcel so it is no longer a wetland and is suitable for development;

3) return the parcel in dispute to the plaintiff, plus interest, other damages and a functioning drainage system.

I request that anyone knowledgeable comment on this.
12.10.2007 8:28pm
SPQR (mail) (www):
Thomas, unfortunately I'm not that knowledgeable, but it is my understanding that one can't mitigate destruction of wetlands.
12.10.2007 11:43pm
Contributor X (mail) (www):
half moon bay is a very expensive city. playground for rich.
12.11.2007 1:36am
godelmetric (mail):
What caused the damage to the property was the city's declaration that the property could not be developed as a result of the creation of wetlands by its own action. That was a regulatory taking.

Yes, I understand the argument, but I'm just not convinced by it. If the property was indeed a wetlands (which sounds pretextual, of course -- and regardless of how it became a wetlands), then I suspect that the City was prohibited from allowing development there by preservation statutes which I suspect are outside of their control. That being the case, the taking wasn't effected by way of the wetlands regulation but by the city's negligence in "creating" a wetlands in the first place.

In any case, this is semantics. Although the decision (and remedy) turn somewhat on that specific characterization, the simple, unvarnished story here is that the City, by dint of its own negligence, ruined somebody's private property -- and at that point, they're Constitutionally obligated to pay just compensation, regardless of what sort of taking it is.

It may simply be that I'm reluctant to monkey with the concept of a "regulatory taking" in this context; that's a double-edged sword, just like purely economic takings. If there's a clear-cut regulatory-takings case, fine. Resolve it there. But when the underlying issue is nothing more a simple tort, as it is here, I don't see the need for doctrinal gymnastics that could have unpredictable effects down the road. Make the bastards pay. End of story.
12.11.2007 2:01am
godelmetric (mail):
Put more simply, if the City decides to release a bunch of spotted owls into a future development area, and then says, "Sorry guys! Can't build here! My hands are tied!" -- do you call it a 'regulatory taking' simply because it's putatively justified by the Endangered Species Act? I would think the problem is much more straightforward than that.
12.11.2007 2:12am
David M. Nieporent (www):
Godelmetric: if you don't call it a regulatory taking, what do you call that situation? The property hasn't been damaged.
12.11.2007 5:23am
Gideon Kanner (mail):
Bad news for Godelmetric.

The California Supreme Court has held that where the state transported a herd of Tule Elk (BIG critters) from their habitat (where they were evidently endangered) and turned them loose in a new location where they proceeded to walk through a farmer's fences and help themselves to his crops, that was no taking. Moerman v. State, 21 Cal.Rptr.2d 329 (1993).

And in the notorious Christie case, a rancher was prosecuted for shooting a grizzly bear that was munching on his sheep, and his defense that this was a taking of his livestock was rejected. As I recall, in his dissent from denial of cert, Justice White observed that we now had a solution to feeding the poor: merely pass an ordinance allowing them to enter gtocery stores and help themeselves, and forbid the gtocers to do anything about it.

And in New York State a poor fellow put up a snakeproof fence to protect his family and his property from endangered timber rattlesnakes (the fence didn't hurt hem). He was required to tear the fence down and the consequences were not deemed a taking of hios property.

There is evidently no end to this sort of lunacy. But it keeps lawyers occupied.
12.11.2007 2:30pm
Gideon Kanner (mail):
SPQR

Sorry about that but destruction of wetlands can be mitigated. It is done all the time by creating new wetlands in mitigation of the adverse impact of a project. Indeed, the government does it all the time.

--- o ---

"Daddy, what did you do in the old days at the turn of the century?"
"I was a swamp maker for the US Corps of Engineers, sonny."
12.11.2007 2:35pm
Gideon Kanner (mail):
GRAND FINALE: (I hope)

Inverse condemnation is a generic name for the process of taking of private property without just compensation. It can be physical or non-physical. Regulatory taking is a subspecies thereof, usually non-physical, where the taking is de facto accomplished by a regulation that goes "too far," as Holmes put it -- one so stringent that it deprives the owner of the beneficiall attributes of property ownership, such as economically beneficial uses or value, or forbids one to leave it to one's heirs. Etc., etc.
12.11.2007 2:44pm
Gideon Kanner (mail):
Once more with feeling:

Justin:

I apologize for lapsing into the short-cut jargon of my legal tribe.

The Pumpelly case was decided in 1872. In 1896 the court decided Chicago B &Q R R Co. v. Chicago, 166 US 226 (1896) and made the Just Compensation Clause binding on states through the Due Process Clause of the 14th Amendment. In spite of its murky language, Chicago B &Q is widely accepted as the origin of the selective incorporation doctrine, so that after 1896 the provisions of the federal taking clause became binding on the states, and the state-federal constitutional dustinction of Pumpelly became academic. If you want to see a really concise summary of the development of this doctrine, see Douglas' dissent in Walz v. Tax Com'r., 397 US 664, at 701-702 (1970).
12.11.2007 3:56pm