Opposition Brief — United States v. Whitney Benefits, Inc.

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FILED

AUG 30 1991

No. 91-195 OFFICE OF THE Clhcnk

IN THE

Suprene Court of the United States

OCTOBER TERM, 199]

UNITED STATES OF AMERICA,

Petitioner,

WHITNEY BENEFITS, INC., et al.,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF IN OPPOSITION

GEORGE W. MILLER

Counsel of Record

WALTER A. SMITH, JR.

JONATHAN L. ABRAM

CHARLES J. FELKER

HOGAN & HARTSON

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-6575

Counsel for Respondents

WILSON - EPES PRINTING Co N 7é f WASHINGTON. D.C. 20001

COUNTERSTATEMENT OF QUESTIONS PRESENTED

I. Whether this Court should decline to reconsider the

factual determinations of the Claims Court, concurred

in by the Court of Appeals, that the effect of enactment

of Section 510(b) (5) of the Surface Mining Control and

Reclamation Act on respondents’ particular property was

to deprive respondents of all economically viable use of

that property.

I]. Whether the Claims Court and Court of Appeals

are precluded from recognizing a taking of property upon

enactment of a statute even where, as here, (1) those

courts found as fact that (a) the language of the statu-

tory prohibition against surface mining on certain kinds

of property precisely described respondents’ particular

property, (b) the prohibition so obviously precluded de-

velopment of respondents’ property that it immediately

destroyed all economic value of respondents’ previously

valuable property, and (c) no administrative proceedings

could possibly have altered that total destruction because

they could not have altered the prohibition against use of

the property; (2) respondents nevertheless exhausted ail

administrative proceedings; and (3) those proceedings in-

evitably proved futile, thereby confirming the courts’ de-

termination that in no event could the proceedings have

altered the destruction of economic value that was com-

plete upon enactment of the statute.

(i)

PARTIES TO THE PROCEEDINGS

Respondents adopt the statement of parties to the pro-

ceedings in the Petition and, pursuant to Supreme Court

tule 29.1, state that respondent Whitney Benefits, Inc. is

a Wyoming charitable corporation. It has neither parent

nor subsidiary companies. Respondent Peter Kiewit

Sons’ Co. is a Nebraska corporation. It has the following

parent companies: Peter Kiewit Sons’ Inc., Kiewit U.S.

Co., and Kiewit Construction Group Ine. Its only sub-

sidiary is a partnership, CMF Leasing Co., in which re-

spondent Peter Kiewit Sons’ Co. owns a 90 percent inter-

est. Kiewit Construction Company owns a ten percent in-

terest in that partnership. Kiewit Construction Com-

pany is a wholly owned subsidiary of Kiewit Construc-

tion Group Inc.

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS PRE-

SENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

COUNTERSTATEMENT OF THE CASE

A. The Factual Findings in This Case

B. The Administrative Proceedings in This Case

REASONS FOR DENYING THE WRIT

1. The Decision Below Is in Accord With This

Court’s Decisions

2. The Decision Below Is of Extremely Limited

Application

3. The Decision Below Is Fair and Just

CONCLUSION

(iii)

Page

TABLE OF AUTHORITIES

CASES: Page

Agins V. Tiburon, 447 U.S. 255 (1980) 20

Armstrong V. United States, 364 U.S. 40 (1960) 25

Burlington Northern Railroad Co. v. United States

752 F.2d 627 (Fed. Cir. 1985) 24

Florida Rock Industries v. United States, 791 F.2d

893 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053

(1987) 24

First English Evangelical Lutheran Church Vv.

County of Los Angeles, 482 U.S. 304 (1987) 14, 15, 16

Hodel Vv. Irving, 481 U.S. 704 (1987) 19, 20

Hodel y. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) 10, 12, 14, 20

Keystone Bituminous Coal Ass’n Vv. DeBenedictis,

480 U.S. 470 (1987) 10, 19, 20

Kirby Forest Industries v. United States, 467 U.S.

1 (1984) 10, 11, 12, 13, 23

MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340 (1986) 13, 25

Miller v. Schoene, 276 U.S. 272 (1928) 21

Vonongahela Navigation Co. v. United States, 148

U.S. 312 (1893) i7

Mugler v. Kansas, 123 U.S. 623 (1887) 21

NCAA V. Board of Regents, 468 U.S. 85 (1984) 26

Otter Creek Coal Co. v. United States, 224 Ct. Cl.

697 (1980) 24

Penn Central Transportation Co. v. City of Neu

York, 438 U.S. 164 (1978) 10, 15, 16

Regional Rail Reorganization Act Cases, 419 U.S.

102 (1974) 17

Rogers Vv. Lodge, 458 U.S. 613 (1982) 26

Ruckelshaus v. Monsanto, 467 U.S. 986 (1984)_.17, 18, 19

Tiffany Fine Arts, Inc. v. United States, 469 U.S.

310 (1985) 26

United States v. Caltex, 344 U.S. 149 (1952) 22

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) —........... sae 12, 18

Washington Metropolitan Area Transit Authority

v. Johnson, 467 U.S. 925 (1984) 26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-195

UNITED STATES OF AMERICA.

Petitioner,

Vv.

WHITNEY BENEFITS, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

The government presents this case as one in which

property owners have “circumvented” administrative pro-

cedures under a federal land use statute by going directly

to the Claims Court with a “taking” claim, rather than

allowing the administrative process to run its course. Ac-

cording to the government, the lower courts erroneously

acquiesced in this “circumvention,” and the result both

invites “regulatory chaos” and contradicts this Court’s set-

tled “takings” jurisprudence. None of this is so.

In fact, respondents patiently exhausted the pertinent

administrative proceedings in this case, and the lower

courts did not act until those proceedings had run their

course. Furthermore, when they did act, both courts

agreed that the AVF prohibition in Section 510(b) (5) of

the Surface Mining Control and Reclamation Act of 1977

(“SMCRA”), 30 U.S.C. 1260(b) (5), so plainly prohibited

respondents’ use of their property that its value was effec-

tively destroyed upon the statute’s enactment and the

subsequent administrative process was “obviously and

absclutely foredoomed” from the outset. In those circum-

stances, both courts found—consistent with this Court’s

decisions—that because the total destruction of respond-

ents’ particular property was effectively complete the day

the statute’s prohibition was enacted, the taking occurred

on that date.

It is only by ignoring both what actually happened in

this case and the lower courts’ key factual findings that

the government is able to suggest that this case is of

importance and represents a departure from this Court’s

precedents. We therefore offer the following brief counter-

statement to clarify these matters.

A. The Factual Findings in This Case.

Following a lengthy trial, the facts in this case were

found by the Claims Court and affirmed by a unanimous

panel of the Court of Appeals. With respect to the central

issue raised by the government’s petition—the date of the

taking—both lower courts found that SMCRA’s AVF pro-

hibition plainly applied to the Whitney property. Indeed,

as the Federai Circuit noted, prior to trial the govern-

ment conceded in a Federal Register announcement that

“{djevelopment of the Whitney coal was halted by the

passage of |SMCRA].” Appendix to Petition for Certi-

orari (“App.”) at 7a (quoting 51 Fed. Reg. 3124, 3125).

“Having made that concession,” the court continued, “the

government offered absolutely no evidence at trial to

counter that official statement” and did not present “a

single witness to testify that there was any uncertainty

whatever about SMCRA’s taking effect on | respondents’ ]

coal property” upon enactment. App. 7a-8a. Respondents,

on the other hand, “proved that SMCRA’s . . . prohibition

applied to the property because of obvious physical facts

about the property.” App. 8a. In these circumstances,

the Claims Court found, and the Federal Circuit agreed,

that “the government knew SMCRA applied on enactment

to Whitney coal. | Respondents] knew SMCRA applied;

and any prospective buyer would know it applied.” App.

8a.

The Claims Court also found—and again the Federa

Cireuit concurred—that on the described facts no statu-

tory permit could possibly have been granted to respond-

ents after SMCRA became law. Indeed, the Federal Cir-

cuit noted, “the government does not suggest, and did not

suggest at trial, any basis whatever on which a permit

could legally be granted to surface mine Whitney coal.”

App. 4a (‘emphasis supplied). Accordingly, the Circuit

Court not only found no errors “in the Claims Court’s

finding that any surface mining permit application would

in this case have been futile.” App. 5a, But the court

went further and held that “the record is clear that any

such application was obviously and absolutely foredoomed

on the day SMCRA was enacted.” The court therefore

concluded that from “[t|he moment SMCRA was en-

acted,” respondents “no longer had [their] property right

[to mine coal], for [respondents] had ne permit and

could not possibly under the statute obtain one... .” App.

6a.

Finally, the Claims Court found—and for a third time

the Federal Circuit agreed—that SMCRA’s enactment had

“deprive|d] [respondents] of ‘all economically viable use’

of their property” by “destroy[ing] all [economic] value

in Whitney coal.” App. 7a, 12a, 18a. This was so, the

court held, because “as the Claims Court correctly found,”

the “only possible use” of respondents’ property was the

surface mining of coal and, once SMCRA prohibited that

mining, the statute took “all the property involved in this

case.” App. da.

Given the foregoing findings, the Federal Circuit af-

firmed the Claims Vourt’s determination that respondents’

property had been taken upon enactment of SMCRA, and

that they were entitled to receive the value of their prop-

erty as of that date.’

B. The Administrative Proceedings in This Case.

After SMCRA precluded the mining of their property,

respondents began their lengthy pursuit of compensation

in the form of a coal exchange, as provided by the statute,

30 U.S.C, 1260(b)15). As the first step, Kiewit filed a

full application for permission to mine the East Whitney

tract. In January 1979, the Wyoming Department of En-

vironmental Quality (“DEQ”) confirmed the obvicus—

that the East Whitney tract contained an AVF and that

no permit could be granted because, necessarily, the ap-

plication had not demonstrated the requisite statutory

showing-—that mining would not “{i]nterrupt, discon-

tinue, or preclude” use of the AVF for farming. C.A.

App. 6362; see also C.A. App. 1005 at © 32. DEQ accord-

ingly wrote the Secretary of the Interior that “the ma-

jority of the |Whitney] mine area is located within an

[AVF as defined” by SMCRA, and to request that the

Secretary consider respondents for a coal exchange, C.A.

App. 6399.

Respondents then applied to Interior’s Bureau of Land

Management (“BLM”) for an exchange, C.A. App. 6403;

see also C.A. App. 1006 at © 35, and, on August 13, 1981,

BLM’s Wyoming State Director determined that “Whit-

ney satisfies the requirements of Section 510(b)(5) of

[SMCRA] and is, therefore, entitled to a coal land ex-

change.” C.A. App. 6424; see also C.A. App. 1006 at

' The Claims Court found, and the Court of Appeals agreed, that

this value was $60 million, based on the fair market value on

August 3, 1977. App. 49a-69a, 19a-2la. In reaching that figure.

the Claims Court substantially reduced the value respondents’ ex-

perts assigned to the Whitney coal in August 1977: indeed, that

court rejected the testimony of both sides’ experts and made its own

finding about the amount of coal a willing buyer in that year would

have assumed he could produce and sell from the property.

* 36. Discussions began between respondents and BLM

officials, focusing on a compensatory tract of federal coal

known as Ash Creek, see 47 Fed. Reg. 9294 (Mar. 4,

1982), and involving substantial exploratory drilling on

that tract at respondents’ expense. App. 27a.

A year later respondents were forced to obtain yet

another determination by DEQ. On September 20, 1982,

BLM’s local District Manager sent respondents a letter

stating that, contrary to DEQ’s determination, he found

that East Whitney contained only 322 acres of AVF. He

also refused to process the exchange application further

until respondents applied for and received a formal deter-

mination by DEQ concerning the presence of an alluvial

valley floor on West Whitney. C.A. App. 2624-2625. Re-

spondents immediately protested the District Manager’s

decision to BLM’s State Director. C.A. App. 2626, They

also filed a second application with DEQ in February

1983. Pis. Ex. 14; C.A. App. 2639. In May 1983, DEQ

finally issued its unavoidable determination that indeed

both tracts in fact contained large areas of AVF signifi-

cant to farming. C.A. App. 6590 (851 acres within the

East Whitney permit area, 516 acres within the West

Whitney permit area) ; see also C.A. App. 1008 at ‘* 48,

49. “Therefore,” DEQ stated, “a permit to mine coal

within the alluvial valley floor . . . cannot be approved

..” C.A. App. 6530.2 DEQ also found that “the many

pieces of the original mining unit that are left after this

decision” could not be mined alone. C.A. App. 6590.

On the basis of these findings, BLM’s State Director re-

manded respondents’ protest to the District Manager, who

in June 1983 confirmed what the lower courts later deter-

mined to have been obvious all along: the effect of

SMCRA’s AVF prohibition was to render respondents’

* Because denial of permission to mine was in substance a pre-

requisite to DEQ’s determination, the government agrees that “DEQ

concluded that a permit could net be granted to mine within the

AVF.” Pet, 7.

coal unminable and respondents therefore “qualif{ied] for

a coal exchange for their entire holdings.” C.A. App.

2724. Respondents then immediately resumed discussions

with BLM officials about the compensatory federal coal to

be considered in exchange for the Whitney coal. Tr. 306.

In August 1983, with the exchange process having then

consumed six full years since SMCRA had effectively pre-

cluded all mining of their coal, respondents were forced

to file this action in the United States Claims Court in

order to protect their right to some form of compensation.

See 28 U.S.C. 2501 (‘six-year statute of limitations) .’

tespondents nevertheless continued to press BLM to pro-

vide federa) coal, and those efforts continued during the

litigation before the lower courts.

In fact, by May 1984, while respondents were conduct-

ing substantial drilling to determine the amount of coal

in the federal Ash Creek tract, discussions with BLM had

slowed to the point that respondents were forced to file a

second lawsuit, this time in federal district court in

Wyoming, in order to compel progress toward an ex-

change. That court granted respondents summary judg-

ment, concluding that Interior had “unreasonably delayed

and failed to perform” the statutory exchange. App. 28a:

see Pls. Ex. 24, Whitney Benefits, Inc. v. Hodel, No. C84-

193K, Findings of Fact and Conclusions of Law at 8 (D.

Wyo. May 23, 1985). The district court further ordered

Interior to tender coal equal in value to respondents’ coal,

and Interior responded with a “Notice of Compliance” in

August 1985, refusing to conduct an exchange because, it

* The Claims Court initially dismissed the action on the ground

that respondents were required to exhaust the compensation process

under SMCRA’s exchange provision before receiving compensation

under the Tucker Act, 28 U.S.C. 1491. The Federal Circuit rein-

stated the complaint in January 1985, however, holding that the

SMCRA exchange remedy is “a means of settling the just compensa-

tion claim,” App. 82a, and construing the exchange and Tucker Act

remedies as parallel avenues for compensating owners of AVF coal.

See p. 18, infra.

said, respondents’ coal no longer had any value in the

depressed coal market of 1985. App. 28a.

Respondents then went back to the district court, and in

December i985 it again ordered Interior to tender coal.

Id., C.A. App. 2745. A month later, Interior published

in the Federal Register a notice of its intention to com-

ply with the December 1985 order by tendering some un-

determined portion of the Ash Creek tract in exchange

for respondents’ coal. C.A. App. 2744-2745. Interior’s

notice attracted the attention of the firm that owned the

surface over the Ash Creek coal, which indicated its in-

terest in leasing that federal coal. Accordingly, on April

9, 1986, under compulsion of the district court and pres-

sured by the upcoming Claims Court trial, Interior filed a

second “Notice of Compliance” notifying respondents that

it was then tendering some or all of the federal! coal

“beneath a [new] tract of land known as the Hidden

Water Tract.” Defendant’s Memorandum of Contentions

of Facts and Law (April 11, 1986), Appendix 1. Simul-

taneously, Interior moved to compe! respondents to tender

a deed to their coal to the government. Plaintiffs’ Post-

Trial Brief ‘June 3, 1986), Appendix at 1-105 to 1-110.

During the Claims Court trial, the government con-

tended that its “tender” of the Hidden Water coal repre-

sented just compensation under the Fifth Amendment.

But Interior’s own documents showed that the Hidden

Water coal was worthless, Pls. Exs. 22, 23 at 11-12, Tr.

518-524, 530-531, and BLM’s Wyoming State Director

testified that the government had performed no evalua-

tion whatever of Hidden Water, and he was unable to

assign any value to that property compared to that of

the Whitney coal when its development was precluded in

1977. Tr. 484, 503, 513-514.

After trial, Interior filed an “Amended Notice of Com-

pliance” withdrawing its tender of Hidden Water and

shifting back to Ash Creek again.‘ Plaintiffs’ Supple-

mental! Post-Trial Memorandum ( Aug. 7, 1986), Appendix

at Tab 1. As the government concedes, however, Interior’s

own report on the value of the Ash Creek tract ulti-

mately showed that that coal had essentially no value in

the depressed market conditions prevailing when it was

offered—a decade after SMCRA precluded mining the

Whitney coal. Pet. 9.

In summary, the lengthy administrative proceedings

were fully exhausted in this case. The clear result of

those proceedings was (1) to confirm the lower courts’

findings that no permit to mine respondents’ property

could ever have been granted and (2) to offer respond-

ents essentially nothing in “exchange” for the total depri-

vation of their property.

REASONS FOR DENYING THE WRIT

The judgment in this case rests on a straightforward

application of this Court’s established date-of-taking deci-

sions to the special facts found by the lower courts. In

addition, because of the unusual facts found by the lower

courts, the result reached below is of extremely limited

‘The yovernment asserts that respondents “rejected” Hidden

Water. Pet. 9 n.8. In fact, respondents have made clear that they

would accept compensation in coal under SMCRA or cash under the

Tucker Act or a combination thereof, but that they could not agree

to deed away their coal in exchange for coal worth far less than

their own on the date mining was precluded. Plaintiffs’ Supplemen-

tal Post-Trial Memorandum (Aug. 7, 1986) at 4-5, 9-10. Far from

rejecting coal tendered in exchange, respondents have stated their

willingness to accept such coal, subject to their right to be fully

compensated by receiving additional compensation before deeding

their coal to the government. However, the government has declined

to transfer federal coal to respondents on that basis. /d.; Plaintiffs’

Response to Defendant’s Notice of Additional Authority re Ash

Creek (April 15, 1987), Attachment 2; Defendants’ Notice of Addi-

tional Authority (Aug. 14, 1987), Attachment, Transcript of July

23, 1987 hearing in Whitney Benefits, Inc. v. Hodel, No. C84-193K

(D. Wyo.) at 66-68.

application, and certainly does not authorize the “cir-

cumvention” of administrative processes asserted by the

government. Finally, the government’s claim of ‘“wind-

fall” and its invocation of “fairness and justice” are both

based on the government’s continuing refusal to accept

the lower courts’ two key factual findings in this case:

(1) that the necessary and practical impact of the en-

actment of SMCRA’s AVF prohibition on these respond-

ents’ particular property was to destroy totally the value

of that property; and (2) that the value of that property

at that time was $60 million. The Court should not grant

certiorari to review those dispositive findings. Nor should

it permit the government, having unreasonably delayed

the administrative process for years, to now come before

this Court under the banner of “fairness and justice”

asking to profit from that delay through a declaration

that respondents’ property is now valueless. The petition

should be denied.

1. The Decision Below Is in Accord With This Court’s

Decisions.

a. The government labels the lower courts’ decisions

“unprecedented” and claims they threaten “regulatory

chaos” because, according to the government, they “ex-

cuse” parties from “presenting the matter to the agency

in the first instance,” Pet. 17, and permit administrative

proceedings to be “bypassed altogether.” Pet. 16, 20. In

fact, however, the lower courts’ decisions did no such

thing.

Indeed, the question whether parties can “bypass” ad-

ministrative procedures is not presented at all in this

case. Here, even though everyone knew the outcome in

advance, respondents did “present the matter” to DEQ;

DEQ did make its decision confirming that the Whitney

coal had been rendered unminable because of SMCRA’s

AVF prohibition; and even the government does not con-

tend that any further administrative action was required

to make DEQ’s decision “final.” The only issue here is

whether after DEQ’s processes had ended and the case

was ripe for adjudication, the Claims Court and Federal

Circuit properly analyzed the date of the taking by focus-

ing on the actual effect of SMCRA’s AVF prohibition on

the Whitney coal during the period before the agency at

last acted. The lower courts’ analysis of that issue was

completely in accord with this Court’s decisions.

This Court has long recognized that property is “taken”

when governmental action has the actual, practical effect

of denying an owner all “economically viable” use cf his

property. Keystone Bituminous Coal Ass’n v. DeBene-

dictis, 480 U.S. 470, 485 (1987); Kirby Forest Industries

Vv. United States, 467 U.S. 1, 14 (1984) ; Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 296

(1981); Penn Central Transp. Co. v. City of New York,

438 U.S. 104, 138 n.36 (1978). The Court has further-

more made clear that the date when such a denial] in sub-

stance occurs may not in fact coincide with the date the

government formally declares a taking or, as here, with

the date the agency formally determines that no permit

can be granted.

Thus, in Kirby Forest, the property owner argued that

the government effectively took his property before it was

formally condemned, because governmental actions before

that time had already completely deprived the owner of

its use. Specifically, Kirby contended that the govern-

ment’s previous filing of a condemnation complaint and

notice of lis pendens in itself effectively precluded Kirby

from using its property thereafter. That would indeed

make for a taking, this Court unanimously recognized.

The Court concluded, however, that Kirby had failed to

prove its contention factually: “{WJe do not find, prior to

the payment of the condemnation award in this case, an

interference with petitioner’s property interests severe

enough to rise to a taking under this inverse condemna-

tion theory. * * * Indeed, [Kirby] [was] unable to point

to any statutory provision that-would have authorized

the Government to restrict petitioner’s usage of the prop-

erty prior to payment of the award.” Jd. at 14-15.

Here, respondents not only showed that SMCRA re-

quired such a restriction, but also proved at trial that

the immediate practical effect of that statute on their

property was to preclude all economically viable “usage of

the property” from the day SMCRA became law. The

government has offered this Court no ground for reject-

ing the lower courts’ key findings on this issue. Indeed,

as the Court of Appeals noted, “the government does not

suggest, and did not suggest at trial, any basis whatever

on which a permit could legally be granted to surface

mine Whitney coal.” App. 4a (emphasis supplied).

Nevertheless, the government offers two arguments de-

signed to avoid the lower courts’ critical findings. First.

the government belatedly speculates that regulators might

have determined that mining would have affected only

“undeveloped range lands” or would have had only a

“negligible impact” on farming. Pet. 18. The govern-

ment similarly hypothesizes that maybe an agency might

have found some independent reason for denying respond-

ents the right to mine their coal. Pet. 19. These possi-

bilities might exist in some other case, but in this case

both lower courts found that no such possibility existed

as to this property. Indeed, the government did not con-

tend at trial that either of the statutory exclusions was

applicable. And when DEQ did make its decision in this

case, it simply confirmed what both lower courts later

found to have been obvious upon enactment—that neither

of the exclusions applied and, given the clear applicability

of the statute, no permit could ever have been granted.

Second, the government asserts that despite Kirby

Forest a taking under a statute that “incorporatfes| a

permit requirement” can never occur before an agency

denies a permit. Pet. 14-15. And that formalistic prin-

ciple applies, according to the government, even where,

as here, a property owner proves both that the statute’s

substantive prohibition clearly and absolutely precluded

development of its property and that no subsequent ad-

ministrative proceeding could possibly have altered the

total economic deprivation already brought about by the

statute itself. Pet. 16.

The government’s approach is both illogical and in-

consistent with this Court’s precedents. Indeed, the gov-

ernment concedes that SMCRA would have effected a

taking on enactment if it had said, “No surface mining

shall be cunducted on the tracts known as East Whitney

and West Whitney.” Pet. 20. Nevertheless, under the

government’s rule espoused here, no taking would be

effected if the same substantive prohibition were ex-

pressed in terms of a permit process: “No permit shall

be granted to surface mine the tracts known as East

Whitney and West Whitney.” This absolutist position is

just as untenable as the one the government advanced

and this Court rejected in Kirby Forest. For just as

actions by the government before formal condemnation

can so interfere with property’s use as to effect a taking,

so too can actions by the government before formal denial

of a permit.

In arguing to the contrary, the government relies on

this Court’s cases that emphasize the need, in the ordi-

nary case, for final agency action to occur before a court

may determine whether a taking has occurred. Pet. 14-

20 (citing Williamson County Regional Planning Comm'n

Vv. Hamilton Bank, 473 U.S. 172 (1985); Hodel v. Vir-

ginia Surface Mining & Reclamation Ass’n, supra; and

United States v. Riverside Bayview Homes, Inc., 474 U.S.

121 (1985)). But those cases are not pertinent here:

in this case, the matter was presented to the appropriate

agency and it did take action before the judicial taking

determination. Furthermore, none of the government’s

cited cases departs from the date-of-taking standard in

Kirby Forest, for none of them remotely suggests that

after the agency acts, the lower courts are somehow dis-

abled from looking at a statute’s practical impact on an

bea

owner’s property during the years before the agency’s

inevitable, formal decision was issued.°

Moreover, this application of Kirby Forest certainly

does not risk “regulatory chaos,” as the government

claims, because it in no way authorizes parties to “bypass”

administrative processes. Whatever the requirement for

agency action, it was fully met in this case when re-

spondents “presented the matter” to DEQ and DEQ de-

cided it on the very basis the Claims Court later found

to have been self-evident in 1977—the obvious application

of the statute to respondents’ property. In these circum-

stances, the lower courts simply recognized that no matter

what formal administrative steps parties must complete

after the fact, the Fifth Amendment requires that they

must be compensated according to the value of their prop-

erty at the time it was effectively taken from them,

not at some later time when an agency confirms the

obvious. This was plainly required under Kirby Forest,

and the lower courts correctly applied that decision to

5 Thus, in Hamilton Bank, the Court based its holding that more

agency processes were required before a taking could be recognized

on the fact that “li]t appears that variances could have been

granted” by either the local planning commission or a zoning board

permitting continued profitable use of the property. 473 U.S. at 188.

Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 477

U.S. 340 (1986), all nine Justices agreed that the date of tak-

ing must await further agency action if there remains “the possi-

bility that some development will be permitted.” 477 U.S. at 352;

see id. at 359 (requirement satisfied when it is clear “that all devel-

opment will be barred”) (White, J., dissenting). See also Riverside,

474 U.S. at 127 (regulatory scheme implemented by permit require-

ment does not effect a taking because “the very essence of a permit

system implies that permission may be granted, leaving the land-

owner free to use the property as desired”). Here, both lower courts

found as fact that on the day SMCRA was enacted there was no

possibility that “permission” could ever have been “granted” to

raake economically viable use of respondents’ property. Accord-

ingly, if the government’s cited cases are relevant at all, they

support respondents’ position that on the particular facts of this

case, the lower courts properly found that the taking occurred upon

enactment of SMCRA’s AVF prohibition.

the facts of this case. Further review by this Court is

not warranted.’

b. The government next challenges the lower courts’

determination that the taking occurred on enactment by

relying on the statute’s exchange provision to contend

(1) that some “value” necessarily remained in the Whit-

ney property on that day, and (2) that respondents have

no ripe Tucker Act claim because the exchange process

has not been exhausted. Neither contention is correct and

neither warrants review.

First, the fact that Congress included a possible means

to compensate AVF coal owners cannot possibly affect

the date their property was previously taken by a com-

plete preclusion of the property’s use. As this Court

held in First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), while it is

true that “‘no constitutional violation occurs until just

compensation has been denied,’ nevertheless the interfer-

ence that effects a taking might begin much earlier, and

compensation is measured from that time.” 482 U.S. at

320 n.10 (quoting Hamilton Bank, 473 U.S. at 194 n.13).

® The government also relies on Hodel v. Virginia Surface Mininy

& Reclamation Ass'n, supra. But in Hodel, this Court held merely

that takings claims turn essentially on ‘tad hoc, factual inquiries”

requiring the application of a statute ‘to specific property, and the

particular estimates of economic impact and ultimate valuation

relevant in the unique circumstances.” 452 U.S. at 295. Therefore,

the Court concluded, a “facial challenge’ to SMCRA that did not

demonstrate “application of the Act to particular surface mining

operations or its effect on specific parcels of land” was simply “not

ripe for judicial resolution.” Jd. at 295, 297. However, the Court

added, “this holding does not preclude . . . coal mine operators from

attempting to show that as applied to particular parcels of land, the

Act... effect{s] a taking.” Jd. at 297 n.40. That is the precise

showing respondents made in this case. Thus, not only did respond-

ents go to every administrative effort called for by this Court’s

agency action cases, but they also completely satisfied Hodel’s re-

quirement of proof about the actual impact of the statute as it

applied to their “particular” parcel of property. App. 12a.

Here, as both lu:ver courts found as fact, the “interfer-

ence that effect{ed] a taking’ occurred on August 3,

1977. Accordingly, as this Court recognized in First

English, the taking occurred on that date, without regard

to the existence of compensation mechanisms like the ex-

change provision or the Tucker Act.

In its attempt to meld the statutory taking in this

case with the possibility of subsequent compensation

under the exchange provision, the government cites Penn

Central, supra, and contends that because SMCRA offered

the possibility of providing respondents at least some-

thing of value in exchange for their property, that pos-

sibility in itself precluded any taking from occurring at

all. That is not what Penn Central held. In Penn Cen-

tral, the only restriction placed on the property at issue

Grand Central Terminal) precluded construction of a

new 50-story office building above the Terminal. It was

oneeded that this did not interfere with Penn Central’s

inued primary use of the property, and that it could

4 mtinue to profit and earn a “reasonable return” on

Grand Central. The Court also relied on the fact that

some other use of the airspace above the terminal might

have been permitted. For those reasons, and because any

restrictions on construction rights weuld be ameliorated

by Penn Central’s ability to transfer any “development-

rights” lost at Grand Central to other Penn Central build-

ings, the Court concluded there was no taking. 438 U.S.

at 129, 136, 137, 138 n.36.

The government now contends that the transferable

“development rights” in Penn Central are like the coal-

exchange “right” here, and, accordingly, that the result

here “cannot be squared with Penn Central.” Pet. 22.

But the Penn Central Court itself expressly contradicted

this contention, stating that its holding was based on

Penn Central’s “present ability to use the Terminal for

its intended purpose and in a gainful fashion.” 438 U.S.

at 1388 n.36. Here, by contrast, both courts below found

ee cere meee

as fact that the value of the Whitney property did not

merely decline because of SMCRA’s restriction on its use;

that value was completely destroyed by a statute that

precluded al! use of the coal.’

In these circumstances, Penn Central plainly cannot be

relied on for the proposition that the mere possibility of

some compensation being received at some later date

through the eoal-exchange process precluded a taking

from occurring in 1977, the date when use of the property

was as a factual matter totally precluded.* Rather, as

this Court later held in First English, “where the gov-

ernment’s activities have already worked a taking of all

use of property, no subsequent action by the government

can relieve it of the duty to provide compensation for the

period during which the taking was effective.” 482 U.S.

at 321.

Moreover, the government’s confusion of compensation

with taking, if accepted, would lead to absurd results. For

7 Despite the findings of the lower courts that SMCRA precluded

all economically viable use of the Whitney property, the governme!

now claims that “just as the ordinance in Penn Central did not inte)

fere with any existing use-of the Terminal. so here SMCRA did not

interfere with any existing use of the Whitney tracts.” Pet, 22-25

Instead, the government reasons, just as Penn Central sought t

engage in a “new use” bi exploiting “additional rights” in then

property the air rights), SMCRA interfered with a “new us¢ Cl

the Whitney coal—-mining it. This is surely not a serious cor

tion. Penn Central had a usable, profitable terminal before the res

d one after it; respondents had usable, profitabl:

A’s prohibition and had none at all after it

8’ Even if the government’s unprecedented reading of Penn Central

were correct, the government has not begun te show that the

Whitney property actually had any value for exchange purposes

Indeed, as the Court of Appeals noted, the government presented

evidence at trial of any possibility that the property could have

been sold for anything on that basis. App. 13a. Instead, the gov

ernment relies on the mere existence of the exchange provision as

the basis for its claimed “value.” Respondents, on the other hand,

‘

showed that the property proffered by the government in the ex

eal

change process was worthless. See pp. 7-8, supra.

example, if the government were correct, the mere exis-

tence of the state inverse condemnation remedy available

in Hamilton Bank would have delayed the taking itself

until that remedy failed, for until then the property could

be said to retain “‘value” as the basis for compensation.

Or, in the federal context, if the government were cor-

rect, the very existence of the Tucker Act would mean

that no action by the United States could ever effect a

taking, because the property rendered useless would al-

ways retain “value” as the basis for a Tucker Act claim.

Worse, under this theory, the government could prohibit

all economically viable use of property and then, by

offering to “exchange,” say, 25 cents on the dollar in

substitute property or cash, claim there was no taking

in the first place because the property owner never lost

all economic use of his property.

None of this is sustainable under this Court’s decisions

for the simple reason that the Fifth Amendment’s guar-

antee of just compensation—‘“a full and perfect equiva-

lent of the property taken” “—cannot be circumvented

simply by simultaneously offering something of value to

the property owner in exchange for his “taken” property.

The government’s other exchange-based argument is

equally without merit and appears to be only an after-

thought. Relying on Hamilton Bank and Ruckelshaus v.

Monsanto, 467 U.S. 986 (1984), the government con-

tends that “even if the coal-exchange mechanism would

not altogether eliminate the possibility of a taking,”

its existence precludes a Tucker Act cause of action until

the Claims Court can determine “whether the substitute

rights offered or accepted . .. represented fair and ade-

quate compensation for any taking that might be found.”

Pet. 23, 25. Thus, the government apparently claims

that, even now, respondents’ Tucker Act claim is still

not ripe for adjudication.

® Regional Rail Reorganization Act Ceses, 419 U.S. 102, 159

1974) (quoting Mononyahela Navigat Co. Vv. United States, 148

U.S. 312, 326 (1983)

But this ripeness contention is not even fairly included

in the government’s Question Presented; that Question

concerns solely whether (‘and when) a taking occurred,

not the propriety of a Tucker Act remedy after such a

taking in fact occurred. Moreover, the Court of Appeals’

determination that the coal-exchange mechanism need not

be exhausted prior to a Tucker Act suit was the subject

of its 1985 judgment, which the government did not

petition to the Court. Subsequently, in reliance on that

decision, the parties conducted substantial discussions in-

volving exchanges, and the lower courts spent consider-

able resources resolving the fact issues relevant to the

parallel Tucker Act remedy. In view of that reliance, it

is inappropriate for the government to challenge this 1985

decision now, rather than six years ago.

In any case, on the present facts the government is

wrong in contending that Monsanto or Hamilton Bank

precludes this Tucker Act suit. The reason the Court

required Monsanto to “exhaust” the arbitration mechan-

ism provided for in the statute at issue there was a very

practical one: on the record before it, the Court could

not “preclude the possibility that the arbitration award

will be sufficient to provide Monsanto with just compen-

sation, thus nullifying any claim against the Government

for a taking... .” 467 U.S. at 1013 n.16. Similarly, in

Hamilton Bank the Court held that where a state pro-

vides an “adequate procedure for seeking just compen-

sation,” a Section 1983 suit should not be entertained

“until the State fails to provide adequate compensa-

tion....” 473 U.S. at 195.

In this case, these purposes were plainly met because,

as previously demonstrated, the record shows beyond fair

debate that respondents fully exhausted the coal exchange

process, and the result was first a denial of any com-

pensation and then, under court order, an offer to re-

spondents of essentially nothing for their loss.” There-

fore, if ever an administrative compensation scheme was

“exhausted,” it was this one. And if ever such a scheme

was shown completely insufficient to provide the full

compensation contemplated by Monsanto and Hamilton

Bank, it was this one. The government’s argument to the

contrary is completely without substance.

c. The government’s final attack on the lower court’s

decision in this case is that the Court of Appeals vio-

lated Keystone by treating the character of the govern-

ment’s action as “wholly irrelevant.” Pet. 25. But the

Court of Appeals did take this factor into account, and

weighed it strictly in accordance with this Court’s de-

cisions. Specifically, both the Claims Court and the Court

of Appeals expressly considered the important public pur-

pose of SMCRA and weighed it against the total de-

struction of respondents’ property in this case. App.

18a-19a, 45a-46a, 72a. Furthermore, that is the precise

kind of weighing this Court employed in the cases cited

by the government—-Keystone and Hodel v. Irving, 481

U.S. 704 (1987).

In Keystone, the Court identified “the two factors”

that “have become integral parts” of its taking analysis:

“land use regulation can effect a taking if it ‘does not

substantially advance legitimate state interests, ... or

denies an owner economically viable use of his land.”

Keystone, 480 U.S. at 485 ‘emphasis supplied) (quoting

Although the government’s exhaustion argument does not ad-

dress the facts about the exchange process in this case, Pet. 23-25,

its Statement does mention that after trying twice to order Interior 4

to tender coal, the district court stayed judicial proceedings in

August 1987 pending the outcome of the Tucker Act suit. Pet. 9.

The government seems to imply that this stay stopped the exchange

process in its tracks. What actually stopped was the drumbeat of

court orders necessary at every turn to force movement by Interior.

Interior remained perfectly free to continue discussions if it had

any valuable offers to make, regardless of the status of the lawsuit

respondents brought to compel Interior to do so.

Agins V. Tiburon, 447 U.S. 255, 260 (1980)). Because

the regulation in Keystone furthered a public interest in

“preventing activities similar to public nuisances,” 480

U.S. at 492, and because the property owners had “failed

to make a showing of diminution of value sufficient to

satisfy [the Court’s] test in... regulatory takings

cases,” *' the Court held that these two key factors to-

gether precluded a taking. In /rving, by contrast, the

Court analyzed the “character of the Government’s regu-

lation” as being “extraordinary” in that it did not merely

diminish, but “completely abolished” the property owner’s

right. 481 U.S. at 716, 717. Such a “total abrogation,”

the Court reasoned, “cannot be upheld.” Jd. at 717 (em-

phasis in original). This was simply a restatement of

the same principle earlier recognized in Keystone: “A

statute regulating the uses that can be made of property

effects a taking if it ‘denies an owner economically viable

use of his land... .’” 480 U.S. at 495 (quoting Hodel,

452 U.S. at 295-296, and Agins, 447 U.S. at 260).

In this case, the lower courts’ explicit factual findings

make unassailable that respondents’ property has been

totally destroyed. It is therefore hard to understand how

the government can fault the lower courts’ weighing of

the key “takings” factors or how it can contend that that

weighing departs from Keystone, Irving, or this Court’s

other decisions.

The government further overlooks another key factor

deemed important by this Court and weighed by the Court

of Appeals here in assessing “the character of the gov-

ernment’s action’’—the particular “type of taking” in-

volved. This Court made plain in Keystone that it is

often ‘critical’ whether the taking involves an actual in-

vasion or acquisition of property as opposed to mere “land

use regulation.” 480 U.S. at 488-489 n.18. Here, the

Court of Appeals noted, this case is not one of “mere”

1! Jd. at 492-493. In Keystone, only some 2% of the property's

value was restricted. 480 U.S. at 496. Here, all value was destroyed.

regulation; rather this is a case in which “the statutory

words” themselves state Congress’ express intention to

“acquire private fee coal precluded from being mined by

the restrictions of [this statute] ... .” App. 14a (em-

phasis by Court of Appeals) (citing 30 U.S.C. 1260

(b) (5)); see also 123 Cong. Ree. 15,755 (1977).

Finally, the government in any event does not contend

that “the character of the government’s action” factor

should have been sufficient to preclude a taking in this

case. Instead, the government says only that “{i]n apply-

ing a statute with multiple purposes, such as this one, it

may be necessary to assess whether a particular regula-

tory action is so directly related to the protection of pub-

lic health, safety or property, as to be analogous to the

abatement of a nuisance.” Pet. 26 (emphasis supplied).

But the government does not relate that general theme to

this case,’ involving total destruction of respondents’

'2 Nor could it. In Congress’ eyes, surface mining in AVFs was

clearly not Jike the infectious trees that had to be destroyed in

Miller v. Schoene, 276 U.S. 272 (1928), or the illegal use of brew-

eries that had to be stopped in Mugler v. Kansas, 123 U.S. 623

(1887). To the contrary, when it enacted SMCRA, Congress in-

cluded a grandfather provision that allowed every surface mine

that was operating on an alluvial valley floor in the year prior to

August 3, 1977 to continue mining. Thus, Congress expressly per-

mitted existing AVF mines to continue to “interrupt, discontinue

or preclude farming on alluvial valley floors ... significant to farm-

ing,” 30 U.S.C. 1260(b)(5), subject to compliance with SMCRA’s

performance standards. As the Court of Appeals noted, this con-

gressiona) determination is “hardly the action of one out to abate a

‘nuisance’ or anything ‘injurious to the health, morals, or safety

of the community.’” App. 18a (quoting Keystone, 480 U.S. at 489).

Indeed, the Claims Court found, and the Court of Appeals agreed,

that, but for the AVF prohibition, respondents could have mined

their coal both profitably and in full compliance with all other pro-

visions of SMCRA, including SMCRA’s environmental protection

performance standards relating to preservation of the essential

hydrologic functions of the AVF. App. 18a. See 30 U.S.C. 1265

(a)(10); H.R. Rep. No. 128, 95th Cong., lst Sess. 118 (1977) (“it

is possible to mine on [alluvial] valley floors and still be able to

assure maintenance of the hydrologic functions of the area”).

299

property."* The government’s “nuisance” remarks, there-

fore, should in no event be treated as grounds for cer-

tiorari in this case.

2. The Decision Below Is of Extremely Limited Appli-

cation.

As we have shown, the lower courts have made and

balanced the appropriate “ad hoe” findings in accord with

this Court’s decisions. Moreover, and equally important,

the findings and circumstances of this case are so un-

usual and the burden of proof imposed on these re-

spondents so formidable, it is difficult to imagine other

cases in which property owners could likewise successfully

demonstrate a taking upon enactment of a statute.

Here, in order to prevail below, these respondents had

to prove to the satisfaction of both lower courts that (1)

as a factual matter the statute’s descriptive prohibition

unquestionably applied to their particular property; (2)

the statute’s application was so obvious and the prohibi-

tion on use so total that it completely deprived them of all

economic value in their property as of the date of the

enactment; (3) the statutory prohibition as it applied

to respondents’ property was furthermore so clear that no

administrative agency would have had any authority

whatever to grant respondents any permit in any way

altering their prior total economic deprivation; (4) re-

spondents’ exhaustion of the “foredoomed” DEQ process

confirmed this inevitable fact; and (5) respondents’ sub-

sequent exhaustion of the exchange process, coupled with

the government’s “unreasonable” delay of that process,

18 With the exception of extraordinary cases like United States

v. Calter, 344 U.S. 149 (1952) (wartime demolition of petroleum

facility to prevent it from falling into hands of advancing enemy),

this Court has never held that a person whose property is completely

destroyed loses his Fifth Amendment right to compensation due to

the “character” of the governmental action. The government has

not—and cannot—contend that this case is even remotely analogous

to Calter.

demonstrated that it would not provide respondents any

significant compensation, much less the just compensa-

tion to which they are entitled under the Fifth Amend-

ment. Based on these facts, and in accordance with this

Court’s decisions, the lower courts properly entertained

this suit, found a taking upon enactment, and valued the

property as of that date.

Thus, contrary to the government’s suggestions regard-

ing the “far-reaching” importance of this case, respond-

ents did not “circumvent” the administrative process and

“go directly to court” with their taking claims. Instead,

they pursued that process for six years before at last

suing under the Tucker Act. And they brought suit

under the Tucker Act only after the relevant agency had

at long last concluded that a permit could not be granted

to mine their property. Only then did the Claims Court

make its findings concerning the question that has to be

answered by a court in every takings case: when as a

factual matter did the government’s actions effectively

deprive the owner of all economically viable use of his

property?

In the ordinary case, that deprivation will be no sooner

than the date any permit or variance process is com-

pleted, because in the ordinary case that process will

present some possibility that the owner will be permitted

to make economically viable use of his property."* But

there may be that rare case—and respondents have proved

that this is such a case—where given the clarity of the

statutory prohibition and its obvious application to a

particular piece of property, no permit could possibly be

granted to make economically viable use of the property.

Where that rare case is presented, the courts should—

indeed, under Kirby Forest they must—recognize that as

a factual matter the complete economic deprivation had

14 See note 5, supra.

effectively occurred before the subsequently completed

administrative process finally confirmed it.”

Finally, the government professes alarm that this deci-

sion was by the Circuit with jurisdiction over takings

claims against the United States. But in a long line of

cases, including this one, the Federal Circuit and its

prececessor, the Court of Claims, have shown their com-

plete understanding of the need for regulated parties to

procure agency action before coming to court claiming a

taking. Where owners have failed to seek available rem-

edies, these courts have consistently remanded them Jo the

relevant agency first. E.g., Otter Creek Coal Co. V.

United States, 224 Ct. Cl. 697 (1980); Burlington North-

ern Railroad Co. v. United States, 752 F.2d 627 (Fed. Cir.

1985). And where permission to use property remained

possible, the Circuit has made clear that the taking does

not occur until the agency decides the matter. F.9.,

Florida Rock Industries v. United States, 791 F.2d 893

Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987).

There was no departure from these doctrines here. In

this case, respondents had procured the necessary agency

action and the only issue was the date of the taking, which

the Circuit properly analyzed based on SMCRA’s actual

effect on the particular property involved in this case.

Despite the government’s extravagant claims, therefore,

'* The government expresses concern that this “taking upon en-

actment” decision will induce many property owners affected by

land use statutes to file protective Tucker Act suits within six

years of enactment, lest their rights be barred. Pet. 27-28. In the

first place, it is difficult to see how this decision creates such an

inducement. Presumably, any owner whose property is in fact

taken by a statute would wish to file such a protective suit with or

without the present decision, just as these respondents did. More-

over, the proposition that this decision requires the filing of such a

suit confuses the date of taking with the date when the taking claim

is ripe for judicial review. Obviously, the statute of limitations runs

from the latter date, not the former one. Yet the present decision

does not raise a ripeness question at all, only the date of taking.

nothing in this case circumvents or threatens any regula-

tory processes either under SMCRA or otherwise.”

3. The Decision Below Is Fair and Just.

The government contends that the decision in this case

has “greatly unsettled” the “overarching” principle that

governs application of the Just Compensation Clause—

“fairness and justice.” Pet. 28 (citing Armstrong V.

United States, 364 U.S. 40, 49 (1960)). Just the opposite

is true: it is the government’s conduct and theories that F

threaten to “unsettle” the law of takings and to deprive

these respondents indefinitely of the “fairness and justice”

guaranteed by the Just Compensation Clause.

This Court is committed to the view that “[a] property

owner is not required to resort to piecemeal litigation or

otherwise unfair procedures in order to obtain [a] deter-

mination” concerning the taking of his property. County

of Yolo, 477 U.S. at 350 n.7; id. at 363 (White, J., dis-

senting). The Court is also committed to the view that

16 Neither does this case raise any important issue regarding a

court’s reliance on legislative history. The government contends

that mere statements by “a single Member of Congress” should not

effectively be allowed standing alone to “ ‘take’ property on behalf

of the United States... .” Pet. 21. But the Court of Appeals’

judgment rests squarely ca its factual determination that an ex-

press prohibition in the statutory language of SMCRA was “pre-

cisely descriptive of the Whitney coal estate.” App. 4a (citing 30

U.S.C. 1260(b)(5)(A)). That determination in turn rested on re-

spondents’ proof at trial that the statutory prohibition “applied

to the property because of obvious physical facts about the prop-

erty.” App. 8a. It furthermore rested on the government’s own

concession in the Federal Register that development of the Whitney

coal had been halted “by the passage of [SMCRA].” App. 7a. Ac-

cordingly, as the Court of Appeals stated, “the government knew

SMCRA applied on enactment to Whitney coal. [Respondents] knew

SMCRA applied; and any prospective buyer would know it applied.”

App. 8a. These are the underpinnings for the Court of Appeals’

judgment. It thereafter recited the legislative history because that

history “confirmed” Congress’ awareness that the express statutory

language would in fact apply to the Whitney coal. App. 8a-10a.

it will not redetermine factual findings concurred in by a

trial court and court of appeals.’7 As shown, respondents

in this case patiently and diligently resorted to every pro-

cedure and every court available to them—including a

separate suit to force the government to act. The ulti-

mate result was explicit findings by both courts below

that it is now 14 years since respondents were completely

deprived of property with a fair market value of $60

million. It is submitted that this should at long last have

been the end of the matter.

It is only because the government will not accept those

findings—and wishes to relitigate them—that it now

labels them a “windfall.” '* Pet. 14. It is only because the

government insists that a taking can never factually

occur prior to formal, confirmatory administrative action

that it still disputes the date of the taking. And it is only

because the government claims the power to end-run the

Just Compensation Clause altogether—by the simple de-

vice of offering some future “exchange” value at the time

it acquires property—that it now asserts that no taking

occurred here at all.

None of these assertions merits this Court’s attention.

None of them is consistent with the Court’s precedents.

And none of them is commensurate with the “fairness

17 See, e.g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310,

317 n.56 (1985); NCAA v. Bd. of Regents, 468 U.S. 85, 98 n.15

(1984) ; Washington Metro. Area Transit Auth. v. Johnson, 467

U.S. 925, 928 n.56 (1984); Rogers v. Lodge, 458 U.S. 613, 623

(1982).

18 For example, the government attempts to support its “windfall”

contention by rearguing a factual issue it litigated and lost before

both lower courts—that Kiewit’s 1976 and 1978 permit applications

indicated that respondents intended only “limited” development of

their property. Pet. 18-19, 27. At trial, however, Kiewit’s Vice

President was called as a witness by the government and explained

Kiewit’s decision, consistent with the custom in the industry, to

seek a permit for immediate needs and to expand the permitted

quantities thereafter. Tr. 764; see Tr. 227.

and justice” the government purports to espouse. Rather,

as the Court of Appeals concluded, the government has

“on appeal carried its attempt to deny the impact cf

SMCRA on Whitney coal to unreasonable lengths in an

apparent hope of postponing the day of reckoning into

eternity.” App. 7a. The government should not be per-

mitted to postpone respondents’ just compensation any

longer.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,