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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 952

## Text

“om =.

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

10

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

11

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

12

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

3

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.

14

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.

15

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

16

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.

17
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)

18

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-

19

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.

20

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.

21

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.

23

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.

ee

24
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.

25

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.

5

26

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.

27

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,

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

Aug@st 30, 1991 Counsel for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2475%3A2. Public record. Not legal advice.