# Amicus Curiae Brief — Lucas v. South Carolina Coastal Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1003 ## Text eA FILE Vv — No. 91-453 | TAR & 1992 Orrick Ur THE CLERK $n the Supreme Court of the United OCTOBER TERM, 1991 DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA COASTAL COUNCIL ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF REVERSAL KENNETH W. STARR Solicitor General BARRY M. HARTMAN Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General BENEDICT S. COHEN Acting Deputy Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General PETER R. STEENLAND JAMES E. BROOKSHIRE JOHN A. BRYSON MARTIN W. MATZEN Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 QUESTIONS PRESENTED This case involves the application to petitioner’s beachfront lots of South Carolina’s 1988 Beachfront Management Act. When this case arose, that Act pro- hibited the building of any habitable structure sea- ward of a setback line established by the South Caro- lina Coastal Council. The questions presented are: 1. Whether petitioner has a ripe claim that appli- cation of the Beachfront Management Act resulted in a taking of his property, in light of 1990 amend- ments to the Act that provide for issuance of special permits to build structures seaward of the setback line in certain circumstances. 2. Whether application of the Act to petitioner’s lots results in a taking of property for which pay- ment of compensation is required by the Fifth Amendment. (1) TABLE OF CONTENTS Page Interest of the United States ...............................00000000...00-. 1 Statement .......... EA ee 2 EE 6 Argument: I. This case should be considered in light of the special permit provisions enacted by the 1990 Amendments to the 1988 Beachfront Manage- ment Act ............. a ccemapenne 8 II. A limited category of regulatory measures de- signed to prevent nuisances or other serious harms to public health or safety do not constitute a taking even if the value of affected property is substantially diminished ........................................ 11 Ill. The category of measures that do not constitute a taking solely because they are designed to pre- vent nuisances and other harmful uses of prop- erty must be limited by reference to the nature, degree, proximity and context of the harm ___. 17 a . ccuwnsnonccwocsegsccsccavers 26 TABLE OF AUTHORITIES Cases: Adolph Vv. FEMA, 854 F.2d 732 (5th Cir. 1988) _. 2 Agins V. City of Tiburon, 447 U.S. 255 (1980) ........ 25 Babcock Vv. City of Buffalo, 56 N.Y. 268 (1874) _.... 24 Bowditch Vv. Boston, 101 U.S. 16 (1879) ......... sites 14 Chenango Bridge Co. v. Page, 83 N.Y. 178 (1880)... 24 Chicago, B. & Q. Ry. Vv. United States, 200 U.S. 561 (1906) ................ a .. 20,91 Commonwealth v. Alger, 61 Mass. 53 (1851) 16, 23, 24 Commonwealth v. Tewksbury, 52 Mass. 55 (1846)... 16 Connolly v. PBGC, 475 U.S. 211 (1986) nen 25 Empire Kosher Poultry, Inc. Vv. Hallowell, 816 F.2d Nee nc ccewenccuseneveccenccseees 13 Esposito vy. South Carolina Coastal Comm’n, 939 | 23 (III) Cases—Continued: Page Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)... 23 Fertilizing Co. Vv. Hyde Park, 97 U.S. 659 (1878).. 15 Gilman Vv. Philadelphia, 70 U.S. (3 Wall.) 713 SUIT xi... 2. eosccsencecensasnsesunnemcaiascansedaaiemeianeennamiens 13 Goldblatt v. Town of Hempstead, 369 U.S. 590 ESRC Me cesT eRORTe ¥ Sab Cs Pere aadicaii 17, 25 Griffin v. United States, No. 90-6352 (Dec. 3, I 15 Hadacheck v. Sebastian. 239 U.S. 394 (1915) ......... 16, 23 Kaiser Aetna Vv. United States, 444 U.S. 164 II co cinitsraanceslsaccledaniaecteshaeteiaaniienveniiniaiacdameliaiaamiemanes 25 Keystone Bituminous Coal Ass’n V. DeBenedictis, fs fee 5, 17, 18, 29, 21 Kincaid, Appeal of, 66 Pa. 411 (1870) —_. a 16 Laurel Hill Cemetery v. San Francisco, 216 U.S. S58 Cieee) .............. 16 MacDonald, Sommer & Frates v. County of Yolo, a eee esemneas 9 McDougal v. County of Imperial, 942 F.2d 668 (9th Cir. 1991) - TR a int Set te NTN 13 Midlantic Nat'l Bank Vv. New Jersey Dep't of En- vironmental Protection, 474 U.S. 494 (1986) 13 Miller v. Schoene, 276 U.S. 272 (1928) ...... .... 17, 18 Monongahela Navigation Co. Vv. United States, 148 U.S. 312 (1893) 7 oe ..... 20, 24 Mouse’s Case, 12 Coke Rep. 62. - 14 Mugler v. Kansas, 123 U.S. 623 (1887). 6. 7, 15, 16, 18, 21 Nollan v. California Coastal Comm’n, 483 U.S. 825 ERB De Si RRA ILE CE VIE Ris ESR ee Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) - a Pennsylvania Coal Co. Vv. Mahon, 260 U.S. 393 ) Saar i 14, 25 People v. Hawley, 8 Mich. 330) (1854) 16 Pumpelly v. Greenbay Co., 80 U.S. (13 Wall.) 166 (1872). 16 Reinman v. City of Little Rock, 237 U.S. 171 (1915) . 16, 23-24 Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357 (Pa. 1788) . SE eS a Pr ) ae 14 V Cases—Continued: Page Russell v. Mayor, ete., of New York, 2 Denio 461 UI: SUEY concndiniinishinnbchlbinnditcoatei nck tig tet tetra, 12 Sligh v. Kirkwood, 237 U.S. 52 (1915) .0000.... 13 Stone V. Mayor & Aldermen, 25 Wend. 157 (N.Y. RF REESE Brae A SI Seba RL ln RP NR 14 Stuyvesant Vv. Mayor &c. of New York, 7 Cow. 588 SE OEE ae eB Sea OP te 16 The License Cases, 4G U.S. (5 How.) 504 (1847) .. 14 Touby V. United States, 111 8. Ct. 1752 (1991) ..... 12 United States vy. Caltex, Inc., 344 U.S. 149 (1952)... 14 United States v. Riverside Bayview Homes, Inc., A a ne 2,9 Williamson County Regional Planning Comm'n V. Hamilton Bank, 473 U.S. 172 (1985) _.... Sud ee 9, 25 Yancey V. United States, 915 F.2d 1534 (Fed. Cir. PE cic caibaheaciiniccakes te schiackadhsiisnacetdciea aetna cnet ont caccamcad 13 Constitution, statutes and regulation: U.S. Const. Amend. V _........... St sila ect gael aes co Just Compensation Clause .................... 8, 11, 18, 24 Clean Water Act, 38 U.S.C. 1844 ................................ 2 Controlled Substances Act, 21 U.S.C. 861 ef seq. —.... 12 Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq. 16 U.S.C, 14 52(2) - jecelaheiahiaomia ssobibeestiaaliaivinaiinioui 2, 20 De Werte BOUND CD oo nnnvcencccctccccenco cece por a a 2, 20 Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. Nicihinlccatestadienednitatnet mane i 12 Federal Insecticide, Fungicide, and Rodenticide Be, DS an, Se Oe OE evict 12 Feueral Meat Inspection Act, 21 U.S.C. 601 eft seq... 12 National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. | Pa arae alent 2 42 U.S.C. 4002(b) (3) UNS Sh alge de 2 42 U.S.C. 4022 EERE At Es RIT tO a A TER 2 Poultry Products Inspection Act, 21 U.S.C. 451 et seq. alameda 12 21 U.S.C. 350a NESE abeTR ERS 12 VI Statutes and regulation—Continued : Page Beachfront- Management Act of 1988, S.C. Code Ann. (Law. Co-op. Supp. 1990): § GB-BO-2O(G) 6G) ..-....----.2..20222-0rcecvvereercrecensecneeees 3 § 48-39-250 (1) (a) ...........-..--------------- hiadiblanietenniiastin 20 IEE CIID occssnnacersavoseoseusenercamersssesoneovenes 19 IED CBD anceenenecvnsscnccssccsssnccsseseseonssnsnsons 19, 20 DID cercsccccesencesnacesereresnsccnnecsencpsamnsonessens 20 IID oc cnssvansopsscsenseepeeannieanerniantionesasests 19 8 48-39-2360 (1) (&)...............---..222002....00000-0020 siete 20 ID COND eccetecsececesennonscccanennccsnanessoconsnes 19 | eee ies 19 PIII | Re euennertee EL er 3 § 48-39-120 _................ Lua I 3 i iva Oy earns baa ee 3 EEA BRI Beale oso eae ear Cree evo 10 2 Exec. Order No. 12,630, 3 C.F.R. 555 (1989) Miscellaneous: W. Blackstone, Commentaries: eee aoe ae: Vol. 4 (1769) Sn EA ie Ail. x 15 54 Fed. Reg. 7580 (1989) . See 1 1 F. Harper, F. James & O. Gray, The ‘Lew of Ea 5 REE RC eNO Re ee .. 22, 24 2 Kent’s Commentaries _.......... coos 14 Restatement (Second) of Torts (1979) . aad a: 15, 21, 23 §u the Supreme Court of the United States OCTOBER TERM, 1991 No. 91-453 DAvID H. LUCAS, PETITIONER v. SOUTH CAROLINA COASTAL COUNCIL ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF REVERSAL INTEREST OF THE UNITED STATES This case involves-a claim that application of build- ing restrictions under South Carolina’s 1988 Beach- front Management Act to particular beachfront lots resulted in a taking of property within the meaning of the Fifth Amendment. The 1988 Act was approved by the Secretary of Commerce, through the National Oceanographic and Atmospheric Administration, as consistent with the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. 1451 et seg. 54 Fed. Reg. 7580 (1989). The CZMA establishes a _ national policy of protecting the resources of the Nation’s coastal zone and encouraging States to adopt coastal management programs that, 7nfer alia, seek to mini- mize the loss of life and property caused by improper (]) 2 development in flood-prone, storm surge, and erosion- prone areas and destruction of natural protective fea- tures such as beaches and dunes. 16 U.S.C. 1452(2), 1456b(a) (2). In addition, the National Flood Insur- ance Act of 1968, 42 U.S.C. 4001 et seq., administered by the Federal Emergency Management Agency, con- ditions availability of federal flood insurance in com- munities on adoption of adequate flood-plain and land- use measures that are consistent with federal stand- ards to reduce future losses. See 42 U.S.C. 4002(b) (3), 4022; Adolph v. FEMA, 854 F.2d 732 (5th Cir. 1988). Federal agencies also engage in direct regu- lation that affects real property (see, e.g., Clean Water Act, 33 U.S.C. 1344; United States v. River- side Bayview Homes, Inc., 474 U.S. 121, 126-127 (1985) (wetlands)) and personal property (e.g., food, drugs, and pesticides). At the same time, the United States has an obligation to ensure that such programs are implemented in a manner that respects basic constitutional protections. See Exec. Order No. 12,630, 3 C.F.R. 555 (1989) (directing the Attorney General to assist federal agencies to minimize the ex- tent to which their regulatory activities result in a taking of property rights). STATEMENT 1. In December 1986, petitioner purchased two beachfront lots in the Wi:id Dunes development on the Isle of Palms in South Carolina. T.R. 27.' He in- tended to build a single-family residence on each lot, one for his family and the other for investment. A house had been constructed on the lot situated be- tween petitioner’s two lots in the early 1980s; there 1“T R.” refers to the Transcript of Record that was filed in the South Carolina Supreme Court. 3 were also houses on other nearby “cachfront lots. Pet. App. 36. At the time, activities along the South Carolina coast were regulated by the State’s Coastal Zone Man- agement Act of 1977, S.C. Code Ann. §§ 48-39-10 et seq. The 1977 Act established coastal “critical areas,” which included the beaches and primary ocean-front sand dunes. § 48-39-10(H), (1) and (J). The Act directed the South Carolina Coastal Council to develop an erosion-control policy, § 48-39-120, and authorized the Council, under general standards, to issue permits for development within critical areas. S$ 48-39-130. The line delineating the “critical area” along the Isle of Palms was seaward of petitioner’s lots. As a result, those lots were not subject to re- strictions under the 1977 Act when petitioner pur- chased them in 1986. Pet. App. 33-34, 36. 2. South Carolina’s regulatory regime changed sig- nificantly with the enactment of the Beachfront Man- agement Act, which became effective on July 1, 19838. The 1988 Act increased protection for the beach /dune system by extending the “critical area” to the entire zone hetween the mean high-water mark and a set- back line fixed by the Council “utilizfing] the best available scientific and _ historical data.” S.C. Code Ann. § 48-39-280(A) (Supp. 1990); see also §$ 48-39-10(.J) (4) (Supp. 1990). Under the statute, the Council first must establish a “baseline.” In an erosion zone such as that in which petitioner’s lots are located—i.e., an inlet zone that has not been stabilized by jetties or other structures—the baseline must be at the most Jandward point of erosion during the past 40 years, unless available data “indicate that the shoreline is unlikely to return to its former position.” § 48-39-280(A) (2) (Supp. 1990). The Council then must establish a setback line landward of the base- 4 line by a distance 40 times the annual erosion rate, but not less than 20 feet. § 48-39-280(B) (Supp. 1990). The 1988 Act prohibited construction of habitable structures seaward of the baseline (and re- construction of any preexisting structures that may be damaged beyond repair by natural causes or fire). $$ 48-39-300, 48-39-290(B) (8) (1988 S.C. Acts 5144, 5140); J.A. 3. As relevant here, the baseline falls cn the road landward of petitioner’s lots. See DX 22 (J.A.9 (Map) ); T.R. 71. 3. After passage of the 1988 Act, petitioner filed this inverse condemnation action seeking compensa- tion for an alleged taking that resulted from applica- tion of the new statute to his lots. Although peti- tioner did not apply for a permit from the Council (or the town) to construct a house on either lot (T.R. 39-40, 98), the parties stipulated that a per- mit would have been denied under the 1988 Act had one been sought. The Council nonetheless “reserve[d] as an argument concerning temporaiy damages that no permit has been applied for by [petitioner].” J.A. 3-4. The trial court found that at the time of purchase, there were no restrictions imposed by the State, county, or town on use of the lots for single-family residences and that the 1988 Act prevented that use. Pet. App. 36. The court determined that the Act “de- prive[d] Lucas of any reasonable economic use of the lots” and rendered them “valueless,” and found a taking on that basis. Jd. at 37, 38, 40. The court awarded petitioner $1,170,000 in compensation, rep- resenting the fair market value of the lots on the date the 1988 Act became effective. Jd. at 40. 4, A sharply divided South Carolina Supreme Court reversed, holding that no taking resulted from the 1988 Act’s effect on petitioner’s lots. Pet. App. 1-32. 5 It observed that although regulatory-taking questions are often complex, the appeal here presented a ‘“rela- tively straightforward issue’: whether petitioner was correct in arguing that “if he is deprived of ‘all eco- nomically viable use’ of his property, he must te com- pensated for it even if the regulation depriving him of such is a use-restriction regulation enacted to pre- vent serious public harm.” Jd. at 2-3. The court took petitioner to have conceded the validity of the Legis- lature’s findings and that the Act “is properly and validly designed to preserve the extremely valuable resource which is South Carolina’s beaches.” Id. at 4. As a result, it reasoned, petitioner also conceded that construction “contributes to the erosion and de- struction of this public resource” and that “‘discour- aging new construction in close proximity to the heach lune area is necessary to prevent a great pub- lic harm.” /d. at 8. The court also noted that peti- tioner did not ‘‘contend that the setback requirements affecting him are unreasonable or disproportionate to the goal of preventing the specified harms.” /d. at 15. Against this background, the court rejected peti- tioner’s contention that he is entitled to compensa- tion, “regardless of any other consideration.” Pet. App. 9; see id. at 9-17. It stated that “a taking has not been found when the regulation exists to prevent serious public harm,” id. at 10, and explained this result on “ ‘the simple theory that since no individual has a right to use his property so as to create a nui- sance or otherwise harm others, the State has not “taken” anything when it asserts its power to enjoin the nuisance-like activity.’ ” /bid. (quoting Keystone Bituminous Coal Ass’n vy. DeBenedictis, 480 U.S. 470, 491 n.20 (1987)). Here, the court concluded, peti- tioner’s failure to attack the legislative findings “that 6 new construction would cause serious public harm * * * amounts to a concession that the Mugler ‘nui- sance-type exception’ applies.” Pet. App. 12 (refer- ring to Mugler v. Kansas, 123 U.S. 623 (1887) ). The two dissenting Justices acknowledged the Mug- ler decision and agreed that it precluded the finding of a taking if the statute is necessary for the public’s health, safety, and welfare, “regardless of the extent of loss suffered by the property owner.” Pet. App. 20; see id. at 20-23. However, the dissenters believed that the 1988 Act is “not subject to the Mugler analy- sis” because it does not have as its primary purpose the prevention of a nuisance or comparable harms, but instead confers a benefit on the State by creating a habitat for flora and fauna and a place of natural beauty, and by “providing a barrier and buffer from high tides, storm surge, hurricanes and normal ero- sion.” Id. at 27. The dissenting Justices would have found a taking on the basis of the trial court’s find- ing that the lots lack fair market value and econom- ically viable use. Jd. at 29-31. They then would have remanded to the Council to allow petitioner to apply for relief under the “special permit” provisions added by the 1990 amendments to the 1988 Act (see pages 8-10, infra) and for an award of compensation if the Council did not grant him one. Pet. App. 31 (citing § 48-39-290(D)) (Supp. 1990). SUMMARY OF ARGUMENT 1. There is no present basis for finding a perma- nent taking, in view of petitioner’s ability to apply for a special permit under the 1990 amendments. Even if petitioner is granted a special permit, how- ever, he may still have a temporary taking claim for the period prior to the institution of the special per- mit procedure. This Court need not reach that claim in the first instance, but may instead vacate the judg- 7 ment below and remand to allow the state courts to consider the viability and validity of any such claim. 2. Government has the established right to pre- vent certain noxious uses of property that cause serious harm to others without compensating the owner of the offending property, even if the prop- erty has substantially diminished economic value in the absence of the prohibited use. Some situations involving total destruction of property or substantial reduction of its value (e.g., destruction of diseased food, condemnation of an unsafe building, or a pro- hibition against building on an unsafe site) do not require compensation. More generaily, regulatory measures that substantially further the public inter- est in preventing established nuisance-type activities or serious harm to the public health or safety may not require compensation. That ‘‘nuisance exception” was well established at the time of the framing and ratification of the Bill of Rights, and is firmly rooted in Mugler vy. Kansas, 123 U.S. 623 (1887), and nu- merous other decisions, as well as principles of prop- erty rights on which those decisions rest. The scope of this category of measures designed to prevent an established nuisance or protect the public health and safety, however, is by no means cotermin- ous with the full range of a State’s police powers. It is instead limited by the principles from which it springs: such measures must in fact respond to seri- ous harms to public health and safety that are sub- stantial in nature, degree, proximity, and context. The South Carolina Supreme Court did not adequately consider whether the restrictions imposed on petition- er’s lots meet this standard. That inquiry is par- ticularly important here, where petitioner’s two lots are in a highly developed area, the State’s own recent amendments contemplate building in some circum- 8 stances, and petitioner seeks to engage in a normally unobjectionable use—building single-family residences next to other single-family residences. These factors combine to cast considerable doubt on whether the regulatory regime erected by South Carolina in 1988 is properly viewed as directed at a nuisance or threat to safety. A legislature’s routine exercise of the police power may not be brought within the “nui- sance exception” to normal application of takings analysis simply by incantation of the words “health and safety”; such an approach would render the Just Compensation Clause a hollow guarantee. 3. If a statute does not fall within the narrow category of laws designed to abate a nuisance or similar public health and safety threat, whether it amounts to a taking requires a careful assessment of the three factors the Court has identified in its regu- latory-takings decisions: the regulation’s economic impact, the character of the governmental action, and the extent to which it interferes with reasonable, in- vestment-backed expectations. ARGUMENT I. THIS CASE SHOULD BE CONSIDERED IN LIGHT OF THE SPECIAL PERMIT PROVISIONS EN- ACTED BY THE 1999 AMENDMENTS TO THE 1988 BEACHFRONT MANAGEMENT ACT There no ionger is any live claim of a permanent taking in this case. The trial court found that the 1988 Beachfront Management Act resulted in a per- manent taking of petitioner’s lots because it entirely prevented him from building houses on them, render- ing them valueless. Pet. App. 37, 40. As the dissent- ing Justices in the South Carolina Supreme Court pointed out (id. at 31), however, the 1990 amend- ments to that Act now authorize the Coastal Council 9 to issue a “special permit” to build or rebuild a struc- ture (other than an erosion-control device) seaward of the baseline, if (1) the structure would not be on the active beach or a primary oceanfront dune, (2) the permittee agrees to remove the structure should erosion occur to the extent that the structure becomes situated on the active beach (see § 48-39-270(13) (Supp. 1990)), and (3) the use would not be detri- mental to the public health, safety, or welfare. § 48-39-290(D) (Supp. 1990). Petitioner has not sought a special permit under this provision. See Br. in Opp. 5. This Court has repeatedly admonished that a prop- erty owner has no ripe and justiciable claim for a regulatory taking until he has secured at least a final administrative determination of whether and how the regulatory statute will be applied to the prop- erty at issue. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126-127 (1985). This rule is “compelled by the very nature of the inquiry required by the Just Compensation Clause,” because the factors applied in deciding a taking claim “simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 190, 191 (1985). See MacDonald, Sommer & Frates vy. County of Yolo, 477 U.S. 340, 348 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regu- lation goes.”). This requirement defines the point at which a taking claim accrues; identifies precisely what the landowner wants to do with his property and why he believes that the use would not be harm- ful; establishes the extent to which the agency has 10 applied the regulatory measure to defeat the proposed use; and enables the agency to furnish particularized reasons to support its action. The issue of whether a permanent taking has occurred simply cannot be ad- dressed until the applicability of the 1990 amend- ment procedure to petitioner’s lots is clarified. There remains, of course, the question whether a temporary taking occurred between passage of the 1988 Act and the 1990 amendments. This quite dis- tinct issue of a temporary taking was not addressed by either court below. In fact, although the Council stipulated at trial (in connection with the permanent taking claim) that an application for a permit to build a home would have been denied under the 1988 Act, it expressly “reserve[d] as an argument con- cerning temporary damages that no permit has been applied for by [petitioner].” J.A. 3-4. Thus, the Council apparently has preserved the position that no temporary taking can be found under its regulatory scheme unless the owner has applied for and been denied a permit. See also § 48-39-180. This ripeness argument, and other aspects of any temporary taking claim (including whether petitioner was deprived of any existing or planned use of the property during the relevant period), should be re- solved by the state courts in the first instance. Al- though the South Carolina Supreme Court declined to remand in light of the 1990 amendments (Pet. Reply Br. 3; see Pet. App. 17 n.8), this Court might chocse to vacate the judgment below and re- mand for further consideration in light of those amendments—especially in view of possible threshold impediments to a temporary taking claim, the narrow focus of petitioner’s argument to date, and the failure by the courts below fully to consider the relevant aspects of the taking issue. 11 II. A LIMITED CATEGORY OF REGULATORY MEAS- URES DESIGNED TO PREVENT NUISANCES OR OTHER SERIOUS HARMS TO PUBLIC HEALTH OR SAFETY DO NOT CONSTITUTE A TAKING EVEN IF THE VALUE OF AFFECTED PROPERTY IS SUBSTANTIALLY DIMINISHED The Just Compensation Clause of the Fifth Amend- ment affords vital protection to individual liberty by protecting private property rights against invasion by the government. At the same time, the govern- ment has the right to abate nuisances and prevent harm to public health and safety without incurring an obligation to compensate those whose uses are affected, and ownership of private property has never been understood to include the right to engage in noxious uses harmful to public health and safety. The tension between these principles is especially acute where, as the trial court found here under the 1988 Act, a governmental action has a dramatic eco- nomic impact on a particular parcel of property. Accordingly, the category of situations that fall within the government’s authority to abate nuisance-type activities must be carefully circumscribed so as not to eviscerate the protections of the Just Compensa- tion Clause. The proper accommodation lies, we submit, in the roots of the Mugler principle itself, which recognizes the established need of the government to respond to certain noxious uses of property that affect the per- sons and property of others, as well as similar actions that threaten identified harm to public health and safety. To justify a finding of no taking on the Mugler principle alone, the regulatory measure must substantially further an established nuisance-preven- tion or public health and safety purpose, in terms of the nature, degree, proximity, and context of the 12 harm concerned. Such measures plainly do not extend to embrace the full range of a State’s police powers, and when government engages in legitimate regula- tion that is not properly characterized as prevention of such established nuisance-type harms, it may not rely on the Mugler principle to immunize itself from compensation demands. 1. It is clear as an initial matter that there exists some category of governmental authority that may result in the substantial diminution of property val- ues, and yet not require payment of compensation as a condition to its lawful exercise. For example, the government may seize and destroy unwholesome foods and unsafe drugs, and may destroy goods to prevent the spread of disease.’ Similarly, under the Controlled Substances Act, 21 U.S.C. 801 et seq., it may be lawful to manufacture, possess and sell a certain drug one day and a felony to do so the next (see, e.g., Touby vy. United States, 111 S. Ct. 1752 (1991)), with the result that existing stocks are rendered valueless. The government’s ability to protect the public through such measures is historically well es- tablished and thus has not been conditioned upon pay- ment of compensation to those who would inflict the harm.’ * See, e.g., Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.; Federal Meat Inspection Act, 21 U.S.C. 601 et seq.; Poultry Products Inspection Act, 21 U.S.C. 451 et seq.; 21 U.S.C. 350a (prohibiting sale of adulterated infant formula) ; see also Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq. 5 See 4 W. Blackstone, Commentaries 162 (1769) (statutes prohibiting sale of unwholesome food) ; Russell v. Mayor, etc.., of New York, 2 Denio 461, 476 (1845) (New York statute passcd during cholera epidemic authorizing destruction of 13 The same principle also applies to real property. Thus, the government may condemn a residence or other building that is unsafe for habitation, even though the value of the building (in itself a distinct species of property) will be entirely destroyed, or may bar construction in an unsafe manner (e.g., by requiring compliance with a building code), even where compliance would render it economically un- viable to proceed. Restrictions against siting a resi- dence or other building on a steep slope or other un- safe location stand on an equal footing. In other circumstances, affirmative obligations imposed on the owner to protect public health and safety may also have a substantial effect on the value of the prop- erty. See Midlantic Nat’l Bank v. New Jersey Dep’t of Environmental Protection, 474 U.S. 494, 502, 509 & n.2 (1986). Another familiar example, deeply rooted in history, is the right of the government (with- out compensating the owner) to tear down a struc- “an unlimited amount of the property of its citizens, for the purpose of preventing the spread of the disease, without imposing any obligation or subjecting [the agents] to any responsibility whatever’); Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 730-731 (1865) (“a bale of goods, * * * laden with infection, may be seized under ‘health laws,’ and if it cannot be purged of its poison, may be committed to the flames”); Sligh v. Kirkwood, 237 U.S. 52, 59-60 (1915) (such items are not “legitimate subjects of trade or com- merce” and “may be rightly outlawed as intrinsically and directly the immediate sources and causes of destruction to human health and life’); Empire Kosher Poultry, Inc. V. Hallowell, 816 F.2d 907 (3d Cir. 1987) (no taking in con- text of poultry quarantine) ; but cf. Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990) ; but see McDougal v. County of Imperial, 942 F.2d 668, 675-680 (9th Cir. 1991) (remand- ing for inquiry into substantiality of public interest under- lying floodway ordinance, as well as private interest affected). 14 ture in order to create a firebreak. See Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 362 (Pa. 1788) (“Houses may be razed, to prevent the spreading of fire, because for the public good.”) ; Stone v. Mayor & Aldermen, 25 Wend. 157, 161 (N.Y. 1840) (quot- ing 2 Kent’s Commentaries 339); id. at 173-174; * Bowditch vy. Boston, 101 U.S. 16, 18-19 (1879);° Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415- 416 (1922); see also United States vy. Caltex, Inc., 344 U.S. 149, 154 (1952). 2. The roots of the foregoing principles extend deep into the Court’s precedents and historical defi- nitions of private property rights, and into the cor- relative power of the government to abate nuisances and protect public health and safety from serious harm.® This backdrop is important because historical ‘See also 25 Wend. at 176 (citing Mouse’s Case, 12 Coke Rep. 62 (merchandise thrown overboard to save passengers) ). 5“At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsi- bility on the part of such destroyer, and no remedy for the owner. * * * There are many other cases besides that of fire,—-sume of them involving the destruction of life it- self,—where the same rule is applied. * * * In these cases the common law adopts the principle of the natural law, and finds the right and the justification in the same imperative necessity.” 101 U.S. at 18-19. * See The License Cases, 46 U.S. (5 How.) 504, 589 (1847) (opinion of McLean, J.) : The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. * * * It is a power essential to self-preser- vation, and exists, necessarily, in every organized community. 15 understandings give content to the Bill of Rights, including the Fifth Amendment (see, e.g., Griffin v. United States, No. 90-6352 (Dec. 3, 1991), slip op. 3-5), and because those understandings must be taken into account in assessing what the Framers understood the private property they were protecting from uncompensated takings to include. If the use of property in a particular way was not part of the owner’s “bundle” at the time he acquired the prop- erty, he cannot claim the government has “taken” from him the right to that use. The necessary interrelationship between property rights and the correlative power of the government to protect the person and property of others (and the public interest) first received extensive treatment by this Court in Mugler v. Kansas, 123 U.S. 623 (1887).’ But the principles applied in Mugler did not originate in that case; they find their roots in the law of nui- sance in England * and were already widely accepted in the law of the States pertaining to property rights 7See also 128 U.S. at 666-667, discussing Fertilizing Co. Vv. Hyde Park, 97 U.S. 659, 667 (1878), which sustained an ordinance prohibiting the manufacture of fertilizer, even though it “operated to destroy the business of the company, and seriously to impair the value of its property,” because it had become a nuisance. 123 U.S. at 667. The Court con- tinued: “ ‘That power belonged to the States when the Fed- eral Constitution was adopted. They did not surrender it, and they all have it now. * * * It rests upon the funda- mental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions.’” Jbid. (quoting 97 U.S. at 667). ®3 W. Blackstone, Commentaries 216-218 (1768); 4 id. at 168; Restatement (Second) of Torts § 821B, comment a; id. $ 821D, comment a (1979). 16 and constitutional protections.’ For example, in Stuy- vesant v. Mayor &c. of New York, 7 Cow. 588 (1827), the New York Supreme Court sustained an ordi- nance that barred interment in certain parts of the City. Accord, Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 366 (1910); Appeal of Kincaid, 66 Pa. 411, 423-424 (1870). In addition, the Court in Mug- ler relied (123 U.S. at 665) on the frequently cited decision of the Supreme Judicial Court of Massa- chusetts in Commonwealth v. Alger, 61 Mass. 53 (1851), which involved an ordinance barring con- struction of wharves beyond a harbor line and de- claring such wharves to be a nuisance. Similarly, and instructive here, Commonwealth v. Tewksbury, 52 Mass. 55 (1846), sustained, as applied to the owner of beach property, an ordinance barring re- moval of sand or gravel from a beach. Because prop- erty “is held under the implied obligation that the owner’s use of it shall not be injurious to the com- munity” (Mugler, 123 U.S. at 665), the power of the government to adopt such measures continues to exist—and continues to define and limit the under- lving property right—even if it remains unexercised. So long as the government regulation does not depart from the common law origins of nuisance, there is no taking.” ® See, e.g., People v. Hawley, 3 Mich. 330, 342 (1854); Pumpelly Vv. Greenbay Co., 80 U.S. (13 Wall.) 166, 177-178 (1872). See also Stuyvesant v. Mayor &c. of New York, 7 Cow. at 695; Commonwealth v. Alger, 61 Mass. at 84-85. '' Nor have this Court’s post-Mugler decisions suggested any departure from Mugler’s fundamental principles. See MTadacheck Vv. Sebastian, 239 U.S. 394 (1915) (no taking where law forbade operating brickyard in residential! area) ; Reinman Vv. City of Little Rock, 237 U.S. 171 (1915) (no 17 Ill. THE CATEGORY OF MEASURES THAT DO NOT CONSTITUTE A TAKING SOLELY BECAUSE THEY ARE DESIGNED TO PREVENT NUISANCES AND OTHER HARMFUL USES OF PROPERTY MUST BE LIMITED BY REFERENCE TO THE NATURE, DEGREE, PROXIMITY AND CONTEXT OF THE HARM For the reasons stated in Point II, we agree with the view—endorsed by all Justices of the South Caro- lina Supreme Court— that there is a category, prop- erly defined, of regulatory measures designed to pre- vent nuisances or harm to public health and safety that do not constitute a taking, even if, in certain circumstances, they substantially diminish the value of the affected property. But it is precisely because of this potential impact that the category of cases falling under the Mugler principle must be carefully circumscribed according to the underlying exigencies that justify it. That is esp>_ially so as regards real property, which typically is not subject to the sort of pervasive regulation—or the potential for such regulation—that often attends ordinary commerce in goods and services. It is on the application of these principles here that we disagree with the South Carolina Supreme Court. 1. In the first place, as this Court has made clear, the category of regulatory measures whose applica- taking where law forbade operating livery stable in down- town area); Miller v. Schoene, 276 U.S. 272 (1928) (state required destruction of cedar trees to protect apple trees from cedar rust disease, where apples were an economically important crop) ; Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (no taking where law forbade e::cavation of sand and gravel below water line to protect public water supply) ; see also Keystone Bituminous Coal Ass'n V. DeBenedictis, 480 U.S. 470, 488-492 (1987). 18 tion may be justified (without payment of compen- sation) solely on the Mugler rationale “ ‘is not co- terminous with the police power itself.’” Keystone, 480 U.S. at 491 n.20 (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 145 (1978) (Rehnquist, J., dissenting) ); see also 480 U.S. at 512 (Rehnquist, C.J., dissenting). The general rule is that the takings implications of a regulatory measure must be analvzed under the Court’s three- factor test, under which the purpose of the regulation is not dispositive. See pages 25-26, infra. Otherwise, the police power would swallow the Just Compensa- tion Clause. The Mugler principle, rather, is confined to meas- ures that are designed to protect public health and safety frum serious harm or to prevent or abate a nuisance-type activity. It is essential, moreover, that the tvpe of nuisance measures falling within this category be defined in an objective and non-manipula- ble manner, for otherwise a legislature could circum- vent the Just Compensation Clause in the regulatory context simply by designating as a nuisance whatever use of property it wished to restrict. Thus, although the Court has noted that legislatures are not strictly limited by common-law categories in determining what constitutes a nuisance for these purposes, Miller v. Schoene, 276 U.S. at 280, the common law origins of the rule should inform a court’s review of a statute to determine whether it falls under the Mugler prin- ciple. Accordingly, before concluding that Mugler applies, a reviewing court must determine that the statute is rooted in the principle that individuals may not make a “noxious use of their property, to inflict injury upon the community.” Mugler, 123 U.S. at 669. A landowner could not reasonably have ex- pected to put his property to such a use. By contrast, 19 regulatory measures (such as a typical zoning ordi- nance) that restrict one person’s use of his property in order to confer a benefit on adjacent property owners or the public at large do not constitute the abatement or prevention of a nuisance for purposes of the A/Jugler principle. Compare 3 W. Blackstone, supra, at 217 (“But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like: this, as it abridges nothing really con- venient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance.”). Such reg- ulatory efforts must be analyzed under the usual three-factor test to determine whether the government must compensate affected landowners. The court below purported to recognize this point, stressing that it was not holding that the mere fact that the State acted pursuant to its police power ended the inquiry, but rather that no taking occurs when a State “acts to prevent a serious public harm.” Pet. App. 11. The difficulty is that the legislative findings and policies in the 1988 Act on which the court exclusively relied in rejecting petitioner’s tak- ing claim demonstrate that the Act furthers a num- ber of ultimate purposes, only some of which might fall within the nuisance or safety rationale. Compare Keystone, 480 U.S. at 512-513 (Rehnquist, C.J., (dissenting). The Act recites, for example, that the beach dune system it seeks to protect provides a basis for the State’s tourism industry (which contributes substantially to the State’s economy and tax base) and a natural environment for the well-being of its citizens, and that it is in the public interest to pro- mote increased public access to the State’s beaches. S.C. Code Ann, § 48-39-250(1)(b) and (d), (8) (Supp. 1990); see also § 48-39-260(1)(b) and (c), 20 (6) (Supp. 1990). Achievement of these goals may benefit the people and economy of the State, but they plainly do not, in themselves, bring this case under the Mugler doctrine. The nuisance exception . to the usual regulatory-taking analysis is premised on the prevention of harmful or dangerous uses of prop- erty—in the nature of nuisance—and not on the conferral of benefits on the public at large or owners of adjacent property. By contrast, other stated pur- poses of the Act—such as protection of life and property—are of the sort that, in proper circum- stances, do fall within the Mugler doctrine. See $$ 48-39-250(1) (a) and (d), (3), 48-39-260(1) (a), (3), and (4) (Supp. 1990); see also 16 U.S.C. 1452(2) and 1456b(a) (2) (CZMA provisions stating comparable goals). For these reasons, a more searching inquiry was required at the threshold to determine which of the purposes of the Act were actually implicated in appli- cation of the building restrictions to petitioner’s lots, and whether those purposes are of a sort that fall within the Mugler category of nuisance-prevention or efforts to protect public health and safety from serious harm. In cases where a statute serves a variety of collateral purposes, there is the potential that it goes “beyond the necessities of the case,” Chicago, B. & Q. Ry. v. United States, 200 U.S. 561, 593 (1906), and scrutiny of the fit between means and ends is _ necessary to ensure that the affected property owner is not being asked to bear “more than his just share of the burdens of government.” Monongahela Naviqa- tion Co. v. United States, 148 U.S. 312, 325 (1893). 2. Furthermore, a regulatory statute is not im- mune from a lifth Amendment claim merely because it bears some plausible nexus to the prevention of 21 harm to individuals, property, or the public at large. If that were enough, the established principle that a house may be razed to prevent the spread of a fire (see pages 13-14, supra) could be extended to permit the razing of every other house in an existing row, to prevent the spread of a fire if one should occur. See Keystone, 480 U.S. at 513 (Rehnquist, C.J., dis- senting) (“nearly every action the government takes is intended to secure for the public an extra measure of ‘health, safety, and welfare’”’). Thus, the founda- tion of the Mugler doctrine requires that, in order for the doctrine to apply, “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety” must actually have a “real and substantial relation” to those ob- jects. Mugler, 123 U.S. at 661; Chicago, B. & Q. Ry. v. United States, 200 U.S. at 593 (“real” and “sub- stantial” relation); ef. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-835 (1987) (condition must “substantially advance” the state interest). At least where its application to a particular parcel of real property precludes previously unrestricted uses, a determination of whether the requisite “real and substantial relation” exists requires an assess- ment of the degree of the harm to which the statute is addressed '-—and, where the harm will occur (if at all) only in the future, its likelihood and proximity. ' This principle is an established element of modern tort law as well. See Restatement (Second) of Torts § 821B (1979) (a public nuisance is an “unreasonable” interference with a right common to the general public, and a relevant circumstance in making that determination is whether the conduct involves a “significant interference” with, inter alia, public health or safety) ; id. § 821F (liability for a nuisance only to those to whom it causes “significant harm’’) ; id. § 826 (invasion of another’s use and enjoyment of land is unreason- 22 In this case, the 1988 Act prohibited new construc- tion of any but temporary buildings seaward of a baseline fixed by the Coastal Council. In an erosion zone such as that in which the Wild Dunes develop- ment is located, the baseline was to be fixed at the landward-most point of erosion during the past 40 years, unless the available data indicated that the shoreline would be unlikely to return to its former position. See pages 3-4, supra. Application of this statutory formula placed the baseline on the road landward of petitioner’s lots, and petitioner has not challenged that determination. T.R. 40. In addition, the Council introduced evidence at trial concerning the factual premises for the location of the baseline, recent episodes of erosion in the vicinity, and the possibility that erosion might occur to the extent that petitioner’s premises would be situated on active beach. T.R. 65-88, 99-104. However, neither the trial court nor the South Carolina Supreme Court dis- cussed the statutory requirements for drawing the baseline, the relationship of those requirements to purposes of the Act that might fall within the cate- gory of nuisance-prevention or public health and safety measures covered by the Mugler principle, the extent (if any) to which those purposes were ad- dressed by the location of the baseline as it affected petitioner’s lots, or the degree, likelihood, or prox- able if “the gravity of the harm outweighs the utility of the actor’s conduct” or “the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible’); 1 F. Harper, F. James & O. Gray, The Law of Torts § 1.23, at 81 (1986) (a “requirement common to all private nuisance cases is that the interference must be substantial’). 23 imity of the identifiable harms to which the Act is addressed. 3. In addition, an important element of the nui- sance justification for application of the Mugler prin- ciple is the context in which the restriction applies, including the normal uses of property in the vicinity. This important element serves to protect the reason- able expectations of the property owner. As this Court said in Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926): [T]he question whether the power exists to for- bid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be deter- mined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circum- stances and the locality. See also Commonwealth v. Alger, 61 Mass. at 8&8; Restatement (Second) of Torts § 831 (1979). It is as an initial matter strange to characterize the building of a single-family residence as a “nui- sance.”’ Here, houses have been built adjacent to pe- titioner’s lots. It is stranger still to characterize as a “nuisance” the building of a house on a lot in a platted subdivision along a beach where other houses are already located.’ In this respect, this case ap- pears to be the mirror image of Hadacheck v. Sebas- tian, 239 U.S. 394 (1915), and Reinman vy. City of '’ The owners of existing houses were affected by the 1988 Act to some extent, however, because it prohibited recon- ~ struction of homes that might thereafter be destroyed by fire or natural causes. § 48-39-290(A) (Supp. 1990) (Pet. App. 116); see Esposito Vv. South Carolina Coastal Comm’n, 939 F.2d 165 (4th Cir. 1991). 24 Little Rock, 237 U.S. 171 (1915), where the use was prohibited because it was inconsistent with surround- ing uses. Furthermore, where a statute uniquely pro- hibits a use of property that is permitted on adjacent parcels, the purposes of the Just Compensation Clause are directly implicated, because the owner is being asked to “surrender[] to the public something more and different from that which is exacted from other members of the public.” Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). See also Nollan, 483 U.S. at 835-836 n.4; ef. Common- wealth vy. Alger, 61 Mass. at 102 (“If such restraint were in fact imposed upon the estate of one proprietor only, out of several estates on the same line of shore, the objection would be much more formidable.’’). 4, Finally, in order for a taking claim to be re- jected on the basis of the Mugler principle alone, a measure designed to abate or prevent a nuisance-type activity in the present context should, where feasible, be tailored to address the identified harm to the per- son or property of others (or to public health and safety), while minimizing the impact on the affected property. Cf. 1 F. Harper, F. James & O. Gray, supra, § 1.30, at 126-127; Chenango Bridge Co. v. Page, 83 N.Y. 178 (1880); Babcock v. City of Buff- alo, 56 N.Y. 268, 272-273 (1874). Here, the 1990 amendments demonstrate that such tailoring was feasible, for they provide for issuance of a special per- mit to build a house seaward of the baseline, subject to the condition that the structure be removed if ero- sion occurs to the point that the structure becomes situated on active beach—at which point the attend- ant nuisance and safety concerns presumably would be most directly implicated. For this reason as well, the case should be remanded for further consideration 25 of petitioner’s taking claim in light of the 1990 amendments. 5. If the South Carolina Supreme Court concludes on remand that application of the 1988 Act to peti- tioner’s lots cannot be justified (without payment of compensation) on the basis of the Mugler doctrine alone, it should evaluate the case under the multi- faceted analysis the Court has brought to bear on the question whether a taking has occurred in the regula- tory context. In that setting, ‘no precise rule deter- mines when property has been taken,” and “the ques- tion necessarily requires a weighing of private and public interests.” Agins v. City of Tiburon, 447 U.S. 255, 260-261 (1980); see also Goldblatt v. Town of Hempstead, 369 U.S. 590, 593-594 (1962); Pennsyl- vania Coal Co. v. Mahon, 260 U.S. at 416 (taking issue is “a question of degree—and therefore cannot be disposed of by general propositions”’ ). This approach reflects the wide range of govern- mental actions and resulting impacts upon private property interests in which the question may arise. Although the Court has been “unable to develop any ‘set formula’” for this purpose, Penn Central, 438 U.S. at 124, it has identified three factors that are relevant to the inquiry: (1) “the economic impact of the regulation on the claimant’; (2) ‘the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the char- acter of the government action.” Jbid.; Connolly v. PBGC, 475 U.S. 211, 225 (1986) ; Williamson County, 473 U.©. at 191; Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979). Although the South Caro- lina Supreme Court adverted to these factors (Pet. App. 9), it did not fully consider them, since it dis- posed of the case in reliance on Mugler. The trial court focused on the economic impact of the 1988 Act 26 on petitioner, but did not address the purposes served by the Act or the extent and reasonableness of peti- tioner’s investment-backed expectations concerning his lots. Pet. App. 39-40. These issues are properly left, as an initial matter, to the state courts on re- mand. CONCLUSION The judgment of the Supreme Court of South Car- olina should be vacated and the case remanded for further proceedings. Respectfully submitted. JANUARY 1992 KENNETH W. STARR Solicitor General BARRY M. HARTMAN Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General BENEDICT S. COHEN Acting Deputy Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General PETER R. STEENLAND JAMES E. BROOKSHIRE JOHN A. BRYSON MARTIN W. MATZEN Attorneys WY U.S. GOVERNMENT PRINTING office; 1992 312324 45240 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A10. Public record. Not legal advice.