Amicus Curiae Brief — Eastern Enterprises v. Apfel

TABLE OF CONTENTS

Page

See GPSPEEEEED ho Sec cicccdecccccccn cbs il

STATEMENT OF INTEREST ...............0.0008: l

SUMMARY OF ARGUMENT ..................005. 2

FS beh CSCO a os Haase Wise ce Tedcncs. 4

I. Nollan and Dolan Establish a Special Test

Uniquely Applicable to Adjudicative Decisions

Which Affect the “Essential Right” of an

Individual Property Owner to Exclude the

General Public from Private Land ............. 4

Il. Means-Ends Scrutiny Is Not a General

Component of the Inquiry Into Whether a

Government Action Effects a Taking Requiring

the Payment of Compensation Under the Taking

SE. caddineeeanitbanse onnss 6 Os 0960640 ° ll

Ill. The Proposal to Expand the Takings Inquiry By

Adding a General Means-Ends Test Threatens

Other Important Constitutional Interests ..... .. 17

EET Sob cvecediantecccceccectcccetoove 26

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......... ot

Armstrong v. United States, 364 U.S. 40 (1960) ........ 12

Atascadero State Hospital v. Scanlon, 473 U.S. 234

GREE 0 oc nvoclmotnakpacddeiteaius tenes caus 24

Bay View, Inc. v. Ahtna, 105 F.3d 1281 (9th Cir. 1997) .. 12

Bowers v. Hardwick, 478 U.S. 186 (1986) ............ 17

Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th

Cy MED on. ge daike s ddbaschunktd toed tmdiedces«e 9

Commercial Builders v. City of Sacramento, 941 F.2d 872

(9th Cir. 1991), cert. denied, 504 U.S. 931 (1992) .... 9

Concrete Pipe & Products v. Construction Laborers

Pension Trust, 508 U.S. 602 (1993) ......... 2, 12, 15

Connolly v. Pension Benefit Guaranty Corp., 475 U.S.

SBS Gen 00s Kbnias bbatiinesstecceab cs 8, 13,15

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... passim

Ehrlich v. City of Culver City, 911 P.2d 429 (Cal.), cert.

denied, 117 S.Ct. 299 (1996) ................. 6, 10

Ferguson v. Skrupa, 372 U.S. 726 (1963) ............ 20

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987) ............... 12

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

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

OID hes dks S0e0 60th hs ee 13

Table of Authorities (continued)

Page

Goldblatt v. Hempstead, 369 U.S. 590 (1962) ......... 15

Gregory v. Ashcroft, 501 U.S. 452 (1991) .......... 21, 22

Harmelin v. Michigan, 501 U.S. 957 (1991) ........... 11

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

RE i tre ont A adhe ad onoenvi os &oe 16

Home Builders Assn. v. City of Scottsdale, 930 P.2d 993

SIUC cbabbiediecsdeecocoscecce 6,9

In re Chateaugay, 53 F.3d 478 (2nd Cir. N.Y.), cert.

A PEED banc pcedccccséceccs 13

International News Service v. Associated Press, 248 U.S.

ie nD eae a AD ee eh eens wae ®

Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S.

eet eRe a hae vee ea hanes sc 7

Loveladies Harbor v. United States, 15 C1.Ct. 381 (1988),

aff d, 28 F.3d. 1171 (Fed Cir. 1994) .............. 14

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

Ditties didebeeouehe senndhael 10, 18, 19

Manocherian v. Lenox i7ill Hospital, 643 N.E.2d 479

(N.Y. 1994), cert. denied, 514 U.S. 1109 (1995) ..... 6

McCarthy v. City of Lakewood, 894 P.2d 836 (Kan. 1995) . 9

Missouri Pacific Ry. Co. v. Nebraska, 164 U.S. 403

SNEED WON oe SW ews FUN 00-5 66 ch Unc SS UTET EBSA Hos 16

Nectow v. City of Cambridge, 277 U.S. 183 (1928) .. 14, 15

iv

Table of Authorities (continued)

Page

New Port Largo, Inc v. Monroe County, 95 F.3d 1084

PR ae Te Saran ae 9

New State Ice, Co. v. Liebmann, 285 U.S. 262 (1932) ...22

Nollan v. California Coastal Commission, 483 U.S. 825

SED csacensvussanenaer diate oti Passim

Northern Illinois Home Builders Assn. v. County of

DuPage, 649 N.E.2d 384 (Ill. 1995).............. 10

Parking Assn. v. City of Atlanta, 450 S.E.2d 200 (Ga.

1994), cert. denied, 515 U.S. 1116 (1995) .......... 6

Penn Central Transportation Co. v. New York City, 438

Ga STE obsess bese bodes vtadeen: 8,15

Richardson v. City of Honolulu, 124 F 3rd 1150 (9th Cir.

TUT sik cou ct bev ebede cn bb ehecbicaleaus,. 25

Richardson v. Ramirez, 418 U.S. 24 (1974) ........... 17

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... 23

San Diego Gas & Electric v. City of San Diego, 450 U.S.

Sinek6045 Didenen cash soieelsstee 19

Student Loan Marketing Assoc. v. Riley, 104 F.3d 397

(D.C. Cir.), cert. denied, 118 S.Ct. 295 (1997) ..... 13

Suitum v. Tahoe Regional Planning Agency, 117 S.Ct.

| LY ee eae 25

Sylvia Development Corp. v. Calvert County, 48 F.3d 810

8 Re Re a ae 23

Tabb Lakes, Ltd v. United States, 10 F.3d. 796 (Fed. Cir.

WE Bods s0sods tognedecaddniuedsbswonuss ees 13

Vv

Table of Authorities (continued)

Page

Texas v. White, 74 U.S. 700 (1869) .................. 22

Thompson v. Consolidated Gas Corp., 300 U.S. 55

Sie in diete sed cgumadie dank sesme ce i be eo< 16

Trimen Development Co. v. King County, 877 P.2d 187

Cec. ofeh obctctdedaddd oesteane se. 6

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) .. 14

United States v. Gaudin, 515 U.S. 506 (1995) .......... 17

United States v. Sperry Corp., 493 U.S. 52 (1989) ...... 10

Walters v. National Association of Radiation Survivors,

te cig de pie llnn epee 20

Waters Landing Limited Partnership v. Montgomery

County, 650 A.2d 712 (Md. 1994) ................ 6

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) .......... 24, 25

Yee v. City of Escondido, 503 U.S. 519 (1992) .......:. 25

Miscellaneous

Bork, Robert, The Tempting of America: The Political

Seduction of the Law (1990) ..... 2.0.6.0 2c cece. 19

Curtis, Larry, Testimony before the Senate Judiciary

SEE ee 2

Diamond, Henry & Patrick Noonan, Land Use in America,

PG MNOTS obs SUCCES 008 6 8665 0 bbe c Hide Bho de 23

vi

Table of Authorities (continued)

Page

Hart, John F., “Colonial Land Use Law and its

Significance for Modern Takings Doctrine,” 109

Harvard Law Review 1252 (1996) ......... 18, 19, 20

Laitos, Jan G., “Takings and Causation,” 5 William &

Mary Bill of Rights Journal 359 (1997) ........... 14

Rehnquist, William, Chief Justice of the U.S. Supreme

Court, “1997 Year-End Report of the Federal

Judiciary,” January 1, 1998 .................00.-. 24

Sax, Joseph L., “Property Rights and the Economy of

Nature: Understanding Lucas v. South Carolina

Coastal Council, 45 Stanford Law Review 1433

GUPEE 4bd obnaccnsesusectetsaveshnsanedeats s 21

Treanor, William Michael, “The Original Understanding

of the Takings Clause and the Political Process,” 95

, Columbia Law Review 782 (1995) ...........054. 19

STATEMENT OF INTEREST’

_ The amici curiae — the Cities of Long Beach, Los

Angeles, Monterey, Oakland, Sacramento, San Diego, San

Jose, San Rafael, Sunnyvale; County of Santa Barbara; and

City and County of San Francisco — are local governments

established under the laws of the State of California. In

California, as in most states, local governments have primary

responsibility to plan and regulate land uses. The amici

communities have a substantial interest in this case because

petitioner and its amici urge the Court to adopt a broad,

unprecedented reading of the taking clause. This interpretation,

if adopted, would result in the filing of significantly greater

numbers of claims under the taking clause for financial

compensation based on local land use regulation. Increased

constitutional litigation over local land use regulation would

tend to undermine the fiscal health of amici communities;

restrict amici’s ability to establish and maintain safe, healthy,

attractive and economically efficient patterns of development;

and reduce the ability of democratically elected local officials

to govern these communities.

While this case arises from a relatively unique federal

program relating to one industry, the sweeping proposal

advanced by petitioner and its amici to change established

takings doctrine could have ramifications far beyond the

context of this case. The taking clause probably is the most

frequently cited constitutional provision relied upon in

constitutional challenges to local land use regulations. The

Court’s reading of the taking clause in this narrow case

' Counsel for the parties have consented to the filing of this amicus

brief, and the letters of consent are being filed with the Clerk

simultaneously with the filing of this brief. No counsel for a party in this

case authored this brief in whole or in part, and no person or entity, other

than amici or their counsel, made a monetary contribution to this brief’s

preparation or submission. See Supreme Court Rule 37.

2

therefore could profoundly affect amici communities and other

American cities and towns.’ Amici have a strong stake in

ensuring that this relatively narrow case does not result in a

decision that has unintended and unwarranted adverse

consequences for amici and other communities. In line with

amici’s interest in this case, this brief focuses solely on the

taking issue in this case.

SUMMARY OF ARGUMENT

The Court’s decisions in Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard,

512 U.S. 374 (1994), cannot, consistent with the actual

holdings and reasoning in those decisions, govern the

resolution of the taking claim in this case. The unique,

exacting standard of review adopted in Nollan and Dolan is

explained and justified by two factors not present in this case

— an adjudicative decision imposing a condition on land

development, and a direct appropriation of private property for

public use. The Court should resolve this case using the

traditional three-part test the Court employed to evaluate a

similar taking claim only a few years ago in Concrete Pipe &

Products v. Construction Laborers Pension Trust, 508 U.S.

602 (1993).

*The amici California cities and counties have relatively large

populations and budgets, as well as full-time legal counsel, but it is useful

to observe, according to figures compiled by the National League of Cities,

that over 90% of America’s 36,000 cities and towns have populations of

less than 10,000, and, of these, almost all lack full-time legal counsel or the

financial resources to withstand concerted constitutional litigation over local

land use issues. See Testimony of Larry Curtis, Mayor of Ames, lowa, on

behalf of the National League of Cities, before the Senate Judiciary

Committee, October 7, 1997 (citing example of Missouri community of

several hundred residents sued for $8,000,000 for alleged regulatory

taking).

3

The Court should reject petitioner’s proposal to include

means-ends analysis as a general component of the inquiry into

whether a regulation effects a taking requiring the payment of

compensation under the taking clause. Judicial inquiry into the

reasonableness of the means selected to advance governmental

ends, and the legitimacy of those ends, is a traditional part of

the Court’s analysis of government action under the due

process clause. By contrast, taking analysis does not generally

focus on the validity of government action, but instead focuses

on whether the public must pay “just compensation” as a

condition of proceeding with the action. Contrary to the

implicit assumption of petitioner and its amici, there is nothing

in the language or history of the taking clause to suggest it

means the same thing as the due process clause.

Finally, the Court should reject petitioner’s proposal to

expand the taking clause because it conflicts with other

important constitutional values and interests. In particular,

petitioner’s proposal would violate the principle that a

constitutional provision must be read in accordance with the

text and original understanding of the provision; conflict with

the limited role of the judiciary under our system of separation

of powers; undermine our federal structure of government; and

result in new burdens on the federal courts which would dilute

the federal courts’ traditional character as a distinctive forum

of limited jurisdiction.

4

‘ARGUMENT

I. Nollan and Dolan Establish a Special Test

Uniquely Applicable to Adjudicative Decisions

Which Affect the “Essential Right” of an

Individual Property Owner to Exclude the General

Public from Private Land.

The petitioner and petitioner’s amici contend that the

Court’s decisions in Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374

(1994), should govern resolution of petitioner’s taking claim.

This contention is based on a fundamental misreading of those

decisions. The Court in Dolan went out of its way to

emphasize that ordinary land use regulations, which generally

are not affected by the taking clause, “differ in two relevant

particulars from the present case.” 512 U.S. at 385. First, the

Court stated that most land use regulations establish general

rules for different areas of the community, “whereas here the

city made an adjudicative decision to condition petitioner’s

application for a building permit on an individual parcel.” Jbid.

Second, the Court emphasized that “the conditions imposed

were not simply a limitation on the use petitioner might make

of her own parcel, but a requirement that she deed portions of

the property to the city.” Jbid. The same distinguishing features

were present in the Nollan case.

Nollan and Dolan establish the following narrow rule: To

defeat a taking claim based on an adjudicative order requiring

an owner, as a condition of obtaining a development permit, to

dedicate private property to the public, there must exist an

“essential nexus” between a legitimate state interest and the

required exaction, as well as a “rough proportionality” between

the degree of the exaction and the projected impact of the

development. In addition, the Court placed the burden on the

local government to justify the exaction under this two-part

5

test. 512 U.S. at 391. See also id at 405 (Stevens, J.,

dissenting); id. at 413-414 (Souter, J., dissenting ).

The two critical elements the Court identified — an

adjudicative decision imposing a condition on development,

and a direct appropriation of private property for public use —

explain the outcome in Dolan and Nollan, justify the special

test the Court adopted, and define the universe of cases to

which this standard can appropriately be applied in the future.

Because neither of these two critical elements is present in this

case, there is no basis for applying the Nollan/Dolan test in this

case. The scope and rationale for the distinguishing elements

in Nollan and Dolan are discussed in greater detail below.

A. Legislative/Not Adjudicative.

First, the Nollan/Dolan test only applies to “adjudicative

decisions” affecting one “individual parcel” of land, not to

“legislative determinations” establishing broad rules for a

general category of property owners. 512 U.S. at 385. Nollan

and Dolan arose from similar facts, and each involved a

challenge to a development exaction imposed on one particular

development through adjudicative decision-making. Dolan

involved a challenge to a permit order by the City of Tigard

planning commission. Nollan involved a permit order issued

by the California Coastal Commission. In discussing the

appropriate standard to apply in these cases, the Court

distinguished a taking claim based on case-by-case,

adjudicative decision-making from a claim challenging an

“essentially legislative determination,” which the Court

believed was entitled to more latitude than case-by-case

adjudication. The Court apparently based this distinction on its

perception that the imposition of conditions on development

through adjudicative decision-making created a unique risk of

unfair burdens on the landowner. Dolan, 512 U.S. at 385-386;

see also Nollan, 483 U.S. at 837 (“unless the permit condition

6

serves the same governmental purpose as the development bar,

the building restriction is not a valid regulation of land use but

an out-and-out plan of extortion”). Thus, Nollan and Dolan

establish a special, exacting rule for a narrow category of cases.

In accord with this understanding of the critical importance

of the adjudicative/legislative distinction to the Court’s analysis

in Dolan and Nollan, the majority of lower federal and state

appellate court decisions have read Dolan and Nollan as being

limited to the adjudicative context. See Home Builders Assn.

v. City of Scottsdale, 930 P.2d 993 (Ariz. 1997) (rejecting

taking claim based on development exaction addressing water

shortages, because it “involve[d] a generally applicable

legislative decision by the city”); Parking Assn. v. City of

Atlanta, 450 S.E.2d 200 (Ga. 1994), cert. denied, 515 U.S.

1116 (1995) (Nollan/Dolan standard not applicable to taking

claim based on conditions imposed, pursuant to municipal

ordinance, on construction of urban parking garages); Ehrlich

v. City of Culver City, 911 P.2d 429 (Cal.), cert. denied, 117

S.Ct. 299 (1996) (following Dolan, and concluding that a

condition attached to a permit order effected a taking, but

rejecting a taking challenge to a condition imposed by

municipal ordinance); Waters Landing Limited Partnership v.

Montgomery County, 650 A.2d 712 (Md. 1994) (Dolan not

applicable to county ordinance imposing development tax

assessments). But see Manocherian v. Lenox Hill Hospital,

643 N.E.2d 479 (N.Y. 1994), cert. denied, 514 U.S. 1109

(1995) (applying Dolan heightened scrutiny, over strong

dissent, to city rent control legislation); Trimen Development

Co. v. King County, 877 P.2d 187 (Wash. 1994) (concluding

that subdivision ordinance meets Dolan “rough proportionality”

standard, without discussing whether Dolan standard actually

applies to legislation).

7

The financial responsibilities Eastern Enterprises

challenges in this case were not set through any type of

adjudicative process. The Coal Act defines these

responsibilities. Because the Nollan “essential nexus” and

Dolan “rough proportionality” standards do not apply to

legislative rules, the Nollan/Dolan standard does not apply in

this case.

B. No Limitation on Right to Exclude.

Furthermore, both Nollan and Dolan involved challenges

to permit “exactions” which required landowners to convey a

recognized interest in real property and eliminated the owners’

right to exclude members of the general public from private

property. This second element was another underpinning of the

Court’s conclusion that these requirements were subject to a

special type of review.

The Nollan/Dolan decisions rest in part on the critical fact

that the exactions in those cases, if imposed directly rather than

as a condition of a permit, would unquestionably have effected

ataking. See Nollan, 483 U.S. at 831 (“Had California simply

required the Nollans to make an easement across the beachfront

available to the public on a permanent basis in order to increase

public access to the beach. . . we have no doubt there would

have been a taking.”); see Dolan 512 U.S. at 284 (“Without

question, had the city simply required petitioner to dedicate a

strip of land along Fanno Creek for public use. . . a taking

would have occurred.”) These conclusions followed from the

Court’s prior decisions recognizing that the right to physically

exclude the public from private property is “one of the most

essential sticks in the bundle of rights that are commonly

characterized as property.” Nollan, 483 U.S. at 831; see also

Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419,

433 (1982) (government-mandated permanent physical

occupation of private property constitutes a per se taking);

Penn Central Transportation Co. v. New York City, 438 U.S.

104, 124 (1978) (“A ‘taking’ may more readily be found when

the interference with property can be characterized as a

physical invasion by government.”); International News

Service v. Associated Press, 248 U.S. 215, 250 (1918)

(Brandeis, J.) (“[aJn essential element of individual property is

the legal right to exclude others from enjoying it”). This central

premise of the Nollan and Dolan decisions is, of course,

dramatically different from the Court’s recognition, outside of

the context of physical occupations, that “in the course of

regulating commercial and other human affairs, [legislatures]

routinely create[] burdens for some that directly benefit others”

without violating the taking clause. Connolly v. Pension

Benefit Guaranty Corp., 475 U.S. 211, 223 (1987).

The issue the Court faced in Nollan and Dolan was how to

approach review of the exactions, given that these

uncompensated infringements on the right to exclude the public

from private property — rather than being imposed directly —

had instead been imposed through conditions attached to

deveiopment permits. On the one hand, the Court had to weigh

the per se rule prohibiting permanent, uncompensated

elimination by government of the right to exclude; on the other

hand, the Court had to weigh the traditional rule that

government decisions regulating the use (as opposed to

occupation) of private property generally are not takings. See

Dolan 512 US. at 385 & n. 6; id at 391 n8 The Court

resolved the issue by formulating a new, unique test to deal

with the special issues presented by the intersection of the per

se rule against uncompensated permanent occupations and the

broad latitude afforded regulatory permitting authority. C/

Nollan, 483 U.S. at 841 (“We are inclined to be particularly

careful. . . where the actual conveyancing of property is made

a condition of lifting a land-use restriction.”)

9

Consistent with this reading of Nollan and Dolan, the

majority of lower federal and state appellate court decisions

have read Nollan and Dolan as being limited to the phv sical

exactions context. See Home Builders Assn. v. City of

Scottsdale, supra (municipal requirement that owner cede land

to the public is “a particularly invasive form of land

regulation,” in contrast to imposition of a fee, which is a “more

benign form of regulation”); New Port Largo, Inc v. Monroe

County, 95 F.3d 1084, 1088 (11th Cir. 1996) (Dolan and

Nollan irrelevant to taking challenge to zoning ordinance where

the ordinance “told [the owner] how it could use the property...,

but did nothing to require [the owner] to open its property to

the public for use just as the public wished”); Clajon

Production Corp. v. Petera, 70 F.3d 1566, 1578-79 (10th Cir.

1995) (*Nollan and Dolan are best understood as extending the

analysis of complete physical occupation cases to those

situations in which the government achieves the same end (i.e.,

the possession of one’s physical property) through a

conditional permitting procedure”); McCarthy v. City of

Lakewood, 894 P.2d 836 (Kan. 1995) (Dolan applies to actual

dedications of land only); Commercial Builders v. City of

Sacramento, 941 F.2d 872 (9th Cir. 1991), cert. denied, 504

U.S. 931 (1992) (no decisions “have interpreted [Nollan] as

10

changing the level of scrutiny to be applied to regulations that

do not constitute a physical encroachment on land”).’

This case does not involve government action which

impinges on the right to physically exclude the general public

from private property. See U.S. v. Sperry Corp., 493 U.S. 52,

62 n.9 (1989) (rejecting argument that a financial assessment

is a type of “physical occupation” of private property, because

“money is fungible”). Indeed, this case does not involve land at

all, but rather ordinary business assets, and therefore is

arguably outside the scope of “regulatory takings.” See Lucas

v. South Carolina Coastal Council, 505 U.S. 1003, 1027-1028

(1992) (“in the case of personal property, by reason of the

State’s traditionally high degree of control over commercial

dealings, [the owner] ought to be aware of the possibility that

new regulation might even render his property worthless”).

Accordingly, the analysis in Nollan and Dolan cannot be

applied in this case consistent with the holdings and reasoning

in those cases.

> Of the handful of cases in which the Nollan/Dolan standard has been

applied outside of the physical exactions context, most have involved

monetary exactions in lieu of physical exactions. See, e.g, Ehrlich v. City

of Culver City, 911 P.2nd 429 (Cal.), cert. denied, 117 S.Ct. 299 (1996);

Northern Illinois Home Builders Assn. v. County of DuPage, 649 N.E.2d

384, 388-89 (Ill. 1995). However, even these aberrant decisions, which are

inconsistent with the Court’s reasoning in Nollan and Dolan, do not

support applying the Nollan/Dolan standard in the present case. In Ehrlich,

for example, the California Supreme Court concluded that the Nollan/Dolan

test should be extended to fee exactions, but only if the exactions were

imposed “on an individual and discretionary basis,” 911 P.2d at 444; the

assessments under the Coal Act challenged in this case were not, of course,

arrived at through adjudicative decision-making.

1]

Il. Means-Ends Scrutiny Is Not a General Component

of the Inquiry Into Whether a Government Action

Effects a Taking Requiring the Payment of

Compensation Under the Taking Clause.

Apart from the fact that Nollan and Dolan do not apply in

this decisively different context, there also is no basis for

petitioner’s more general argument that some type of means-

ends scrutiny, whether deferential or otherwise, represents a

general component of the inquiry into whether a government

action effects a taking requiring the payment of just

compensation. The Court has never relied on means-ends

scrutiny to support the conclusion that ordinary government

regulation effects a taking requiring the payment of just

compensation. While means-ends analysis represents a

traditional component of due process analysis, it simply has no

logical place in the ordinary just compensation inquiry.

Contrary to the assumption of petitioner and its amici, it is far

more logical to read the different language in the taking and

due process clauses to mean different things, not the same

thing. See Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)

(Scalia, J.) (“When two parts of a [constitutional amendment]

use different language to address the same or similar subject

matter, a difference in meaning is assumed.”) Rather than

embarking under the taking clause on a broad-ranging

assessment of the reasonableness of the means Congress

selected in adopting the Coal Act, the Court should resolve the

taking claim in this case, if it reaches the issue at all, using the

traditional three-factor analysis the Court applied only a few

12

years ago in Concrete Pipe & Products v. Construction

Laborers Pension Trust, 508 U.S. 602 (1993).*

Judicial inquiry into the reasonableness of the means

selected to advance governmental ends, as well as the

legitimacy of those ends, relates to whether a government

action is valid and can proceed. But the validity of a

governmental action — as opposed to whether the public must

pay “just compensation” as a condition of proceeding with the

action — does not fit comfortably with traditional just

compensation analysis under the taking clause. At the

distinctive core of takings analysis is the presumption that the

means and ends government has selected are valid; the relevant

question is whether the taking clause compels the payment of

just compensation as a condition of government carrying out

presumptively valid action. As the Chief Justice stated in First

English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 314 (1987), the taking clause “does not

prohibit the taking of private property, but instead places a

condition on the exercise of that power.” The goal of the taking

clause, rather than to prohibit particular governmental actions,

is simply “to bar Government from forcing some people alone

to bear burdens which, in all fairness and justice, should be

borne by the public as a whole.” Armstrong v. United States,

364 U.S. 40 (1960). See also Bay View, Inc. v. Ahtna, 105 F.3d

“ Without repeating in any detail the arguments likely to be presented

by respondents, the amici support the conclusion that there was no taking

in this case under the traditional three-part test, given that: the government

action does not effect a direct appropriation of private property but rather

“arises from a federal program that adjusts the benefits and burdens of

economic life to promote the public good,” 103 F.3rd at 161; the absence

of any showing of a substantial adverse economic impact on petitioner's

property as a whole, much less a total denial of all economic use; and the

petitioner’s long-time, profitable involvement in the coal industry, which

has been heavily regulated for the last 50 years.

13

1281, 1284-1285 (9th Cir. 1997) (“the government is not

property as needed for public purposes, so long as it pays

compensation”); Tabb Lakes, Lid v. United States, 10 F.3d

796, 802 (Fed. Cir. 1993) (viability of taking claim “depend{s]

upon the validity of the governmental action”); Florida Rock

Industries, Inc. v. United States, 791 F.2d 893, 898-99

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

suits, the validity of government action must be established, or

at least presumed for the sake of argument, before proceeding

to question of whether compensation is due).°

While a number of the Court’s taking decisions contain

language suggesting that some type of means-ends inquiry

might be relevant to the just compensation inquiry, the Court

has never squarely addressed the issue. More importantly,

outside of the narrow, unique context of development

exactions, the Court has mever found a taking requiring the

payment of just compensation on the ground that government

* This understanding of the taking clause is not contradicted by the

fact that the Court has recognized an implicit exception to the general rule

that a taking claim must be brought as a suit for just compensation in the

case of a suit to enjoin alleged takings which involve direct transfers of

money to the government. See, e.g, Connolly v. Pension Benefit Guaranty

Corp., supra. \n that circumstance, interpreting the taking clause as

mandating that relief be sought in a suit for just compensation, rather than

equitable relief, arguably “would entail an utterly pointless set of activities,

as ‘[e]very dollar paid pursuant to a statute would be presumed to generate

a dollar of... compensation.” Student Loan Marketing Association v. Riley,

104 F.3rd 397, 401 (D.C. Cir.), cert. denied, 118 S.Ct. 295 (1997) quoting

In re Chateaugay, 53 F 3rd 478, 493 (2nd Cir. N.Y.), cert. denied, 116 S.Ct.

298 (1995). Whatever the scope of this apparent exception, it is entirely

consistent with the basic principle that the taking clause is not intended to

prohibit government action per se, but rather to require payment of

compensation in the event government action effects a taking.

14

action failed some type of means-ends test. See Loveladies

Harbor v. United States, 15 Cl.Ct. 381, 390 (1988), aff'd, 28

F.3d. 1171 (Fed Cir. 1994) (Smith, C.J.) (stating that “no court

has ever found a taking has occurred solely because a

legitimate state interest was not substantially advanced”)

(Emphasis added). Compare Laitos, Jan G., “Takings and

Causation,” 5 William & Mary Bill of Rights Journal 359, 371

(1997) (Supreme Court has never adopted view that taking

clause requires that regulated property owners must have

“caused” social problem being addressed by regulation).

The opinion of the Court most frequently cited to support

some type of means-ends inquiry under the taking clause is

Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), a brief,

unanimous decision upholding a zoning ordinance against a

takings challenge. The opinion does indeed state that “[tJhe

application of a general zoning law to particular property

effects a taking if the ordinance does not substantially advance

legitimate state interests.” Jd. at 260. But the only support

cited for this proposition was Nectow v. City of Cambridge, 277

U.S. 183 (1928), a constitutional challenge to a zoning

regulation, but one based on the due process clause, not the

taking clause. Moreover, even as a statement of a due process

means-ends analysis, the language in Nectow reflects the kind

of exacting scrutiny of regulatory action superseded by more

recent Supreme Court decisions interpreting the due process

clause. See West Coast Hotel Co. v. Parrish, 300 U.S. 379

(1937). There is no indication in the brief Agins decision that

the Court recognized that Nectow did not support the

proposition for which it was cited, much less any discussion of

the pros and cons of potentially taking the radical step of

Nothing in the circumstances or text of Agins suggests that the

Court intended to take such a step.

15

Reliance on the Court’s decision in Penn Central, 438 U.S.

at 127, to support an ostensible means-end: component of

takings doctrine is similarly misplaced. The Penn Central

Court did state that “[i}t is implicit in Goldblatt v. Hempstead,

369 U.S. 590 (1962),] that a use restriction on real property

may constitute a ‘taking’ if not reasonably necessary to the

effectuation of a substantial public purpose,” again citing

Nectow. However, Penn Central, a decision rejecting a taking

claim, contains no indication of any intent to establish an

entirely new branch of analysis under the taking clause.

Goldblatt does not in fact “implicitly” support any such

conclusion; the case involved a due process challenge to a land

use regulation, as well as a sevarate taking claim, : nd the Court

discussed legislative means and ends exclusively in relation to

the due process claim. And, as discussed above, Nectow was

not a taking case at all, but instead reflected an outmoded

method of due process analysis.°

* Because taking claims do not formally implicate the validity of

government activity, see p. 12, supra, the Court’s takings precedents (quite

logically) do not suggest that the courts owe the legislative branch any

particular deference in considering claims for just compensation under the

taking clause -- in marked contrast to the very explicit deference the Court

grants the legislative branch under the due process clause, See, e.g,

Concrete Pipe & Products, supra, 508 U.S. at 637 (“It is by now well

established that legislative Acts adjusting the burdens and benefits of

economic life come to the Court [under the due process clause) with a

presumption of constitutionality.”) The lack of formal judicial deference

to legislative judgments in taking suits supports the conclusion that the

taking clause must have a different, more limited scope than the due process

clause. Compare Connolly v. Pension Benefit Guaranty Corp., supra, 475

U.S. at 223 (after concluding that a federal program does not violate the due

process clause, “it would be surprising indeed to discover” that the program

effected a taking requiring payment of compensation).

16

Finally, the Court’s decision in Hawaii Housing Authority

v. Midkiff, 467 U.S. 229 (1984), supports the conclusion that

means-ends analysis is not an appropriate general component

of the inquiry into whether a government action effects a taking

requiring the payment of just compensation. The Court in

Midkiff recognized the relevance of means-ends analysis in

determining whether a government action must be invalidated

because it fails to meet the “public use” requirement of the

taking clause. See 467 U.S. at 241. However, the Court

emphasized the distinction between the “just compensation”

and “public use” requirements. The taking clause requires

payment of “just compensation” when a government action

serving a valid public purpose results in a taking. On the other

hand, when a government action does not serve a valid public

purpose, whether compensation is provided or not, the action

is invalid and must be proscribed. Jbid. Midkiff does not

suggest that an invalid government action which violates the

“public use” requirement necessarily creates a claim for just

compensation; indeed, the fact that the court indicated that a

taking not for “public use”, whether or not compensated, must

be proscribed, suggests just the opposite. Thus, the decision

supports the conclusion that means-ends analysis is not a

general component of the just compensation inquiry. ’

’ It is debatable whether the standard for invalidating government

action under the “public use” requirement is distinguishable from the

requirements of due process. See, e.g.. Missouri Pacific Ry. Co. v.

Nebraska, 164 U.S. 403 (1896) (invalidating under the due process clause

a compensated “taking” of private property, when the “ordinance in question

was not, and was not claimed to be... a taking of private property for public

use under the right of eminent domain”); Thompson v. Consolidated Gas

Corp., 300 U.S. 55, 80 (1937) (invalidating, apparently on due process

grounds, an uncompensated taking which did not serve a legitimate public

purpose). See generally Midkiff, 467 U.S. at 241 (discussing Missouri

Pacific, Consolidated Gas, and other cases). It is clear that the Court’s test

for invalidation of government actions which fail the “public use”

17

Ill. The Proposal to Expand the Takings Inquiry By

Adding a General Means-Ends Test Threatens

Other Important Constitutional Interests.

The Court also should reject petitioner’s proposal to

expand the scope of the taking clause because adoption of this

proposal would sacrifice other values and interests which are

central to our system of constitutional government. Four major

constitutional concerns raised by this expansive reading of the

taking clause are discussed below.

A. The Original Understanding of the Taking Clause.

The petitioner’s proposed reading of the taking clause

contradicts the principles that a constitutional provision must

be read in accord with the “express language” of the provision,

Richardson v. Ramirez, 418 U.S. 24, 54 (1974), as well as

relevant “historical practice,” United States v. Gaudin, 515 U.S.

506, 516 (1995). See also Bowers v. Hardwick, 478 U.S. 186,

194 (1986) (“The Court is most vulnerable and comes nearest

to illegitimacy when it deals with judge-made constitutional

law having little or no cognizable roots in the language or

design of the Constitution.”)

These principles of constitutional interpretation point to a

reading of the taking clause focusing on actual physical

appropriations of property and regulatory actions which are the

functional equivalent of physical appropriations. The Court’s

leading decisions interpreting the taking clause respect the

limitations rooted in the language and history of the clause. By

contrast, petitioner’s proposal to incorporate means-ends

analysis into the just compensation issue has no plausible basis

requirement is not intended to be any more exacting than the minimal

rationality standard under the due process clause. See /d. at 239-40.

18

in the language of the taking clause or the available evidence of

the drafters’ original understanding.

Read in accordance with natural and customary usage, the

term “take” refers to a range of governmental actions which

involve the actual appropriation of an owner’s private property

by the government. An individual “takes” his son’s ball if he

grabs the ball and places it on a closet shelf; there is no “taking”

if he simply directs the child to stop bouncing the ball off the

living room wall or tells him to play with the ball in the

backyard. Likewise, a local government “takes” a person’s land

when it effects a transfer of title to the government and builds

a public facility on the land. The local government does not

“take” land in the ordinary sense by enforcing the local zoning

code limiting the number of houses the owner can place on the

land, or by restricting development in high hazard areas such as

on steep slopes or flood plains. And the Court’s decisions are

basically consistent with this reading of the plain text, unless

(in general) the government leaves the owner with no economic

use of the land. Lucas v. South Carolina Coastal Council,

supra.

Historical research on the original understanding of the

taking clause supports the conclusion that the basic issue

addressed by the taking clause is the physical appropriation of

private property. See Lucas, 505 U.S. at 1028 n.15 (“early

constitutional theorists did not believe the Takings Clause

embraced regulations of property at all”). Professor John Hart,

based on a comprehensive survey of land use regulatory

practices in the colonial era, has concluded that the framers’

consciously and purposefully drafted the taking clause to focus

on direct appropriations of private property: “The Framers

knew that land use regulation had served broad purposes in

their time, and they evidently considered subjecting this sphere

of government action to substantive constitutional review to be

19

inappropriate.” Hart, John F., “Colonial Land Use Law and its

Significance for Modern Takings Doctrine,” 109 Harvard Law

Review 1252, 1292 (1996). See also Treanor, William

Michael, “The Original Understanding of the Takings Clause

and the Political Process,” 95 Columbia Law Review 782

(1995) (available evidence “clearly indicates that the Takings

Clause was intended to apply only to physical takings, and the

early case law interpreted it and its state counterparts as not

extending to government regulations”); cf Robert Bork, The

Tempting of America: The Political Seduction of the Law 230

(1990) (“My difficulty is not that [Richard] Epstein’s

constitution would repeal much of the New Deal and the

modern regulatory-welfare state but rather that these

conclusions are not plausibly related to the original

understanding of the takings clause.”)

The Court’s decisions interpreting the taking clause have

respected the original understanding of the clause, by

effectively limiting so-called “regulatory takings” to instances

in which regulatory actions are the functional equivalent of

physical appropriations. In Lucas, in particular, the Supreme

Court recognized that a regulation which deprives the owner of

“all economically beneficial or productive use of land” is

generally a taking because, among other things, a “total

deprivation of beneficial use is, from the landowner’s point of

view, the equivalent of a physical appropriation.” 505 U.S. at

1017. See also San Diego Gas & Electric v. City of San

Diego, 450 U.S. 621, 652 (1981) (Brennan, J.) (observing that

certain land use regulations “can destroy the use and enjoyment

of property. . . just as effectively as formal condemnation or

physical invasion of property”). If the regulatory takings

doctrine is to have any coherent limits which respect the text

and original understanding of the taking clause, only

regulations which are functionally equivalent to physical

appropriations can properly be understood to be takings. See

20

Hart, supra, 109 Harv.L.Rev. at 1293 (“The Takings Clause

ought not to apply to any forms of land use regulation that do

not approximate eminent domain by effectively depriving a

landowner of possession.”)

On the other hand, adding means-ends analysis to the just

compensation inquiry would take the Court far afield from the

actual text and original understanding of the taking clause.

Means-ends inquiry would create potential financial liability

for all sorts of regulations which have slight or even trivial

economic impacts and which cannot be equated in any sense to

the actual appropriation of private property.

B. Limited Judicial Role.

The proposed expansion of the taking clause would invite

searching judicial second-guessing of legislative judgments,

contradicting the bedrock principle that “courts do not

substitute their social and economic beliefs for the judgment of

legislative bodies, who are elected to pass laws.” Ferguson v.

Skrupa, 372 U.S. 726, 730 (1963). See also Walters v.

National Association of Radiation Survivors, 473 U.S. 305, 319

(1985) (“Judging the constitutionality of an Act of Congress is

properly considered the gravest and most delicate duty that this

Court is called upon to perform.”).

Defining and redefining property interests over time is one

of the single most important functions of democratically

elected legislatures. In response to changing economic needs,

cultural understandings and political arrangements, property

law in this country has constantly undergone change. Among

other changes in property law, Professor Joseph Sax noted

recently:

In eighteenth century America, the states abolished

feudal tenures, abrogated primogeniture and entails,

ended imprisonment for debt, and significantly

21

reduced rights of alienation, as well as dower and

curtesy.... In the arid west, landowners’ riparian

rights were simply abolished because they were

unsuited to the physical conditions of the area. As the

status of women changed, laws abolished husbands’

property rights in their wives’ estates.

Joseph L. Sax, “Property Rights and the Economy of Nature:

Understanding Lucas v. South Carolina Coastal Council,” 45

Stanford Law Review 1433, 1448 (1993).

The petitioner’s proposed means-ends test under the taking

clause would authorize the courts to adopt fixed property norms

as constitutional doctrine. This constitutionalization of property

law would retard or block the fulfillment of new social and

economic goals, as well as the adoption of innovative methods

for addressing emerging social problems. While at first merely

inconvenient to local communities, the freezing of property

norms would, over time, significantly frustrate the ability of

local communities to resolve important problems. The Court

should decline the invitation offered in this case to venture into

that dangerous territory.

C. Federalism.

The proposal to expand upon traditional understandings of

the taking clause also conflicts the fundamental principle that

the Constitution created a Federal Government of limited

powers, leaving all remaining powers in the States. See U.S.

Const., Amendment X. As the Court explained in Gregory v.

Ashcroft, 501 U.S. 452 (1991), the principle of dual Federal-

State sovereignty infuses every aspect of the Constitution:

“[T]he people of each State compose a State, having

its own government, and endowed with all the

functions essential to separate and independent

22

existence, . . . [W]ithout the States in union, there

could be no such political body as the United States.

Not only, therefore, can there be no loss of separate

and independent autonomy to the States, through their

union under the Constitution, but it may be not

unreasonably said that the preservation of the States,

and the maintenance of their governments, are as

much within the design and care of the Constitution as

the preservation of the Union and the maintenance of

the National government. The Constitution, in all its

provisions, looks to an indestructible Union,

composed of indestructible States."

Id. at 457, quoting Texas v. White, 74 U.S. 700, 725 (1869).

Federalism affords American society numerous practical

advantages. Among other things, “[i]t assures a decentralized

government that will be more sensitive to the diverse needs of

a heterogenous society; it increases opportunity for citizen

involvement in democratic processes; it allows for more

innovation and experimentation in government; and it makes

government more responsive by putting the States in

competition for a mobile citizenry.” Gregory v. Ashcroft, 501

U.S. at 458. See also New State Ice, Co v. Liebmann, 285 U.S.

262, 311 (1932) (Brandeis, J. dissenting) (“It is one of the

happy incidents of the federal system that a single courageous

State may, if its citizens choose, serve as a laboratory; and try

novel social and economic experiments without risk to the rest

of the country.”)

The advantages of Federalism are especially great in the

context of managing land uses. Our nation is a land of

enormous extremes: of climate, topography, ownership

patterns, population density, rate of growth (or depopulation),

and social values, to name but a few factors. Land use planning

and regulation in America reflects this diversity. Some

23

intensely developed and rapidly growing communities face

to the use of land, and have adopted sophisticated land use

regulatory programs to address these problems. See Henry

Diamond & Patrick Noonan, Land Use in America 13-42

(1996). Other, more rural communities have adopted relatively

simple approaches more appropriate to their circumstances. A

few States have developed state-level programs to address at

least certain major land uses, while most other states have

assigned basic responsibility for land use decisions to counties,

cities, and/or towns. /d. at 26.

The taking clause has traditionally been read to respect the

sovereign authority of the states and their subdivisions to

manage local land uses. More specifically, the Court has

recognized, in the context of the taking clause, that “[p]roperty

interests. . . are not created by the Constitution. Rather, they

are created and their dimensions are defined by existing rules

and understandings that stem from an independent source such

as state law.” Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1001 (1984). This recognition protects our federal system of

government, by defining an aspect of property law assigned

primarily if not exclusively to the States, and by limiting the

preemptive reach of the Court’s interpretations of the taking

clause. Compare Sylvia Development Corp. v. Calvert County,

48 F.3d 810, 828 (4th Cir. 1995) (“Land use decisions are a

core function of local government. Few other municipal

functions have such an important and direct impact on the daily

lives of those who live and work in the community.”)

Petitioner's proposal to expand the scope of takings

doctrine by including a means-ends component would tend to

undermine our federal system by imposing a significant new

constraint on state sovereign authority to define — and, as

appropriate, over time, redefine — property norms to match

24

modern circumstances. Just as the Court will not lightly infer

that Congress intends to invade state sovereignty, see

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242

(1985) ("if Congress intends to alter the usual constitutional

balance between the States and the Federal Government, it

must make its intention to do so unmistakably clear in the

language of the statute”), the Court should be wary of proposed

such innovations are mandated by some other provision of the

Constitution. |t cannot plausibly be argued that the language

and history of the taking clause mandate expansion of takings

doctrine at the expense of federalism.

D. Distinctive, Limited Jurisdiction of the Federal

Courts.

Adoption of petitioner’s reading of the taking clause would

increase the volume of constitutional challenges to zoning and

other local land use measures in federal court, creating a larger

federal case load and undermining the distinctive role of the

federal courts in our constitutional system. As the Chief Justice

observed in his recently issued “1997 Year-End Report of the

Federal Judiciary,” one of the most significant problems facing

the federal judiciary is the “large and expanding workload.”

The Chief Justice observed: “Unless steps are taken to stop or

reverse this trend, either the demands placed on the federal

Judiciary will eventually outstrip its resources, or the Judiciary

will become so large that it will lose its traditional character as

a distinctive judicial forum of limited jurisdiction.” Expanding

the just compensation inquiry by incorporating means-ends

scrutiny would expand the volume of taking claims, in both

federal and state courts. However, it would impose a

particularly significant new burden on the federal courts.

In Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), the Court established that

25

a taking claim against a unit of local government is not “ripe”

for federal court review unless and until (1) the local

government “has arrived at a final, definitive position regarding

how it will apply the regulations at issue,” id. at 191 and (2) the

claimant has sought “compensation through the procedures the

States have provided for doing so,” id. at 194. See also Suitum

v. Tahoe Regional Planning Agency, 117 S.Ct. 1659, 1664

(1997). These ripeness rules ensure that a large volume of

litigation arising from local land use regulation is addressed, at

least in the first instance, in the state court systems rather than

in federal courts. By contrast, incorporating a means-ends

circumvent these ripeness limitations, and encourage direct

filing of essentially local property disputes in federal court,

because a taking claim based on the theory that a government

action is not logically related to a legitimate government

interest apparently would be exempt from Williamson County.

See Yee v. City of Escondido, 503 U.S. 519, 533-534 (1992)

(claim that regulation effected a taking because it failed to

substantially advance a legitimate government interest held

ripe, but declining to rule on the merits of claim because issue

was not fairly presented in the petition for certiorari);

Richardson v. City of Honolulu, 124 F.3rd 1150, 1165 (9th Cir.

1997) (following Yee and declining to dismiss taking claim

filed in federal court on ripeness grounds).

26

CONCLUSION

The amici curiae respectfully urge the Court to affirm

the judgment of the Court of Appeals for the First Circuit.

Respectfully submitted,

JOHN D. ECHEVERRIA

GEORGETOWN UNIVERSITY LAW CENTER

600 New Jersey Avenue, NW

Washington, DC 20001

(202) 662-9850

Counsel of Record for Amici Curiae

January 20, 1998