# Amicus Curiae Brief — Palazzolo v. Rhode Island > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0384%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 533 U.S. 606 ## Text pV 22 am No. 99-2047 In The Supreme Court of the United States ® ANTHONY PALAZZOLO, Petitioner, RHODE ISLAND ex rel. PAUL J. TAVARES, General Treasurer, and COASTAL RESOURCES MANAGEMENT COUNCIL, Respondents. o On Writ Of Certiorari To The Supreme Court Of Rhode Island S BRIEF AMICUS CURIAE OF DEFENDERS OF PROPERTY RIGHTS IN SUPPORT OF PETITIONER * Nancie G. MARZULLA DEFENDERS OF PROPERTY RIGHTS 1350 Connecticut Ave., N.W., Suite 410 Washington, DC 20036 202-822-6770 Counsel of Record for Amicus Curiae COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Amicus curiae will address the following question: Whether a regulatory takings claim is categorically barred whenever the enactment of the regulation pre- dates the claimant's acquisition of the property? TABLE OF CONTENTS Page QUESTION PRESENTED. ......:.0sesseeuseueeeee i TABLE OF AUTHORITIES ....0cccccsevseeue eee iii INTERESTS OF AMICUS CURIAE.................. 1 STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT .......00ss0re0s080008 00 nee 2 ARGUMENT . ......65000005088088 000 nnn 6 I. THE FACT THAT THERE ARE REGULATIONS THAT REQUIRE A PROPERTY OWNER TO OBTAIN A PERMIT PRIOR TO USING HIS LAND DOES NOT MEAN, AS A MATTER OF LAW, THAT THE GOVERNMENT'S REFUSAL TO ISSUE A PERMIT IS NOT A TAKING UNDER THE FIFTH AMENDMENT.......... 6 A. The Mere Existence of a Regulatory Regime Does Not Entitle the Government To Take All Economically Beneficial Use of Land without Payment of Just Compensation... 6 B. The Mere Existence of a “Regulatory Cli- mate” Does Not Dispose of the Takings Issue in a Partial Takings Case........... 16 CONCLUSION ......0s05000e nee eee eileen 19 TABLE OF AUTHORITIES Page Cases Agins v. City of Tiburon, 447 U.S. 255 (1980).......... 8 Armstrong v. United States, 364 U.S. 40 (1960)........ 11 Bennett v. Spear, 520 U.S. 154 (1997)...............55. 1 City of Monterey v. Del Monte Dunes at Monterey, MEY GEUUD cc cccceccscccccccccccess 2, 15 Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994)..... 4 Dolan v. City of Tigard, 512 U.S. 374 (1994)........ 1, 14 First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) ...... 14 Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109 eee cere cc eeacectececcccescess 9 Fuller v. United States, 409 U.S. 488 (1973)........... 12 Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000) ......... 4,5, 6, 7, 16 Hodel v. Irving, 481 U.S. 704 (1987)...............4.. 17 Keene Corp. v. United States, 508 U.S. 200 (1993) ...... l Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 eee rence cee ccsccecce: _ oe Lucas v. South Carolina Coastal Council, 505 U.S. ee cca escceececes. passim Maritrans, Inc. v. United States, 40 Fed. Cl. 790 CCE ace ke sacencecescees: Ay wanes ae Nollan v. California Coastal Comm'n, 483 U.S. 825 0 ae Piva bss eec 14, 15 iv TABLE OF AUTHORITIES - Continued Page Palazzolo v. Coastal Resources Management Council, C.A. No. 86-1496, 1995 WL 941370 (R.I. Super. SO, Th, Ge vba cancavcesesnsendeusstseusensueneens 3 Palazzolo v. Coastal Resources Management Council, No. 88-0297 (R.I. Super. Oct. 24, 1997) ............. 3 Palazzolo v. Rhode Island, 746 A.2d 707 (R.I. 2000), cert. granted, 121 S. Ct. 296 (2000).. 2, 3, 4, 10, 13, 16 Palm Beach Isles Assoc. v. United States, 208 F.3d 1374 (Fed. Cir. 2000), aff'd on rehearing, No. 99-5030, 2000 WL 1665135 (Fed. Cir. Nov. 3, 2000), and rehearing en banc denied, No. 99-5030, 2000 WL 1693725 (Fed. ak Ge a BE 6 cc cu veccecnuceuseesakas 5, 6, 16, 17 Palm Beach Isles Assocs. v. United States, No. 99-5030, 2000 WL 1665135 (Fed. Cir. Nov. 3, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 10 Penn Central Transp. Co. v. City of New York, 438 ak See EE odoudecacescescesuccseuey 2, 3, 5, 7, 16 Phillips v. Washington Legal Found., 524 U.S. 156 SPU occ cb cvndoeces veeceectcesseueeucecessetass 1, 17 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 191 F.3d 845 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000).......... 2 Suitum v. Tahoe Regional Planning Agency, 520 U.S. Fe GeO vino 0ethacidcee een bhenseenenuenedesuene | Vv TABLE OF AUTHORITIES - Continued United States v. Riverside Bayview Homes, Inc., 474 se ee ey ee Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 GED o oc ccnnncancccuadesuceusoucecescsecescess CONSTITUTIONS ee Ge GR We coc ch cccadecesSecues 3, STATUTES Water Pollution Prevention and Control Act, 33 U.S.C.A. §§ 1251-1387 (1986 & Supp. 2000)..... OTHER AUTHORITIES (attached as Exhibit A). Not only does the mere enactment of a regulatory regime not preclude a finding that a property owner can reasonably expect to use his land, but the administration of the regulatory regime may even contribute to the prop- erty owner’s expectations. For example, information from the U.S. Army Corps of Engineers’ Regulatory Branch in Washington, D.C. indicates that, from fiscal year 1994 to 1998, of the 44,249 Section 404 individual permit applica- tions the Corps of Engineers received, only 1,186 were denied. See U.S. Army Corps of Engineers, Regulatory Branch, Section 404 and Section 10/404 Permit Activities (hereinafter “Corps Permit Activities Table”) (attached as Exhibit B); see also (attached as Exhibit C). Those statistics evidence a Corps permitting trend that can be traced back at least as far as 1980. Between fiscal years 1980 and 1985, approximately 43,750 of the 55,565 indi- vidual permit applications received were approved and only 1,945 were denied. See Corps Permit Activities Table (attached as Exhibit B). Moreover, the U.S. Army Corps of Engineers statistics indicate that only 2,340 of the 54,900 individual permit applications received between fiscal years 1985 and 1990 were denied. Id. Remarkably, the Environmental Protection Agency has vetoed only eleven permit application approvals in the entire history of the 19 Corps of Engineers’ administration of the permit pro- gram. See (attached as Exhibit C). It has been reported that even last year the Corps “denied less than half as many applications to fill wetlands as it did in 1992.” See Michael Grunwald, For Oil Projects, Corps’ Answer Is Almost Always “Yes”, Tut WasHINGTON Post at Al (Sept. 13, 2000) (“A review of the [Corps’] work in Alaska and around the country shows that its $117 million regulatory program is mostly just a permitting program, allowing well over 99 percent of developers’ requests to drain, dredge and fill wetlands... ”). In light of these statistics regarding just one federal program, a constitutional holding that a property owner cannot reasonably expect to use his or her land simply because it is subject to a permitting scheme is unwar- ranted. CONCLUSION For all of the foregoing reasons, amicus curiae urges this Court to reverse the decision below. Respectfully submitted, Nancie G. MARZULLA DEFENDERS OF PROPERTY RIGHTS 1350 Connecticut Ave., N.W., Suite 410 Washington, D.C. 20036 202-822-6770 Counsel for Amicus Curiae Dated: November 22, 2000 App. 1 U.S. ARMY CORPS OF ENGINEERS REGULATORY BRANCH SECTION 404 AND 10/404 PERMIT ACTIVITIES Individual Permit | Applications Received Individual Permits Issued’ j Individual Permits Denied Individual Permits Withdrawn General Permits Authorized ‘Applications received during the fiscal year. "Includes Letter Permits App. 2 U.S. ARMY CORPS OF ENGINEERS REGULATORY BRANCH SECTION 404 AND 10/404 PERMIT ACTIVITIES —_— en |___ Section 404 and Sections 10/404 1994 | 1995 | 1997 | 1998 | | Individual Permit Applications Received! 9080 8923 | 9115 8095 9036 Individual Permits Issued’ 4134 | 4693 |5028 | 4755 4931 | Individual Permits Denied 358 284 | 219 167 1s8 | | Individual Permits Withdrawn 4184 | 5093 14117 | 4100 3841 | | | General Permits Authorized 39619 51672 | 55268 | 60219 64520 ' Applications received during the fiscal year. "Includes Letter Permits App. 3 U.S. ARMY CORPS OF ENGINEERS REGULATORY BRANCH | SECTION 404 AND 10/404 PERMIT ACTIVITIES Applications Received' | Individual Permits Issued? Individual Permits Denied Individual Permits Withdrawn General Permits Authorized ‘Applications received during the fiscal year. "Includes Letter Permits App. 4 U.S. Environmental Protection Agency What About Takings? The Issue: When does a government action affecting pri- vate property amount to a “taking,” and what are the takings implications of wetland regulation? The Fifth Amendment to the Constitution of the United States of America No person shall .: . be deprived of . . . property without due process of law, nor shall private property be taken for public use, without just compensation. Legal Background The concept of takings comes from the Fifth Amendment (see box below), which prohibits the taking of private property by the government for a public use without payment of just compensation. This fact sheet briefly explores the issue of takings as it relates to wetlands regulation. The Supreme Court and lower courts have established a body of law used to determine when government actions affecting use of private property amount to a “taking” of the property by the government. When private property is “taken” by the government, the property owner must be fairly compensated. App. 5 Initially, the courts recognized takings claims based on government actions that resulted in a physical seizure or occupation of private property. The courts subsequently ruled that, in certain limited circumstances, government regulation affecting private property also may amount to a taking. In reviewing these “regulatory” takings cases, the courts generally apply a balancing test; they examine the charac- ter of the government's action and its effect on the prop- erty’s economic value. Government actions for the purpose of protecting public health and safety, including many types of actions for environmental protection, gen- erally will not constitute takings. The courts also look at the extent to which the government's action interferes with the reasonable, investment-backed expectations of the property owner. In Lucas v. South Carolina Coastal Council (1992), the U.S. Supreme Court ruled that a State regulation that deprives a property owner of all economically beneficial use of that property can be a taking. The court further clarified, however, that a regulation is not a taking if it is consistent with “restrictions that background principles of the State’s law of property and nuisance already placed upon ownership.” As an example of “background principles,” the court referred to the right of government to prevent flooding of others’ property. Dolan v. City of Tigard (1994), a more recent Supreme Court takings case, involved a requirement by the City of Tigard in Oregon that, to prevent flooding and traffic congestion, a business owner seeking to expand substan- tially onto property adjacent to a floodplain create a | App. 6 public greenway and bike path from private land. The Supreme Court ruled that the City’s requirement would be a taking if the City did not show that there was a Areasonable relationship@ between the creation of the greenway and bike path and the impact of the develop- ment. As compared to the facts in Dolan, the Clean Water Act Section 404 program generally does not require prop- erty owners to provide public access across or along their property. Current Status The presence of wetlands does not mean that a property owner cannot undertake any activity on the property. In fact, wetlands regulation under Section 404 does not nec- essarily even result in restricting the use of a site. Many activities are either not regulated at all, explicitly exempted from regulation, or authorized under general permits. Moreover, in situations where individual permits are required, the Federal agencies can work with permit applicants to design projects that meet the requirements of the law and protect the environment and public safety, while accomplishing the legitimate individual objectives and protecting the property rights of the applicant. Over- all, more than 95% of all projects receive Section 404 authorization. App. 7 Wetlands Division homepage Additional Questions? Call our Wetlands Hot- line at 1-800-832-7828 or_send e-mail to wet- lands.hotline@epamail.epa.gov. QOWOW HOMEPAGE | EPA HOME |! SEARCH | COM- MENTS | WHAT’S NEW Environmental Protection Agency’s Office of Wetlands, Oceans, Watersheds URL: http://www.epa.gov/owow/wetlands/ facts / fact18.html Revised May 25, 1999 App. 8 U.S. Environmental Protection Agency Facts about Wetlands Over half (53) of the wetlands in the lower 48 States were lost between the late 1700s and the mid-1980s. About 100 million acres of wetlands remain today in the lower 48 States, representing less than 5% of the land mass in the continental United States.(See map.) Source:Dahl and Johnson. Status and Trends of Wetlands in the Conterminous United States. USFWS, 1989. Twenty-two States have lost at least 50% of their original wetlands. Seven of those twenty-two States — California, Illinois, Indiana, lowa, Missouri, Kentucky, and Ohio - have lost more than 80% of their Original wetlands. Source: Mitch and Gosselink. Wetlands. 2nd edition. Van Nostrand Reinhold, 1993. App. 10 App. 9 From the mid-1970s to the mid-1980s, wetlands were lost at an annual rate of 290,000 acres per year. Source: Dahl and Johnson. Status and Trends of Wetlands in the Con- terminous United States, mid-1970’s to mid-1980’s. USFWS, 1991. In Fiscal Year 1994, over 48,000 people applied to the Army Corps of Engineers (Corps) for a Section 404 per- mit. Eighty-two percent of these applications were cov- ered by general permits in an average time of 16 days. Less than ten percent of the applications were subject to the more detailed individual evaluation — which took an average of 127 days. Only 358, or 0.7 percent, of the permits were denied. In the 22-year history of the Section 404 program, EPA has vetoed only 11 permits. In short, almost all individuals who applied for a Section 404 permit in 1994 got their permits, and the average time for a decision was 27 days. In addition, general permits cover an estimated 50,000 activities that do not require the public to notify the Corps at all. Source: U.S. Army Corps of Engineers, U.S. Environmen- tal Protection Agency. Percentage of Wetlands Acreage Lost, 1780s-1980s Is Current Wetlands Protection Adequate? In a 1994 survey, 53% of the respondents said they felt that more wetlands protection efforts were needed, 24% said current efforts struck the right balance, 9% said these efforts had gone too far, and 14% said they didn’t know. BEST AVAILABLE COPY App. 11 Source: “Times Mirror Magazines National Environmen- tal Forum Survey.” 1994. Times Mirror Magazines/ Roper Starch. Too Wetlands Division homepage Additional Questions? Call our Wetlands Hot- line at 1-800-832-7828 or send e-mail to wet- lands. hotline@epamail.epa.gov. OWOW HOMEPAGE | EPA HOME |! SEARCH | COM- MENTS !| WHAT’S NEW Environmental Protection Agency’s Office of Wetlands, Oceans, Watersheds BEST AVAILABLE COPY App. 12 URL: http: / /www.epa.gov/owow/wetlands/ facts / fact5.html Revised May 25, 1999 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0384%3A13. Public record. Not legal advice.