Amicus Curiae Brief — Palazzolo v. Rhode Island

JAN 3 2 &P| | FILLED

No. 99-2047.

In The rERK

Supreme Court of the United States-~—

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ANTHONY PALAZZOLO,

Petitioner,

RHODE ISLAND ex rel. PAUL J. TAVARES, and

COASTAL RESOURCES MANAGEMENT COUNCIL,

Respondents.

7 —

On Writ Of Certiorari To The

Supreme Court Of Rhode Island

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AMICUS BRIEF OF THE BOARD OF COUNTY

COMMISSIONERS OF THE COUNTY OF LA PLATA,

COLORADO IN SUPPORT OF THE RESPONDENTS

STATE OF RHODE ISLAND, ET AL.

*

GOLDMAN, Rossins & Rocers, LLP

MicHaet A. GOLDMAN

Counsel of Record

Jerrery P. Rossins

Post Office Box 2270

Durango, Colorado 81302

(970) 259-8747

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-2831

IBEST AVAILABLE COPY

TABLE OF CONTENTS

Page

TABLE OF AUTEOIIEUD oc ccc sccccccccccccccscess ii

STATEMENT OF INTEREST ................00eeee 1

SET SAN sdh a bbes ewabedecsueceeciecenccsss 4

I. The Single Basic Test for a Regulatory Taking Is

II.

Whether the Regulation Eliminates All Reason-

eee Te GS TD FON cc ccccccccssvecscecs

A.

B.

The Court’s Decisions Have Consistently

Required a Showing That All Economic

Use Has Been Eliminated................

Neither Lucas Nor Penn Central Establish a

PUD CUED DOs cc cecessccccsccccsecs

The Requirement that a Regulation Eliminate

All Reasonable Use is Supported By Sound

Constitutional and Legal Policy Considerations

The Original Understanding of the Tak-

ings Clause Supports Use of the Single

SE PD Deo csccdccisccsecdsucess

Federalism Values Support Use of the Sin-

EE CD THD co cccccccsecevcsees

The Tradition of Judicial Deference to the

Democratic Branches Supports Use of the

Single Basic Takings Test ................

“Givings” and “Reciprocity of Advantage”

Support Use of a Single Basic Takings

MPPMPOTT TT TTT T TIT T eT TTT TTT TTT eT

The Practical Need for Bright Line Legal

Tests Supports Use of The Single Basic Tak-

BD EEE ceccesrccsccccconccceccessovcess

STD SaSaCaccedsencsecccescuecssenceccuns

16

17

18

21

25

ii

TABLE OF AUTHORITIES

Page

Cases

Agins v. Tiburon, 447 U.S. 255 (1980)... 4, 6, 14, 15, 16, 25

Alden v. Maine, 527 U.S. 706 (1999)............... 20, 21

Andrus v. Allard, 444 U.S. 51 (1979) .............. 22, 25

Annicelli v. Town of South Kingston, 463 A.2d 133

CRE. 29GB)... ccccccccccccnesccenennene 20

Animas Valley Sand and Gravel v. Board of County

Commissioners of the County of La Plata, Colorado,

S P.3d S22 (Cote. App. SaGGp. oc ccccccsccccnsenueuue 1

City of Monterey v. Del Monte Dunes, 526 U.S. 687

(BOSD). ccccccccccsecceccssnennennnnn 4, 5, 9, 10, 21

Dolan v. City of Tigard, 512 U.S. 374 (1994)........ 5, 10

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)

a cecnceccceccesece6eest6e eel ee nnn nnn—EE 22, 23, 24

Edelman v. Jordon, 415 U.S. 651 (1974)............... 20

Ferguson v. Skrupa, 372 U.S. 726 (1963) .............. 24

First English Evangelical Lutheran Church v. City of

Los Angeles, 482 U.S. 304 (1987)............ 14, 15, 20

Florida Rock Industries, Inc. v. United States, 18 F.3d

1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109

1) Pr 7, 24

Front Royal & Warren County Indus. Park Corp. v.

Town of Front Royal, Va., 135 F.3d 275 (4th Cir.

BODE). vccccccccccccsecececconceseueu naan ann 6

Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 18

Hodel v. Irving, 481 U.S. 704 (1987)...............45. 11

TABLE OF AUTHORITIES —- Continued

Page

Jafay v. Board of County Commissioners, 848 P.2d 892

EELS SESS POP CTTTTTTTTTTLT TY 6

stone Bituminous Coal Ass'n v. Debenedictis, 480

ees oo ccccsccccccccccces 5, 25

Lochner v. New York, 198 U.S. 45 (1905).............. 24

Loretto v. Teleprompter Manhattan CATV Corp., 458

EE EEE LEE PPTL TE 11, 12, 27

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171

eee coc c ccc cccccccecccccces 15

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

EE EEE SSS EIFS CPTTTTT TELE TE passim

Lynch v. United States, 292 U.S. 571 (1934)........... 20

Mulvaney v. Napolitano, 671 A.2d 312 (R.I. 1995)..... 20

National R.R. Passenger Corp. v. Atchison, Topeka &

Santa Fe. Ry. Co., 470 U.S. 451 (1985) ............. 27

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .... 19

Nollan v. California Coastal Comm’n, 483 U.S. 825

UU MEPEEGEEGEebeseccesccscoccccccocccccces 11

Penn Central Transportation Co. v. New York City,

ee eke cccscdocceccceocees passim

Pennsylvania Coal Co. v. Mahon, et al., 260 U.S. 393

DPE PEEBGEGGSESSSG0cccccccccccecccecce 4, 18, 22

Planned Parenthood of Southeastern Pa. v. Casey, 505

EES SSIES OTTTTTT TTT IL TLE TY 24

Reahard v. Lee County, 968 F.2d 1131 (11th Cir.

1992), cert denied, 514 U.S. 1064 (1995)............. 6

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

FE OES EERE SS SESOEPTTTTTTTTTTI TILT 11, 12, 16, 19

iv

TABLE OF AUTHORITIES - Continued

Page

Texas v. White, 74 U.S. 700 (1869) ................... 18

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

GRUUUD coccoccnncescccessnccsceececencesadeensabens 23

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483

GOED oc nccccccncccccecsecccoseossecetenesesanenet 24

Webb's Fabulous Pharmacies, Inc., v. Beckwith, 449

a GO GUD 6 ccc cccsccccccadceccescesucucoeeses 11

Webster v. Doe, 486 U.S. 592 (1988).................. 20

Zealy v. City of Waukesha, 548 N.W. 2d 528 (Wis.

Gees cccccncenceavacscsssnvessncssesueedsateeseseel 7

Statutes AND OrHer AuTHorities CITED

BO WA, Fe ccc ccnccccescesssacesencssssededesteus 7

Colorado Constitution, Article II, Section 15.......... 2

Robert Brauneis, The First Constitutional Tort: The

Remedial Revolution in Nineteenth-Century State

Just Compensation Law, 52 Vand. L. Rev. 57,

SOP GSSED ccccecccccecessncecssencneuonancnenas 21

J. Peter Byrne, Regulatory Takings and Judicial

Supremacy, 51 Ala. L.Rev. 949, 954 (2000).......... 22

John F. Hart, Land Use Law in the Early Republic and

the Original Meaning of the Takings Clause, 94 Nw.

Se es GE Fee CE h cccvcccccceseccccscnses: 17, 18

Robert H. Jackson, The Struggle for Judicial Suprem-

GH) TED GIPGED cc cccccccccccecccccccescessccosseess 23

Frank Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of “Just

Compensation” Law, 80 Harv. L. Rev. 1196,

SPS CHUN cc cccccccceccecenceceseseueceeens 28, 29

Vv

TABLE OF AUTHORITIES - Continued

Antonin Scalia, The Rule of Law as a Law of Rule, 56

CD, COk, E.Bleee BEFD Gee ccc ccccccccccssccecccces 27

William M. Treanor, The Original Understanding of

the Takings Clause and the Political Process, 95

CE, Ges PEs GOED ccc ccccecccccscasoeccoses 17

AMICUS BRIEF IN SUPPORT OF THE

RESPONDENTS, STATE OF RHODE ISLAND, ET AL.

The Board of Commissioners of the County of La

Plata County, Colorado (the “Board”), respectfully sub-

mits this brief amicus curiae in support of respondent

State of Rhode Island, et al.!

+

STATEMENT OF INTEREST

The Board has an interest in this case because the

Board is a party to a regulatory takings case now pending

before the Colorado Supreme Court involving facts simi-

lar to this case and raising a legal issue essentially identi-

cal to one issue on which the Court has granted certiorari.

See Animas Valley Sand and Gravel v. Board of County Com-

missioners of the County of La Plata, 8 P.3d 522 (Colo. App.

2000), certiorari granted by the Colorado Supreme Court

August 21, 2000, No. SC 151.

The case before the Colorado court involves a takings

challenge under the Colorado Constitution by the owner

of a sand and gravel excavation business to La Plata

County’s river corridor protection regulation. The regula-

tion does not affect the owner’s right to continue its

established sand and gravel operation on approximately

10 acres of property not included within the designated

corridor. The regulation also authorizes various other

! This brief was not authored in whole or in part by counsel

for a party, and no person, other than amicus curiae or its

counsel, made a monetary contribution to the preparation or

submission of this brief. See Rule 37. A letter from the parties

consenting to filing of amicus briefs is on file with the Court.

land uses (not including sand and gravel excavation) on

the remaining 33 acres of the property included within

the corridor, as of right or subject to compliance with a

special permitting process. The owner has not sought

permission to pursue any other type of development on

this portion of the property.

At trial the Colorado District Court rejected the

owner's taking claim. On appeal, the Colorado Court of

Appeals reversed on one issue but upheld the trial court’s

basic conclusion that the regulation did not effect a taking

because it did not deprive the owner of all “reasonable

use” of the property. The Court of Appeals rejected the

contention that, even if the owner has “some reasonable

or economically viable use,” a taking occurs under the

Colorado Constitution if the regulation “goes too far”

and “substantially diminishes the value of the property.”

Id. at 525-527.

The Colorado Supreme Court granted certiorari to

consider, among other issues, the following question:

“Whether a compensable regulatory taking can occur

under Colo. Const. Art. II, Section 15, when the com-

plained of regulation ‘goes too far’ and substantially

diminishes the value of the property, even in circum-

stances where the property retains some economically

viable use?”? This issue is obviously closely related to the

question in this case concerning the magnitude of the

economic burden necessary to establish a taking and,

more specifically, the argument by petitioner and several

2 Article II, Section 15 of the Colorado Constitution

provides, in part, that: “Private Property shall not be taken or

damaged for public or private use, without just compensation.”

of his amici that he should be able to recover under a

separate “partial” taking test even if the regulation allows

reasonable economic use of the property. Because the

Colorado Supreme Court follows closely this Court’s

interpretation of the federal Takings Clause in interpret-

ing the parallel provision of the Colorado Constitution,

and because in any event the Board’s actions are directly

subject to the federal Takings Clause, the Board has a

significant interest in the outcome of this case.

As it did in the Colorado Supreme Court, amicus

submits here that a compensable regulatory taking can

occur only if a regulation denies all reasonable use of the

owner's property. The petitioners in both the Colorado

case and in this case argue that, even when a regulation

does not eliminate all reasonable use, an owner can

invoke a separate and independent “partial” takings test.

This ostensible test, according to petitioners, would

essentially involve a legislative-type analysis and balanc-

ing of the costs and benefits of the regulation. Amicus

submits that no such independent “partial” takings test

actually exists and that strong constitutional and legal

policy considerations argue against the creation of such a

test.

ARGUMENT

I. The Single Basic Test for a Regulatory Taking Is

Whether the Regulation Eliminates All Reasonable

Use of the Property.

A. The Court’s Decisions Have Consistently

Required a Showing That All Economic Use Has

Been Eliminated.

The Court has repeatedly stated that a successful

regulatory taking claimant must demonstrate that the

regulation essentially destroys the property’s economic

value. Beginning with Pennsylvania Coal Co. v. Mahon, et

al., 260 U.S. 393 (1922), the Supreme Court has defined

regulatory takings doctrine narrowly, equating a regula-

tory taking with a complete appropriation of the prop-

erty. The basic issue in a regulatory taking case, the Court

said, is whether the regulation “has very nearly the same

effect for constitutional purposes as appropriating or

destroying it.” 260 U.S. at 414.

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

Court said that, at least when a taking challenge focuses

on the economic burden imposed by a restriction,? the

* The Agins Court also said, in the alternative, that a

regulation may effect a taking if it “does not substantially

advance legitimate state interests.” 447 U.S. at 260. Today, it is

debatable whether this type of means-ends claim can properly

be grounded in the Taking Clause as opposed to the Due Process

Clause. See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 732

n. 2 (1999) (Scalia, J., concurring in part and concurring in the

judgment); see also id. at 753 n. 12 (Souter, J., concurring in part

and dissenting in part). There is no suggestion in this case, or in

the case before the Colorado Supreme Court, that the

government is not properly acting to advance a legitimate

public interest.

single basic issue is whether the regulation “denies an

owner economically viable use” of the property. 447 U.S.

at 260. Likewise, in Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470 (1987), the Court rejected a

taking claim, stating that the test for a taking based on

economic impact is whether the regulation “denies an

owner economically viable use of his land.” 480 U.S. at

485 (quoting Agins, 447 U.S. at 260).

More recently, in City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999), the Court affirmed a

finding of a taking based on jury instructions that read in

part as follows:

For the purpose of a taking claim, you will find

that the plaintiff has been denied all economi-

cally viable use of its property, if, as the result of

the city’s regulatory decision there remains no

permissible or beneficial use for that property.

In proving whether the plaintiff has been denied

all economically viable use of its property, it ts

not enough that the plaintiff show that after the

challenged action by the city the property diminished

in value or that it would suffer a serious economic

loss as the result of the city’s actions.

526 U.S. at 700 (emphasis added). While the parties did

not specifically dispute the propriety of this instruction,

the Court stated that “the tnal court’s instructions are

consistent with our previous general discussions of regu-

latory takings liability.” Id. at 704.

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

Court addressed the issue whether the city effected a

taking by attaching to a land use permit a condition

requiring the owner to grant the public access to her

property. In the course of the opinion, the Court

observed that if the city had simply prohibited further

development on the greenway, no taking would have

resulted, given that the owner could continue to operate

her plumbing supply store on the other portion of the

property. The basic test for a taking based on economic

impact, the Court reiterated, is whether the regulation

“den[ies] an owner economically viable use of his land.”

Id. at 384 (citing Agins, 447 U.S. at 260). Applying that

standard, the Court said: “There can be no argument that

the permit conditions would deprive petitioner of ‘eco-

nomically beneficial us[e]’ of her property as she cur-

rently operates a retail store on the lot. Petitioner

assuredly is able to derive some economic use from her

property.” 512 U.S. at 385 n. 6 (emphasis added).

In line with these precedents, the overwhelming

majority of lower federal and state courts analyze regula-

tory takings claims by considering whether the regulation

eliminates essentially all of the property’s economic use

or value. See, e.g., Front Royal & Warren County Indus. Park

Corp. v. Town of Front Royal, Va., 135 F.3d 275, 286 (4th Cir.

1998) (rejecting takings challenge when regulation caused

“only” a 50 percent diminution in value, because “a regu-

latory deprivation that causes land to have ‘less value’

does not necessarily make it valueless”); Reahard v. Lee

County, 968 F.2d 1131, 1135 (11th Cir. 1992) (overturning a

finding of a taking where rezoning permitted construc-

tion of only one residence on 40 acres, observing that “the

only issue in just compensation claims is whether an

owner has been denied all or substantially all economi-

cally viable use of the property”), cert. denied, 514 US.

1064 (1995); Jafay v. Board of County Commissioners, 848

P.2d 892, 901 (Colo. 1993) (“[T]he central issue to a tak-

ings inquiry is whether the governmental regulation as

applied to the aggrieved landowner’s property forecloses

all use of the property.”); Zealy v. City of Waukesha, 548

N.W.2d 528, 531 (Wis. 1996) (“[T]he rule emerging from

opinions of our state courts and the United States

Supreme Court is that a regulation must deny the land-

owner all or substantially all practical uses of a property

in order to be considered a taking for which compensa-

tion is required.”).*

B. Neither Lucas Nor Penn Central Establish a Par-

tial Takings Test.

The so-called “partial taking” theory rests on a

strained and unpersuasive interpretation of two U.S.

Supreme Court decisions, Lucas v. South Carolina Coastal

4 The principal dissenter from this general view has been

the U.S. Court of Appeals for the Federal Circuit, which has

adopted an expansive “partial” regulatory taking rule. See

Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed.

Cir. 1994), cert. denied, 513 U.S. 1109 (1995); but see Id. at 1573

(Nies, C.J., dissenting). Setting aside the legal merits of the

Federal Circuit’s approach, it is noteworthy that the Federal

Circuit only hears takings claims against the United States.

Takings claims against the federal government are generally

paid out of the Judgment Fund, a permanent and unlimited

appropriation designed to cover financial obligations incurred

by the United States. See 31 U.S.C. 1304. States, much less

counties and other local governments, obviously lack the same

unlimited financial resources. The Board respectfully submits

that the Takings Clause should be interpreted in a fashion that

takes into account the practical challenges facing all levels of

government throughout this country.

Council, 505 U.S. 1003 (1992), and Penn Central Transp. Co.

v. City of New York, 438 U.S. 104 (1978). According to this

theory, Lucas established a two-tier regulatory takings

test, with the first type of taking involving a “total”

elimination of property value, and the second type

involving a “partial” reduction in property value. In

addition, according to this theory, the Penn Central deci-

sion supplies the standards for evaluating a “partial”

taking claim; these ostensible standards include the eco-

nomic impact of the regulation, the owner’s investment-

backed expectations, and the “character” of the govern-

ment regulation. These three factors are supposed to be

weighed in an ad hoc balancing test.

First and foremest, Lucas did not in fact establish a

two-tier regulatory takings test. Lucas involved a prohibi-

tion on coastal development that, according to the undis-

puted findings of the trial court, made the property

“valueless.” 505 U.S. at 1009. The Court, by a margin of 6

to 3, with Justice Kennedy concurring, concluded that the

South Carolina Supreme Court erred in rejecting the tak-

ings claim. In dissent, Justice Stevens, criticized the

majority’s ruling as “wholly arbitrary” on the ground that

“[a] landowner whose property is diminished in value

95% recovers nothing, while an owner whose property is

diminished 100% recovers the land’s full value.” Lucas,

505 U.S. at 1064. In response, Justice Scalia, speaking for

the majority, responded by stating:

This analysis errs in its assumption that the

landowner whose deprivation is one step short

of complete is not entitled to compensation.

Such an owner might not be able to claim the

benefit of our categorical formulation [in Lucas],

but, as we have acknowledged time and again,

“[t]he economic impact of the regulation on the

claimant and . . . the extent to which the regula-

tion has interfered with distinct investment-

backed expectations” are keenly relevant to tak-

ings analysis generally.

Id. at 1019 n. 8 (quoting Penn Central, 438 U.S. at 124).

This language does not establish that, if a claimant cannot

demonstrate a taking under the traditional denial-of-all-

economically-viable-use standard, the claimant is entitled

to a separate bite at the apple based on a separate “par-

tial” taking test derived from Penn Central.

First, Justice Scalia’s reference to a possible separate

Penn Central test was dictum. Lucas involved a regulation

that rendered property “valueless” and the Court's

closely divided ruling ultimately rested on that fact. The

discussion of the standard (if any) that might apply in a

case in which the property retains some economic value

was unnecessary to the resolution of the case. Moreover,

in the same footnote, Justice Scalia indicated that cases of

95% uncompensated loss will remain and that “takings

law is full of these ‘all or nothing’ situations.” Lucas, 505

U.S. at 1019 n. 8.

Second, as discussed above, numerous other deci-

sions of the Court pre-dating and post-dating Lucas artic-

ulate a single basic test for a taking based on a

regulation’s adverse economic impact on the owner.

These decisions contradict the novel idea of a two-tier

takings analysis suggested by the dictum in Lucas. As

discussed, just two years ago in City of Monterey the

Court recited with approbation instructions directing a

jury to find a “deni[al of] all economically viable use” if

10

“there remains no permissible or beneficial use for [the]

property.” City of Monterey, 526 U.S. at 700. The Court did

not state, suggest or hint that recovery might have been

possible on an alternative, less demanding “partial” tak-

ing theory. Similarly, as also discussed above, Dolan dis-

pels the notion of a two-tier taking analysis. See 512 U.S.

at 385 n. 6.

Third, the “partial” taking theory misapplies Penn

Central by ignoring the substantial developments in tak-

ings doctrine during the 20-plus years since that decision

was handed down. The Penn Central Court famously

observed that defining a regulatory taking “has proved to

be a problem of considerable difficulty,” and, therefore,

the Court had been forced to rely on “essentially ad hoc,

factual inquiries” to resolve specific cases. 438 U.S. at 124.

Nonetheless, the Court continued, its decisions had iden-

tified “several factors that have particular significance”

for resolving regulatory takings claims:

The economic impact of the regulation on the

claimant and, particularly, the extent to which

the regulation has interfered with distinct

investment-backed expectations are, of course,

relevant considerations. So, too, is the character

of the governmental action.

Id. Contrary to petitioner’s view, the Penn Central Court

did not articulate a “partial” regulatory taking test and

the decision does not support such a theory.

As a threshold matter, the Penn Central Court proba-

bly never intended the “ad hoc” factors described in the

decision to serve as a free-standing, determinative test for

a taking. The three factors mentioned in the decision are

obviously relevant in takings analysis, but the Court

11

provided no indication about how these different factors

might be weighted or combined to resolve a particular

case. On its face, the Court’s analysis could support the

conclusion that virtually every newly enacted use restric-

tion effects a taking; it can also be read to mean that such

enactments rarely result in takings.

Perhaps because of the fundamental indeterminacy

of the three “significant” factors identified in Penn Cen-

tral, the Court has never relied on the ostensible Penn

Central “test” to uphold a regulatory taking claim. The

Court has referred to the Penn Central analysis frequently

enough, but it has treated the analysis as inadequate, by

itself, to support an actual finding of a taking. Instead,

every Court decision upholding a taking claim over the

last several decades has pointed to some special factor,

such as the fact that the regulation completely destroyed

the value of the property, see, e.g., Lucas (total elimination

of value of coastal lots) and Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) (total destruction of economic value of

trade secret); the regulation resulted in a physical occupa-

tion of private property, see, e.g., Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982) (forced occu-

pation of private property by cable television equipment),

Dolan (exaction resulting in a physical occupation), and

Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)

(same); cf. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155 (1980) (analogizing appropriation of a specific

fund of money to a physical occupation); or the regula-

tion abrogated a particularly fundamental type of prop-

erty interest, e.g., the right to pass on property by

inheritance, see e.g., Hodel v. Irving, 481 U.S. 704 (1987).

Whatever the Court's original intent in articulating

the Penn Central 3-factor analysis, the Court, building

12

upon the foundation provided by that opinion, has subse-

quently articulated a series of definitive, bright-line rules

addressing each of the key factors enumerated in Penn

Central. First, the Penn Central Court referred to the “char-

acter” of the regulation as one factor in taking analysis.

By this term the Court meant:

A “taking” may more readily be found when the

interference with property can be characterized

as a physical invasion by government, than

when interference arises from some public pro-

gram adjusting the benefits and burdens of eco-

nomic life to promote the common good.

438 U.S. at 124. In the subsequent Loretto decision, the

Court determined that a government-authorized physical

invasion of private property automatically results in a

taking. Loretto, 458 U.S. at 426. Because the physical-

invasion “character” of a regulation, by itself, automat-

ically leads to a finding of a taking, the “character” factor

has no logical place in any putative multi-factor test.

Second, in Ruckelshaus v. Monsanto Co., 467 U.S. 986

(1984), another post-Penn Central case, the Court con-

verted the “distinct investment-backed expectations” fac-

tor into another bright line rule. The Court ruled that,

even when the value of a property interest is entirely

eliminated, a taking claim is precluded if the claim is

barred by a lack of investment-backed expectations. Id. at

1005. Again, because a lack of investment-backed expec-

tations, by itself, precludes a finding of taking, that factor

has no coherent role to play in a putative multi-factor

test.

13

Finally, Lucas illustrates the circumstance when “eco-

nomic impact,” the third factor mentioned in Penn Cen-

tral, can actually result in a finding of a taking. As

discussed above, both before and after Lucas, the Court

repeatedly stated that a taking can be established when a

regulation eliminates essentially all economic use. In

Lucas, where the property was actually made “valueless,”

the Court was confronted with a case involving the kind

of severe economic loss that met the Court’s longstanding

economic-impact test. Thus, the holding in Lucas simply

reaffirms the Court’s position that a regulation effects a

taking when it “denies an owner economically viable

use” of the property. Agins, 447 U.S. at 260.

The Court’s basic rules for evaluating a regulatory

taking claim are now relatively clear. A physical occupa-

tion generally results in a taking, no matter how modest

the economic impact on the owner. A lack of investment-

backed expectations ‘outside the physical-occupation

context) generally preciudes a regulatory taking claim, no

matter how stringent the regulation. And a newly

enacted regulation that eliminates all reasonable eco-

nomic use will generally result in a taking, subject to

several narrow but important exceptions, most notably

for rules that parallel the background principles of nui-

sance and property law. See Lucas, 505 U.S. at 1027-28.

These individual tests represent an evolutionary refine-

ment of the 3-factor analysis described in Penn Central

over twenty years ago. With these determinative, bright-

line tests in place, there is no separate, ad hoc Penn

Central analysis to apply.

Advocates of an expansive reading of the Takings

Clause seek to defend the notion of an independent Penn

14

Central “partial” takings test by arguing that the ostens-

ible Penn Central test entails a distinctive type of analysis

relative to that required under Lucas/Agins, i.e. denial of

economically viable use. The first purported ground for

differentiating between these two tests and therefore jus-

tifying their separate continued existence is based on how

the public purpose of a regulatory action should be

analyzed in a takings case. In Lucas, the Court made clear

that the weight of the public interest being served by a

regulation is irrelevant in the taking analysis. 505 U.S. at

1026. On the other hand, according to proponents of the

partial takings theory, in a taking case not covered by

Lucas, the weight of the public interest has to be “bal-

anced” against the burden being imposed on the owner.

However, a balancing of public and private interests

cannot play a coherent role in any regulatory takings

case. The Court has stated that a valid taking claim

presupposes that the government is acting for a legitimate

public purpose. See First English Evangelical Lutheran

Church v. City of Los Angeles, 482 U.S. 304, 315 (1987). If a

viable taking claim presupposes the government is acting

for a legitimate public purpose, then the public purpose

served by the regulation cannot logically be a factor to be

weighed along with other factors in determining whether

compensation is due under the Fifth Amendment.

This conclusion is also supported by common sense.

The government's liability for a classic taking of property,

such as for a school or some other public facility, does not

vary with the importance of the public project. Indeed, it

would be absurd to suggest that the government could

deny its obligation to pay just compensation when it

condemns land for a new school on the ground that the

school will serve a pressing public need. The Fifth

15

Amendment has the same basic meaning whether the

government initiates a condemnation or an owner brings

an inverse condemnation action. See First English, 482 U.S.

at 315. Accordingly, the value of the public objective

being served by a regulatory program cannot have any

relevance to the government's possible liability for a tak-

ing. Because the public value served by a regulation has

no logical place in any takings case, the idea that the

purported Penn Central analysis can be distinguished

from the Lucas/Agins test because the former provides for

consideration of the weight of the governmental purpose

must be rejected as well.

A second possible basis for differentiating between

the Lucas/Agins takings test and the ostensible Penn Cen-

tral “partial” takings test is to treat the claimant's invest-

ment expectations (or the lack thereof) as a relevant factor

under Penn Central but as an irrelevant consideration

under the Lucas/Agins test. The flaw in this argument is

that a lack of investment expectations should be an

appropriate factor for the courts to consider in any type of

takings case.

The basic rationale for treating a lack of expectations

as a relevant factor in takings analysis is straightforward:

In legal terms, the owner who bought with

knowledge of the restraint could be said to have

no reliance interest, or to have assumed the risk

of any economic loss. In economic terms, it

could be said that the market had already dis-

counted for the restraint, so that a purchaser

could not show a loss in his investment attribu-

table to it.

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1177

(Fed. Cir. 1994). This reasoning applies to any sort of

16

regulatory taking case because awarding compensation to

purchasers with notice could always result in unfair

windfall payments at taxpayer expenses. Furthermore,

treating expectations as irrelevant in a Lucas/Agins-type

case would have the pernicious effect of encouraging

owners to sell off small, wholly restricted pieces of their

property to new owners who could (under this theory)

sue for a taking even if the only business purpose of the

transaction was to maximize recovery under the Takings

Clause. In the end, this theory would force government to

abandon many essential land use regulations, including

restrictions on development on extremely steep slopes, in

areas subject to mudslides, and on property containing

critical environmental resources. See also Ruckelshaus v.

Monsanto Co., supra (holding that a lack of investment-

backed expectations can preclude a taking claim based on

an alleged total taking of an intellectual property right).

In sum, there is no reasonable basis for concluding

that a claimant’s investment expectations could matter

under the ostensible Penn Central test but could be disre-

garded in a Lucas/Agins case. Thus, this attempt to ratio-

nalize a two-tier taking analysis fails as well.

II. The Requirement that a Regulation Eliminate All

Reasonable Use is Supported By Sound Constitu-

tional and Legal Policy Considerations.

The Court's traditional view that a regulatory taking

requires the elimination of the property’s economic use is

supported by (1) the language and original understand-

ing of the Takings Clause; (2) federalism values; (3) the

need for the judicial branch to defer to the people’s

17

elected representatives on matters of social policy; (4) the

pervasiveness of governmental “givings” and the “recip-

rocal” benefits of regulations; and (5) the need for the

clear and predictable legal rules.

A. The Original Understanding of the Takings

Clause Supports Use of the Single Basic Tak-

ings Test

First, the traditional reading of the Takings Clause is

supported by the historical evidence concerning the origi-

nal understanding of this constitutional provision.

As stated in Lucas: “early constitutional theorists did

not believe the Takings Clause embraced regulations of

property at all.” 505 U.S. at 1028 n. 15. This conclusion is

supported by numerous scholarly investigations includ-

ing, for example, John F. Hart, Land Use Law in the Early

Republic and the Original Meaning of the Takings Clause, 94

Nw. U. L. Rev. 1099 (2000) and William M. Treanor, The

Original Understanding of the Takings Clause and the Politi-

cal Process, 95 Colum. L. Rev. 782 (1995). As these investi-

gations explain, there is little direct evidence of the

drafters’ intentions in including the Takings Clause in the

Bill of Rights. The provision was drafted by James Mad-

ison and included in the Bill of Rights at his instigation

with no recorded debate. As a result, interpreters of the

Takings Clause have been forced to resort to examining

historical antecedents in colonial charters, the Northwest

Ordinance and various state constitutions, as well as

studying contemporary views about the scope of govern-

ment authority to regulate the use of land and other

property. The basic conclusion of this exhaustive research

18

has been that “the Takings Clause was originally

intended and understood to refer only to the appropria-

tion of property.” Hart, 94 Nw. U. L. Rev. at 1103.

Existing Court precedent forecloses, at leas* for the

present, a strict adherence to the original understanding

of the Takings Clause. See Pennsylvania Coal Co. v. Mahon,

et al., 260 U.S. 393 (1922). In weighing petitioner's argu-

ment for a further expansion of regulatory takings doc-

trine, however, the original understanding is surely

relevant. It is one thing to recognize that a regulation can

effect a taking if it “has very nearly the same effect for

constitutional purposes as appropriating or destroying

it,” id. at 414; it would be quite another to conclude that a

regulation that leaves an owner reasonable economic use

of the property can also effect a taking. The regulatory

takings doctrine has a questionable constitutional foun-

dation. Petitioner's proposed expansion of the doctrine

would rob it of constitutional legitimacy altogether.

B. Federalism Values Support Use of the Single

Basic Takings Test.

A second reason for rejecting petitioner's expansive

regulatory takings theory is that it would conflict with

federalism, one of the most important values enshrined in

the Constitution. As the Court stated in Gregory v. Ash-

croft, 501 U.S. 452 (1991), “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.” Id. at 457, quoting Texas v. White,

74 U.S. 700, 725 (1869).

ll

——

19

Federalism promotes numerous values that are cen-

tral to a free and pluralistic society. Among other things,

“{iJt assures a decentralized government that will be

more sensitive to the diverse needs of a heterogeneous

society; it increases opportunity for citizen involvement

in democratic processes; it allows for more innovation

and experimentation in government; and it makes gov-

ernment more responsive by putting the States in compe-

tition for a mobile citizenry.” Id. at 458. See also New State

Ice Co v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

dissenting) (describing the states as the “laborator[ies]”

of democracy).

The principle of federalism has long been central to

the interpretation of the Takings Clause. The Court has

recognized that “[p]roperty interests .. . are not created

by the Constitution. Instead, they are created and their

dimensions are defined by existing rules and understand-

ings that stem from an independent source such as state

law.” Ruckelshaus v. Monsanto, 467 U.S. 986, 1001 (1984).

An expansive theory of regulatory takings, on the

other hand, would tend to federalize property issues by

imposing a stricter, uniform national standard upon the

regulation of property. This, in turn, would undermine

federalism itself by constraining the ability of state and

local officials to adopt local solutions that respond to

local needs and preferences. The broader the reading of

the Takings Clause, the tighter the constitutional con-

straints on states and their subdivisions and the more the

“laboratories” of democracy are undermined.

20

The federalism issue is brought into even sharper

relief by the tension between petitioner's attempt to sub-

ject the State of Rhode Island to monetary liability under

the Takings Clause and the Court’s recent decision in

Alden v. Matne, 527 U.S. 706 (1999), recognizing that the

States are generally protected from federal-law suits for

money damages based on sovereign immunity.> While the

Takings Clause, of its own force, creates a federal right of

action seeking “just compensation,” see First English Evan-

gelical Lutheran Church v. City of Los Angeles, supra, it is

well established that the United States is immune from

liability under the Takings Clause absent a specific

waiver of its immunity. See Lynch v. United States, 292 U.S.

571, 579, 580-82 (1934). See also Webster v. Doe, 486 U.S.

592, 613 (1988) (Scalia, J., dissenting) (“No one would

suggest that, if Congress had not passed the Tucker

Act ..., the courts would be able to order disbursements

trom the Treasury to pay for property taken under lawful

> Rhode Island did not originally raise a sovereign

immunity defense in this case, perhaps in part because the case

was briefed and argued in the Rhode Island Supreme Court

prior to this Court's ruling in Alden. However, under state law,

like under federal law, waiver of sovereign immunity protection

must be deliberate. Compare Edelman v. Jordan, 415 U.S. 651, 673

(1974) with Mulvaney v. Napolitano, 671 A.2d 312 (R.I. 1995). The

Rhode Island courts in interpreting the Rhode Island Takings

Clause, like the federal courts in interpreting the federal

Takings Clause, have apparently concluded that this provision,

of its own force, creates a right of action for monetary relief. See

Annicelli v. Town of South Kingston, 463 A.2d 133 (R.1. 1983).

However, that determination does not address the separate

issue of whether the State has deliberately waived its sovereign

immunity.

Ts aide a Me oh hie hall

- ——_ ’

21

authority (and subsequently destroyed) without just com-

pensation.”). In light of Alden, the States must be pro-

tected from suit under the Takings Clause based on

sovereign immunity to the same extent as the federal

government. The essential lesson of Alden, of course, is

that the States, though more limited in power than the

federal government, possess and are entitled to defend

sovereign rights equal in importance and dignity to those

possessed by the United States. Cf. City of Monterey v. Del

Monte Dunes Ltd., 526 U.S. 687, 714 (1999) (specifically

recognizing but not definitively resolving the issue of

State immunity from suit under the Takings Clause). See

generally Robert Brauneis, The First Constitutional Tort: The

Remedial Revolution in Nineteenth-Century State Just Com-

pensation Law, 52 Vand. L. Rev. 57, 137-39 (1999) (discuss-

ing sovereign immunity constraints on recovery for

government takings).

C. The Tradition of Judicial Deference to the Dem-

ocratic Branches Supports Use of the Single

Basic Takings Test.

The expansive theory of regulatory takings also

should be rejected because it would improperly expand

judicial power at the expense of the other branches of

government.

Petitioner’s broad “partial” taking theory would seri-

ously intrude upon, if not literally destroy the other

branches of government. As Justice Oliver Wendell

Holmes famously remarked: “Government hardly could

go on if to some extent values incident to property could

not be diminished without paying for every such change

22

in the general law.” Mahon, 260 U.S. at 413. In another

case, the Court expanded on this theme:

[Glovernment regulation — by definition -

involves the adjustment of rights for the public

good. Often this adjustment curtails some

potential for the use or economic exploitation of

private property. To require compensation in all

such circumstances would effectively compel

the government to regulate by purchase.

Andrus v. Allard, 444 U.S. 51, 64 (1979)¢

Petitioner’s expansive regulatory taking theory also

conflicts with the general presumption in favor of the

constitutionality of legislative action, which is rooica in

the doctrine of separation of powers and the general rule

that matters of social policy should be decided by the

® It is sometimes asserted that an expansive reading of the

Takings Clause does not intrude upon the legislative sphere

because the clause is concerned not with whether the

government can proceed with its programs, but instead with

whether the government must pay “compensation” as a

condition of doing so. This argument is pure sophistry. First, to

require the government to pay in order to regulate

fundamentally alters the intended character of the

governmental action, from a restriction on use to a purchase of

property. Second, as a practical matter, government,

particularly at state and local levels, could not conceivably pay

for every effect specific regulatory actions have on property

values; thus a broad “compensation” requirement would have a

direct and immediate effect on the permitted scope of legislative

action. See Eastern Enterprises v. Apfel, 524 U.S. 498, 542 (1998)

(Kennedy, J, concurring in the judgment and dissenting in part)

(expansive regulatory takings liability could “subject[ ] States

and municipalities to the potential of new and unforeseen

claims in vast amounts”). See generally J. Peter Byrne, Regulatory

Takings and “Judicial Supremacy”, 51 Ala. L.Rev. 949, 954 (2000).

23

people’s elected representatives. See Eastern Enterprises v.

Apfel, 524 U.S. 498, 524 (1998) (quoting Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976)) (“[L]egisla-

tive [a]cts adjusting the burdens and benefits of economic

life come to the Court with a presumption of constitu-

tionality.”). In a well known commentary on the judici-

ary’s use of constitutional checks on majoritarian

decision-making, then future Supreme Court Justice

Robert Jackson wrote:

[Electoral majorities] should, of course, be so

restrained when [their] program violates clear

and explicit terms of the Constitution, such as

the specific prohibitions in the Bill of Rights. But

to use vague clauses to import doctrines of

restraint, such as “freedom of contract,” is to set

up the judiciary as a check on elections, a nulli-

fication of the process of government by consent

of the governed.

Robert H. Jackson, The Struggle for Judicial Supremacy 319

(1941). More recently, Justice Scalia described the dangers

of what he termed an “Imperial Judiciary” making consti-

tutional decisions relating to abortion based on “philo-

sophical predilections and moral intuitions” about issues

properly left to the political process. He concluded:

[B]y foreclosing all democratic outlet for the

deep passions this issue arouses, by banishing

the issue from the political forum that gives all

participants, even the losers, the satisfaction of a

fair hearing and an honest fight, by continuing

the imposition of a rigid national rule instead of

allowing for regional differences, the Court

merely prolongs and intensifies the anguish.

24

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 1002 (1992) (Scalia, J., dissenting).

An expansive regulatory takings doctrine risks the

same kind of judicial intrusion into legislative decision-

making that characterized the application of Due Process

principles during the ill-fated era of Lochner v. New York,

198 U.S. 45 (1905). See Eastern Enterprises v. Apfel, 524 U.S.

498, 537 (1998) (O’Connor, J., plurality opinion) (noting

that “this Court has expressed concerns about using the

Due Process Clause to invalidate economic legislation,”

citing Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), and

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488

(1955)). The risk would not be reduced by substituting

the takings label for the due process label. Cf. Id. at 544

(Kennedy, J. concurring in the judgment and dissenting in

part) (“If the plurality is adopting its novel and expansive

concept of a taking in order to avoid making a normative

judgment about the Coal Act, it fails in the attempt; for it

must make the normative judgment in all events.”)”

In sum, petitioner’s expansive theory would require

this Court to routinely second-guess the fairness of legis-

lation enacted by state and local governments and cannot

be squared with the traditional function of the judicial

branch under our system of separation of powers.

7 In Florida Rock Industries, the Federal Circuit, responding

to the criticism that the Circuit's “partial taking” theory was too

expansive, stated that, “What is necessary is a classic exercise of

judicial balancing of competing values.” Id. at 1570. Within our

constitutional system, the task of balancing competing values

belongs to the legislature, not the courts.

25

D. “Givings” and “Reciprocity of Advantage” Sup-

port Use of a Single Basic Takings Test.

The partial regulatory taking theory also must be

rejected because it fails to take into account either how

regulatory programs confer a “reciprocity of advantage”

upon property owners or governmental “givings”. Con-

sideration of these factors demonstrates that the partial

regulatory taking theory is unnecessary to correct any

systematic unfairness to landowners and that adoption of

the partial taking theory would result in unfair windfalls

to landowners at taxpayer expense.

The term “reciprocity of advantage,” coined by Jus-

tice Holmes, refers to the benefits property owners

receive from regulatory programs, both in their status as

regulated owners and as members of society as a whole.

As the Supreme Court stated in Agins, property owners

“share with other owners the benefits and burdens of the

city’s exercise of its police power.” In assessing the “fair-

ness” of exercises of the police power, “these benefits

must be considered along with any diminution in market

value that the [owners] might suffer.” 447 U.S. at 262; see

also Andrus v. Allard, 444 U.S. at 67 (taking claim failed

because the restriction was “a burden borne to secure the

advantage of living and doing business in a civilized

community”); Keystone Bituminous Coal, 480 U.S. at 491:

Under our system of government, one of the

State’s primary ways of preserving the public

weal is restricting the uses individuals can make

of their property. While each of us is burdened

somewhat by such restrictions, we, in turn, ben-

efit greatly from the restrictions that are placed

on others.

26

In addition to the phenomenon of reciprocity of

advantage, governmental “givings” also should be con-

sidered in weighing the ostensible fairness arguments on

behalf of the partial regulatory taking theory. Public

funding of construction of schools, roads, sewers, and

other public facilities contribute significantly to the value

of land. While all taxpayers contribute to these givings,

particular landowners often receive disproportionate

benefits from these public investments.

Given regulation’s reciprocal effects and the per-

vasiveness of governmental givings, awarding compensa-

tion based on partial reductions in value would run a

high risk of “compensating” an owner for an injury that,

in a fundamental sense, did not occur Advocates of an

expansive view of takings often rest their arguments on

notions of fundamental “fairness.” However, a compre-

hensive and accurate picture of how governmental

actions actually affect property values rebuts this argu-

ment.

E. The Practical Need for Bright Line Legal Tests

Supports Use of The Single Basic Takings Test.

Finally, petitioner's “partial” takings theory must be

rejected because of the need for the courts to draw clear

and predictable lines in order for the rule of law to be

able to function at all. The rule that a regulation must

eliminate all reasonable use satisfies this need /because it

identifies a relatively discrete and fairly easily identified

set of cases. If the law were otherwise, and if a taking

could be established merely by showing that a regulation

has gone “too far,” or that the owner has suffered a

27

“substantial” loss, the law of takings would be a highly

unpredictable morass, for landowners and government

officials alike.

The importance of bright line rules in regulatory

takings doctrine is confirmed by the Court's decision in

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

(1982). In that case, the Court justified the adoption of a

“per se” rule for “permanent physical occupations” of

private property on the ground that it “avoids otherwise

difficult line-drawing problems.” 458 U.S. at 436. The

Court said that a per se physical-occupation takings rule,

even if somewhat over-broad, is justified because it “pre-

sents relatively few problems of proof,” id. at 437, and

avoids the need for intensive examination of the facts of

each particular case.

In the same fashion, confining regulatory takings

doctrine to the total-loss case also avoids difficult line-

drawing problems. Even if there were some occasional

alleged “partial” takings that seemed to call out for a

judicial remedy, the impulse to address these claims has

to be considered in light of the advantages, for the regu-

lated and the regulator alike, of a clear and well-defined

legal line. Just as the Court’s rule for physical occupa-

tions is somewhat over-inclusive, the requirement that a

regulation eliminate all reasonable economic use might be

viewed by some as under-inclusive. But for the rule of

law to prevail, the law needs to speak in clear and unmis-

takable terms. See generally Antonin Scalia, The Rule of

Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989); cf.

National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe

28

Ry. Co., 470 U.S. 451, 477 (1985) (observing that the Con-

stitution does not require that Congress “select the

scheme that a court later would find to be the fairest”).

Professor Frank Michelman’s seminal article, Prop-

erty, Utility, and Fairness: Comments on the Ethical Founda-

trons of “Just Compensation” Law, 80 Harv. L. Rev. 1196

(1967), contains language which speaks eloquently to the

need for takings doctrine to include clear legal rules. In

his article, which probably has been cited more fre-

quently by the Court than any other work on this subject,

Michelman surveyed at great length the various factors

that he thought relevant to analyzing the fairness issues

at the heart of a taking case. In the concluding section of

his article, Professor Michelman cautioned that a free-

wheeling analysis of fairness along the lines he outlined

was unlikely to supply a suitable judicial standard. In a

passage strikingly relevant to the issue now before this

Court, he wrote:

This is not to say that courts cannot usefully be

put to work deciding at least some compen-

sability issues. It is rather to suggest abandon-

ment of any idea that courts can or will decide

each compensability case directly in accordance

with the precept of fairness. Hence, we need to

search instead for some workable, impersonal

rule believed to approxirnate in a useful propor-

tion of cases the same result that fairness would

dictate. But if that is our choice (or our preferred

description of what actually takes place) it is of

the utmost importance that we clearly and

frankly acknowledge it. The danger here is one

of behaving as if courts were doing the whole

job when the truth is that they are attentive only

29

to “hard core” or “automatic” cases. To illus-

trate: a utilitarian approach to the problem

might suggest a judicial rule that compensation

is due only when there has been either (a) a

physical occupation or (b) a nearly total destruc-

tion of some previously crystallized value which

did not originate under clearly speculative or

hazardous conditions. Such a rule would be

workable; it would be internally consistent; and

it would be ethically inoffensive as far as it goes.

True, its cut-off points are arbitrary, and it com-

pletely disregards some significant but less dis-

cussable dimensions of fairness. But these

attributes in the rule would merely reflect its

function as a rule for courts to use in the partial

performance of a task for which judicial capa-

bilities are not fully adequate.

80 Harv. L. Rev. at 1250-51. Professor Michelman articu-

lates a practical understanding of how the law must

translate notions of fairness into a bright-line test and

provides powerful support for the Court's traditional test

requiring the elimination of all reasonable economic use

of the property.

30

CONCLUSION

For the foregoing reasons, the Board urges the Court

to affirm the judgment of the Rhode Island Supreme

Court.

January 3, 2001.

Respectfully submitted,

MicHaet A. GOLDMAN*

Jerrery P. Rossins

GOLDMAN, Rossins & Rocers, LLP

850 Main Avenue

Durango, Colorado 81301

(970) 259-8747

“Counsel of Record for Amicus Curiae