Petition for Writ of Certiorari — Hunziker v. Iowa

Supreme Court, U.S.

FILE D

94107 7 DEC 19 19%

OFFICE OF THE CLERK

No. 94-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

ERBEN A. HUNZIKER, DONALD M. FURMAN,

R. FRIEDRICH AND SONS, INC. and

BUCK CONSTRUCTION COMPANY, INC.

Petitioners,

VS.

STATE OF IOWA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

PETITION FOR WRIT OF CERTIORARI

ROBERT W. GOODWIN

of GOODWIN LAW OFFICE, P.C.

311 W. Lincoln Way, Suite |

Ames, Iowa 50010-3317

(515) 232-7390

Attorney for Petitioners

ERBEN A. HUNZIKER, DONALD M. FURMAN,

R. FRIEDRICH AND SONS, INC. and

BUCK CONSTRUCTION COMPANY, INC.

i

QUESTIONS PRESENTED

This case presents questions which involve this Court’s

decision in Lucas v. South Carolina Coastal Council and

related cases.

1. Whether a regulatory taking occurs when, but not until,

the implementation of an enabling statute impacts property to

the extent that all of its economically viable use is taken.

2. Whether there is a difference between an enabling

statute that may be implemented in the future to regulate

property, and a statute that immediately and directly regulates

property.

3. Whether a property owner’s right to compensation under

the Fifth Amendment is transferable.

il

PARTIES TO THE PROCEEDING

The parties to the proceeding are listed in the caption.

RULE 29.1 STATEMENT

R. Friedrich and Sons, Inc. and Buck Construction Company,

Inc. are corporations but are not parent nor subsidiary

corporations.

tainly

iil

TABLE OF CONTENTS

Page

Pye 6 Bo is iy)! )

PARTIES TO THE PROCEEDING .............: il

pp Rs byt gy |. re vi

ee ee I

Ce ee ee ee ee ee ee |

CONSTITUTIONAL PROVISIONS .............. 2

SiAtemen. OF THE CASE .......c cece ceees 2

REASONS FOR GRANTING THE WRIT .......... 5

iv

ogi ee) reer sere a eer ee ree re ee

I. AMPLIFICATION IS NEEDED TO CLARIFY

AND CONFIRM THE RULE THAT A

REGULATORY TAKING OCCURS WHEN,

BUT NOT UNTIL, THE IMPLEMENTATION

OF AN ENABLING STATUTE IMPACTS

PROPERTY TO THE EXTENT THAT ALL OF

ITS ECONOMICALLY VIABLE USE IS

A. The lower court’s failure to recognize

that a regulatory taking occurs at the

point of time that, but not until, the

government action impacts the property

to the extent that all economical use is

taken is in conflict with previous

decisions of this Court ................

B. The lower court’s ruling is contrary to

previous decisions of this court

concerning the taking date, ripeness

and when an action for inverse

condemnation accrues................

8

eer pe tre to

Page

Il. A RULE IS NEEDED TO ESTABLISH THAT

THERE IS A DIFFERENCE BETWEEN A

STATUTE THAT IMMEDIATELY AND

DIRECTLY REGULATES PROPERTY AND AN

ENABLING STATUTE THAT MAY IN THE

FUTURE BE IMPLEMENTED TO REGULATE

kg Pa Eh Ere rire Cane 21

(iI. THISCOURT SHOULD ACKNOWLEDGE THE

RIGHT TO ASSIGN AN _ INVERSE

CONDEMNATION CLAIM ............... 23

aN is tas Fees de eek ee 25

APPENDIX A

PUBLISHED OPINION, SUPREME COURT OF

IOWA, ERBEN A. HUNZIKER, ET AL. VS.

STATE OF IOWA, 519 N.W.2d 367 (IOWA

1994), FILED JULY 27, 1994 ............ Al

APPENDIX B

OPINION ON REHEARING, SUPREME

COURT OF IOWA, FILED SEPTEMBER 21,

POE io ice eo he Oe A ee Bl

vi

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 261,

100 S.Ct. 2138,

ee eer eee ee ree ree 17

Armstrong v. United States, 364 U.S. 40,

80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) ........ 25

Baines v. Blenderman, 223 N.W.2d 199

SE i sc eo hee Nao ee ee aes Ss 20

Brown v. Ellison, 304 N.W.2d 197

EE ie ON-5 0 ee eo ee eae 20

First English Evan. Luth. Ch. v. Los

Angeles Cty., 482 U.S. 304,

96 S.Ct. 2378,

em © Tt err 6, 9, 19, 25

Formanek v. United States, 26 Ct.Cl. 332 (1992) .... 22

Hodel v. Virginia Surface Mining and

Reclamation Association, Inc.,

452 U.S. 264, 101 S.Ct. 2352,

GP Lae DRIMEE) 6 cece cccsss 6. So t7, 22.25

Hunziker & Furman, et al. v. State,

SEP Wes ae CD bn wo 5 8h 4 ie eae ween 4

Vii

Page

Jacobs v. United States, 290 U.S. 13,

eto me & ee Se Fi. 24

Keytone Bituminous Coal Ass’n v. DeBenedicts,

480 U.S. 470, 107 S.Ct. 1232,

94 L.Ed.2d 472 (1987) ...... 6S ti, th ee a

Kintzel v. Wheatland Mutual Insurance,

203 N.W.2d 799 (lowa 1973) ............05.% 23

Lucas v. South Carolina Coastal Council,

505 USS. , 112 S.Ct.

2886, 120 L.Ed.2d

We Nix wie wo 60s 0k ee 4-9, 12, 13, 17, 21, 25

MacDonald, Sommer and Frates v. Yolo

County, 477 U.S. 340, 106 S.Ct.

2561, 91 L.Ed.2d 285 (1986) ... 6, 9, 15-18, 22, 25

Milluright v. Romer, 322 N.W.2d 30

(lowa 1982) ...... RDN eA Paes oe ae ee 20

Padzensky v. Kinzebaw, 343 N.W.2d 467

I a a So an dol wibcw ew 4 23

Spiller v. Atchison T. & S.F.R. Co.,

253 U.S. 117, 64 L.Ed. 810,

oe EET ee TT eee Tee 23

Vill

Page

United States v. Clarke, 445 U.S. 253,

100 S.Ct. 1127, 63 L.Ed.2d 373

SEY Sires Sas CP ree koa eR 24

Vacura v. Plott, 666 F.2d 1200

SI ara a a sk an a oe Reo ae 20

Wiere v. The City of Davenport and

Plummer, 11 Iowa 49 (1860) .............. 23

Williamson County Regional Planning

v. Hamilton Bank, 473 U.S.

172, 105 S.Ct. 3108,

87 L.Ed.2d 126 (1985) ....6, 9, 15, 17, 18, 22, 25

Statutes

ee Se ee es oe ee eo eee l

Section 263B.7, Code of lowa ............. eee. 2

section 2630.8, Coase OF BOWE ccc cece teeen 2

Section 263B.9, Code of lowa .................. 2

Section 614.1(4), Code of lowa ................ 18

Section 716.5(2), Code of lowa ...........cccce- 2

Page

Constitution

United States Constitution

Fifth Amendment .... 1, 2, 5, 7, 12, ie 19, 22, 24

Fourteenth Amendment ........... Aaa io

Other Authorities

6 AmJur2d Assignments §§23-26 ............... 23

6 AmJur2d Assignments §§41 and 44 ............ 23

GA C.5.5. Asspmments $19... ccc ccc eee 23

6A C.J.S. Assignments §39 ................... 23

54 C.J.S. Limitation of Actions §176............. 19

l

PETITION FOR WRIT OF CERTIORARI

The Plaintiffs respectfully pray that a Writ of Certiorari

issue to review a decision of the Iowa Supreme Court.

OPINIONS BELOW

The Iowa Supreme Court issued its decision on July 27,

1994. (App. A) The Iowa Supreme Court denied

Petitioners’ request for rehearing of the case on September

21, 1994. (App. B)

JURISDICTION

This case involves the regulatory taking of a lot suitable

for construction of a single family residence, which use the

State of Iowa by and through its state archaeologist has

prohibited and thereby has taken all economically viable use

of the property.

The Petitioners sought relief under the Fifth and

Fourteenth Amendments to the United States Constitution

from the Iowa District Court on the basis that the

governmental action was a regulatory taking of their property

without just compensation. The federal questions were thus

raised at the earliest opportunity and were briefed and argued

in all Iowa Courts.

The District Court denied the Petitioners compensation.

That decision was timely appealed to the lowa Supreme

Court which also denied compensation to the Petitioners. A

timely petition for rehearing was denied by the Iowa

Supreme Court on September 21, 1994. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §1257.

2

CONSTITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution:

". . , nor shall private property be

taken for public use, without just

compensation.”

Fourteenth Amendment, United States Constitution:

"Section 1. . . . nor shall any State

deprive any person of life, liberty, or

property without due process of law;

"

STATEMENT OF THE CASE

In 1976 the Iowa Legislature passed Ancient Human

Remains statutes’ that enable the state archaeologist, after

making a significant find, to either (a) have the remains

removed and reinterred in a cemetery established specifically

for that purpose or (b) refuse permission to remove and

reinter the remains and thereby prohibit the use of the

property that would in any way disturb the remains.

‘Section 263B.7 Code of lowa, authorizes the state archaeologist to

investigate, preserve and reinter discoveries of ancient human remains

more than 150 years old. Section 263B.8 Code of Iowa, establishes a

cemetery for reburial of ancient human remains found in the state.

Section 263B.9 Code of Iowa, authorizes the state archaeologist to deny

permission to disinter ancient human remains. Section 716.5(2) Code of

lowa, makes it a criminal offense to disinter ancient human remains that

have been designated as a significant find by the state archaeologist.

3

On May 1, 1990, the Plaintiffs home builders sold Lot

15’ to Dr. Jon Fleming for him to construct a family

residence. In April, 1991, just prior to excavation for the

basement of Dr. Fleming’s house, an unknown individual had

the state archaeologist probe for ancient human remains. In

one of twelve probes the state archaeologist found an

approximately one cubic inch of human vertebrae and three

other small fragments of vertebrae surfaces plus five tiny

unidentifiable fragments. The state archaeologist thereupon

designated a 34 foot diameter burial mound with a 50 foot

buffer zone around that as a “significant find" under the

Ancient Remains Statute of the Code of Iowa on Lot 15, and

warned Dr. Fleming in a letter dated April 30, 1991, of the

criminal penalties concerning disinterment of the remains. It

is uncontroverted that prior to the action of the state

archaeologist making a significant find that neither the

Plaintiffs nor Dr. Fleming had any idea or indication that

ancient human remains might exist on Lot 15.

The Plaintiffs thereupon refunded Dr. Fleming his

purchase price of the lot plus his architectural fees involved

with the lot. Dr. Fleming in turn conveyed back and

assigned to the Plaintiffs in a Quit Claim Deed all his right,

title, interest, estate, claim and demand in Lot 15. This was

done by the Plaintiffs as a normal and proper business act of

good will.

The Plaintiffs then offered to the state archaeologist that

they would move the mound and its remains, at their

expense, to a site in a wooded city park, which the state

archaeologist refused to allow. The state archaeologist also

*Lot 15 of the Second Addition to Northridge Parkway Subdivision,

Ames, lowa.

4

refused to disinter the ancient human remains and reinter

them in the special cemetery established under the Code of

Iowa for reburial of ancient human remains.

There is no dispute in this case that a regulatory taking

has occurred. There is no dispute in this case that all

economically viable use of the property in question has been

taken.’ The dispute in this case is whether the Plaintiffs

should be precluded from receiving just compensation for this

regulatory taking.

The majority decision of the lowa Supreme Court in a

split decision‘ cited the Lucas case’ as authority to deny the

Plaintiffs just compensation since Lot 15 was purchased after

the passage of these enabling statutes’ in 1976 and 1978.

The majority decision cited the Lucas case as authority for its

holding that all property owners who purchase their property

after the passage of the Ancient Human Remains statutes in

1976 and 1978 are precluded from receiving just

compensation for a taking under these statutes.

The only economically viable use of Lot 15, the construction of a

family residence, was taken. The market value of Lot 15 was reduced

from $59,000 to $100 by the regulatory action of the state archeologist.

The majority and dissenting opinions of the lower court recognized that

there was a regulatory taking in this case. The majority opinion states

that "there was no fact issue on the issue of taking.” The dissenting

opinion stated that "The prohibition by the State of lowa from using the

burial mound in the instant case is a complete taking because there is no

practical use of it left to the Plaintiffs."

“Hunziker & Furman, et al. v. State, 519 N.W.2d 367 (1994).

‘Lucas v. South Carolina Coastal Council, 505 U.S. , 112 S.Ct.

2886, 120 L.Ed.2d 798 (1992).

*The term enabling statute is defined in the text on pages 6-7.

5

The dissenting opinion of the lowa Supreme Court ruled

that the Lucas case supports the Plaintiffs’ claim for just

compensation. It recognized that the mere passage of these

enabling statutes do not constitute a taking. It held that the

regulatory taking occurred at the point of time that the

governinent implemented these statutes against Lot 15 which

impacted the property to the extent that all economically

viable use of the property was taken. It ruled that under the

authority of the Lucas case the Plaintiffs are entitled to just

compensation for this regulatory taking.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

The majority decision of the lower court misconstrued

and misapplied the rulings of this Court in Lucas, and other

previous cases, to preclude these Plaintiffs from receiving just

compensation for a regulatory taking of their property. The

majority decision of the lower court incorrectly held that the

Lucas case is authority for its ruling that any property owners

who purchase property after the passage of an enabling

statute, but before its implementation, are precluded from

receiving just compensation for a regulatory taking of their

property. This lower court decision, unless reversed, will bar

all property owners in the State of Iowa from ever receiving

just compensation for a taking under these Ancient Human

Remains statutes. Further, This lower court decision, unless

reversed, will be used as authority, contrary to the Lucas

case, to improperly preclude property owners from receiving

just compensation guaranteed to them by the Fifth

Amendment.

6

The lower court decision in this case is in conflict with,

and contrary to, the rulings of this Court in not only Lucas

v. South Carolina Coastal Council’; but also in Keystone

Bituminous Coal Ass’n v. DeBenedicts*; Hodel v, Pye

Surface Mining and Reclamation Associati lon, Inc.”,

English Evan. Luth. Ch. v. Los Angel es Cty.,'° “Boar

Sommer_and Frates_v. Yolo County", and Williamson

County Regional Planning v. Hamilton Bank'’, which all

rule that a taking occurs when, but not until, the

governmental action in question impacts a property to the

extent that all economically viable use is taken.

Amplification from this Court is needed to clarify and

confirm the rule that a regulatory taking occurs at the point

of time, but not until, an enabling statute is implemented by

a final decision that impacts a property to the extent that all

economically viable use of the property is taken. The term

enabling statute, as used herein, encompasses a statute or

’Lucas v. South Carolina Coastal Council, 505 U.S. , 112 S.Ct.

2886, 120 L.Ed.2d 798 (1992).

*Keytone Bituminous Coal Ass’n v. DeBenedicts, 480 U.S. 470, 107

S.Ct. 1232, 94 L.Ed.2d 472 (1987).

*Hodel v. Virginia Surface Mining and Reclamation Association, Inc.,

452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981).

First English Evan. Luth. Ch. v. Los Angeles Cty., 482 U.S. 304,

96 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

''MacDonald, Sommer and Frates v. Yolo County, 477 U.S. 340, 106

S.Ct. 2561, 91 L.Ed.2d 285 (1986).

Williamson County Regional Planning v. Hamilton Bank, 473 U.S.

172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

7

decree which is not self-executing, but is implemented and

impacts the land by the regulatory action of a governmental

agency, board, administrator, etc. The dissenting opinion of

the lower court correctly recognized the Lucas case as

authority entitling these Plaintiffs to just compensation from

the regulatory taking by the state archaeologist implementing

the Ancient Human Remains statute against Lot 15.

Guidance from this Court is needed to establish a rule

recognizing the difference between an enabling statute and a

statute that directly regulates property.

Finally, both the majority and dissenting opinions

recognize that Dr. Fleming assigned Plaintiffs his rights to

compensation due to inverse condemnation. Thus, this case

also presents the question of whether a property owner’s right

to compensation under the Fifth Amendment is transferable

as one of the "bundle of rights" that accompanies the sale of

property. This Court’s guidance is needed to answer this

question in the affirmative.

I. AMPLIFICATION IS NEEDED TO CLARIFY

AND CONFIRM THE RULE THAT A

REGULATORY TAKING OCCURS WHEN,

BUT NOT UNTIL, THE IMPLEMENTATION

OF AN ENABLING STATUTE IMPACTS

PROPERTY TO THE EXTENT THAT ALL

OF ITS ECONOMICALLY VIABLE USE IS

TAKEN

The Lucas case does not establish a rule, as the lower

court has incorrectly fashioned, that if an enabling statute is

passed prior to the purchase of a parcel of land the purchaser

is precluded from receiving just compensation for a

8

regulatory taking of that land. The Lucas case instead

provides that a landowner is to receive just compensation for

a newly legislated or decreed regulatory taking. The Lucas

case implies, but does not specifically state, the rule that

when an enabling statute is implemented, the regulatory

taking occurs at the time the statute is implemented.

Amplification is needed to clarify and confirm the rule that

when an enabling statute is implemented, the regulatory

taking occurs at that point of time since it is at that point of

time that all economically viable use and/or investment

backed expectations in the land are taken.

A. The lower’ court’s failure’ to

recognize that a regulatory taking

occurs at the point of time that, but

not until, ihe government action

impacts the property to the extent

that all economical use is taken is in

conflict with previous decisions of

this Court

It is clear in this case that the regulatory action of the

state archaeologist prohibiting the use of Lot 15 for the

construction of a family residence has taken all the |

economically viable use of that lot. There has been a |

regulatory taking of Lot 15 in this case from the impact of

the regulatory action of the state archaeologist refusing

permission to rebury the ancient human remains elsewhere. ,

However, in spite of the Lucas decision which held that the |

constitutional guarantee of just compensation includes |

regulatory takings, the majority decision of the lowa Supreme |

Court denied these Plaintiffs just compensation.

—_—

9

The majority decision of the lower court misconstrued

the Lucas case and improperly denied these Plaintiffs just

compensation on the basis that the Iowa Statutes in question

were passed before Lot 15 was purchased. The lower court

erred in holding that any taking under these Ancient Human

Remains statutes occurred when they were passed in 1976

and 1978. The regulatory taking occurred in this case in

1991 when these statutes were implemented.

The majority decision of the lower court is contrary to,

and in conflict with, the Lucas, Keystone, Hodel, First

English, MacDonald, and Williamson County cases which

establish the rule that the mere passage of a statute does not

constitute a taking, and that there is no taking until a final

decision applies the statutes in question against the property

and impacts the property to the extent that all its

economically viable use is taken.

The Hodel case involved a preenforcement challenge to

a regulatory statute, which can properly be characterized as

an enabling statute. This Court recognized that the "taking"

question is done on essentially an ad hoc basis when there is

an actual taking. (Emphasis Added.) This Court recognized

that the mere enactment of an enabling statute does not in

and of itself constitute a taking. It was also recognized that

a taking occurs at the time when the owner is denied the

economically viable use of his property. This Court stated as

follows:'°

Because appellees’ taking claim arose in the

context of a facial challenge, it presented no con-

crete controversy concerning either application of

the Act to particular surface mining operations or

"452 U.S. at 296 and 297, 101 S.Ct. at 2370 and 2371.

10

its effect on specific parcels of land. Thus, the

only issue properly before the District Court and,

in turn, this Court, is whether the "mere

enactment" of the Surface Mining Act constitutes

a taking. See Agins v. Tiburon, 447 U.S. 255,

260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106

(1980). The test to be applied in considering this

facial challenge is fairly straightforward. A

statute regulating the uses that can be made of

property effects a taking if it "denies an owner

economically viable use of his land... ." Agins

v. Tiburon, supra, at 260, 100 S.Ct., at 2141. See

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

U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

The Surface Mining Act easily survives scrutiny

under this test.

First, the Act does not, on its face, prevent

beneficial use of coal-bearing lands. Except for

the proscription of mining near certain locations

by § 522(e), the Act does not categorically

prohibit surface coal mining; it merely regulates

the conditions under which such operations may

be conducted. The Act does not purport to

regulate alternative uses to which coal-bearing

lands may be put. Thus, in the posture in which

these cases comes before us, there is no reason to

suppose that "mere enactment" of the Surface

Mining Act has deprived appellees of

economically viable use of their property.

1]

The Keystone case also involved a facial constitutional

challenge to an enabling statute where it was again

recognized that the mere passage of a statute does not in and

of itself constitute a taking, and that a taking does not occur

until the point of time that the government regulation impacts

the property to the extent that all economically viable use is

taken. This Court stated as follows:"

The posture of the case is critical because we have

recognized an important distinction between a

claim that the mere enactment of a statute

constitutes a taking and a claim that the particular

impact of government action on a specific piece

of property requires the payment of just

compensation. This point is illustrated by our

decision in Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct.

2352, 69 L.Ed.2d 1 (1981), in which we rejected

a preenforcement challenge to the constitu-

tionality of the Surface Mining Control and

Reclamation Act of 1977.

Likewise, the lowa Ancient Human Remains statutes in

question, on their face, do not immediately or directly

regulate Lot 15. A family dwelling could have been

constructed on Lot 15 anytime before the state archaeologist

made a significant find and denied permission to rebury the

remains in the special cemetery established for that purpose.

If the state archaeologist had determined the find was not

significant, a family dwelling could have been constructed on

'*480 U.S. at 493, 107 S.Ct. at 1246.

12

Lot 15. If the state archaeologist had aliowed the ancient

human remains to be reburied in the special cemetery

established for that purpose, a family dwelling could have

been constructed on Lot 15.

When the Ancient Human Remains statutes in question

were passed, no landowner in the entire state had any notice

whether the statutes applied to their property, and there was

no way of knowing whether the state archeologist would

grant or deny permission to disinter and rebury any ancient

human remains if and when the statutes were applied to their

property. It is not until the state archaeologist takes the

regulatory action under the enabling statutes in question of

denying permission to rebury the ancient human remains in

the special cemetery established for that purpose, that a

regulatory taking occurs under these Ancient Human Remains

statutes. The regulatory taking, in this case, occurred after

the purchase of Lot 15. The regulatory taking, in this case,

therefore, comes within the purview of the Lucas case which

entitles these Plaintiffs to just compensation for the regulatory

action of the state archaeologist newly decreeing the denial

of permission to rebury the ancient human remains.

The Lucas case recognized that the "Fifth Amendment

is violated when land use regulation . . . ‘denies an owner

economically viable use of his land"'’ (Emphasis Added.)

It was further stated "We think, in short that there are good

reasons for our frequently expressed belief that when the

owner of real property has been called upon to sacrifice all

economically beneficial uses in the name of the common

''505 US. at , 112 S.Ct. at 2894.

13

good, that is, to leave his property economically idle, he has

suffered a taking."'° (Emphasis Added.)

The Lucas case states that any limitation so severe that

it prohibits all economically beneficial use of land cannot be

"newly legislated or decreed" without compensation.'? The

majority decision of the lower court erred in failing to

recognize that the implementation of the Ancient Human

Remains statutes against Lot 15 was a newly decreed

regulatory taking. The dissenting opinion of the Iowa

Supreme Court correctly found that the implementation of the

Ancient Human Remains statute against Lot 15 was a newly

decreed regulatory taking for which the Plaintiffs are entitled

to just compensation under the Fifth Amendment pursuant to

the Lucas case.

The thoughtful and expressive dissenting opinion of the

Iowa Supreme Court states as follows:

The prohibition by the State of Iowa from using

the burial mound in the instant case is a complete

taking because there is no practical use of it left to

the plaintiffs. It is more insidious than zoning

laws that we have held to effect a taking when

they deny the economically viable use of the land.

See Against v. City of Tiburon, 447 U.S. 255,

260, 100 S. Ct. 2138, 2141, 65 L.Ed. 2d 106, 112

(1980); Osborn _v. City of Cedar Rapids, 324

N.W.2d 47, 474 (lowa 1982); Woodbury County

Soil Conservation Dist. v. Ortner, 279 N.W.2d

276, 278 (Iowa 1979). It is pernicious because

'°505 U.S. at , 112 S.Ct. at 2895.

"505 US. at , 112 S.Ct. at 2900.

14

there is virtually no notice to a landowner of the

State’s claim and no opportunity to review the

yovernment action or appeal to the courts.

The Iowa statutes cited as preventing full

ownership of land containing a burial mound give

no notice of the State’s inchoate claim of

authority to deny compensation while prohibiting

use. See Iowa Code §§ 263B.7, 263B.9, and

716.5(2) (1993). Nor do they state or even imply

that land with a burial mound bears a perpetual

cloud on the title removable only by authority of

the state archaeologist. Section 305A.9, giving

the state archaeologist authority to deny

permission to disinter human remains, is not a

self-executing statute creating a covenant running

with the land. By its own terms the statute is

implemented only by an application for

permission to disinter. Moreover, there is no

indication from the language of these statutes that

the legislature intended to take property for

historical or scientific inspiration without paying

for it.

In this case, a dead bones doctrine has risen from

the soil, like a phoenix, to consume the live

marrow of land ownership. The history

surrounding these ancient bones should be

preserved by granting compensation for its

resurrection.

15

The date when an enabling statute is passed is not the

significant date of concern when considering a regulatory

taking. The significant date of concern under an enabling

statute is the date that the regulatory action of the

government implements the statute to impact upon the

property to the extent that there is a substantial interference

with investment backed expectations, and/or when the owner

is deprived of all economically viable use of the property.

B. The lower court’s ruling is contrary

to previous decisions of this court

concerning the taking date, ripeness

and when an action for inverse

condemnation accrues.

The majority decision of the Iowa Supreme Court in

this case is contrary to the taking date, ripeness and accrual

of action rules established by this Court. The majority

decision of the lower court incorrectly would require a

property owner to challenge these Ancient Human Remains

statutes at the time they were passed, regardless of whether

they have been or ever will be applied to a particular

property. The MacDonald and Williamson County cases hold

in reference to a regulatory taking that a taking has not

occurred, and a case is not ripe for judicial review, until the

government makes a final decision and thereafter fails to

provide adequate compensation for the taking.

16

This Court in the MacDonald case'® held as follows:

A court cannot determine whether a regulation has

gone "too far" unless it knows how far the

regulation goes. Id. at 106 S.Ct. 2566. Until a

property owner has "obtained a final decision

regarding the application of the zoning ordinance

and subdivision regulations to its property," "it is

impossible to tell whether the land retain[s] any

reasonable beneficial use or whether [existing]

expectation interests ha[ve] been destroyed."

Williamson Planning Comm’n v. Hamilton Bank,

473 U.S. 172, 186, 190, n. 11, 105 S.Ct. 3108,

3116, 3118, n. 11, 87 L.Ed.2d 126 (1985). Id. at

106 S.Ct. 2566.

("[T]he State’s action here is not ‘complete’ until

the State fails to provide adequate compensation

for the taking" (footnote omitted)). Id. at 106

S.Ct. 2566.

Our cases uniformly reflect an insistence on

knowing the nature and extent of permitted

development before adjudicating the

constitutionality of the regulations that purport to

limit it. Id. at 106 S.Ct. 2567.

'SMacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106

S.Ct. 2561, 91 L.Ed.2d 285 (1986).

17

This Court in the Williamson County case'? held as

follows:

As the Court has made clear in several recent

decisions, a claim that the application of

government regulations effects a taking of a

property interest is not ripe until the government

entity charged with implementing the regulations

has reached a final decision regarding the

application of the regulations to the property at

issue. In Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct.

2352, 69 L.Ed.2d 1 (1981), for example, the

Court rejected a claim that the Surface Mining

Control and Reclamation Act of 1977, 91 Stat.

447, 30 U.S.C. §1201 et seq., effect a taking...

Id. at 105 S.Ct. 3116-3117.

The MacDonald and Williamson County cases, while

recognizing that a taking does not occur until the point of

time that all economically viable use and/or all investment

backed expectations are taken, also spoke of ripeness for

judicial consideration as did the Lucas case.”? Under the

rulings of this Court in the Lucas, Keystone, Hodel, Agins”',

'°Williamson County Regional Planning v. Hamilton Bank, 473 U.S.

172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

°Lucas v. South Carolina Coastal Council, supra, at 112 S.Ct. 2891.

*" Agins v. City of Tiburon, 447 U.S. 261, 100 S.Ct. 2138, 65 L.Ed.2d

106 (1980).

18

MacDonald, and Williamson County cases, a Plaintiff's claim

is ripe, and a regulatory taking has occurred when, but not

until, the government makes a final decision that takes all

economically viable use of the property and fails to

compensate the Plaintiff for the taking. The final decision of

the State in this case did not occur until 1991 when the state

archaeologist refused to disinter and rebury the ancient

human remains. At that time in 1991, but not until then, was

the case ripe for review or was there a taking. The majority

decision of the lowa Supreme Court erred in failing to find

that the taking in this case occurred in 1991 which entitles

these Plaintiffs to just compensation.

The majority decision of the Iowa Supreme Court

incorrectly established 1978 as the date of ripeness and the

date of taking, based on the premise that the Ancient Human

Remains statutes were passed in 1976 and 1978. The effect

of establishing 1978 as the ripeness and the taking date is to

preclude all existing property owners in the state from

receiving any compensation for a regulatory taking under

these statutes after 1983, since there is a five year statute of

limitations” on an action for damage to real property. All

claims and actions for a regulatory taking by existing

property owners under these statutes brought after 1983

would be improperly barred by the ruling of the majority

decision.” |

Section 614.1(4), Code of Iowa.

As previously discussed, the majority decision of the lower court

precludes all purchases of land after 1978 from receiving just

compensation for a regulatory taking under these ancient human remains

statues.

19

The majority decision of the lowa Supreme Court is in

violation of the Fifth Amendment which guarantees just

compensation for inverse condemnation. The guaranty of just

compensation comes from that self-executing Constitutional

provision. "[I]n the event of a taking, the compensation

remedy is required by the Constitution."

The majority decision of the Iowa Supreme Court is

also contrary to the general principle that an action for

inverse condemnation accrues when the taking is complete.

The First English case recognizes that an_ inverse

condemnation occurs at the point of time when the regulation

goes to the extent that all economically viable use of the

property is taken. This Court in the First English case stated

that a property owner is entitled to just compensation in the

event or when the "government action that works a taking"

occurs.”°

"Generally, a cause of action for inverse condemnation

accrues for limitation purposes, when the taking is complete,

though the precise time when the taking takes place may

depend upon the facts and circumstances of each case."”*°

Also, under the "discovery rule" a cause of action does not

accrue until a claimant knows or should reasonably know of

“First English Evan. Luth. Ch. v. Los Angeles Cty., supra at 107

S.Ct. 2386.

°482 U.S. at 316, 107 S.Ct. at 2386.

*°54 C.J.S. Limitation of Actions §176, p. 229.

20

the existence of his claim.*’ The Plaintiffs did not know

nor should have reasonably known that the state archaeologist

would make a significant find of ancient human remains on

Lot 15 and refuse to allow them to be disinterred and

reburied, until that action occurred in 1991. Under the

"discovery rule" the Plaintiffs’ cause of action in this matter

accrued in 1991.

Under the Ancient Human Remains statutes in this case

there was no final decision until the state archaeologist

refused to disinter and rebury the remains in 1991. The State

contemporaneously in 1991 denied the Plaintiffs any

compensation for this taking. It was at this time in 1991, but

not until this time in 1991, that (1) this matter was ripe for

judicial action, (2) that a taking occurred, and (3) the statute

of limitations for Plaintiffs bringing an inverse condemnation

action began to run.

Amplification from this Court is needed to clarify and

confirm the rule that in reference to a regulatory taking that:

1. A taking does not occur until a final decision

implementing an enabling statue is made by the

government which results in a taking of all

economically viable use of the property, for which

the government refuses to provide just

compensation.

2. An action is not ripe for judicial consideration

until a final decision is made by the government

which results in a taking of all economically

-

a

"The Iowa Supreme Court has recognized the discovery rule in

numerous situations. See, Milluright v. Romer, 322 N.W.2d 30 (lowa

1982); Baines v. Blenderman, 223 N.W.2d 199 (lowa 1974); Brown v.

Ellison, 304 N.W.2d 197, 200-201 (lowa 1981); Vacura v. Plott, 666 F.2d

1200 (8th Cir. 1981).

21

viable use of the property, for which the

government refuses to provide just compensation.

3. An action for inverse condemnation concerning a

regulatory taking accrues under statutes of

limitations when a final decision made by the

government implements an enabling statute which

results in a taking, for which the government

refuses to provide just compensation.

The taking in this case occurred in 1991. It was at that

same time that Plaintiffs’ action accrued and was ripe for

judicial consideration. These Plaintiffs are entitled to just

compensation for this regulatory taking.

II. A RULE IS NEEDED TO ESTABLISH THAT

THERE IS A DIFFERENCE BETWEEN A

STATUTE THAT IMMEDIATELY AND

DIRECTLY REGULATES PROPERTY AND

AN ENABLING STATUTE THAT MAY IN

THE FUTURE BE IMPLEMENTED TO

REGULATE PROPERTY

There is a distinction between statutes that immediately

and directly regulate property such as in the Lucas case, and

enabling statutes as in this case that, if implemented, may be

used to regulate property. In the Lucas case the 1988 South

Carolina statute in question immediately and directly

regulated the Lucas property to the extent that it took all

economically viable use from that property.

22

The Court of Claims in the case of Formanek v. United

States dealt with an enabling statute. In the Formanek

case the Federal Water Pollution Control Act (Clean Water

Act) 33 U.S.C. §1334 was passed prior to Mr. Formanek’s

purchase of the property in question. A botanist for the

DNR’s Natural Heritage Program studied the Formanek

property for a period of time, and thereafter determined that

the property contained a calcareous fen plant community of

ecological significance that should be preserved. The U.S.

Corp. of Engineers then denied Mr. Formanek a permit that

would have allowed him to develop this land lying within the

Minneapolis-Saint Paul, Minnesota Metropolitan area. The

Court in awarding Mr. Formanek just compensation ruled that

the "permit denial constituted a taking under the Fifth

Amendment for which the public, and not the individual

property owner, must bear the burden."”’

Our present case, the Formanek, Keystone, Hodel,

MacDonald and Williamson County cases involve enabling

statutes. A rule is needed to establish that there is a

difference between enabling statutes and statutes that

immediately and directly regulate a property. That rule needs

to provide that a regulatory taking occurs when, but not until,

the implementation of the enabling statute against the

property deprives the owner of all its economically viable

use.

Under such a rule these Plaintiffs are entitled to just

compensation for this regulatory taking.

826 Ct.Cl. 332 (1992).

°26 Ct.Cl. at 341.

23

iif. THIS COURT SHOULD ACKNOWLEDGE

THE RIGHT TO ASSIGN AN INVERSE

CONDEMNATION CLAIM

In this case the Plaintiffs refunded the purchase price to

Dr. Fleming and took back Lot 15. In his Quit Claim Deed

to the Plaintiffs, Dr. Fleming conveyed all his right, title,

interest, estate, claim and demand in Lot 15. Both the

majority and dissenting opinions of the lower court, without

discussion of the issue, correctly recognized that the Plaintiffs

had been assigned Dr. Fleming’s inverse condemnation

action, and are entitled to pursue this inverse condemnation

case.

Generally, interests in real property, whatever their

extent or nature may be, are assignable.** Also, a right of

action for injury to real property is assignable.*' The Iowa

Supreme Court has held that an assignment transfers to the

assignee the assignor’s entire interest or rights in property.”

This Court in the Spiller case*? held that an action

arising from wrongs causing injury to real or personal

property, or from torts by which an estate, real or personal,

has been injured, diminished or damaged, may be assigned.

The Spiller case involved recovery for reduction in the value

*°6A C.J.S. Assignments §13, 6 AmJur2d Assignments §§23-26.

*'6A C.J.S. Assignments §39, 6 AmJur2d Assignments §§41 and 44.

**Padzensky v. Kinzebaw, 343 N.W.2d 467, 471 (Iowa 1984); Kintzel

v. Wheatland Mutual Insurance, 203 N.W.2d 799, 806 (Iowa 1973);

Wiere v. The City of Davenport and Plummer, 11 Iowa 49 (1860).

Spiller v. Atchison T. & S.F.R. Co., 253 U.S. 117, 64 L.Ed. 810,

80 S.Ct. 466 (1920).

24

of cattle due to excessive freight charges. That action was

assigned to a cattlemen’s association for collection of

reparations before the Commerce Commission. This Court

held that assignment of the action to recovery for the

reduction in value to the cattle was valid and proper.

Likewise, the assignment of an action in inverse

condemnation for the damage to real property is proper and

valid. The validity of the assignment of an inverse

condemnation should be affirmed by this Court. The Fifth

Amendment provides that private property shall not be taken

for public use without just compensation. There is no

prohibition to assigning the right to recover just

compensation.

The Fifth Amendment ensures that just compensation

will be paid in the event of an inverse condemnation, whether

or not the right to that compensation has been assigned. The

right to bring an inverse condemnation action is a result of

"the self-executing character of the constitutional provision

with respect to compensation . . ."*

"The form of the remedy did not qualify the right (of

inverse condemnation). It rested upon the Fifth Amendment.

Statutory recognition was not necessary. A promise to pay

was not necessary. Such a promise was implied because of

the duty to pay imposed by the Amendment. The suits were

thus founded upon the Constitution .of the United States."**

"[T]he Court has frequently repeated the view that, in

the event of a taking, the compensation remedy is required by

“United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130,

63 L.Ed.2d 373 (1980).

** Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed.

143 (1933).

25

the Constitution." "Thus, government action that works a

taking of property rights necessarily implicates the

‘constitutional obligation to pay just compensation.’

Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563,

1569, 4 L.Ed.2d 1554 (1960)."’

Since the Constitution guarantees and requires payment

for a taking, the assignment of an inverse condemnation

should not prevent payment for the taking. If the right to

recover just compensation were not assignable, the

government would get a windfall by avoiding payment in

situations as presented in this case. The government should

pay for what it has taken, whether or not the payment is

assigned to another party. In our present case the Plaintiffs

assumed ownership of Lot 15 as well as being assigned all of

Dr. Fleming’s right, title, interest, estate, claim and demand

in Lot 15. The Plaintiffs clearly are properly entitled to

stand in the shoes of Dr. Fleming in this inverse

condemnation action seeking just compensation for the

regulatory taking of Lot 15.

This court should acknowledge the right to assign an

inverse condemnation action.

CONCLUSION

The lower court in conflict with the previous decisions

of this Court in the Lucas, Keystone, Hodel, First English,

MacDonald and Williamson County cases erred in failing to

rule that a regulatory taking occurs at the point of time, but

First English Evan. Luth. Ch. v. Los Angeles Cty., 482 U.S. 304,

316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987).

*"Id., at 315, 107 S.Ct. at 2386.

26

not until, the impact of government action takes all the

economically viable use of the property. Amplification is

needed to clarify that a regulatory taking under an enabling

statute occurs, accrues and is ripe at the point of time, but not

until, the statute is implemented to impact the property to the

extent that all economical use of the property is taken. A

rule is needed to establish the difference between an enabling

statute and one that immediately and directly regulates

property. A rule is also needed to establish that an inverse

condemnation claim is assignable. The erroneous ruling of

the lower court needs to be reversed so that it will not be

precedent to deny just compensation to property owners who

purchase property after an enabling statute is passed, but

prior to the statute being implemented against the property.

The erroneous ruling of the lower court needs to be reversed

to allow these Plaintiffs just compensation for the regulatory

taking in this case.

Petitioners pray that Certiorari be granted.

Dated: December \4 , 1994.

Respectfully submitted,

ROBERT W. GOODWIN of

GOODWIN LAW OFFICE, P.C.

Attorney for Petitioners

ERBEN A. HUNZIKER, DONALD

M. FURMAN, R. FRIEDRICH

AND SONS, INC. and BUCK

CONSTRUCTION COMPANY, INC.

APPENDIX A

oe SY b iad Cf) OR FO Se 77s eet awe

Al

IN THE SUPREME COURT OF IOWA

No. 176/93-302

Filed July 27, 1994

ERBEN A. HUNZIKER, DONALD M. FURMAN, R.

FRIEDRICH AND SONS, INC. and BUCK

CONSTRUCTION COMPANY, INC.,

Appellants,

VS.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Story

County, Carl E. Peterson, Judge.

Appeal from district court grant of summary

judgment.

AFFIRMED.

Robert W. Goodwin of the Goodwin Law Office,

Ames, for appellants.

Bonnie J. Campbell, Attorney General, Elizabeth M.

Osenbaugh, Deputy Attorney General, and Michael H. Smith,

Assistant Attorney General, for appellee.

Considered by McGiverin, C.J., and Carter, Lavorato,

Snell, and Ternus, JJ.

A2

LAVORATO, Justice.

The issue in this case is whether the district court

properly concluded as a matter of law that the plaintiffs were

not entitled to compensation on a regulatory taking theory for

land they own. We think the district court was correct and

we affirm.

The plaintiffs--Erben A. Hunziker, Donald M.

Furman, R. Friedrich and Sons, Inc., and Buck Construction

Company, Inc.--are land developers. In May 1988 they

purchased a fifty-nine acre tract of farm land to develop.

The plaintiffs platted the tract as the Second Addition,

Northridge Parkway Subdivision.

In May 1990 the plaintiffs sold lot 15 in the addition

for $50,000. The buyer--Dr. Jon Fleming--planned to build

a home on the lot.

In April 1991 the state archaeologist learned that lot

15 has a Native American burial mound on it. The state

archaeologist probed lot 15 and found some human bones.

Studies indicated that the burial mound on lot 15 was made

between 1000 and 2500 years ago by Native Americans of

the Woodland Period.

Pursuant to Iowa Code section 305A.9 (1991), the

state archaeologist prohibited disinternment of the burial

mound and required a buffer zone around the mound to

ensure its protection. Given the size of lot 15, the location

of the mound near the center of the lot, and the need for the

buffer zone, construction of a house on lot 15 was not

feasible. Because of (1) the state archaeologist’s

determination, (2) the prohibition against disinterment,

A 3

and (3) the buffer zone requirement, the city refused to issue

a building permit for lot 15.

The plaintiffs refunded the purchase price to Dr.

Fleming and took the lot back. The plaintiffs then brought

this mandamus action, alleging the State’s action amounted

to a regulatory taking without compensation. The plaintiffs

asked the court to enter a writ of mandamus commanding the

State to condemn lot 15 and provide them just compensation

for it.

Both parties moved for summary judgment. The

district court granted the State’s motion and denied the

plaintiffs’ motion. The court also overruled the plaintiffs’

subsequent motions. The plaintiffs appealed.

I. Scope of Review.

Because mandamus is an equitable action, our review

is de novo. Fitzgarrald v. City of Iowa City, 492 N.W.2d

659, 663 (Iowa 1992). Mandamus is a procedural device to

compel condemnation when there has been a taking of private

property for public use without just compensation. Phelps v.

Board of Supervisors, 211 N.W.2d 274, 276 (Iowa 1973).

Mandamus is limited to determining

whether a factual issue exists that would

permit a condemnation commission or a jury

on appeal of an award to find an intrusion that

produced a measurable decrease in the

property’s market value. The mandamus court

may find the evidence insufficient as a matter

of law to compel the summoning of a

condemnation commission, but that court is

simply not called upon to rule as a matter of

law that a taking has occurred. To do so

would create an undesirable issue preclusion

A4

problem in a later trial of a condemnation

proceeding. It is for the condemnation

commission or trial jury to fix the loss of

value, if any, suffered by the property owner.

Fitzgarrald, 492 N.W.2d at 663-64. So our task here is to

determine whether the district court correctly determined

there was no factual issue that would permit a finding of a

compensable intrusion. This, of course, is the same question

posed by a motion for summary judgment. Hasbrouck v. St.

Paul Fire & Marine Ins. Co., 511 N.W.2d 364, 366 (lowa

1993).

Il. Whether There Was a Factual Issue That Would

Permit a Finding of a Compensable Intrusion.

In its summary judgment motion, the State urged,

among other things, that the plaintiffs never had a vested

property right under statutory or common law to build a

house on an ancient burial mound. For this reason, the State

argued, no regulatory taking occurred. The district court

agreed and entered summary judgment in favor of the State.

A. Applicable law. The Fifth Amendment to the

federal Constitution provides that "private property [shall not]

be taken for public use, without just compensation." U.S.

Const. amend. V. This provision of the Fifth Amendment is

made binding on the states through the Fourteenth

Amendment to the federal Constitution. Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct.

446, 450, 66 L. Ed. 2d 358, 364 (1980). An lowa

Constitutional provision similarly provides that "[p]rivate

property shall not be taken for public use without just

compensation first being made... .". lowa Const. art. I, §

18.

A5

"Taking," for purposes of the federal and Iowa

constitutional right of just compensation,

does not necessarily mean the appropriation of

the fee. It may be anything which

substantially deprives one of the use and

enjoyment of his property or a portion thereof.

Phelps, 211 N.W.2d at 276.

Here the plaintiffs’ claim for compensation is based

on what has been referred to as inverse condemnation.

Inverse condemnation is

a shorthand description of the manner in

which a landowner recovers just compensation

for a taking of his property when

condemnation proceedings have not been

instituted.

United States v. Clarke, 445 U.S. 253, 257. 100 S. Ct. ] 127,

1130, 63 L. Ed. 2d 373, 377 (1980).

A 6

Land-use regulation does not effect a taking requiring

compensation if it substantially advances a legitimate state

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

; , 112 S. Ct. 2886, 2897, 120 L. Ed. 2d 798, 818

(1992). There are two exceptions. When the regulation (1)

involves a permanent physical invasion of the property or (2)

denies the owner all economically beneficial or productive

use of the land, the State must pay just compensation. Id. at

___, 112 S. Ct. at 2900, 120 L. Ed. 2d at 821; Iowa Coal

Mining Co. v. Monroe County, 494 N.W.2d 664, 670 (lowa

1993).

When the regulation denies the owner all

economically beneficial or productive use of the land, the

State--under limited circumstances--may resist payment of

compensation. The limited circumstances include those

instances where it can be shown that the property owner’s

"bundle of rights" never included the right to use the land in

the way the regulation forbids. Lucas,505 U.S. at, 112

S. Ct. at 2899, 120 L. Ed. 2d at 820; Iowa Coal Mining Co.,

494 N.W.2d at 670. Whether or not the property owner’s

"bundle of rights" included the right to use the land in the

way the regulation forbids is to be determined under state

nuisance and property law. Lucas, 505 U.S. at _—_—, 1112S.

Ct. at 2900, 120 L. Ed. 2d at 821.

B. Analysis. The Iowa legislature passed Iowa Code

section 305A.7 in 1976. In 1978 the Iowa legislature passed

Iowa Code sections 305A.9 and 716.5. Section 305A.7

provides in part:

The state archaeologist shall have the

primary responsibility for investigating,

preserving and reinterring discoveries of

A7

ancient human remains. For the purposes of

[this section] ancient human remains shall be

those remains found within the state which are

more than one hundred fifty years old... .

1976 Iowa Acts ch. 1158, § 7 (renumbered as Iowa Code

section 263B.7 (1993)).

Section 305A.9 provides:.

The state archaeologist shall have the

authority to deny permission to disinter human

remains that the state archaeologist determines

have state and national significance from an

historical or scientific standpoint for the

inspiration and benefit of the people of the

United States.

1978 Iowa Acts ch. 1029, § 26 (renumbered as Iowa Code

section 263B.9 (1993)).

Section 716.5(2) provides that a person commits

criminal mischief in the third degree when the person

[i]ntentionally disinters human remains

that have state and national significance from

an historical or scientific standpoint for the

inspiration and benefit of the United States

without the permission of the _ state

archaeologist.

1978 Iowa Acts ch. 1029, § 50.

A 8

The plaintiffs do not challenge the findings of the

state archaeologist that he made a significant find. Nor do

they challenge the authority of the state archaeologist to

designate an area as a significant find and to preserve that

area pursuant ty sections 305A.7 and 305A.9.

The plaintiffs, however, contend that if, in so

preserving the find, the state archaeologist deprives the

landowner of all beneficial use of the land--as in the case of

lot 15--there has been a regulatory taking for which the

owner is entitled to compensation. The plaintiffs interpret

Lucas as requiring the State to show that even without

sections 305A.7, 305A.9, and 716.5(2), the plaintiffs would

not--under Iowa property law--have been able to construct a

family residence on lot 15. The plaintiffs argue that because

the State cannot make such a showing there has been a taking

for which they should be compensated.

In addition, the plaintiffs believe that here a "taking"

did not occur until the state archaeologist (1) made a

significant find and (2) took action denying permission to

disinter the human remains on lot 15. Because this did not

happen until after the plaintiffs purchased the land, the

plaintiffs argue there was a "taking" at that time. In support

of their argument, the plaintiffs rely on language in Lucas

that regulatory takings can happen from a law or decree and

that such regulatory action may well have the effect of

eliminating the land’s only economically productive use.

Apparently, then, the plaintiffs concede the sections

in question and the state archaeologist’s determination with

respect to lot 15 advance a legitimate state interest. Whether

there has been a taking in the Lucas sense depends on two

things. The first is whether the plaintiffs are correct that the

State must show that, without sections 305A.7, 305A.9, and

A9

716.5(2), the plaintiffs would not under Iowa property law

have been able to construct a family residence on lot 15.

The second is whether the taking occurred when the plaintiffs

claimed it did.

We do not interpret Lucas as restrictively as the

plaintiffs do. Section 305A.7 was in existence and therefore

part of Iowa’s property law some twelve years before the

plaintiffs purchased the land in question. Sections 305A.9

and 715.5(2) were in existence and therefore part of Iowa’s

property law some ten years before the plaintiffs purchased

the land in question. So the "bundle of rights" the plaintiffs

acquired by their fee simple title did not include the right to

use the land contrary to the provisions of those three Iowa

Code sections. Any prohibited use of lot 15 is directly

attributable to the provisions of these three Code sections.

The plaintiffs took title to the land in question subject to the

provisions of these sections. These sections and their

resulting prohibitions concerning the use of land ran--so to

speak--with the land.

| In addition, in Lucas, the regulation in question was

passed after the plaintiffs acquired title. In contrast, here the

Statutes--sections 305A.7, 305A.9. and 7] 5.5(2)--were in

existence at least a decade before the plaintiffs acquired title.

This is an important distinction.

More important, implicit in the Supreme Court’s

"bundle of rights" analysis is that the right to use the land in

the way contemplated is what controls. Here, when the

plaintiffs acquired title, there was no right to disinter the

human remains and build in the area where the remains were

located. For that reason, there was no taking when the state

archaeologist made the significant find and took action

denying permission to disinter the human remains. We find

A 10

support for this conclusion in the following passage from

Lucas:

Where "permanent physical occupation" of

land is concerned, we have refused to allow

the government to decree it anew (without

compensation), no matter how weighty the

asserted "public interests" involved . . . though

we assuredly would permit the government to

assert a permanent easement that was a

preexisting limitation upon the landowner’s

title... . We believe similar treatment must

be accorded confiscatory regulations, 1.e.,

regulations that prohibit all economically

beneficial use of land: Any limitation so

severe cannot be newly legislated or decreed

(without compensation), but must inhere in the

title itself, in the restrictions that background

principles of the State’s law of property and

nuisance already place upon land ownership.

A law or decree with such an effect must, in

other words, do no more than duplicate the

result that could have been achieved in the

courts--by adjacent landowners (or other

uniquely affected persons) under the State’s

law of private nuisance, or by the State under

its complimentary power to abate nuisances

that affect the public generally, or otherwise.

Lucas, 505 U.S. at , 112 S. Ct. at 2900, 120 L. Ed. 2d

at 821 (citations omitted) (emphasis added). Here, at the

time the plaintiffs acquired title, the State, under existing

A ll

state law, could have prevented disinterment. This limitation

or restriction on the use of the land inhered in the plaintiffs’

title.

For all these reasons, there was--as a matter of law--

no taking requiring payment of compensation. Because there

was no fact issue on the issue of taking, the district correctly

sustained the State’s motion for summary judgment.

AFFIRMED.

All justices concur except Snell, J., who dissents.

A 12

#176, Hunziker v. State

SNELL, J. (dissenting).

I respectfully dissent.

This case is about whether the State of Iowa has the

right to take a person’s land and not pay for it. The majority

opinion establishes the principle that the state can do that

- whenever it finds human bones over 150 years old buried on

land that the state archaeologist declares has historical

significance. I believe this is not the law of Iowa nor should

it be.

The Fifth Amendment through the Fourteenth

Amendment of the United States Constitution provides that

the government shall not take private property for public use

without just compensation. Agins v. City of Tiburon, 447

U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106, 111

(1980); Bakken v. City of Council Bluffs, 470 N.W.2d 34, 36

(lowa 1991).

Iowa law has recognized the principle of inverse

condemnation, when the government does not actually

condemn property but its action amounts to the same thing.

Scott v. City of Sioux City, 432 N.W.2d 144, 145 n. 1 (lowa

1988). By establishing that an inverse condemnation has

occurred, a property owner may recover just compensation.

United States v. Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127,

1130, 63 L. Ed. 2d 373, 377 (1980). In this mandamus

action plaintiffs do not seek to prevent the state from

preserving the burial mound site for historical or scientific

benefit. They claim only that they are entitled to

compensation for the economic loss that befalls them from

the state taking their property. I find their claim to be just

and supported by law. |

A 13

The trial court granted the State’s motion for

summary judgment and the majority affirms on the ground

that plaintiffs cannot prevail as a matter of law. I believe

this result occurs from a misapplication of the Statutory and

common law. I would reverse-the decision granting the

State’s summary judgment and remand for entry of an order

sustaining plaintiffs’ summary judgment motion.

We have recognized the inevitable danger to private

property that exists if the "just compensation" requirements

of the Fifth Amendment to the federal Constitution and.

article I, section 18 of the Iowa Constitution could be

circumvented through the guise of police power regulation.

Business Ventures, Inc. v. lowa City, 234 N.W.2d 376, 381-

82 (Iowa 1975). Although not every police power regulation

that restricts some beneficial use of property creates a

compensable taking the frustration of investment-backed

expectations may constitute a taking for which compensation

is due. Fitzgarrald v. City of Iowa City, 492, N.W.2d 659,

665 (Iowa 1992) (citing numerous Cases).

Lot 15, the burial mound area, is part of an

investment-backed expectation of plaintiffs in developing a

59-acre tract for homes. It had been sold for $50,000 and is

now worth $100. because nothing can be built on it. The

State argues that the plaintiffs caused their own loss by

buying property without recognizing a burial mound was on

it that they could not use for home development. The State

also promotes the idea that plaintiffs are undeserving of

compensation because they made so much money selling

other lots in the 59-acre tract that their loss of Lot 15 is but

a fraction of their investment and therefore "de minimus."

This patronizing view of entrepreneurship is unfounded in

law and economic reality.

A 14

The majority result is premised on the law quoted

from Lucas _v. South Carolina Coastal Council, 505 U‘S.

, 112 S. Ct. 2886, 2899, 120 L. Ed. 2d 798, 820

(1992), and our state statutes. The language of the Lucas

case relied upon is dictum expressing an undefined exception

to the general rule that compensation must be paid for a

taking. The holding of the Lucas case sustained the

landowner’s claim that a taking had occurred and rejected the

State’s argument that it owed no compensation because it was

for the public benefit. The law established by Lucas actually

supports the claim of plaintiffs in the case at bar. The

Supreme Court in Lucas said:

In general (at least with regard to permanent

invasions), no matter how minute the

intrusion, and no matter how weighty the

public purpose behind it, we have required

compensation.

Id. at , 112 S. Ct. at 2893, 120 L. Ed. 2d at 812.

We think, in short, that there are good

reasons for our frequently expressed belief

that when the owner of real property has been

called upon to sacrifice all economically

beneficial uses in the name of the common

good, that is, to leave his _ property

economically idle, he has suffered a taking.

Id. at , 112 S. Ct. at 2895, 120 L. Ed. 2d at 815.

A 15

In the case of land, however, we think the

notion pressed by the Council that title is

somehow held subject to the "implied

limitation" that the State may subsequently

eliminate all economically valuable use is

inconsistent with the historical compact

recorded in the Takings Clause that has

become a part of our constitutional culture.

Id. at ,» 112 S. Ct. at 2900, 120 L. Ed. 24 at 820.

As we have said, a "State, by ipse dixit, may

not transform private Property into public

Property without compensation... ."

Id. ats, 112 S. Ct. at 2901, 120 L. Ed. 2d at 823

(quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 164, 101 S. Ct. 446, 452, 66 L. Ed. 2d 358, 367

(1980)).

The prohibition by the State of Iowa from using the

burial mound in the instant case is a complete taking because

there is no practical use of it left to the plaintiffs. It is more

insidious than zoning laws that we have held to effect a

taking when they deny the economically viable use of the

land. See Agins, 447 U.S. at 260, 100 S. Ct. at 2141, 65 L.

Ed. 2d at 112; Osborn v. City of Cedar Rapids, 324 N.W.2d

47, 474 (lowa 1982); Woodbury County Soil Conservation

Dist. v. Ortner, 279 N.W.2d 276, 278 (Iowa 1979). It is

pernicious because there is virtually no notice to a landowner

of the State’s claim and no Opportunity to review the

government action or appeal to the courts.

A 16

The Iowa statutes cited as preventing full ownership

of land containing a burial mound give no notice of the

State’s inchoate claim of authority to deny compensation

while prohibiting use. See Iowa Code §§ 263B.7, 263B.9,

and 716.5(2) (1993). Nor do they state or even imply that

land with a burial mound bears a perpetual cloud on the title

removable only by authority of the state archaeologist.

Section 305A.9, giving the state archaeologist authority to

deny permission to disinter human remains, is not a self-

executing statute creating a covenant running with the land.

By its own terms the statute is activated only by an

application for permission to disinter. Moreover, there is no

indication from the language of these statutes that the

legislature intended to take property for historical or scientific

inspiration without paying for it.

In this case, a dead bones doctrine has risen from the

soil, like a phoenix, to consume the live marrow of land

ownership. The history surrounding these ancient bones

should be preserved by granting compensation for its

resurrection.

APPENDIX B

Bl

IN THE SUPREME COURT OF IOWA

No. 93-302

ORDER

ERBEN A. HUNZIKER, DONALD M. FURMAN, R.

FRIEDRICH AND SONS, INC. and BUCK

CONSTRUCTION COMPANY, INC.,

Appellants,

VS.

STATE OF IOWA,

Appellee.

After consideration by the court, en banc, appellants’

petition for rehearing in the above-captioned case is hereby

overruled and denied.

Dated this 21st day of September, 1994.

THE SUPREME COURT OF IOWA

Arthur A. McGiverin

Chief Justice

Copies to:

Robert W. Goodwin

311 W. Lincoln Way, Ste. |

Ames, IA 50010-3317

Michae! H. Smith

Assistant Attorney General

Hoover State Office Building

LOCAL