# Petition for Writ of Certiorari — Hunziker v. Iowa

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1003

## Text

Supreme Court, U.S.
FILED

94107 7 DEC 1 9 19%

OFFICE OF THE CLERK
No. 94-

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994

ERBEN A. HUNZIKER, DQNALD 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.

ii
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.

TABLE OF CONTENTS

Page
eb pe 8 | By tk oy |} ee er
PARTIES 1O THE PROCEEDING .......cce0ce: il
py ee hy tg) | Rr vi
EE G's Ga Sb .d we 30 46 6 act ee wee I
Ee ee eee a ee |
CONSTITUTIONAL PROVISIONS .............. 2
UPR Rteeee GW BEE CAGE . wc eee en 2
REASONS FOR GRANTING THE WRIT .......... ?

iV

Page
eT ice oss ss be ke eee ee 5
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
RAE & 456 OEE OS ee 7
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 i
to the extent that all economical use is
taken is in conflict with previous |
@ocmmems OF TG COE 6 ioc ee ccecs 8 |

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
condemmation accrues .........-0-0005. 15

If.

IT.

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
PORES 60090-4400 007

THIS COURT SHOULD ACKNOWLEDGE THE
RIGHT TO ASSIGN AN_ INVERSE
CONDEMNATION CLAIM ............

eR re ree re

APPENDIX A

PUBLISHED OPINION, SUPREME COURT OF
IOWA, ERBEN A. HUNZIKER, ET AL. VS.
STATE OF IOWA, 519 N.W.2d 367 (IOWA
5994), PILED FULY 27, 9998 2... eee ee

APPENDIX B

OPINION ON REHEARING, SUPREME
COURT OF IOWA, FILED SEPTEMBER 21,
SOW Ai as es ee ee ee eee

Page

a

vi

TABLE OF AUTHORITIES
Page

Cases

Agins v. City of Tiburon, 447 U.S. 261,
100 S.Ct. 2138,
GS Le POO EUMEED cc cle Sce ee ccuc wees 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
| ren ee are rar res pare y 20

Brown v. Ellison, 304 N.W.2d 197
GSR: ks ve ee es cee 20

First English Evan. Luth. Ch. v. Los
Angeles Cty., 482 U.S. 304,
96 S.Ct. 2378,
eR. bt.) 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,
fe EE). | eee 6, 9, 17, 22, 25

Hunziker & Furman, et al. v. State,
RA A bf). Pe epee ee 4

Vii

Page

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

ete ie Se fe es | 24
Keytone Bituminous Coal Ass’n v. DeBenedicts,

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

94 L.Ed.2d 472 (1987) ...... 6, 9, 11, 17, 22, 25
Kintzel v. Wheatland Mutual Insurance,

203 N.W.2d 799 (lowa 1973) ............24. 23
Lucas v. South Carolina Coastal Council,

505 U.S. , 112 S.Ct.

2886, 120 L.Ed.2d

2... FA 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) ...... te ee ee 20

Padzensky v. Kinzebaw, 343 N.W.2d 467
RS ne ae a 23

Spiller v. Atchison T. & S.F.R. Co.,
253 U.S. 117, 64 L.Ed. 810,
ge ere 23

Vili

; Page
United States v. Clarke, 445 U.S. 253,
100 S.Ct. 1127, 63 L.Ed.2d 373
SE Saco W916 ted Eb 684 eee OS 24
Vacura v. Plott, 666 F.2d 1200
I ee yaa ane we Oa 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
Be a UE ices ork SO ess 8s ade l
Section 2630.7, Code of fewe .. nec ccceweees 2
Section 263B.8, Code of lowa .........ccccceees 2
Section 263B.9, Code of lowa ..............005.- 2
Section 614.1(4), Code of Iowa .............00.. 18

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

ix

Page
Constitution

United States Constitution
Fifth Amendment .... 1, 2, 5, 7, 12, te 19, 22, 24
Fourteenth Amendment ........... esd,” 1,2

Other Authorities

6 AmJur2d Assignments §§23-26 ............... 23
6 AmJur2d Assignments §§41 and 44 ............ 23
Pe Sr POE ED noc oe oe he ee cee ehns 23
6A C.J.S. Assignments §39 ..................4. 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 Iowa 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:

"|, . mor 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.

——— eee ee ee

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, Iowa.

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.

Seance

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. icts*; Hodel v. Virginia
Surface Mining and Reclamation Association, Inc.’, First

English Evan. Luth. Ch. v. Los Angeles Cty.,'° MacDonald,
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).

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, the 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.

een

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 (Iowa 1982); Woodbury County

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

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

'®505 US. 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.

fe
;

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.

'*MacDonald, 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).

20

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

"The Iowa Supreme Court has recognized the discovery rule in
numerous situations. See, Milluright v. Romer, 322 N.W.2d 30 (Iowa
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).

II.

21

viable use of the property, for which the
government refuses to provide just compensation.
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.

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 al! its economically viable
use.

Under such a rule these Plaintiffs are entitled to just
compensation for this regulatory taking.

826 Ct.Cl. 332 (1992).

2996 Ct.Cl. at 341.

23

it. 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 (lowa 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 AY , 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

A l
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).

II. 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 to 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. Iowa 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. 2d 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 Ra ids, 324 N.W.2d
47, 474 (lowa 1982); Woodbury County Soil Conservation
Dist. v. Ortner, 279 N.W.2d 276, 278 (lowa 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.

PTE TANS HR.

:

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

BI

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. 1
Ames, IA 50010-3317

Michae! H. Smith

Assistant Attorney General
Hoover State Office Building
LOCAL

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1121%3A1. Public record. Not legal advice.