Takings Decisions of the U.S. Supreme Court: A Chronology

Takings Decisions of the U.S. Supreme Court:

A Chronology

(name redacted)

Legislative Attorney

July 20, 2015

Congressional Research Service

7-....

www.crs.gov

97-122

Takings Decisions of the U.S. Supreme Court: A Chronology

Summary

This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims

that a government entity has “taken” private property, as that term is used in the Takings Clause

of the Fifth Amendment. The Takings Clause states: “[N]or shall private property be taken for

public use, without just compensation.” A scattering of related, substantive due process decisions

is also included.

Under the Takings Clause, courts allow two distinct types of suit. Condemnation (also “formal

condemnation”) occurs when a government or private entity formally invokes its power of

eminent domain by filing suit to take a specified property, upon payment to the owner of just

compensation. By contrast, a taking action is a suit by a property holder against the government,

claiming that government conduct has effectively taken the property notwithstanding that the

government has not filed a formal condemnation suit. Because it is the procedural reverse of a

condemnation action, a taking action is often called an “inverse condemnation” action. A typical

taking action complains of severe regulation of land use, though the Takings Clause reaches all

species of property, real and personal, tangible and intangible. The taking action generally

demands that the government compensate the property owner, just as when government formally

exercises eminent domain.

Finding the line between government interferences with property that are takings and those that

are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The

Supreme Court’s decisions in these takings actions reach back to 1870, and are divided in this

report into three periods.

The modern period, 1978 to the present, has seen the Court settle into a taxonomy of four

fundamental types of takings—total regulatory takings, partial regulatory takings, physical

takings, and exaction takings. The Court in this period also has sought to develop criteria for

these four types, and to set out ripeness standards and clarify the required remedy. In the

preceding period, 1922 to 1978, the Court first announced the regulatory taking concept—the

notion that government regulation alone, without appropriation or physical invasion of property,

may be a taking if sufficiently severe. During this time, however, it proffered little by way of

regulatory takings criteria, continuing rather its earlier focus on appropriations and physical

occupations. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause

as protecting property owners only from appropriations and physical invasions, two forms of

government interference with property seen by the Court as most functionally similar to an

outright condemnation of property. During this infancy of takings law, regulatory restrictions

were tested under other, non-takings theories, such as whether they were within a state’s police

power, and were generally upheld.

The four takings cases decided by the Supreme Court during its 2012-2013 and 2014-2015 terms

attest to the Court’s continuing interest in the takings issue.

Congressional Research Service

Takings Decisions of the U.S. Supreme Court: A Chronology

Contents

Introduction...................................................................................................................................... 1

I. Takings Law Today: Penn Central (1978) to the Present ............................................................. 3

II. The Dawn of Regulatory Takings Law: Pennsylvania Coal Co. (1922) to 1978 ...................... 11

III. Appropriations and Physical Takings Only: 1870 to 1922....................................................... 16

Contacts

Author Contact Information........................................................................................................... 20

Congressional Research Service

Takings Decisions of the U.S. Supreme Court: A Chronology

Introduction

Once in the constitutional wings, the Takings Clause of the Fifth Amendment today stands center

stage. More than 50 takings cases have been decided by the Supreme Court since it launched the

modern era of takings jurisprudence in 1978. No debate on the proper balance between private

property rights and conflicting societal needs is complete without noting the Takings Clause.

The Takings Clause states: “[N]or shall private property be taken for public use, without just

compensation.” Until the late 19th century, this clause was applied by the Supreme Court only to

condemnation: the formal exercise by government of its eminent domain power to take property

coercively, upon payment of just compensation to the property owner. In such condemnation

suits, there is no issue as to whether the property is “taken” in the Fifth Amendment sense; the

government concedes as much by filing the action. The only question, typically, is what

constitutes “just compensation.”

Beginning in the 1870s, the Supreme Court gave its imprimatur to a different use of the Takings

Clause. When the sovereign appropriated or caused a physical invasion of property, as when a

government dam flooded private land, the Court found that the property had been taken just as

surely as if the sovereign had formally condemned. Therefore, it said, the property owner should

be allowed to vindicate his constitutional right to compensation in a suit against the government.

In contrast with condemnation actions, then, such takings actions have the property owner sue

government rather than vice-versa; hence the synonym “inverse condemnation actions.” The key

issue in takings actions is usually whether, given all the circumstances, the impact of the

government action on a particular property amounts to a taking in the constitutional sense. Only if

a taking is found does the question of just compensation arise.

In 1922, in the most historically important taking decision,1 the Supreme Court extended the

availability of takings actions from government appropriations and physical invasions of property,

as described above, to the mere regulation of property use. This critical expansion of takings

jurisprudence to “regulatory takings” acknowledged that purely regulatory interferences with

property rights can have economic and other consequences for property owners as significant as

appropriations and physical invasions. The regulatory taking concept opened up vast new legal

possibilities for property owners, and underlies many of the Supreme Court’s takings decisions

from the 1970s on.

The ascendancy of the regulatory taking concept since the 1970s is hardly surprising. Starting

with the advent of comprehensive zoning in the early 20th century, federal, state, and local

regulation of private land use has become pervasive. Beyond comprehensive zoning, the past 60

years have seen explosive growth in the use of historic preservation restrictions, open-space

zoning, dedication and exaction conditions on building permits, nature preserves, wildlife habitat

preservation, wetlands and coastal zone controls, mining restrictions, and so on. Regulation of

non-real-estate property has also proliferated. In the Supreme Court, the appointment of several

conservative Justices since the 1970s has prompted a new scrutiny of government conduct vis-àvis the private property owner.

1

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

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1

Takings Decisions of the U.S. Supreme Court: A Chronology

As a result of these factors, the Court since the late 1970s has turned its attention toward the

takings issue with vigor. Through the 1980s and 1990s, property owner plaintiffs scored several

major victories; by and large, the substantive doctrine of takings shifted to the right. In 20002005, however, the Court’s decisions moved the analytical framework in a more governmentfriendly direction. The pendulum may yet be swinging again: the four takings cases decided by

the Court during its 2012-2013 and 2014-2015 terms were all decided in favor of the property

owner, though mostly as to narrow issues.

*****

This report compiles only Supreme Court decisions addressing issues with special relevance to

takings (inverse condemnation) actions, not those on formal condemnation or property valuation.

Thus the headline-grabbing Supreme Court opinion in Kelo v. City of New London2 (2005),

principally a formal condemnation case, is not included here. On the other hand, a scattering of

substantive due process decisions is interspersed where they have been cited by the Court as

authority in its takings decisions.

In the interest of brevity, we mention no dissenting opinions, and almost no concurrences. Thus,

the report does not reveal the closely divided nature of some Supreme Court takings opinions.

The reader desiring a more analytical discussion of inverse condemnation law should consult

CRS Report RS20741, The Constitutional Law of Property Rights “Takings”: An Introduction,

also prepared by (name redacted).

2

545 U.S. 469 (2005).

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Takings Decisions of the U.S. Supreme Court: A Chronology

I. Takings Law Today: Penn Central (1978) to the

Present

In 1978, the Supreme Court ushered in the modern era of regulatory takings law by attempting to

inject some coherence into the ad hoc analyses that had characterized its decisions before then. In

Penn Central Transportation Co. v. New York City, infra page 10, the Court declared that whether

a regulatory taking has occurred in a given case is influenced by three principal factors: the

economic impact of the regulation, the extent to which it interferes with distinct (in most later

decisions, “reasonable”) investment-backed expectations, and the “character” of the government

action. After Penn Central, ad hocery in judicial taking determinations emphatically still remains,

but arguably is confined within tighter bounds.

The Supreme Court’s many takings decisions since Penn Central have developed the

jurisprudence in each of its main areas: ripeness, takings criteria, and remedy. As for takings

criteria, the Court announced several “per se taking” rules in the two decades after Penn

Central—see, for example, Loretto, infra page 9, and Lucas, infra page 7. Decisions since 2000,

however, have extolled the multifactor, case-by-case approach of that decision—see Palazzolo,

infra page 5; Tahoe-Sierra, infra page 5; and Lingle, infra page 5. In Lingle, the Court summed

up the four types of takings claims it now recognizes, in addition to those based on outright

government appropriations:

a plaintiff seeking to challenge a government regulation as an uncompensated taking of

private property may ... alleg[e] a “physical” taking, a Lucas-type “total regulatory taking,” a

Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and

Dolan.3

Case

Action attacked

Holding/rationale

Horne v. Dep’t

of Agriculture

(Horne II), 135 S.

Ct. 2419 (2015)

Fines and civil penalties

imposed on raisin handlers

for failing to transfer to

government prescribed

percentage of raisins under

1937 statute seeking to

stabilize agricultural prices

by controlling market

surpluses

Raisin transfer requirement is physical taking, since (1) government’s

categorical duty to compensate when it physically takes property applies

to personal property, such as raisins, as well as real property; (2) this

duty may not be avoided by reserving to property owner a contingent

interest (in net proceeds from sale of transferred raisins); and (3)

conclusion that government mandate to relinquish specific, identifiable

property as condition for engaging in commerce is a taking is not negated

by fact that growers voluntarily elected to grow raisin-variety grapes

subject to mandate rather than non-covered grapes or other crops.

Finally, value of raisins for takings purposes is fair market value not

reduced by offsetting benefits of statutory scheme.

3

544 U.S. 528, 548 (2005).

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Koontz v. St.

Johns River

Water Mgmt.

Dist., 133 S. Ct.

2586 (2013)

Exaction condition

demanded by district to

approve landowner’s

proposed development of

3.7 acres, almost all

wetland, of 14-acre tract.

Condition was for

landowner to pay for

enhancing wetlands on

district-owned land

Exaction takings tests in Nollan, infra page 7, and Dolan, infra page 6, apply

even when, as here, land-use permit applicant refuses exaction conditions

and permit is denied. Immaterial that no exactions were imposed, since

Nollan and Dolan are based on doctrine of unconstitutional conditions

under which it is the impermissible burdening of right not to have

property taken without compensation that offends. But in absence of a

taking, remedy hinges on cause of action. Also, Nollan and Dolan tests

apply to monetary as well as land-dedication exactions. Rule in Eastern

Enterprises, infra page 6, that monetary liability payable with any funds

cannot be taking, does not apply here where liability is tied to specific

property.

Horne v. Dep’t

of Agriculture

(Horne I), 133 S.

Ct. 2053 (2013)

Fines and civil penalties

imposed on raisin handlers

for failing to transfer to

government prescribed

percentage of raisins under

1937 statute seeking to

stabilize agricultural prices

by controlling market

surpluses

Circuit court below had jurisdiction over claim alleging taking of raisins. It

incorrectly found that petitioners brought taking claim as raisin producers

rather than raisin handlers (only handlers being covered by statute). Case

is ripe because petitioners are subject to final agency order imposing fines

and penalties and because statute provides comprehensive remedial

scheme that withdraws Tucker Act jurisdiction over taking claim in Court

of Federal Claims. Finally, takings defense may be raised by handler in

USDA enforcement proceeding: statute does not forbid, and makes little

sense to pay fine in one proceeding and then have to sue to recover same

money in second, takings proceeding.

Arkansas Game

& Fish Comm’n

v. United States,

133 S. Ct. 511

(2012)

Corps of Engineers’ 8 years

of deviations from its longstanding water release plan

for dam, extending flooding

period in downstream

wildlife preserve and killing

bottomland hardwood

trees there

Even government-induced flooding that is temporary may, depending on

circumstances, be a taking. Categorical rule extracted by court below

from Sanguinetti, infra page 15—that unlike other physical invasions by

government, flooding can be a taking only if permanent or “intermittent

but inevitably recurring”—is inconsistent with later Supreme Court

takings jurisprudence recognizing temporary takings. Factors pertinent to

whether temporary flooding effects a taking include severity, duration,

character of parcel, and owner’s expectations regarding parcel’s use.

Stop the Beach

Renourishment,

Inc. v. Florida

Dep’t of

Environmental

Protection, 560

U.S. 702 (2010)

Florida Supreme Court

decision below holding that

state does not, through

beach restoration project,

effect facial taking of

beachfront property

owners’ littoral rights of

accretion and direct

contact with water

No taking. Court holds unanimously that state supreme court decision

did not contravene established property rights. Cannot be shown that

littoral owners had rights to future accretions, nor that contact with

water is superior to state’s right to fill in its submerged land. Four Justices

nonetheless venture that “judicial taking” concept is sound. That is,

Takings Clause applies to judicial branch just as to other branches; hence

if a court declares “that what was once an established right of private

property no longer exists, it has taken that property.” In other opinions,

four Justices express reservations about judicial takings, or argue that

issue need not be addressed here. Justice Stevens recused himself.

San Remo Hotel,

L.P. v. City and

County of San

Francisco, 545

U.S. 323 (2005)

City requirement that

hotelier pay $567,000 fee

for converting residential

rooms to tourist rooms,

under ordinance seeking to

preserve supply of

affordable rental housing

Federal full faith and credit statute (barring relitigation of issues that have

been resolved by state courts of competent jurisdiction) admits of no

exception allowing relitigation in federal court of takings claims initially

litigated in state court pursuant to “state exhaustion” ripeness

prerequisite of Williamson County, infra page 9. Court rejects argument

that whenever claimant reserves his federal taking claim in state court,

federal courts should review the reserved federal claim de novo,

regardless of what issues the state court decided.

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Lingle v.

Chevron USA

Inc., 544 U.S. 528

(2005)

State statute limiting rent

that oil companies may

charge service station

operators who lease

stations owned by oil

companies, in order to hold

down retail gasoline prices

No taking. Rule announced in Agins, infra page 10, that government

regulation of private property is a taking if it “does not substantially

advance legitimate state interests,” is not a valid takings test. Takings law

looks at burdens a regulation imposes on property. Thus, physical taking,

total regulatory taking, and Penn Central partial regulatory takings tests

(infra page 11) each aims to spot government actions that are

“functionally equivalent” to a direct appropriation. In contrast,

“substantially advances” test focuses on regulation’s effectiveness, a dueprocess-like inquiry. Moreover, assessing efficacy of regulations is a task

to which courts are ill-suited.

Brown v. Legal

Found. of

Washington, 538

U.S. 216 (2003)

State’s use of interest

earned by small or shortlived deposits of title

company’s clients’ funds to

support legal services for

the poor—under Interest

on Lawyers’ Trust

Accounts (IOLTA) program

IOLTA program satisfies “public use” requirement of Takings Clause,

given compelling interest in providing legal services for the poor. As to

whether there was a taking, a per se test like that in Loretto, infra page 9,

seems appropriate, and we assume such a taking occurred. But there is

still no constitutional violation, since Takings Clause proscribes only

takings without just compensation. IOLTA mandates government use of

interest only when it could generate no net funds for client, owing to

administrative costs. Thus, just compensation owed under Takings Clause

is zero.

Verizon

Communications,

Inc. v. FCC, 535

U.S. 467 (2002)

FCC regulations under

Telecommunications Act of

1996 providing that rates

charged by incumbent local

exchange carriers to new

competitors are to be

based on forward-looking

cost methodology, rather

than historical costs

Argument that historical costs should be used to avoid possibility of

takings does not present a serious question. Incumbents do not argue

that any particular rate is so unjust as to be confiscatory, but general rule

is that any question about constitutionality of ratesetting is raised by

rates, not ratesetting methods. Nor is FCC’s action placed outside this

rule by any clear signs that takings will occur if historical-costs

interpretation is allowed.

Tahoe-Sierra

Preservation

Council, Inc. v.

Tahoe Regional

Planning Agency,

535 U.S. 302

(2002)

Building moratoria imposed

1981-1984 until bistate

agency could formulate

new regional land-use

plan—plus freeze on

building permits from 1984

to 1987 under court

injunction against 1984

plan, plus restrictions under

1987 plan

1981-1984 moratoria are not per se takings. Argument that a

moratorium prohibiting all economic use of a property, no matter how

briefly, is a per se taking must be rejected. Rather, such moratoria are to

be analyzed under ad hoc balancing test of Penn Central, infra page 11.

Neither First English, infra page 8, nor Lucas, infra page 7, support the per

se taking argument. And “parcel as a whole” rule bars segmentation of a

parcel’s temporal dimension, precluding consideration of only the

moratorium period. Finally, “fairness and justice” and need for informed

land-use planning support an ad hoc approach here. (Post-1984

restrictions not addressed.)

Palazzolo v.

Rhode Island,

533 U.S. 606

(2001)

State denials rejecting

developer’s proposals to fill

in all or most of principally

wetland lot adjacent to

coastal pond

Taking claim is ripe. Given state’s interpretation of its regulations, there

was no ambiguity as to extent of development (none) allowed on

wetlands portion of lot. Similarly, value of uplands portion, where a single

home may be built, was also settled. Hence, lot owner need not make

further applications to satisfy “final decision” prong of ripeness doctrine.

On the merits, a taking claim is not barred by fact that property was

acquired after effective date of state regulation. And, a regulation

permitting a landowner to build a substantial house on a 20-acre parcel is

not a total taking under Lucas, infra page 6, but must instead be evaluated

under the Penn Central test, infra page 11.

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

City of Monterey

v. Del Monte

Dunes at

Monterey, Ltd.,

526 U.S. 687

(1999)

City’s failure to approve

property owner’s

development plans after

five, progressively scaledback proposals

accommodating city’s

progressively lower

development caps

Issue of whether city was liable for taking, raised through civil rights claim

under 42 U.S.C. §1983, was in this case an essentially fact-bound one, and

thus properly submitted by district court to jury. Suit for legal relief

under Section 1983 is action at law sounding in tort, and is thus within

jury guarantee in Seventh Amendment. Also “rough proportionality”

standard of Dolan, infra page 6, is not appropriate takings test. It was

designed to address exactions on development permits, not, as here,

denials of development.

Eastern

Enterprises v.

Apfel, 524 U.S.

498 (1998)

Federal statute requiring

company to fund health

benefits of miner who

worked for it decades

earlier, where company left

mining business before

promise of lifetime benefits

in collective bargaining

agreements became explicit

in 1974

Statute is unconstitutional as applied to Eastern. In opinion accompanying

judgment, four Justices find taking because statute imposes severe

retroactive liability on a limited class of parties that could not have

anticipated liability, and extent of liability is substantially disproportionate

to company’s experience in mining field. This points to taking under Penn

Central test, infra page 11. Also, remedy for taking based on generalized

monetary liability is invalidation rather than compensation, supporting

jurisdiction in district court.

Phillips v.

Washington

Legal

Foundation, 524

U.S. 156 (1998)

State’s use of interest

earned on small or shortlived deposits of lawyers’

clients’ funds to support

legal services for the

poor—under Interest on

Lawyers’ Trust Accounts

(IOLTA) program

Interest is property of clients, not state. Despite fact that interest would

not exist but for IOLTA program, state’s rule that “interest follows

principal” must be followed. Nor can interest be regarded as mere

government-created value. Remanded for decision on whether taking

occurred.

Suitum v. Tahoe

Regional Planning

Agency, 520 U.S.

725 (1997)

Agency’s ban on new land

coverage in “Stream Environment Zones,” under

which plaintiff was barred

from building home on

residential lot

Taking claim is ripe despite plaintiff’s not having applied for TRPA

approval of her sale of transferrable development rights (TDRs). “Final

decision” requirement of Williamson County, infra page 9, does not

embrace such TRPA approval, since parties agree on TDRs to which

plaintiff is entitled and no discretion remains for TRPA. TDRs’ value here

is simply an issue of fact, which courts routinely resolve without benefit

of a market transaction.

Babbitt v.

Youpee, 519 U.S.

234 (1997)

Federal statute’s ban on

descent or devise of small

interests in allotted Indian

land—as ban was narrowed

by amendment

Taking occurred. The amendment, made in 1984, did not cure taking that

Hodel v. Irving, infra page 8, found in pre-amendment version of statute.

Amendment narrowed ban only as regards income-producing ability of

the land, not its value. More important, amendment’s allowance of devise

to current owners in same parcel still offends Hodel by continuing to

“severely restrict[]” Indian’s right to direct descent of his property.

Bennis v.

Michigan, 516

U.S. 442 (1996)

Forfeiture of car, owned

jointly by plaintiff and her

husband, because of

husband’s illegal sexual

activity in car

No taking (of wife’s joint interest in car). To be sure, wife had no prior

knowledge of husband’s planned use of car. But government may not be

required to compensate an owner for property which it has already

lawfully acquired under authority other than eminent domain. Then, too,

cases authorizing forfeiture are “too firmly fixed” to be now displaced.

Dolan v. City of

Tigard, 512 U.S.

374 (1994)

Conditions imposed by city

for granting building permit,

requiring applicant to

dedicate public greenway

along stream and adjacent

bike/pedestrian pathway

Taking occurred. While greenway dedication condition rationally

advanced a purpose of permit scheme (flood prevention), requiring

landowner to allow public access to greenway did not. Hence, latter

violated “nature of the permit condition” taking criterion in Nollan, infra

page 7. Other condition, that pathway be dedicated, was not shown by

city to impose burden on applicant that was “roughly proportional” to

impact of applicant’s proposed project on community. Hence, it violates

“degree of burden” taking criterion that Court announces here. Also,

burden of proof is on government to demonstrate “rough

proportionality.”

Congressional Research Service

Remaining Justice supporting judgment sees instead a substantive due

process violation.

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Concrete Pipe &

Products, Inc. v.

Construction

Laborers Pension

Trust, 508 U.S.

602 (1993)

Federal statute requiring

that employer who

withdraws from multiemployer pension plan pay

a fixed debt to plan

No taking. Taking claim is not aided by fact that collective bargaining

agreement predating statute protected employer from liability to plan

beyond specified contributions. Three-factor Penn Central test, infra page

11, does not point to taking: (1) government action merely adjusted

benefits and burdens of economic life; (2) withdrawal liability was not

disproportionate; and (3) given long-standing federal regulation in pension

field, employer lacked reasonable expectation it would not be faced with

liability for promised benefits.

Lucas v. South

Carolina Coastal

Council, 505 U.S.

1003 (1992)

Development ban imposed

on vacant lots under state’s

beachfront management

statute

Government regulation of land that completely eliminates economic use

is a per se taking, even when the legislature asserts a prevention-of-harm

purpose. There is a prior inquiry, however, as to whether proposed use

is inherent in landowner’s title in light of “background principles of the

state’s law of property and nuisance” existing when land was acquired. If

not, there is no taking, since regulation does not take any right owner

ever had.

Yee v. City of

Escondido, 503

U.S. 519 (1992)

Mobile home rent-control

ordinance, combined with

state law forcing mobile

home park owner to

accept purchasers of

mobile homes in park as

new tenants

No physical taking occurred. Neither state nor local law on its face

requires landowner to dedicate his land to mobile home rentals, nor

overly limits his ability to terminate such use. Per se rule in Loretto, infra

page 9, applies only when permanent physical occupation is coerced.

Claim that procedure for changing use of park is overly burdensome is

not ripe, since plaintiff has not gone through procedure. Regulatory taking

claim is not properly before Court, since not subsumed by questions in

petition for certiorari.

Preseault v. ICC,

494 U.S. 1 (1990)

Federal “rails-to-trails”

statute, under which

unused railroad rights of

way are converted to

recreational trails

notwithstanding

reversionary property

interests under state law

Premature for Court to evaluate taking challenge to statute, because even

if it causes takings of reversionary interests, compensation is available

under Tucker Act (authorizing suits against U.S. for compensation).

Nothing in statute suggests the “unambiguous intention” to withdraw

Tucker Act remedy which this Court requires. For example, Congress’s

expressed desire that program operate at “low cost” might merely reflect

its rejection of a more ambitious federal program, rather than withdrawal

of Tucker Act remedy.

United States v.

Sperry Corp.,

493 U.S. 52

(1989)

Statutory 1½% deduction

from awards of Iran-United

States Claims Tribunal as

reimbursement to United

States for expenses

incurred in the arbitration

No taking. 1½% deduction is a reasonable “user fee” intended to

reimburse United States for its costs in connection with tribunal. Amount

of fee need not be precisely tailored to use that party makes of

government services. Fee here is not so great as to belie its claimed

status as a user fee.

Duquesne Light

Co. v. Barasch,

488 U.S. 299

(1989)

State agency’s refusal to

allow inclusion of cost of

canceled nuclear plants in

utility’s rate base

No taking. Under the circumstances, overall impact of preventing

amortization of such costs was small, and not shown to be unjust or

confiscatory.

Pennell v. City of

San Jose, 485

U.S. 1 (1988)

Rent control ordinance

allowing rent increases of

greater than set percentage

only after considering

economic hardship caused

to tenants

Not ripe. There was no evidence that hardship provision had in fact ever

been relied upon to limit a rent increase. Also, ordinance did not require

rent limit in event of tenant hardship, only that hardship be considered.

Nollan v.

California

Coastal Comm’n,

483 U.S. 825

(1987)

State’s grant of building

permit on condition

property owners record

easement allowing public to

traverse beach on property

Taking occurred. Permit condition (recording easement) did not

substantially advance a government purpose that would justify denial of

permit (ensuring visual access to beach). Where such linkage exists,

however, no taking occurs even if outright appropriation of the property

infringement (here, the easement) would be a taking.

Congressional Research Service

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Bowen v.

Gilliard, 483 U.S.

587 (1987)

Amendments to federal

welfare program resulting

in lower benefits and

assignment of child support

payments to entire family

No taking. Family has no property right to continued welfare benefits at

same level. Child receiving support payments suffers no substantial

economic impact, since payments were likely used for entire family

before amendments.

First English

Evangelical

Lutheran Church

v. County of Los

Angeles, 482 U.S.

304 (1987)

Interim ordinance

prohibiting construction of

any structures in flood

zone

If a regulation is held to have taken property, Takings Clause requires

compensation for the time during which regulation was in effect—i.e.,

until date of repeal or judicial invalidation. Mere invalidation of regulation

is not a constitutionality sufficient remedy. (Existence of taking assumed

by Court owing to posture of case.)

Hodel v. Irving,

481 U.S. 704

(1987)

Federal statute declaring

that small interests in

allotted Indian land may not

descend by intestacy or

devise, but must escheat to

tribe

Taking occurred. Statute amounts to complete abrogation, rather than

regulation, of right to pass on property—a right which, like the right to

exclude others, is basic to the concept of property.

Keystone

Bituminous Coal

Ass’n v.

DeBenedictis,

480 U.S. 470

(1987)

State regulation requiring

that at least 50% of

underground coal be left in

place, where mining coal

might cause subsidence

damage to surface

structures

No taking. Unlike similar anti-subsidence law held a taking in Pennsylvania

Coal Co., infra page 16, the statute here has a broad public purpose and

does not rule out profitable mine operation.

FCC v. Florida

Power Corp.,

480 U.S. 245

(1987)

Federal regulation requiring

that utility greatly reduce

rent charged cable TV

company for attaching its

cables to utility’s poles

No taking. Per se rule in Loretto, infra page 9, applies only when

permanent physical occupation is coerced, unlike here where utility

voluntarily entered into contract with cable company. And new rent

ordered by FCC was not confiscatory, hence not a taking.

MacDonald,

Sommer &

Frates v. Yolo

County, 477 U.S.

340 (1986)

County’s rejection of

developer’s first-submitted

subdivision plat

Not ripe. Developer must first obtain “final and authoritative

determination” of the type and intensity of development that will be

permitted. County’s rejection of first-submitted plat does not preclude

possibility that submissions of scaled-down version of project might be

approved. Also, a court cannot determine whether compensation is

“just” until it knows what compensation state or local government will

provide.

Bowen v. Public

Agencies

Opposed to

Social Security

Entrapment, 477

U.S. 41 (1986)

Statutory repeal of

provision in federal-state

agreements allowing states

to end social security

coverage of state and local

employees

No taking. Repealed provision is not “property,” since Congress reserved

right to amend agreements in enacting governing statute, and clause was

not a debt or obligation of United States.

Connolly v.

Pension Benefit

Guaranty Corp.,

475 U.S. 211

(1986)

Federal act requiring that

employers who withdraw

from a multi-employer

pension plan pay a fixed

debt to the plan

No taking. Taking does not occur every time law requires one person to

use his assets for benefit of another. Nor can statute be defeated by preexisting contract provision protecting employers from further liability.

Congressional Research Service

8

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

United States v.

Riverside

Bayview Homes,

Inc., 474 U.S. 121

(1985)

Corps of Engineers’

assertion of dredge and fill

jurisdiction over certain

freshwater wetlands

Not ripe. Mere assertion of regulatory jurisdiction by Corps is not taking;

only when permit is denied so as to bar all beneficial use of property is

there a taking. Also, fact that broad construction of statute might yield

more takings is not reason to construe statute narrowly, since taking is

unconstitutional only if no means to obtain compensation exists. Such

means does exist here, since Tucker Act authorizes compensation for

federal takings.

Williamson

County Regional

Planning

Comm’n v.

Hamilton Bank,

473 U.S. 172

(1985)

County’s rejection of

developer’s subdivision plat

Not ripe. Taking claim against state/local government in federal court is

not ripe unless (1) there is final and authoritative decision by government

as to type and intensity of development allowed, and (2) avenues for

obtaining compensation from state forums have been exhausted. Here,

developer failed to seek variances following initial denial, thus has not

received a final decision. Nor did developer use an available state

procedure for obtaining compensation. Absence of exhaustion

requirement in 42 U.S.C. §1983 distinguished.

United States v.

Locke, 471 U.S.

84 (1985)

Federal statute voiding

unpatented mining claims

when claim holder fails to

make timely annual filings

No taking. Loss of claim could have been avoided with minimal burden.

No taking when property can continue to be held through owner’s

compliance with reasonable regulations. Texaco, Inc., v. Short, infra page 9,

found controlling.

Ruckelshaus v.

Monsanto Co.,

467 U.S. 986

(1984)

Public disclosure and other

use by EPA of industrygenerated trade-secret data

submitted with application

for pesticide registration

Taking occurred. Trade secrets are property, but only those submitted

1972-78, when federal pesticide statute contained a confidentiality

guarantee, were taken. Before and after this period, there was no

investment-backed expectation of confidentiality, hence no taking.

Kirby Forest

Industries, Inc. v.

United States,

467 U.S. 1 (1984)

Filing of condemnation

action by U.S. to acquire

land for national park

No taking. Mere act of filing leaves landowner free, during pendency of

condemnation action, to make any use of property or to sell it (but loss

in market value from such action is not compensable).

United States v.

Security

Industrial Bank,

459 U.S. 70

(1982)

Retroactive use of

bankruptcy statute to avoid

liens on debtor’s property

that attached before statute

was enacted

Statute will not be applied retroactively to property rights established

before enactment date, in absence of clear congressional intent. There is

substantial doubt whether retroactive destruction of liens comports with

Takings Clause, and statutory reading raising constitutional issues should

be avoided where possible.

Loretto v.

Teleprompter

Manhattan CATV

Corp., 458 U.S.

419 (1982)

State statute requiring

landlords to allow installing

of cable TV equipment on

premises, for one-time

payment of $1

Taking occurred. Whereas here government causes a “permanent

physical occupation” of property, it is a per se taking—no matter how

important the public interest served or how minimal the economic

impact. In contrast, temporary physical invasions must submit to balancing

of factors.

Texaco, Inc. v.

Short, 454 U.S.

516 (1982)

State statute extinguishing

severed mineral estates

unused for long time unless

owner filed statement

within prescribed period

No taking. It is the owner’s failure to use the mineral estate or timely file

a statement, not the state’s imposition of reasonable conditions on estate

retention, that causes the property right to lapse.

Dames & Moore

v. Regan, 453

U.S. 654 (1981)

President’s nullification of

attachments on Iranian

assets in U.S., during

hostage crisis

No taking. Attachments were revocable and subordinate to President’s

power under International Emergency Economic Powers Act. Hence,

there was no property in the attachments such as would support claim

for compensation. Also, possibility that suspension of claims against

Iranian assets may effect taking makes ripe the question whether there is

Tucker Act remedy here. We hold there is.

Congressional Research Service

Tucker Act remedy (right to seek money from U.S. in Court of Federal

Claims) was not withdrawn by pesticide act. Pesticide act reveals no such

intention, and withdrawal would amount to disfavored repeal by

implication of Tucker Act. Also, federal pesticide act sets up exhaustion

of agency remedies as precondition to any Tucker Act claim.

9

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Hodel v. Indiana,

452 U.S. 314

(1981)

Restrictions in federal

statute on surface mining of

prime farmlands

No taking. Plaintiffs failed to allege that any specific property was taken.

Mere enactment of statute was no taking, since prime farmland provisions

do not on their face deny landowners all economic use of such land—e.g.,

do not restrict non-mining uses thereof.

Hodel v. Virginia

Surface Mining &

Reclamation

Ass’n, 452 U.S.

264 (1981)

Demand in federal act that

surface miners restore

steep slopes to original

contour, and surface mining

prohibitions therein

No taking. Plaintiffs failed to allege that any specific property was taken.

Mere enactment of statute was no taking, since challenged provisions do

not on their face deny landowners all economic use of affected land. In

any event, taking claim is not ripe, since plaintiffs never used avenues for

administrative relief in act—e.g., variance from original-contour

requirement.

San Diego Gas &

Electric Co. v.

San Diego, 450

U.S. 621 (1980)

City’s adoption of openspace plan

No final judgment by state court below as to whether a taking had

occurred, hence no Supreme Court jurisdiction under 28 U.S.C. §1257.

Webb’s Fabulous

Pharmacies, Inc.,

v. Beckwith, 449

U.S. 155 (1980)

County court declaring as

public money the interest

on interpleader fund

deposited by litigants with

the court

Taking occurred. On facts presented, interest could not be viewed simply

as fee to cover court costs. State may not take interest simply by calling a

deposited fund “public money.”

United States v.

Sioux Nation of

Indians, 448 U.S.

371 (1980)

1877 statute abrogating

Sioux Nation’s rights to

Black Hills, thus abrogating

1868 treaty with tribe

Taking occurred. In giving tribe rations until they became self-sufficient,

1877 statute did not effect a mere change in the form of investment of

Indian tribal property (land to rations) by the federal trustee. Rather, it

effected a taking of tribal property set aside by the 1868 treaty. This

taking implied an obligation by the U.S. to make just compensation to the

Sioux.

Agins v. City of

Tiburon, 447

U.S. 255 (1980)

Municipal rezoning under

which property owner

could build between one

and five houses on his land

No facial taking; as-applied claim not ripe. Zoning law effects taking if it

does not substantially advance legitimate state interests or denies owner

economically viable use of his land. Thus, no facial taking here: enactment

of ordinance is rationally related to legitimate public goal of open-space

preservation, ordinance benefits property owner as well as public, and

owner may still be able to build up to five houses on lot. As-applied

challenge is premature, since owner never submitted development plan

for approval under the new zoning.

Prune Yard

Shopping Center

v. Robins, 447

U.S. 74 (1980)

State constitutional

mandate that persons be

allowed to engage in

political expression in

private shopping center

No taking. Will not unreasonably impair value or use of property as a

shopping center, since facility is open to public at large. And owner may

restrict time, place, and manner of expression.

United States v.

Clarke, 445 U.S.

253 (1980)

Municipalities’ entering into

physical possession of land

without bringing

condemnation action

Federal statute providing that allotted Indian lands may be “condemned”

under state law does not allow cities to take land by physical possession

in absence of formal condemnation proceeding. Term “condemned”

refers only to filing of condemnation by government, not filing of “inverse

condemnation” action by landowner.

Kaiser Aetna v.

United States,

444 U.S. 164

(1979)

Federal order that owners

of exclusive private marina,

made navigable by private

funds, grant access to

boating public

Taking occurred. Infringement of marina owner’s right to exclude others,

particularly where there’s investment-backed expectation of privacy, goes

beyond permissible regulation. Navigation servitude does not grant

government absolute taking immunity.

Andrus v. Allard,

444 U.S. 51

(1979)

Federal ban on sale of eagle

parts or artifacts made

therefrom, as applied to

stock lawfully obtained

before ban

No taking. Denial of one traditional property right (selling) does not

necessarily amount to taking, even if it is most profitable use of property.

Plaintiff retained right to possess, pass on, or exhibit for an admission

price, the affected inventory.

Congressional Research Service

10

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Penn Central

Transp. Co. v.

New York City,

438 U.S. 104

(1978)

City’s use of historic

preservation ordinance to

block construction of office

tower atop designated

historic landmark

No taking. Generally, there are three factors of “particular significance” in

a takings determination: (1) economic impact of regulation on property

owner; (2) extent to which regulation interferes with distinct investmentbacked expectations; and (3) “character” of government action (meaning

principally that regulation of use is less likely to be taking than physical

invasion). Here, landmark owner may earn adequate return from building

as is, and more modest additions to building still might be approved.

City’s offering of transferrable development rights to building owner also

weighs against a taking. Finally, building owner cannot segment air rights

over building from remainder of property and claim that all use of air

rights was taken.

II. The Dawn of Regulatory Takings Law:

Pennsylvania Coal Co. (1922) to 1978

The principle that government may “take” property in the Fifth Amendment sense merely through

regulatory restriction of property use—that is, without physical invasion or formal appropriation

of the property—was announced in 1922. In Pennsylvania Coal Co. v. Mahon, the redoubtable

Justice Oliver Wendell Holmes wrote for the Supreme Court that a state law prohibiting coal

mining that might cause surface subsidence in certain areas was a taking of the mining company’s

mineral estate.

The first steps taken by this infant “regulatory taking” doctrine, however, were unsteady ones.

Aside from making clear that regulatory takings occur only with the most severe of property

impacts, the Court’s opinions during this period display little in the way of principled decisionmaking. Moreover, the Court refused at times to part with its long-standing substantive dueprocess approach to testing property-use restrictions, vacillating between the two theories.

Case

Action attacked

Holding/rationale

Duke Power Co. v.

Carolina

Environmental

Study Group, 438

U.S. 59 (1978)

Federal statute limiting

amount recoverable by

injured parties in the event

of a nuclear accident

Where individuals seek declaratory judgment that statute (PriceAnderson Act) is unconstitutional because it does not assure

adequate compensation in the event of a taking, rather than

seeking compensation, they may do so in district court under 28

U.S.C. §1331(a), and may do so before potentially uncompensable

damages are sustained. (Footnote 15.) Also, it is unnecessary to

reach taking claim here, because statute does not withdraw

Tucker Act remedy (right to seek compensation from U.S. in

Court of Federal Claims). (Footnote 39.)

Regional Rail

Reorganization Act

Cases, 419 U.S. 102

(1974)

Federal statute directing

transfer of bankrupt

railroads’ assets to federally

created corporation and

forcing continued operation

of unprofitable lines

Availability of Tucker Act remedy (right to seek compensation

from U.S. in Court of Federal Claims) if rail act effects “erosion

taking” is ripe issue in view of distinct possibility that compelled

rail operations at a loss would erode railroad’s value beyond

constitutional limits. Similarly, issue of remedy’s availability if rail

act effects “conveyance taking” is ripe, since act will lead

inexorably to conveyance of assets. On merits, Tucker Act

remedy is available for both alleged takings because rail act

indicates no contrary intent; availability need not be stated.

Congressional Research Service

11

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Calero-Toledo v.

Pearson Yacht

Leasing Co., 416

U.S. 663 (1974)

Puerto Rico’s seizure of

yacht used for unlawful

activity by lessee, but having

innocent lessor

No taking. Forfeiture is not rendered unconstitutional because it

applies to property of innocents. The property itself is treated as

the offender, making owner’s conduct irrelevant. Also, owner

voluntarily entrusted yacht to lessee, and there was no allegation

that owner did all it could to avoid having property put to unlawful

use.

Hurtado v. United

States, 410 U.S. 578

(1973)

Pre-trial detention of federal

criminal witnesses who are

likely to flee and cannot post

bond; payment of only $1

per day

No taking. There is public duty to provide evidence; fact that pretrial detention is involved here, and that financial burden may be

great, is immaterial. Takings Clause does not make U.S. pay for

performance of duty it is already owed. Hence, issue of whether

$1 is adequate compensation need not be reached.

New Haven

Inclusion Cases, 399

U.S. 392 (1970)

Accumulation of losses by

New Haven Railroad from

inception of bankruptcy

reorganization plan in 1961

to inclusion in Penn Central

Railroad in 1968

No taking of bondholders’ interests. They invested in a public

utility that has obligations to public, thus assuming risk that

interests of public would be considered in any reorganization

along with their own. Bondholders’ rights do not dictate that vital

rail operations be jettisoned despite feasible alternatives. And no

bondholder petitioned court to dismiss reorganization proceeding

and permit foreclosure until 1967.

YMCA v. United

States, 395 U.S. 85

(1969)

Occupation of plaintiff’s

buildings in Canal Zone by

U.S. troops seeking to

protect buildings from

Panamanian rioters

No taking. Where private party is intended beneficiary of

government activity, resultant losses need not be compensated

even though activity was also intended incidentally to benefit

public. Also, damage by rioters was not caused directly and

substantially by government occupation.

Permian Basin Area

Rate Cases, 390

U.S. 747 (1968)

Federal determination of

maximum producers’ rates

for interstate sale of natural

gas on an area, rather than

individual producer, basis

The Constitution does not forbid area-wide rate determinations.

Also, recall that the “just and reasonable” rate standard of the

Natural Gas Act coincides with constitutional standards. Thus,

there is no constitutional objection if the Federal Power

Commission, in setting rates, takes fully into account the various

interests that “just and reasonable” requires it to reconcile.

Heart of Atlanta

Motel, Inc. v.

United States, 379

U.S. 241 (1964)

Federal statute banning racial

discrimination in public

accommodations

No taking. “The cases are to the contrary [of the taking claim].”

Dugan v. Rank, 372

U.S. 609 (1963)

Threatened storage and

diversion of water at

federally operated Central

Valley Project dam

If plaintiffs have valid water rights that are partially taken, their

remedy is not an injunction stopping reclamation project but a

taking suit against United States under Tucker Act. Damages are

to be measured by difference in market value of plaintiffs’ lands

before and after the taking.

Goldblatt v.

Hempstead, 369

U.S. 590 (1962)

Ordinance barring

excavation below water

table

No taking. Fact that ordinance deprives property of its most

beneficial use, even an existing one, does not render it a taking.

No evidence that ordinance will reduce value of lot, and ordinance

is valid police-power regulation.

Griggs v. Allegheny

County, 369 U.S. 84

(1962)

Low and frequent flights

over home near countyowned airport

Taking occurred of an air easement, per rule of United States v.

Causby, infra page 13. County, rather than U.S., must assume taking

liability, since notwithstanding federal airport standards that must

be met for receipt of federal funds, county promoted, built, owns,

and operates airport.

Armstrong v.

United States, 364

U.S. 40 (1960)

Required transfer to U.S. of

title to unfinished boat,

making a materialmen’s lien

unenforceable

Taking occurred. Destruction by government of all value of lien

(which is property) is not mere consequential injury, hence noncompensable, but is rather a direct result of United States’

exercising option under contract to take title to vessel.

Congressional Research Service

12

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

United States v.

Central Eureka

Mining Co., 357

U.S. 155 (1958)

Federal wartime order

requiring non-essential gold

mines to close

No taking. Government did not occupy, use, or possess mines;

rather it sought only to free up essential equipment and

manpower for critical wartime uses. Such a temporary restriction

during wartime is not a taking.

Tee-Hit-Ton Indians

v. United States,

348 U.S. 272 (1955)

Removal by U.S. of timber

from certain Indian-occupied

lands in Alaska

No taking. Permissive Indian occupancy—i.e., occupancy not

specifically recognized by Congress as ownership—may be

extinguished without compensation.

United States v.

Caltex (Philippines),

Inc., 344 U.S. 149

(1952)

Destruction by U.S. army of

private oil terminal, to

prevent its capture by

advancing enemy

No taking. Wartime destruction of private property by U.S. to

prevent imminent capture by an advancing enemy is exception to

taking clause.

United States v.

Pewee Coal Co.,

341 U.S. 114 (1951)

Temporary seizure and

operation of coal mine by

U.S. during wartime to avert

strike

Taking occurred. Government asserted total dominion and

control over the mines.

United States v.

Kansas City Life

Insurance Co., 339

U.S. 799 (1950)

Maintaining river level at high

water mark by federal lock

and dam, raising water table

on farm and thus destroying

its agricultural value

Taking occurred. Government is not shielded from takings liability

by its navigation servitude here; farm is above ordinary high water

mark, which defines limit of servitude. Destruction of farm’s

agricultural value is taking under principle that destruction of

private land by flooding is taking. As with flooding, land was

permanently invaded, and it matters not whether invasion was

from above or below.

United States v.

Gerlach Live Stock

Co., 339 U.S. 725

(1950)

Building of federal dam that

ended seasonal inundation of

plaintiffs’ grasslands, turning

them parched

Need not reach taking question, since Congress has not

attempted to take, or authorized the taking without

compensation, of any rights valid under state law.

United States v.

Dickinson, 331 U.S.

745 (1947)

Flooding of land by federal

dam in gradual, successive

stages

When government takes by a continuing process of physical

events, owner is not required to resort to piecemeal or

premature takings actions. Date of taking occurs when situation

becomes “stabilized.”

United States v.

Causby, 328 U.S.

256 (1946)

Frequent flights of military

aircraft over chicken farm at

low altitude.

Taking occurred of air easement. Flights over private land that are

so low and frequent as to be direct and immediate interference

with use and enjoyment of land effect a taking.

United States v.

Willow River

Power Co., 324

U.S. 499 (1945)

Raising of water level by

U.S., impairing efficiency of

upstream hydro-electric dam

No taking. Dam operator’s interest in river’s water level is

subordinate to paramount authority of United States to improve

navigation.

Bowles v.

Willingham, 321

U.S. 503 (1944)

Federal statute authorizing

restriction of rents in

“defense areas” to levels that

are “generally” fair, rather

than fair to each landlord

No taking. Impossibility of fixing rents landlord by landlord and

existence of war are germane to constitutional issue. Nothing in

act requires offering accommodations for rent. Price control may

reduce value of property, but that does not mean there is taking.

Federal Power

Comm’n v. Natural

Gas Pipeline Co. of

America, 315 U.S.

575 (1942)

Federal regulation of rates

for interstate sale of natural

gas

By long-standing usage in the field of rate regulation, the lowest

reasonable rate is one which is not confiscatory in the

constitutional sense. It follows that the “just and reasonable”

standard for interstate gas rates in the Natural Gas Act “coincides

with that of the Constitution.”

United States v.

Chicago, M., St. P. &

P. Railroad Co., 312

U.S. 592 (1941)

Raising of water level by

U.S., forcing railroad to incur

costs to protect

embankment

No taking. Embankment was built on low-water mark in bed of

navigable stream; government’s navigation servitude covers entire

bed of such streams to high-water mark.

Congressional Research Service

13

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Danforth v. United

States, 308 U.S. 271

(1939)

Enactment of flood control

statute authorizing

condemnation.

Mere enactment of statute authorizing future action cannot be

taking, since “[s]uch legislation may be repealed or modified, or

appropriations may fail.”

United States v.

Sponenbarger, 308

U.S. 256 (1939)

Enactment of flood control

act and operations pursuant

to act

No taking of land within floodway. Improvements under act had

not increased flood hazard. Also, government effort to lessen

flood hazard did not constitute taking of those lands not afforded

as much protection as others.

Chippewa Indians v.

United States, 305

U.S. 479 (1939)

Federal statute creating

national forest on land held

by U.S. in trust for tribe

Taking occurred. Mere enactment deprived tribe of all its

beneficial interest in the land.

Wright v. Vinton

Branch of Mountain

Trust Bank, 200

U.S. 40 (1937)

Elimination of certain rights

of mortgagees in property

held as security, by statute

amended in response to

Louisville Joint Stock Land

Bank, infra page 14

No due process violation. Amended statute shortened stay of

foreclosure proceedings (during which debtor remained in

possession paying rent) from five years to three years, and

included new provision requiring that judicial sale be held if debtor

failed to pay rent or comply with court orders.

Shoshone Tribe v.

United States, 299

U.S. 476 (1937)

Federal sanction of Arapahoe

occupancy of land promised

by treaty to exclusive

occupancy of Shoshone

Federal guardianship of tribal land does not include requiring tribe

to which exclusive occupancy has been pledged to share land with

another tribe absent compensation.

Louisville Joint

Stock Land Bank v.

Radford, 295 U.S.

555 (1935)

Federal statute eliminating

certain rights of mortgagees

in property held as security

Taking occurred. At the outset, bankruptcy power is subject to

Takings Clause. The statute as applied deprives mortgagee bank of

its property rights under state law to retain lien until indebtedness

is paid, to realize on the security through judicial public sale, to

control property during default period, etc. Aggregate loss of

these rights effects substantial impairment of the security. Act has

taken from bank and given to mortgagor rights of substantial value.

Railroad

Retirement Bd. v.

Alton Railroad Co.,

295 U.S. 330 (1935)

Required federal retirement

scheme for interstate

carriers

Due process violation occurred. Under scheme, a railroad must, in

addition to making its own contributions to pension fund, act as

insurer of contributions required of other railroads and railroad

employees. Though property of railroads is dedicated to public

use, it remains private property of its owners, and may not be

taken without compensation.

United States v.

Creek Nation, 295

U.S. 103 (1935)

Portion of treaty lands taken

by survey error of United

States, given to another tribe

Federal guardianship of tribal land does not allow appropriation by

U.S. without compensation.

Norman v. B. & O.

Rd. Co., 294 U.S.

240 (1935)

Federal mandate that

obligations be dischargeable

by payment of legal tender,

voiding gold clause in preexisting private contract

No taking. Relies entirely on Legal Tender Cases, infra page 20.

Mullen Benevolent

Corp. v. United

States, 290 U.S. 89

(1933)

Acquisition by U.S. of lands,

frustrating the replenishment

of town’s fund for repayment

of bonds

No taking of bonds. No lien remained on land at time of purchase

by U.S., and frustration of ability to replenish fund is merely

consequential damage, hence noncompensable.

Congressional Research Service

Holding/rationale

14

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

International Paper

Co. v. United

States, 282 U.S. 399

(1931)

Wartime requisition by U.S.

of all power producible by

power company from water

in canal, cutting off paper

company’s lease right to use

portion of such water

Taking occurred. Fact that requisition occurred by contract is of

no moment, since power company was bound under governing

requisition statute to obey. Paper company had water right, a

property right, to use of canal water, and federal action

terminated that right in its entirety. Omnia Commercial Co., infra

page 15, can be distinguished, since here government took the

property that petitioner owned, rather than merely frustrating

future deliveries under contract.

Leonard & Leonard

v. Earle, 279 U.S.

392 (1929)

Requirement in oyster

packer’s license that 10% of

shells be turned over to

state for use in preserving

oyster beds

No taking of oyster shells. State undoubtedly may exact a privilege

tax on oyster packing business of 10% of market value of empty

shells, and nothing in Constitution prevents state from demanding

instead that packer give up same percentage of shells. The result

to packer is not materially different. Also, shells will be used “as

greatly to advantage the business of packing.”

Nectow v. City of

Cambridge, 277

U.S. 183 (1928)

Euclid-style comprehensive

zoning ordinance, as applied

to designate portion of

plaintiff’s tract residential

Due process violation occurred. Because of industrial uses to

which adjoining lands on two sides are devoted, subject land has

little value for limited purposes permitted in a residential zone.

Land-use restriction cannot be imposed where, as here, it does

not bear substantial relation to public health, safety, morals, or

general welfare.

Miller v. Schoene,

276 U.S. 272 (1928)

State order that cedar trees

infected with infectious rust

disease be cut down, so as

not to endanger nearby cash

crop

State did not exceed due process or proper bounds of police

power. State may order destruction of one class of private

property to save another of greater value to public.

Village of Euclid v.

Ambler Realty Co.,

272 U.S. 365 (1926)

Comprehensive zoning

ordinance

No due process violation. Zoning, as a general matter, is

reasonable use of police-power to deal with increasingly crowded

urban conditions. Fact that non-offensive as well as noxious uses

are barred from a zone is not fatal.

Everard’s Breweries

v. Day, 265 U.S. 545

(1924)

Federal statute prohibiting

doctors from prescribing

intoxicating malt liquors for

medicinal purposes

No taking of brewery’s property. (No further discussion.)

Brooks-Scanlon

Corp. v. United

States, 265 U.S. 106

(1924)

Wartime requisition by U.S.

of all ships under

construction by shipyard and

related contracts, including

plaintiff’s purchase contract

Taking occurred. U.S. put itself in plaintiff’s shoes and appropriated

to its own use all the rights and benefits that an assignee of the

contract would have had—such as credit for payments already

made by plaintiff. U.S. sought to enforce the contract. This case is

easily distinguished from Omnia Commercial Co., infra page 15,

where U.S. frustrated, but did not take over, the contract.

Sanguinetti v.

United States, 264

U.S. 146 (1924)

Flooding of land between

river and slough, following

construction of canal

connecting the two to divert

flood waters from slough to

river

No taking. Overflow must be direct result of government

structure, and constitute a permanent invasion of land. These

conditions are not met here. The land was subject to same

periodic overflows before canal; it was not shown that overflow

was direct result of canal. And owner was not ousted, nor was

customary use of land prevented.

Omnia Commercial

Co. v. United

States, 261 U.S. 502

(1923)

Wartime requisition by U.S.

of steel plant’s entire output,

precluding plaintiff from

buying steel at favorable

price under preexisting

contract with plant.

No taking. Though contract rights are property, U.S. did not

“take” those rights, but merely frustrated their exercise. The

Constitution does not demand compensation for such

consequential harm.

Congressional Research Service

15

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Pennsylvania Coal

Co. v. Mahon, 260

U.S. 393 (1922)

State law barring coal mining

that might cause subsidence

of overlying land, applicable

only where surface estate

owner is different from

mineral estate owner

Taking occurred. “While property may be regulated to a certain

extent, if regulation goes too far it will be recognized as a taking.”

By eliminating right to mine coal, state law leaves the mineral

estate owner with nothing. Moreover, because state law applies

only where surface is in different ownership, it benefits a narrow

private interest rather than a broad public one. And surface

owners had expressly contracted away their right to subjacent

support.

III. Appropriations and Physical Takings Only:

1870 to 1922

The 1870s marked the Supreme Court’s first clear acknowledgment that the Takings Clause is not

only a constraint on the government’s formal exercise of eminent domain, but the basis as well

for suits by property owners challenging government conduct not attended by such formal

exercise. However, until 1922 the Court believed such “inverse condemnation” suits to be

confined to government appropriations or physical invasions of property. Cases involving the

impacts of government water projects (flooding, reduced access, etc.) were typical. When cases

involving mere restrictions on the use of property reached the Court, they were tested under due

process, scope of the police power, or ultra vires theories.

Case

Action attacked

Holding/rationale

Portsmouth

Harbor Land &

Hotel Co. v.

United States, 260

U.S. 327 (1922)

Positioning of military guns

for firing over private

resort island, and actual

firing on several occasions

Occasional firings and other evidence showed that U.S. might have

installed guns not simply as wartime defenses, but to subordinate

resort to right of government to fire across it at will, in peacetime.

If so, effects an appropriation of a servitude and requires

compensation.

Corneli v. Moore,

257 U.S. 491

(1922)

Federal refusal under

National Prohibition Act

to allow plaintiffs to

remove purchased liquor

barrels from warehouse,

despite pre-act purchase

No taking. Application of National Prohibition Act to plaintiffs,

despite their purchase of the liquor prior to its enactment, does

not effect a taking. Takings argument is “answered ... by the

National Prohibition Cases, 253 U.S. 350, 387.”

John Horstmann

Co. v. United

States, 257 U.S.

138 (1921)

Construction of federal

irrigation project, which

raised groundwater and

lake water, destroying

value of plaintiffs’ property

No taking. To bind federal government, there must be implication

of a contract to pay, but circumstances here rebut that implication.

The project’s consequences for the plaintiffs’ properties could not

have been foreseen, given the “obscurity” of the movement of

percolating waters.

Block v. Hirsh,

256 U.S. 135

(1921)

Statute allowing tenants to

remain in possession at

same rent upon expiration

of lease

No taking. Validity of rate regulation in the public interest is well

settled. Statute is justified only as temporary measure related to

war effort. Landlord is assured of rents that are “reasonable.”

Bothwell v. United

States, 254 U.S.

321 (1920)

Government flooding of

private land, forcing sale of

cattle at low prices and

destroying business.

No taking as to cattle or business. The U.S. need only pay for

property it actually takes.

Congressional Research Service

16

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Walls v. Midland

Carbon Co., 254

U.S. 300 (1920)

State ban on non-heating

uses of natural gas, forcing

closing of plant that used

gas to make carbon black

Within state’s police power and does not take property without

due process. State may curtail extravagant uses of a natural

resource in which many have rights, limiting one person’s rights in

order that others may enjoy theirs.

Jacob Ruppert,

Inc., v. Caffey, 251

U.S. 264 (1920)

Federal statute extending

wartime ban on domestic

liquor sales to beer,

including supplies on hand

at enactment

No taking. As in Hamilton, infra page 17, there was no

appropriation of private property, but merely a lessening of value

due to a permissible restriction on its use. Nor is it significant that

ban took effect immediately.

Hamilton v.

Kentucky

Distilleries &

Warehouse Co.,

251 U.S. 146

(1919)

Federal statute imposing

wartime ban on domestic

liquor sales, including

supplies on hand at

enactment

No taking. There was no appropriation for public purposes.

Moreover, statute gave plaintiff nine months after enactment to sell

liquor, and imposed no restriction at any time on export. Finally,

restrictions here are less severe than ones upheld in state takings

cases under Fourteenth Amendment.

Corn Products

Refining Co. v.

Eddy, 249 U.S.

427 (1919)

State food and drug law

requiring that table syrup

manufacturer affix labels

on product disclosing

ingredients

No taking. Though plaintiff’s syrup is a proprietary food, made

under a secret formula, there is no constitutional right to sell

goods without giving information to purchaser as to what it is that

is being sold. Hence, cannot be said that there is “taking of ...

property without due process of law.”

United States v.

Cress, 243 U.S.

316 (1917)

Federal lock and dam

project that raised water

above natural levels,

periodically flooding

private land

Taking of flowage easement occurred. Government’s right to make

navigational improvements is subject to taking clause when natural

bounds of stream are exceeded.

Hadacheck v.

Sebastian, 239

U.S. 394 (1915)

Ordinance barring brick

manufacture in residential

section of city, allegedly

reducing site’s value by

92½%.

Police power not exceeded. Only limit on police power is that it

not be exercised arbitrarily. Fact that when brick manufacturing

commenced, residences on surrounding land had not yet been

built, does not avail manufacturer.

Houck v. Little

River Drainage

District, 239 U.S.

254 (1915)

Tax of 25 cents per acre

levied upon all land within

drainage district to pay

district’s preliminary

organizing expenses

No taking. Argument that plaintiff’s land will not be benefitted by

newly formed district, and thus that tax is to that extent a taking

without just compensation, must be rejected. “[T]he power of

taxation should not be confused with the power of eminent

domain. Each is governed by its own principles.”

Greenleaf Johnson

Lumber Co. v.

Garrison, 237 U.S.

251 (1915)

Demand by Secretary of

War that portion of pier

outside redrawn pier line

be removed, even though

within pier line when built

No taking. Though pier was built with state approval, state’s

authority is subordinate to federal navigation servitude. Where it

applies to a body of water, as here, the servitude exonerates the

United States from takings liability when acting to promote

commerce and navigation.

Reinman v. Little

Rock, 237 U.S.

171 (1915)

Ordinance barring livery

stables in section of city

Police power not exceeded; due process not violated. It is within

police power to declare that in certain situations, a type of business

shall be deemed a nuisance and prohibited, even if it is not a

nuisance per se, as long as this power is not exercised arbitrarily or

with unjust discrimination.

Richards v.

Washington

Terminal Co., 233

U.S. 546 (1914)

Harm to property from

operation of nearby

railroad located,

constructed, and

maintained under acts of

Congress

Property owner’s nuisance action against railroad may proceed.

While Congress may legalize what would otherwise be a public

nuisance, it may not immunize congressionally chartered railroad

from private nuisance actions so as to amount to taking of private

property. Private nuisances amounting to takings in this context are

those where railroad operation subjects property owner to more

than typical injury, as is the case here.

Congressional Research Service

17

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Peabody v. United

States, 231 U.S.

530 (1913)

Positioning of military guns

with capability of firing

over private resort island;

last fired in 1902

No taking. If U.S. had installed guns to establish right to fire over

land at will in peacetime, would be a taking. But here, practice

shots can be aimed elsewhere, and indeed, guns have not been

fired for many years. Cf. Portsmouth Harbor Land & Hotel Co., supra

page 16.

Lewis Blue Point

Oyster Cultivation

Co. v. Briggs, 229

U.S. 82 (1913)

Federal contractor’s

dredging of navigation

channel across submerged

lands leased for oyster

cultivation, destroying

oysters

No taking. Under federal navigation servitude, property rights in

submerged land may be destroyed by dredging of channel in

interest of navigation without compensation. See also United States

v. Chandler-Dunbar Co., 229 U.S. 63 (1913), addressing effect of

navigation servitude on property rights in a direct condemnation

case decided the same day.

Noble State Bank

v. Haskell, 219

U.S. 104 (1911)

State statute requiring

banks to pay assessment

to fund designed to secure

full repayment of deposits

No taking. A public advantage may justify a small taking of private

property for what, in its immediate purpose, is a private use. In

addition, benefit conferred on plaintiff bank through this scheme of

mutual protection is sufficient compensation for correlative burden

that it must assume.

United States v.

Welch, 217 U.S.

333 (1910)

Flooding from government

dam, cutting off right of

way

Taking occurred. Destruction of an easement is as much a taking of

it as is an appropriation.

Welch v. Swasey,

214 U.S. 91 (1909)

State statute limiting

height of buildings in area

containing plaintiff’s land

to lower height than

elsewhere

No taking. Height limitation here, even though a discrimination, is

not so unreasonable as to deprive owner of property of its

profitable use without justification. The discrimination was justified

by the police power.

Juragua Iron Co. v.

United States, 212

U.S. 297 (1909)

Wartime destruction of

U.S. company’s property

in enemy territory, on

order of U.S. military

officer, to prevent spread

of yellow fever

No taking. American company doing business in enemy territory is

deemed enemy of the U.S. with respect to its property located in

that territory. No compensation is owed when such property is

destroyed through military action justified under laws of war.

Sauer v. City of

New York, 206

U.S. 536 (1907)

Construction of elevated

public viaduct in city

street, impairing access,

light, and air reaching

plaintiff’s property.

No taking. Under New York law, public-highway abutter has

easements of access, light, and air against erection of elevated

roadway by private corporation, but not against erection of same

for public use.

Union Bridge Co.

v. United States,

204 U.S. 364

(1907)

Order by Secretary of

War that bridge be

altered at owner’s

expense to eliminate

obstruction to navigation

No taking. U.S. actions under its navigation servitude are not

takings but rather exercise of dominant government power to

which riparian property has always been subject. Fact that bridge

was lawfully constructed and did not obstruct navigation when built

is immaterial.

Manigault v.

Springs, 199 U.S.

473 (1905)

Construction of stateauthorized dam,

compelling plaintiff to raise

his dikes and impairing

access to his lands

No taking. Flooding effects taking only where there is material

impairment of flooded land’s value—not, as here, where plaintiff is

merely put to some extra expense in raising dikes (and even

though dam’s sole purpose is to enhance value of downstream

lowlands for agriculture). No compensation for impaired access

either, since within state’s police power.

California

Reduction Co. v.

Sanitary

Reduction Works,

199 U.S. 306

(1905)

Ordinance requiring that

waste generated within

city be disposed of at

designated site, at

transporter’s expense.

No taking. Imposing expense on waste generator (assuming

transporter passes on disposal fees) was not taking, since it has

always been generator’s duty to have garbage removed from his

premises. Nor did destruction of waste amount to taking, even if

some of its constituents had value.

Congressional Research Service

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Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

New Orleans

Gaslight Co. v.

Drainage Comm’n

of New Orleans,

197 U.S. 453

(1905)

Requirement by drainage

district that gas utility

move some of its pipes at

its own expense

No taking. Plaintiff’s franchise gave it only right to locate its pipes

under streets of city, not right to any particular place such that

plaintiff must be compensated should relocation be required.

Bedford v. United

States, 192 U.S.

217 (1904)

Government revetments

along river to halt

widening, causing river to

flow faster and

erode/flood downstream

property

No taking. Damage to land, if caused by revetment at all, was but

an incidental consequence; distinguished from instance where

government dam in river causes flooding of private land directly.

United States v.

Lynah, 188 U.S.

445 (1903)

Flooding from government

dam, completely

destroying land’s value

Taking occurred. Where government dam floods land so as to

substantially destroy its value, there is a taking.

Scranton v.

Wheeler, 179 U.S.

141 (1900)

Pier constructed by

United States in navigable

waters in aid of navigation,

eliminating riparian

owner’s access to

navigable water

No taking. Congress’s power to regulate commerce, and therefore

navigation, may be exercised without compensation. Riparian

owner’s right of access to navigable waters is subject to being

thwarted by government erection of structures on submerged land

in front of property to improve navigation. Irrelevant whether title

to submerged land on which pier was built was in state or private

riparian owner.

Norwood v.

Baker, 172 U.S.

269 (1898)

Ordinance assessing

landowner the costs to

condemn strip of his land

for road, including village’s

expenses in connection

with condemnation

Taking occurred. Special assessments to meet cost of public

improvements are justified on ground that property owner on

which they are imposed is specially benefitted by the improvement.

Still, when such assessments are in substantial excess of those

special benefits, they are, to the extent of such excess, a taking.

Meyer v.

Richmond, 172

U.S. 82 (1898)

City-authorized railroad

obstruction to street,

reducing traffic at plaintiff’s

properties nearby

No taking. Obstruction was not on plaintiff’s land. Hence, impact

on plaintiff amounted only to consequential damages, which are

noncompensable.

Gibson v. United

States, 166 U.S.

269 (1897)

Construction of

government dike near

plaintiff’s land, preventing

ingress and egress of

vessels to commercial

wharf on plaintiff’s land

No taking. No appropriation or direct invasion occurred, only

incidental injuries from lawful exercise of federal navigation

servitude. No water was thrown onto plaintiff’s land; dike did not

physically touch land or cause deposits thereon.

Mugler v. Kansas,

123 U.S. 623

(1887)

Ban in state constitution

on manufacture or sale of

liquor, greatly reducing

brewery’s value

No taking. A prohibition simply upon use of property for purposes

declared by valid legislation to be noxious cannot be deemed a

taking.

United States v.

Pacific Rd., 120

U.S. 227 (1887)

Government’s offset of its

costs in rebuilding bridges

destroyed in Civil War,

against railroad’s claim for

services

Related discussion asserts that government cannot be charged for

injury to private property caused by wartime operations in the

field, or by measures necessary for army’s safety. But when

property of loyal citizens is taken for army’s use, it has been

practice to compensate, though “it may not be within the terms of

the constitutional clause.”

United States v.

Great Falls Mfg.

Co., 112 U.S. 645

(1884)

Building of dam, which

occupied plaintiff’s land

and took his water rights

Taking occurred. Where United States by its agents proceeds

under act of Congress to occupy property for public use, it must

compensate.

Congressional Research Service

19

Takings Decisions of the U.S. Supreme Court: A Chronology

Case

Action attacked

Holding/rationale

Transportation

Co. v. Chicago, 99

U.S. 635 (1878)

Construction of tunnel

under river, temporarily

limiting access to wharf

No taking. Acts done in proper exercise of government powers,

and not directly encroaching on private property, are not a taking.

Pumpelly v. Green

Bay Co., 80 U.S.

(13 Wall.) 166

(1871)

Dam that flooded

plaintiff’s land continuously

Taking occurred. It is not required that property be formally taken

in order to implicate Takings Clause. Serious interference with the

common and necessary use of property, as by continuous flooding,

effects a constitutional taking.

Legal Tender

Cases (Knox v.

Lee), 79 U.S. (12

Wall.) 457 (1870)

Federal statutes making

U.S. currency legal tender

for payment of all debts,

even those entered into

before enactment

No taking. Takings Clause “has always been understood as

referring only to a direct appropriation”; it has no bearing on laws

such as this one that only indirectly cause loss. Overrules on this

point Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870) (finding legal

tender acts violative of due process, but briefly raising taking issue).

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

20

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