APPENDIX TO

GUIDELINES FOR THE EVALUATION OF RISK AND AVOIDANCE OF UNANTICIPATED TAKINGS

[NOTE: THIS APPENDIX PRE-DATES THE MAJOR DECISIONS OF LUCAS v. SOUTH CAROLINA COASTAL COUNCIL (1992) and DOLAN v. CITY OF TIGARD (1994), BUT PROVIDES A USEFUL HISTORY OF THE DEVELOPMENT OF FIFTH AMENDMENT TAKINGS CASES PRIOR TO THOSE DECISIONS.]

I. Introduction

This Appendix is a part of, and incorporated by reference into, the Guidelines promulgated by the Attorney General pursuant to Executive Order No. 12630. It provides further detail for the case law parameters surrounding the consideration of the risk that a taking may have occurred. See Guidelines, Section V(A)(5). This discussion is not meant to be exhaustive. In that respect, the takings implication consideration and the evaluation of the applicable case law will normally be one requiring close consultation between agency program personnel and agency counsel.

As with the Guidelines themselves, this Appendix speaks only to a general framework for the takings implication analysis under Executive Order No. 12630. Similarly, it is important to reiterate that Executive Order No. 12630 contemplates agency-specific supplemental guidelines. See Executive Order No. 12630, Section 5(e)(2); Guidelines, Section VI(D).

Executive Order No. 12630, as further explained in the Guidelines, provides for: (a) completion of a Takings Implication Assessment (TIA) before undertaking any proposed action or implementing any policy as defined by Section 2(b) and 2(c) of the Executive Order (see Guidelines, Section VI(A)(2)) and (b) certain Special Reporting Requirements, including the identification of takings implications of proposed regulatory actions in certain specific submissions to the Office of Management and Budget (OMB), and the identification and discussion of significant takings implications (as defined in the Guidelines) in notices of proposed rulemaking and, subject to the normal OMB legislative coordination and clearance process, messages transmitting legislative proposals to Congress. These obligations will be integrated, in ways to be determined by the agency in light of the particular program, into its normal decisionmaking processes.

The Guidelines contemplate that agency decisionmakers will continue to meet the obligations imposed upon them by statute. They do not, and should not be read to, preclude actions or policies which the decisionmaker determines necessary to meet those obligations. In those circumstances, the TIA process will identify the takings implications, if any, of the necessary governmental conduct while permitting that conduct to go forward.

B. The Takings Implication Assessment

The TIA serves as an evaluative tool for the takings implications of policies and actions within the Executive Order and provides candid advice on those implications. As a part of the continuing process of developing government policies and actions, the TIA focuses attention on the fiscal and policy concerns arising from takings risk. Intended as a predecisional document, the TIA will be available for meaningful use by the decisionmaker prior to the decision. See Guidelines, Section VI(A)(2).

C. Significance of Factual Information to Takings

Implications Analysis

Questions as to the existence of takings require the sifting of numerous facts for the isolation of significant and insignificant factors. This focus on facts also lies at the heart of the advice contemplated by the TIA. Thus, a separate TIA will normally be prepared for each policy or action within the Executive Order. Similarly, because the TIA's do evaluate specific factual settings, a TIA prepared for one policy or action will normally have no precedential value for another policy or action.

Guidelines, Section V(D)]

A. Introduction

The Executive Order requires identification of takings implications. See Executive Order 12630, Section 5(b). This Appendix now turns to a general discussion of the case law framework which provides the current background for assessing takings implications.

B. Fairness and Justice Under the Fifth Amendment Ratified in 1791, the Fifth Amendment provides, for pertinent purposes: nor shall private property be taken for public use without just compensation. Its terms do not prohibit the taking of private property for lawful purposes. Rather, they operate "to secure compensation in the event of otherwise proper interference amounting to a taking". First English Evangelical Lutheran Church of Glendale v. County of Los Angeles. 107 S. Ct. 2378, 2386 (1987). The constitutional guarantee of the Amendment precludes government "from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1959).

1. Focus on Impact of Actions and Self-Executing Character

The assessment of governmental interference under the Amendment turns ultimately not on what government may say, or what it may intend, but on the impact of its actions. Hughes v. Washington, 389 U.S. 290, 298 (1967); Armstrong v. United States, 364 U.S. at 48-49. Moreover, where the interference effects a taking, that governmental action implicates a "constitutional obligation to pay just compensation." First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. at 2386. The Amendment has a "self-executing character...with respect to compensation." United States v. Clarke, 445 U.S. 253, 257 (1980) (citations omitted), quoted in First Evangelical Lutheran Church of Glendale v. County of Los Angeles, id.

In the face of this self-executing obligation, it is not enough that an agency discontinue its intrusion when a court finds that a taking has occurred. First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. at 2387-2389. In those circumstances, just compensation would still be due for the period between the point at which the government action created compensable interference (see Sections III(E-G), infra) and the termination of that intrusion. Id.

Nor is it necessary that just compensation be paid in advance of a taking, provided that a process is available for meeting the obligation, Williamson Co. Regional Planning v. Hamilton Bank, 105 S. Ct. 3108, 3121 (1985).

2. Fact Sensitive Analysis

The takings analysis proceeds in the particular factual circumstances of the governmental impact on property. This leads to what have been described as "ad hoc" analyses in the context of particular facts. See Hodel v. Irving, 107 S. Ct. 2076, 2082 (1987); Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978). See Section II(C), supra.

3. Public Use Requirement

The Amendment reaches the taking of private property for public use. In that respect, the "public use" requirement is "coterminous with the scope of the sovereign's police powers." Hawaii Housing Authority v. Midkiff, 104 S. Ct. 2321, 2329 (1984) (Hawaii Land Reform Act created condemnation process for transfer of title from lessors in land oligopoly to lessees in order to reduce concentration of land ownership). The Court will not "substitute its judgment for a legislature's judgment as to what constitutes a public use 'unless the use be palpably without reasonable foundation.'" Id. See also Berman v, Parker, 348 U.S. 26, 33 (1954) (comprehensive use of eminent domain power for slum redevelopment). Although analysis of the legislative public purpose may include the legislative statement of purpose and the legislative history, the operative terms and provisions of the statute will control any inconsistency between the former and the latter. See Keystone Bituminous Coal Association v. De Benedictis, 107 S.Ct. 1232, 1243 n.16 (1987) ("examine the operative provisions of a statute, not just its stated purpose, in assessing its true nature"). That the Legislature has found a public use does not necessarily, however, answer the more critical question --for Fifth Amendment Purposes-- of whether the lawful exercise of governmental power effects a compensable taking. See Sections III(C-F), infra;

Guidelines, Section V.

C. Property Interests Within the Fifth Amendment

[See Executive Order No. 12630, Section 2(b)]

"Property interests...are not created by the Constitution." Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980). Instead "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. See also Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1001 (1983) (trade secret property right). Federal statutes may, however, provide a basis for the perfection of property interests by individuals. For instance, subject to the federal law limitations for establishing that necessary predicates for the vesting of interests have occurred, federal mining claims are private property within the Fifth Amendment. Freese v. United States, 639 F.2d 754 (Ct. Cl. 1982). In a later opinion, Freese v. United States, 6 Cl.Ct. 1, aff'd, 770

F.2d 177 (Fed. Cir. 1984), the court found that plaintiffs had not perfected their claim. Cf. Cape Fox Corporation v. United States, 4 Cl. Ct. 223 (1983) (ANCSA "selections" contingent and speculative).

The Amendment reaches property interests of whatever specie -- realty, personalty, or intellectual. In the context of the Fifth Amendment, the word "property" is used in the sense of "the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, to use and dispose of it." The provision addresses every sort of interest the citizen may possess. United States v. General Motors Corp., 323 U.S. 373, 378 (1945). See also United States v. Willow River Power Co., 324 U.S. 499, 502 (9145); but cf. Reichelderfer v. Quinn, 287 U.S. 315 (1932) (sovereign-created values may not be private property interests under the Fifth Amendment); Acton v. United States, 401 F.2d 896 (9th Cir. 1968), cert. denied, 395 U.S. 945 (1969) (no property rights accrued to licensee upon revocation which are compensable in condemnation). Nor are all economic interests property interests. United States v. Willow River Power Co., 324 U.S. 499, 502 (1945). Where a property interest exists, however, the authority of the government to limit the interest by legal redefinition is constrained by the Fifth Amendment. Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1012 (1984).

And, even though the right to build on private property can be the subject of legitimate permitting regulation, that right "cannot remotely be described as a 'government benefit'." Nollan v. California Coastal Commission, 107 S.Ct. 3141, 3146 (1987).

Further, compensation due under the Amendment when a taking does occur accrues to the owner of the property interest at the time of the taking, not to the owner at an earlier or later date. United States v. Dow, 357 U.S. 17 (1958). For special statutory limitations with respect to the assignment of takings claims, see 31 U.S.C. Section 3727 (1986).

D. Congressional Authorization to Act

[See Executive Order No. 12630, Section 3(e)]

Congressional authorization to undertake the government action at issue is an essential element of a taking. See generally, Section 3(e), supra. The test is not whether Congress authorized or even contemplated a taking affect from action pursuant to its purpose. Rather, the test is whether the government conduct said to give rise to the taking was authorized. See Florida Rock Industries v. United States, 791 F.2d 893, 898 (Fed. Cir. 1986), citing Portsmouth Harbor Land and Hotel Company v. United States, 260 U.S. 327 (1922); NBH Land Company v. United States, 576 F.2d 317, 319 (Ct.Cl. 1978); Barnes v. United States, 538 F.2d 865, 871 (Ct. Cl. 1976). Where Congress has acted so as to preclude implication of authority for takings purposes, however, a taking cannot lie. NBH Land Company v. United States, 576 F.2d at 319; Southern California Financial Corporation v. United States, 634 F.2d 521, 524 (Ct. Cl. 1980).

E. Physical Intrusion Takings; Physical Occupancy and Physical Invasion [See Executive Order No. 12630, Section 3(b); Guidelines, Section V(B)(1) & (2)]

1. Physical Occupancy [Guidelines, Section V(B)(1)]

In general, governmental actions resulting in physical intrusions constitute property restrictions long viewed by the Supreme Court as having "an unusually serious character for purposes of the Takings Clause." Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 426 (1982). Moreover, "when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred." Id.

In the circumstances of a physical occupation, the taking reaches to "the extent of the occupation, without regard to whether the action achieves an important public benefit or has only a minimal economic impact on the owner." Id., at 425-426. Thus, the presence of CATV cables and related boxes (occupying approximately 1 1/2 cubic feet) pursuant to New York law requiring landlords to permit the facilities on their rental property was a taking. Id. at 441.

2. Physical Invasions [Guidelines, Section V(B)(2)]

The Supreme Court recognizes a distinction between instances of permanent physical occupation and those of physical invasions falling short of occupation. Id. at 430. Classic examples of the latter in federal law include, but are not limited to, aviation easement, or so-called overflight, and flooding taking cases.

Thus, where flights of government aircraft are so low and frequent over private property as to constitute a direct and immediate interference with the use and enjoyment of the subjacent land, compensable takings may arise. United States v. Causby, 328 U.S. 256 (1946). See also Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963) (finding overflight taking in navigable airspace); Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981) (liability from flights over 500 feet AGL not precluded merely by that fact); Stephens v. United States, 11 Cl. Ct. 352 (1986) (vast majority of flights in navigable airspace and no peculiar circumstances warranting liability there), Where flights occurring below the navigable airspace are involved, those intruding flights must interfere "Substantially with the use or enjoyment of the property" in order to risk taking liability. Hero Lands Company v. United States, 1 Cl. Ct. 102, 105 (flights in conjunction with operations of NAS-New Orleans), aff'd. 727 F.2d 1118 (Fed. Cir.), cert. denied, 466 U.S. 972 (1983).

Where flooding occurs as the natural and probable consequence of authorized government action and, although intermittent, is inevitably recurring, a taking may also be found. United States v. Cress, 243 U.S. 316, 330 (1917). See also Bartz v. United States, 633 F.2d 571 (Ct. Cl. 1980); Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1976) (alteration of sedimentation patterns resulting in above high water flooding causing taking). The flooding must be productive of substantial interference in order to risk taking liability. Barnes v. United States, 538 F.2d at 870 (citing United States v. Cress, 243 U.S. at 328).

F. Regulatory Takings [See Executive Order No. 12630 Sections 3(b), 3(c), 4(a),

4(d), 5(b); Guidelines, Section V(B)(3)]

1. In General

Governmental regulatory conduct may go "too far", thus requiring just compensation. Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922) (statute prohibited the mining of anthracite coal in a manner causing subsidence and damage to overlying structures). Where the Mahon line is crossed and the vehicle for payment of just compensation provided by 28 U.S.C. Section 1491 (1986) is unavailable, for instance, the Court has invalidated congressional legislation providing that certain property could not descend by intestacy or devise to successors in interest but, instead, would escheat to Indian tribes. Stressing the extraordinary character of the government regulation and the virtual "abrogation of the right to pass on a certain type of property," the Court concluded that the statute went "too far."

The Court has indicated, in land use regulation contexts, that the line will be crossed when a regulation does "not substantially advance legitimate state interests...or denies an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260 (1980) (zoning density restrictions neither prevented best use of property nor extinguished a "fundamental" attribute of ownership), cited in Nollan v. California Coastal Commission, 107 S. Ct. 3141, 3146 (1987) and United States v. Riverside Bayview Homes, Inc., 106 S. Ct. 455, 459 (1985). The existence of a permit system, for instance, and the requirement that an individual resort to the system before engaging in a property use does not effect a taking per se. Id. "Only when a permit is denied and the effect of the denial is to prevent 'economically viable' use of the land is question can it be said that a taking has occurred." Id.

2. Permitting Programs and Conditions Substantially Advancing Legitimate Government Purposes [See Executive Order No. 12630, Section 4; Guidelines, Section V(C)(1)]

a. In General

The programs of many agencies require private parties to obtain permits in order to undertake a specific use of, or action with respect to, private property. Takings precedent requires that permitting programs give special thought with respect to any conditions imposed on the granting of a permit. Specifically, in Nollan v. California Coastal Commission, 107 S. Ct. 3141, 3144 (1987), the Court addressed a situation where the California Coastal Commission granted property owners a permit to replace a small beachfront bungalow with a larger house on the condition that the owners provide, by easement, additional lateral access for the public to public beaches on the water side of the house.

Analyzing the case under the Takings Clause, the Court first reiterated the proposition that the right to exclude others from property was one of the most essential sticks in the property owners' bundle of rights. Id. at 3145. That the burden on this right resulted from a condition on a permit as contrasted to acquisition of an easement for access was insignificant. Id. Pointing to the permanent and continuous right given to individuals to traverse the lateral beachfront, the Court found a physical occupation. Id. Accord Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 426 (1982).

Analyzing the question of whether exaction of this concession by permit condition effected a talking, Nollan cited Agins language and began with the proposition that "land use regulation would not effect a taking if it 'substantially advance[d] legitimate state interests' and [did] not 'den[y] an owner economically viable use of his land.'" Id. at 3146 (citing Agins v. City of Tiburon, 447 U.S. at 260). Significantly, the Court held that the regulatory requirement must substantially advance" the legitimate interest and not merely be a requirement which might rationally achieve the governmental objective. Nollan v. California Coastal Commission, 107 S. Ct. at 3147, n.3.

The Court assumed, arguendo, the legitimacy of the government interest -- protecting the public's ability to see the legitimacy, a "condition that would have protected the public's ability to see the beach notwithstanding construction of the new house," for example, would have been constitutional. Id. at 3148. Such a condition would have served the same governmental purpose as the building restriction in the first instance.

Where the condition imposed failed to advance the governmental interest which anchored the restriction in the first instance, but instead sought to achieve a different purpose without just compensation, "the building restriction [was] not valid regulation of land use but 'an out and out plan of extortion'." Id. (citations omitted). In the Court's view, this nexus failure resulted, for Takings Clause purposes, in something beyond the "outer limits of 'legitimate state interests,'" Id.

b. Executive Order and Guidelines Requirements

Accordingly, in the interest of minimizing unanticipated takings, Section 4(a) of the Executive Order and Section V(C)(1) of the Guidelines provide that a permitting requirement imposing a condition on the granting of the permit should: (1) serve the same purpose that would have been served by a prohibition of the use or action; and, (2) substantially advance that purpose.

3. Proportionality of Burden to Risk Created [See Executive Order No. 12630, Section 4(b);

Guidelines, Section V(B)(3)(c)]

a. In General

It is also important to the justice and fairness analysis compelled by the Fifth Amendment to demonstrate, to the extent possible, that the restriction imposed is proportional to the contribution to that risk occasioned by the restricted use. Nollan v. California Coastal Commission, 107 S. Ct. 3141, 3143 n.4 (1987) ("If...mingled out to bear the burden...although they had not contributed to it more than other...landowners...[the action] might violate either the...Takings Clause or the Equal Protection Clause.").

b. Executive Order and Guidelines Requirements

Accordingly, Section 4(b) of Executive Order No. 12630 provides:

When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress. See also Guidelines, Section V(B)(3)(c).

4. Three-Part Regulatory Taking Analysis [Guidelines, Section V(D)(2)]

a. In General

In addition to the specific requirements with respect to permitting conditions (Section III(f)(2), supra), the location of the Mahon "line" requires careful consideration of what has come to be viewed as a three-part regulatory taking test: (1) the character of the governmental action; (2) the economic impact of the action; and (3) the extent of interference with reasonable investment-backed expectations. Penn Central Transportation Company v. New York City, 438 U.S. 104, 124 (1978) (New York Landmark Law prohibited appellants from occupying airspace, i.e., developing, above Grand Central Station but permitted use of the remainder of the parcel as well as sanctioned the transfer of this precluded right to develop to other property; no taking found). This three-part test is applied in Section V(D) of the Guidelines when evaluating regulatory actions for their takings implications.

b. Examples of Application of Three-Part Analysis

The following are examples of the application of the three-tiered test: Hodel v. Irving, 107 S. Ct. at 2082 (act affected uncompensated taking; character of action, analogized significance of right to devise property to the right to exclude others; economic impact could be substantial and right to devise property "a valuable right"; taking found even though interference with investment backed expectations was not substantial; Connolly v. Pension Benefit Guaranty Corporation, 106 S. Ct. 1018, 1026 (1986) (withdrawal liability provisions of Multi-Employer Pension Plan Amendments of 1980 not takings; character of action, economic reallocation; economic impact, in proportion to experience with pension plan; interference with investment backed expectations, not substantial because of early notice to participants); Kaiser Aetna v, United States, 444 U.S. 164, 178 (1979) (action unlawful taking where petitioners, in presence of government consent and acquiescence, committed substantial investment of resources to link private body of water to navigable water; loss of right to exclude characterized as a fundamental right of property; assertion of navigation servitude here would result in physical invasion; impact not insubstantial; expectancies evidenced by substantial investment of funds entitled to protection).

The ad hoc three-part test is not fully predictable, and therefore, proposed actions and policies should be sensitive to takings implications even if the case precedents finding a taking were decided on somewhat different facts. For example, even on the same subject matter, application of the tests can result in different takings conclusions. For instance, in Keystone Bituminous Coal Association v. De Benedictis, 107 S. Ct. 1232, 1242 (1987), the Court considered recent Pennsylvania legislation which -- like the Kohler Act analyzed in Mahon -- addressed concerns of subsidence damage associated with coal mining activities. The opinion finds the Mahon line unviolated for two reasons.

First, the 1966 Subsidence Act contained specific legislative findings that important public interests warranted the regulation, unlike the Kohler Act which involved "a balancing of the private economic interests of surface owners." 107 S. Ct. at 1242. Thus, the 1966 legislation brought to bear the "substantial" public interest in "preventing activities similar to public nuisances". 107 S. Ct. at 1246. See Section III (F)(5)(a), infra. In determining the purposes, the Court emphasized that, although legislative declarations were important, the analysis required judicial consideration of the operative terms of the statute. 107 S. Ct. at 1243, n.16.

Second, Keystone petitioners demonstrated no material interference with reasonable investment backed expectations on the part of the coal industry. Specifically, the cases presented a facial challenge to the 1966 Act -- essentially, an allegation that the mere enactment of the legislation constituted a taking. 107 S. Ct. at 1242. Petitioners made no claim that the 1966 Act made continuous mining of bituminous coal commercially impracticable. Nor did the Court have before it any evidence that the Act's requirement to leave certain coal in place had made mining unprofitable in those locations. These factors stood in contrast to Mahon's finding that the Kohler Act rendered mining commercially impracticable. Petitioners' "support estates" (Which under Pennsylvania law included the right to remove coal underlying the surface or to leave those layers intact and which could be owned by either the surface or mineral estate owner), in the Court's view, had value only in that they protected or enhanced the mineral estates also owned by petitioners -- that is, the support estate was simply one strand in the bundle of rights owned by the coal owner. The Court stressed that petitioners "retain[ed] the right to mine virtually all of the coal in their mineral estates." Thus, the burden imposed on the surface estate did not constitute a taking.

c. Economic Impact Factors

[Guidelines, Section V(D)(2)(b)]

Among the factors which may be relevant in assessing the economic impact of governmental action are the character of the property, the volatility of property values, variations in state property laws affecting the utility of the property, market, regional and demographic information, the existence of irretrievable economic opportunities, the anticipated duration of the proposed action, and the extent to which the property owner may have enhanced the existing use of the property. This list of factors is illustrative only and is neither exhaustive nor obligatory.

        1. Regulation in the Service of Public Health and
        2. Safety

[See Executive Order No. 12630, Section 4(d);Guidelines, Section V(C)(2)]

          1. In General: Deference in Matters of Public Health and Safety
          2. In evaluating government regulatory conduct under the Takings Clause, courts have evidenced a "hesitance" to find takings where the public purpose of the underlying legislation in to "restrain uses of property that are tantamount to public nuisances..." Keystone Bituminous Coal Association v. De Benedictis, 107 S. Ct. at 1245. Important to claiming the deference shown in such public nuisance regulation is recognition of the concept of "reciprocity of advantage" --that, in demonstratable ways, each who is regulated benefits from the similar regulation of others. Id. Cf. Mugler v. Kansas, 123 U.S. 623 (1887) (prohibition of liquor sale in interest of health, safety, or morals of public); Euclid v. Ambler, 272 U.S. 365 (1926) (in a facial challenge, conclusion that noise and traffic might be very nearly a public nuisance in an area; thus, regulations bore substantial relationship to public welfare); Miller v. Schoene, 276 U.S. 272 (1928) (nuisance rationale sustains state's destruction of cedar rust trees); Goldblatt v. Hempstead, 369 U.S. 590, 595-596 (1961) (safety based regulation prohibiting further excavation of sand and gravel mine below water table not unreasonable; plaintiffs' failed to meet burden of showing that prohibition would further reduce value of property or that regulation unreasonable).

            b. Deference Not Coextensive With "Public Use"

            Although "public use" for purposes of the Fifth Amendment is coterminous with the governmental police power (Section III(B)(3), supra) the deferential "nuisance exception" discussed here is not coextensive with the police power. Keystone Bituminous Coal Association v. De Benedictis, 107 S. Ct. at 1245, n.20. In other words, even when governmental action is designed to protect health and safety, some consideration of that action's economic impact may nevertheless be appropriate. Thus, Florida Rock v. United States, 791 F.2d 893, 902 (Fed. Cir. 1986) has cautioned that a

            "regulation under the Clean Water Act can be a taking if its effect on a landowner's ability to put his property to productive use is sufficiently severe."

          3. Executive Order and Guidelines Requirements
          4. [See Executive Order 12630, Section 5(d) Guidelines, Section VI(A)]

With respect to public health and safety directed actions, then, management must, in any internal deliberative documents and any submissions to the Director, Office of Management and Budget, that are required:

        1. Identify clearly, with as much specificity as possible, the public health or safety risk created by the private property use that is the subject of the proposed action;
        2. ii. Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk;

iii. Establish to the extent possible, that the restrictions imposed on private property are not disproportionate to the extent to which the use contributes to the overall risk; and, Estimate, to the extent possible, the potential Cost to the government in the event that a court later determines that the action constituted a taking. See Section V, infra. Under the Guidelines procedure, this reporting is accomplished by completion of the TIA process and consideration of the factors identified in Section V(C)(2) of the Guidelines for public health and safety actions. The "required submissions" are defined in Section VI(B) of the Guidelines.

6. Examples of Regulatory Takings Litigation

Although clearly not exhaustive, federal regulatory takings litigation include the following examples: Kirby Forest Industries v. United States, 467 U.S. 1, 4-6 (1984) (mere initiation of condemnation action does not result in taking even if accompanied by lis pendens); Yuba Goldfields v. United States, 723 F.2d 884 (Fed. Cir. 1983) (taking: government assertion of mineral rights title, was later found inaccurate by court ruling, and related "prohibition" of dredging activity); Deltona Corporation v. United States, 657 F.2d 1184 (Ct. Cl. 1981) (no taking: multi-stage development; permits as to early stages granted, but two permits under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act denied as to latter stages; where many "economically viable uses" remain, denial of highest and best use not a taking); Jentgen v. United States, 657 F.2d 1210 (Ct. Cl. 1981) (no taking: Corps of Engineers denied Section 404 permits, but offered modification; plaintiffs declined offer); Benenson v. United States, 548 F.2d 939 (Ct. Cl. 1977) (taking: statutory requirements for development of Pennsylvania Avenue property, in combination with congressionally imposed moratorium, in interest of preserving building facade deprived owner of reasonable use); Hendler v. United States, 11 Cl. Ct. 91 (1986) (no taking: issuance of emergency access under CERCLA alone not a taking; left open question of physical intrusion); Snowbank Enterprises v. United States, 6 Cl. Ct. 476 (1984) (no taking: regulatory constraints imposed by Boundary Waters Canoe Wilderness Act on access not so pervasive as to amount to a taking); Mesa Ranch Partnership v. United States, 2 Cl. Ct. 700 (1983) (no taking: threat of condemnation not a taking; interested party persuasion of local zoning body to down-zone property not a taking).

G. Examples of Non-Categorical Takings Litigation

Government action may not fall clearly into either a physical intrusion or regulatory burden category. In these instances, courts have proceeded to analyze the justice and fairness, in the context of Armstrong, supra, of the burden placed on the property owner. Examples include Evherabide v. United States, 345 F.2d 565 (Ct. Cl. 1965) (taking: gunnery range around property; evidence of physical intrusion combined with other factors, such as signs indicating that area within ranch was a gunnery range); Drakes Bay Land Company v. United States, 424 F.2d 574 (Ct. Cl. 1970) (taking: government officials found to have ignored means, placed in their hands, to prevent economic harm from congressional taking; instead, found to have taken positive steps to prevent exploitation of land).

IV. Temporary Takings Resulting From Government Activity [See Executive Order No. 12630, Sections 3(b), 3(d), 4(c) Guidelines, Section V(C)(3)]

A. In General

"'[T]emporary' takings which...deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. at 2388 (finding that the Constitution's Takings Clause, as applicable to the states through the Fourteenth Amendment, compelled a cause of action for the government's payment for the value of the use of land during a temporary period). Where government action is found to occasion a temporary taking, "the government may elect to abandon its intrusion or discontinue regulations." Id. at 2387 (citations omitted). Time consumed by administrative processes in good faith which may be viewed as "normal delay" will likely raise no takings implication. Id. at 2389. However, government-imposed moratoria on use raises colorable takings considerations. See, e.g., Benenson v. United States, supra.

B. Executive Order and Guidelines Requirements [See Executive Order No. 12630, Section 3(d) & 4(C); Guidelines, Section V(C)(3)]

Conversely, as the Executive Order highlights, "undue delays in decision-making during which private property use is interfered with carry a risk of being held to be takings." Executive Order No. 12630, Section 3(d). In the interest of fiscal responsibility and minimizing the just compensation that might eventually be found due for any temporary taking, the Executive Order provides that:

When a proposed action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary. Executive Order No. 12630, Section 4(c). Types of delay requiring especially careful attention would include moratoria on the development or use or conduct which might be viewed as acquisitory in character.

A. In General

By way of overview, the United States may be held liable for the taking of a fee or lesser interest in property. See Benenson v. United States, 548 F.2d at 948 (fee interest); United States v. Causby, 328 U.S. at 267 (easement). Importantly, when the government takes, it acquires a property interest. With respect to the compensation due for the taking, the goal is to provide the monetary equivalent necessary to place the property owner in the same position he or she would have been had the taking not occurred. United States v. Reynolds, 397 U.S. 14, 15-16 (1970); Foster v. United States, 2 Cl. Ct. 426, 445 (1983). Where the taking is for less than a fee interest, the just compensation measure is frequently described as the difference between the value of the property before the taking and the value after the taking. Aaron v. United States, 311 F.2d at 802. Damages resulting from the loss or destruction of business incidental to the taking are not recoverable as part of the just compensation due. Mitchell v. United States, 267 U.S. 341, 146 (1925). But see Prudential Insurance Company of America V. United States, 801 F.2d 1295, 1300, n. 13 (Fed. Cir. 1985).

The award of just compensation also entitles the successful plaintiff to interest from the date of the taking to the date of payment. See Jacobs v. United States, 290 U.S. 13, 16-17 (1933); Foster v. United States, 3 Cl. Ct. 738, 745 (1983). Litigation expenses, including the reimbursement of reasonable attorney and appraisal fees, will also be available pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. Section 4654(c) (1986).

b. Financial Exposure

The Guidelines require an estimation of potential financial exposure. First, it is critical to recognize that this is an estimation only. These estimates are not intended to be close approximations of ultimate takings liability, if any, in a given case. Second, the estimates will vary with the nature and scope of the government policy or action proposed. For instance, in the context of a proposed major rule under Executive Order No. 12291 for which a regulatory impact analysis has been prepared, that analysis may provide an appropriate vehicle for exposure estimation. See Sections 3(b) and (d), Executive Order No. 12291. In the context of other proposed rules, an economic assessment of the rule's impact on society will likely be prepared. See Sections 2(b)-(e), Executive Order No. 12291. Treatment of the economic impact of the rule on the use or value of private property within the economic assessment may provide an appropriate vehicle for exposure estimation. In the context of legislation, economic assessments of the impact of such policies and action on the use or value of private property may provide an appropriate vehicle for exposure estimation. In the context of other policies and actions --for example, permit applications --applicants may be requested to supply the acquisition cost they paid for the property, adjusted for time to the date of application.