United States: Supreme Court Issues Significant Rulings on Eminent Domain Issues: A Primer on 5th Amendment Takings Jurisprudence

Eminent domain is the right of a municipality, a state, or the federal government to acquire private property for public use. A governmental entity may purchase property without the owner's consent by exercising its condemnation authority, more formally known as its power of eminent domain. The government may take property indirectly without instituting formal condemnation proceedings through inverse condemnation. Inverse condemnation may occur through either the physical or regulatory taking of private property. A physical taking, as the name suggests, occurs when the government physically encroaches upon, appropriates, or occupies private property. A regulatory taking occurs when private property is impacted by operation of statute, regulation or administrative action. In virtually all cases, the subject statute, etc. will not explicitly target or even mention the subject property. For example, application of the Endangered Species Act may preclude development on a parcel that is found to be a natural habitat area for a certain species thus giving rise to an inverse condemnation claim even though the Act does not specifically mention or directly regulate the use of the affected parcel.

Whether private property has been condemned directly or indirectly, the takings clause of the Fifth Amendment to the Constitution or state law compels the payment of just compensation.

The starting point for any challenge to the federal government’s taking of private property is the Fifth Amendment of the United States Constitution, which provides "nor shall private property be taken for public use, without just compensation."

The clearest and most commonly understood sort of taking occurs when the government appropriates, encroaches upon, or occupies private land for its own proposed use. Courts have held uniformly that even a minimal "permanent physical occupation of real property" requires compensation under the 5th Amendment. Loretto v. Teleprompter Manhattam CATV Corp., 458 U.S. 419, 427, 102 S. Ct. 3164, 73 L. Ed. 2d (1982); United States v. 564.54 Acres of Land, 441 U.S. 506, 99 S. Ct. 1854, 60 L. Ed. 2d 435 (1979). This is so regardless of the public benefit or interest served. Loretto, 458 U.S. at 436.

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), the Supreme Court recognized that there will be instances when government actions do not appropriate, encroach upon or occupy property yet still affect and limit its use to such an extent that a taking occurs. "[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." 260 U.S. at 415; see also First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 315, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987).

There is no talismanic or bright-line test for the courts or landowners to determine whether a particular government action has gone too far and effected a regulatory taking. It is generally understood that, subject to certain qualifications, a regulation that "denies all economically beneficial or productive use of land" will require compensation under the Takings Clause. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992); Agins v. City of Tiburon, 477 U.S. 255, 261, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980); see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), citing Agins, 447 U.S. at 260 (in the case of a facial challenge to a regulation, there will be a taking if a regulation either: (1) fails to substantially advance a legitimate state interest, or (2) denies an owner all economically viable use of his land).

Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, the Court has stated there is no "set formula" for determining when governmental regulation becomes a taking - - the determination must be made on a case-by-case basis. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962); Ciampitti v. United States, 22 Cl. Ct. 310, 318 (1991); Accord, Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.470, 495, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (citations omitted). As the Court stated in Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (citing among other cases, Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)):

These inquiries are informed by the purpose of the Takings Clause, which is to prevent the 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, 80 S. Ct. 156, 4 L. Ed. 2d 1554 (1960).

In Penn Central, the Supreme Court identified three factors to be considered in assessing whether a regulation’s effect on property has triggered a taking. Those factors are: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.

"The economic impact of the regulation on the claimant" is generally considered to be one of the more important factors. Generally, a plaintiff must demonstrate that it has been denied all economically viable use of its property. Lucas, 505 U.S. at 1015; Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 155 (1990), aff'd, 28 F.3d 1171 (Fed. Cir. 1994); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126-27, 106 S. Ct. 455, 88 L. Ed. 2d 419 (1985); Agins, 447 U.S. at 260.

The Supreme Court has cautioned, however, that "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal, 260 U.S. at 413. Thus, where land use regulations "are reasonably related to the promotion of the general welfare," the government routinely argues that courts have "uniformly reject[ed] the proposition that the diminution in property value, standing alone, can establish a 'taking.'¹ Penn Central, 438 U.S. at 131 (citations omitted). Rather, the focus must be on the remaining uses of the property that the particular regulatory action would permit. Id. That being said, as noted by the Supreme Court in Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001) "[a]ssuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest. 533 U.S. at 609.

Mere denial of a property’s highest and best use, or the most profitable use, does not constitute a taking. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 644-45, 113 S.Ct. 2264, 124 L. Ed. 2d 539 (1993); Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 901 (Fed. Cir. 1986); Deltona Corp. v. United States, 228 Ct. Cl. 476, 491, 657 F.2d 1184, 1193 (1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1712, 72 L. Ed. 2d 135 (1982); Jentgen v. United States, 228 Ct. Cl. 527, 533-34, 657 F.2d 1210, 1213 (1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1711, 72 L.Ed. 2d 134 (1982). Such has been found to be the equivalent of a reduction in market value of the property, which, standing alone, has been found not to constitute a taking. Deltona Corp. v. United States, 228 Ct. Cl. at 488, 657 F.2d at 1191, citing Penn Central, 438 U.S. at 131. Merely because a property owner is not permitted to reap as great a financial return from his property as he might have hoped, does not establish a taking. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 353 n.9, 106 S. Ct. 2561, 91 L. Ed. 2d 285 reh'g denied, 478 U.S. 1035, 107 S. Ct. 22, 92 L. Ed. 2d 773 (1986).

The Supreme Court’s Palazzolo decision has focused considerable attention on the second prong of the Penn Central test: the extent to which the challenged governmental action has interfered with the reasonable investment-backed expectations of the property owner. Palazzolo v. Rhode Island, 533 U.S. 606; Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. at 495; Connolly v. Pension Benefit Guaranty Corp., 475 U.S. at 227; Penn Central, 438 U.S. at 124. These expectations must be reasonable. Ciampitti v. United States, 22 Cl. Ct. at 318 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1006, 104 S. Ct. 2862, 81 L. Ed. 2d 815) (1984)); see also Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 82-83, 100 S. Ct. 2035, 64 L. Ed. 2d 815 (1980).

Prior to Palazzolo, property owners’ acquisition of title after a regulation’s effective date generally barred as a matter of law takings claims stemming from operation of the pre-existing regulation. In Palazzolo, however, the Court reversed that trend and held that a landowner is not barred from asserting a taking claim by the mere fact that title was acquired after the effective date of a regulation affecting land use. Palazzolo, 533 U.S. at 608-609. Rather, the Court held that a landowner’s acquisition of property subject to a regulation that could affect his or her land-use is a factual element for a court to consider under the investment-backed expectation inquiry compelled by Penn Central. Id.

"Investment-back expectations, though important, are not talismanic under Penn Central. Evaluation of the degree of interference with investment-backed expectations instead is one factor that points toward the answer to the question whether the application of a particular regulation to particular property ‘goes too far.’" Palazzolo, 533 U.S. at 634 (O’Connor, J. concurring) (citing Pennsylvania Coal v. Mahon, 260 U.S. at 415). Justice O’Connor elaborated further stating:

Palazzolo, 533 U.S. at 634-35 (footnote omitted).

Finally, courts have traditionally looked at the character of the government action to determine whether the action substantially advances legitimate state interests. Agins v. Tiburon, 447 U.S. at 260; Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).

Recently, the Supreme Court ruled in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional lanning Agency, __ U.S. __, 122 S.Ct. 1465, __ L.Ed. __ (April 23, 2002), that temporary restrictions on property development do not always amount to a taking of private property for which the government must compensate landowners.

In Tahoe-Sierra, property owners along the shores of Lake Tahoe sought compensation for an alleged temporary taking resulting from application of a temporary moratorium on new development during the process of devising a comprehensive land-use plan. In rejecting the landowners’ claim, Justice Stevens, writing for the six Justice majority stated "a rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision making." "Such an important change in the law should be the product of legislative rule making rather than adjudication." 122 S.Ct. at 1485 (footnote omitted).

In affirming the 9th Circuit’s reversal of the district court’s finding that application of the moratorium constituted a per se taking entitling the property owners to compensation, the Court affirmed its earlier decisions in Penn Central and Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 57 L.Ed.2d 631 (1992). In Lucas, the Court held that land use restrictions that permanently restrict development, depriving landowners of all income from the land, are "categorical takings" that entitle affected landowners to compensation. Id. at 1019. Lucas also noted that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Id. Anything less than a "complete diminution in value," or a "total loss," would require the kind of analysis applied in Penn Central. Id. at 1019-1020.

The Court in Tahoe-Sierra stated that compensation must still be given in "the extraordinary case in which a regulation permanently deprives property of all value." 122 S.Ct. at 1484. However, observed the Court, the categorical takings concept should not apply to any and all land use restrictions imposed by federal regulation. "Land use regulations are ubiquitous and most of them impact property values in some tangential way – often in completely unanticipated ways. Treating them all as per se

takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights." 122 S.Ct. at 1479. Indeed," noted the Court, "we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine ‘a number of factors’ rather than a simple ‘mathematically precise’ formula." Id. at 1481 (footnote omitted).

Pursuant to the Tucker Act, 28, U.S.C. § 1491, jurisdiction over takings claims against the federal government in excess of $10,000 lies in the U.S. Court of Federal Claims (formerly the U.S. Claims Court) located in Washington, D.C. Specifically, the Tucker Act provides jurisdiction in the United States Court of Federal Claims for any claim against the United States against the Federal Government to recover money damages founded on the Constitution or an express or implied-in-fact contract. "If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [Court of Federal Claims] to hear and determine." United States v. Causby, 328 U.S. 256, 267, 66 S. Ct. 1062, 90 L. Ed. 2d 1206 (1946).

As noted in Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) "[w]hen a cause of action is not based upon breach of contract against the government, the Court of Federal Claims has jurisdiction only over those constitutional provisions, statutes, or regulations that by their terms entitle a plaintiff to money." As interpreted by the Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, statutory, or regulatory law. United States v. Testan, 424 U.S. 392, 400, 96 S. Ct. 948, 47 L. Ed.2d 114 (1976) reh’g denied, 446 U.S. 992, 100 S. Ct. 2979, 64 L. Ed.2d 849 (1980) (quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605-06 (1967).

The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims, "it does not create any substantive right enforceable against the United States for money damages." United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980). A party seeking to invoke the Court of Federal Claims’ jurisdiction must look beyond the jurisdictional statute for a waiver of sovereign immunity. Mitchell, 445 U.S. at 538. The Supreme Court has stated that "if there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Claims Court to hear and determine." Presault v. ICC, 494 U.S. 1, 12 (1990) (quoting Causby, 328 U.S. at 267).

Takings claims for less than $10,000.00 may be brought in either the Court of Federal Claims or in U.S. District Court pursuant to the "baby" Tucker Act, 28 U.S.C. § 1346.

The applicable statute of limitations for filing suit in the Court of Federal Claims is six years. 28 U.S.C. § 2501 ("[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues"). The six-year limitation is an express limitation on the Tucker Act’s waiver of sovereign immunity. Franconia Associates v. United States, 240 F.3d 1358, 1362 (Fed. Cir. 2001) (quoting Hart v. United States, 910 F.2d 815, 817 (Fed. Cir. 1990)). In Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988), the Federal Circuit observed that the six-year limitations period for actions against the United States "is a jurisdictional requirement attached by Congress" that must be strictly construed.

"A claim against the United States first accrues when all the events have occurred which fix the alleged liability of the defendant," see Hopland Band, 855 F.2d at 1577, at which time "the plaintiff has a legal right to maintain his or her action." Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1570 (Fed. Cir. 1993) (quoting Corman, Limitations of Actions, § 6.1 (1991)). As noted in Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995), the "proper focus for statute of limitations purposes, ‘is upon the time of the [defendant’s] acts, not upon the time at which the consequences of the acts became most painful.’" Id. at 1383 (quoting Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980)).

Generally, with respect to physical takings claims, but equally applicable to regulatory takings claim, the courts have opined that a claim does not accrue "unless the claimant knew or should have known that the claim existed." Hopland Band, 855 F.2d at 1577 (quoting Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir. 1988); Banks v. United States, 49 Fed. Cl. 806 (2001). To demonstrate "ignorance" of a claim, a plaintiff must show either "that defendant [the United States] has concealed its acts with the result that plaintiff was unaware of their existence or that [plaintiff’s] injury was ‘inherently unknowable’ at the accrual date." Japanese War Notes Claimants Association v. United States, 373 F.2d 356, 359, 178 Ct. Cl. 630, cert. denied, 389 U.S. 971, 88 S. Ct. 466, 19 L. Ed. 2d 461 (1967). "[W]hether the pertinent events have occurred is determined under an objective standard; a plaintiff does not have to possess actual knowledge of all relevant facts in order for the cause of action to accrue." Fallini, 56 F.3d at 1380 (citing Menominee Tribe v. United States, 726 F.2d 718, 721 (Fed. Cir.), cert denied, 469 U.S. 826, 105 S. Ct. 106, 83 L. Ed. 2d 50 (1984)). Moreover, "[w]here the actions of the government are open and notorious . . . plaintiff is on inquiry as to its possible injury. . . Once plaintiff is on inquiry that it has a potential claim, the statute of limitations begins to run." Coastal Petroleum Co. v. United States, 228 Ct. Cl. 864, 867 (1981).

As discussed more fully in Banks, 49 Fed. Cl. at 810, the Supreme Court noted in United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) that when the government allows a taking of land to occur by a continuing process of physical events, "a landowner may postpone suit until the consequences [of the governmental act in question] have so manifested themselves that a final accounting may be struck." Id. Plaintiffs may postpone filing suit until the nature and extent of the taking is clear. Fallini, 56 F.3d at 1381. In such a case, plaintiffs’ cause of action does not accrue until the situation becomes "stabilized." Dickinson, 331 U.S. at 749.

Although the language in Dickinson could be read to mean that a cause of action for a taking does not accrue until all of the damages resulting from the taking can be finally calculated, courts have interpreted Dickinson more narrowly. In Fallini, the Federal Circuit considered plaintiffs’ suggestion of a broad interpretation of Dickinson and observed:

Fallini, 56 F.3d at 1381-82.

Subsequently, in Boling v. United States, 220 F.3d 1365, 1370-71 (Fed. Cir. 2000), the Federal Circuit stated that "stabilization occurs when it becomes clear that the gradual process set into motion by the government has effected a permanent taking, not when the process has ceased or when the entire extent of the damage is determine." When "it is clear that the process has resulted in a permanent taking and the extent of the taking is reasonably foreseeable, the claim accrues and the statute of limitations begins to run." Id. at 1371. The Federal Circuit has also observed that "[t]he point at which the taking becomes sufficiently certain to give rise to a claim for compensation varies in each case." Cooper v. United States, 827 F.2d 762, 764 (Fed. Cir. 1987).

In Banks, the plaintiffs argued that their cause of action did not assure until 1999 when they learned from statements made by representatives from the Corps of Engineers that erosion attributable to a Corps project was permanent and irreversible. 49 Fed. Cl. at 821. In those statements, the Corps’ representative more or less acknowledged that up to that point the Corps was not sure of the effects or effectiveness of its erosion-abatement efforts.

The court rejected plaintiffs’ argument, holding "the law does not require plaintiffs to have complete understanding of their claims before filing suit." Id. (citing Fallini, 56 F.3d at 1380). Rather , it is sufficient that plaintiffs are "on inquiry" as to their possible damages, and once plaintiffs are on notice of their claims, the statute of limitations begins to run." Id. Significantly, the court stated "plaintiffs may not have had technical knowledge concerning their claims until the late 1990’s. But there is ample evidence that they were ‘on inquiry’ prior to that time." Id. It remains to be seen whether other courts follow the logic and reasoning in Banks.

As noted in Palazzolo, with respect to those regulatory takings cases stemming from a governmental agency’s exercise or application of land use regulations (that will frequently manifest itself in the denial of a development or construction permit), a takings claim challenging application of land use regulations is not ripe (e.g. no claim accrual) unless the agency charged with implementing the regulations has reached a final decision regarding their application to the property at issue. Palazzolo, 533 U.S. at 607; Williamson County Regional Planning Comm’n, 473 U.S. at 186. A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of "all economically beneficial use" of the property, Lucas, 505 U.S. at 1015, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred. Penn Central, 438 U.S. at 124. As observed in Palazzolo, "[t]hese matters cannot be resolved in definite terms until a court knows ‘the extent of permitted development’ on the land in question." Palazzolo, 533 U.S. at 618 (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986)).

As further explained in Palazzolo, Williamson County’s final decision requirement "responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer." Palazzolo, 533 U.S. at 620 (quoting Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738, 117 S. Ct. 1659, 137 L. Ed. 2d 980 (1997)). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that an agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. Palazzolo, 533 U.S. 620. As a general rule, until these ordinary processes have been followed, the extent of the restriction on property is not known and a regulatory taking has not yet been established. Suitum, 520 U.S. at 736. Government authorities, of course, may not burden property by imposition of repetitive or unfair landuse procedures in order to avoid a final decision. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999).

Under either the facial or as applied tests, an initial threshold inquiry that must be made is whether the claimant possesses a compensable property interest -- whether he has a compensable expectancy. It has long been clear that before a claimant may recover just compensation under the Fifth Amendment, he must establish that at the time of the alleged taking he possessed an interest in the property taken by the government. Lacey v. United States, 595 F.2d 614, 619 (Ct. Cl. 1979). In the absence of such an interest, a claimant cannot proceed with a takings claim as to the "unowned" land. Plantation Landing Resort, Inc. v. United States, 30 Fed. Cl. 63 (1993) (holding that no property interest existed where 50.5 acres of claimant's 59 acre project lay below mean high water mark and party had not obtained reclamation permit from state giving it right to own that property), aff’d, 39 F.3d 1197 (Fed. Cir. 1994), cert. denied 514 U.S. 1095, 115 S. Ct. 1822, 131 L. Ed. 2d 744 (1995).

The question of whether plaintiff possesses a compensable expectancy frequently arises in the context of whether the plaintiff's use of his property would amount to a nuisance. Traditionally, the Court has found that the regulation of property uses which are akin to a nuisance not to be a taking. Hadacheck v. Sebastian, 239 U.S. 394, 365 S. Ct. 143, 60 L. Ed. 2d 348 (1915) (no taking where law forbade operating a brickyard in a residential area); Reinman v. City of Little Rock, 237 U.S. 171, 35 S. Ct. 511, 59 L. Ed. 2d 900 (1915) (no taking where law forbade operating livery stable in downtown area); Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246, 72 L. Ed. 568 (1928) (destruction of cedar trees not a taking). Efforts to protect a public water supply have likewise been considered within the public health and safety needs. In Goldblatt v. Town of Hempstead, 369 U.S. 590, the Court found there to be no taking where a law forbade the excavation of a sand and gravel pit below the water table in order to protect the public water supply. Id. at 592-93.

In Penn Central, 438 U.S. at 125, the Court reaffirmed the principle that where "'the health, safety, morals, or general welfare' would be promoted by prohibiting particular contemplated uses of land," compensation need not accompany the prohibition. Thus, government action, which achieves the same results as public or private litigants could secure in state court under state nuisance law, does not give rise to a taking. Keystone Bituminous Coal Ass'n, 480 U.S. at 491 ("hesitance" in finding "a taking when the State merely restrains uses of property that are tantamount to public nuisances ...").

Accordingly, "as against reasonable state regulation, no one has a legally protected right to use property in a manner that is injurious to the safety of the general public."Allied-General Nuclear Services v. United States, 839 F.2d 1572, 1576 (Fed. Cir.) (citing Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (1887)), cert. denied, 488 U.S. 819, 109 S. Ct. 61, 102 L. Ed. 2d 39 (1988) .

In 1992, the Supreme Court’s Lucas decision reaffirmed the vitality of this doctrine. It found that a current restriction is not compensable when it is one that "inhere[s] in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Lucas, 505 U.S. at 1015. Thus, "a pre-existing limitation upon the landowner's title" does not require compensation for its exercise when that limitation does "no more than duplicate the result that could have been achieved in the courts -- by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances ...." Id. Thus, even though the regulatory action "may well have the effect of eliminating the land's only economically productive use, [it is not a taking if] it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles." Id. To determine what are "relevant property and nuisance principles," a court is to examine the "existing rules or understandings that stem from an independent source such as state law ...." Id.

On May 1, 2002, the Court of Federal Claims issued revised rules of procedure that closely track the Federal Rules of Civil Procedure². Rule 23 of the revised Court of Federal Claims Rules acknowledges specifically the Court’s class action jurisdiction. Prior to the rules’ revision, CFC Rule 23 lacked any detail and set forth no standards for requesting class certification. The Court of Federal Claims, however, had been taking a more expansive view of class action procedure and recognition of class action procedure as an effective litigation management tool. See, e.g. Christian, II v. United States, 46 Fed. Cl. 793 (2000); Doe v. United States, 46 Fed. Cl. 399 (2000); Berkely v. United States, 45 Fed. Cl. 224 (1999); Taylor v. United States, 41 Fed. Cl. 440 (1998); Moore v. United States, 41 Fed. Cl. 394 (1998); Mochizuki v. United States, 41 Fed. Cl. 54 (1998).

As noted in the comments to Rule 23, the rule "was completely rewritten. Although the court’s rule is modeled largely on the comparable federal rule, there are significant differences between the two rules. In the main, the court’s rule adopts the criteria for certifying and maintaining a class action as set forth in Quinault Allottee Ass’n v. United States, 197 Ct. Cl. 134, 453 F.2d 1272 (1972)."

There are three principle distinctions between district court class action procedure under RFCP 23 and the Court of Federal Claims rules. First, because the relief available in the Court of Federal Claims is generally confined under the Tucker Act, 28 U.S.C. § 1491, to individual money claims against the United States, the situations justifying the use of a class action are correspondingly narrower than under FRCP 23. Thus, the CFC rule does not accommodate, among other things, the factual situations redressable through declaratory and injunctive relief contemplated by FRCP 23(b)(1), (2).

Second, unlike FRCP 23, CFC Rule 23 contemplates only opt-in class certification, not opt-out classes. The latter were deemed inappropriate because of the need for specificity in money judgments against the United States, and the fact that the CFC injunctive powers – the typical focus of an opt-out class - are more limited than those of a district court. Third, CFC rule 23 does not contain a provision comparable to FRCP 23(f), which provides that a "court of appeals my in its discretion permit an appeal from an order . . . granting or denying class certification."

When a taking has occurred, under accepted condemnation principles the owner’s damages will be based upon the property’s fair market value, e.g. Olson v. United States, 292 U.S. 246, 255, 54 S. Ct. 704, 78 L. Ed. 1236 (1934). A prevailing plaintiff in a takings case brought against the federal government is also entitled to compensation for reasonable attorney’s fees and expert costs pursuant to the Uniform Relocation Action and Real Properties Acquisition Policies Act, 42 U.S.C. § 4654(c) (1997). See Shelden v. United States, 41 Fed. Cl. 347 (1998).