COURT RULINGS DURING 1998 ON CONSTITUTIONAL TAKINGS CLAIMS AGAINST THE UNITED STATES
CRS Report for Congress
Court Rulings During 1998 on Constitutional
Takings Claims Against the United States
American Law Division
In light of congressional activity on property rights bills during 1998, CRS extends
its practice of compiling reported court decisions, involving federal actions and/or federal
statutes, that resolved Fifth Amendment “property rights takings” challenges on the
merits. Decisions in 1998 meeting this criteria numbered 33, of which three found a
taking. The federal programs implicated in this year’s decisions echo the broad diversity
of such programs customarily involved in takings litigation against the United States.
Areas generating multiple takings decisions in 1998 were telecommunications access, the
fighting or intentional setting of forest fires, Indian tribal land rights, bankruptcy law,
response to failed S&Ls, and the federal wetlands permitting program.
During 1998, the second session of the 105th Congress continued consideration of
“process type” property rights bills begun in the first session. Process bills, in the context
of the property rights debate, are those that do not propose a standard for what constitutes
a “taking” of property by government, but instead seek to streamline the judicial process
for asserting such claims under the Fifth Amendment’s Takings Clause. In March, 1998,
the House passed H.R. 992, which would end the current jurisdictional split between the
U.S. Court of Federal Claims and the federal district courts, allowing landowners to seek
compensation for the impacts of government action, and seek invalidation of such action
as unlawful, in the same court. In the Senate, the Judiciary Committee reported S. 1256,
which combined the jurisdiction-enhancing approach of H.R. 992 with that of H.R. 1534
(passed by the House in the first session), reducing certain threshold barriers to asserting
takings claims in federal court. The hybrid Senate bill came to the floor as S. 2271, where
it was defeated in July, 1998 on a cloture vote.
As noted, these bills dealt with process issues, not with the substantive question
whether a particular government action constituted a taking. Still, because congressional
interest in the takings issue continues, CRS continues to issue annual compilations of
judicial activity in this area. These compilations list court decisions, published in a West
Congressional Research Service ˜ The Library of Congress
reporter, in which a Fifth Amendment “taking” claim involving a federal action or federal
statute was resolved on the merits.1
For 1998, research reveals 33 decisions meeting the above criteria, of which three
found a taking -- “four” if the Supreme Court decision in Eastern Enterprises v. Apfel is
included. (See table entry for this decision on page 4, describing the justices’ fractionated
opinions.) These figures are in line with the corresponding numbers from previous years.2
In interpreting such numbers, bear in mind they do not represent all outcomes of
takings cases involving federal actions or federal statutes. Other resolutions of such cases,
not listed here, are by unpublished decision, non-merits disposition (e.g., expired statute
of limitations, lack of ripeness), voluntary dismissal, or settlement. Also note that this
report, as the others in the series, is written from the vantage point of the last day of the
covered year. Thus, events following that date, even though occurring before the date of
the report’s issuance, are not mentioned.
Alves v. UnitedAlleged failure by BLMNo taking. Neither plaintiff’s grazing permit nor his grazing
States, 133 F.3dto contain trespasses by“preference” (priority in receiving grazing permit over adjacent public
1454 (Fed. Cir.livestock of nearbyland) is a property right. Moreover, government cannot be liable for
Jan. 12) Indian ranchownerfailure to regulate animals under its regulatory control. A fortiori,
government cannot be liable for failing to control privately owned
Phillips & Green,DOD deduction of $75No taking. In return for the $75, plaintiff received a service from DOD.
M.D., P.A. v.administrative fee fromGarnishment was but one of many ways plaintiff could have recouped
Clark-Amaker, 992amount garnished frommoney owed by defendant. Having selected garnishment, plaintiff cannot
F. Supp. 450its employee's wagescomplain of the administrative cost, as required by Congress.
(D.D.C. Jan. 30)and paid to plaintiff
Teamsters PensionSuit by multiemployerNo taking. There was no reasonable expectation that limited liability
Trust Fund v.pension plan trusteeunder retirement plans would last forever, especially when employer
Cristinzio, Inc.,seeking to recoverentered collective bargaining agreements on at least three occasions after
994 F. Supp. 617withdrawal liability1980 enactment of statute imposing withdrawal liability. Every circuit
(E.D. Pa. Feb. 24)from withdrawingto consider takings challenges to statute has rejected them.
Allenfield Assocs.Veteran’s Admini-Taking. When U.S. occupies private property without consent of owner,
v. United States, 40stration’s continuedit is liable under the Fifth Amendment for the fair market rental of the
Fed. Cl. 471 (Mar.occupancy of propertyproperty. Government’s sublease could not give it rights beyond
CRS Report 91-171 (1990 decisions); CRS Report 92-337 (1991 decisions); CRS Report1
93-779 (1992 decisions); CRS Report 94-728 (1993 decisions); CRS Report 95-790 (1994
decisions); CRS Report 96-771 (1995 decisions); CRS Report 97-1035 (1996 decisions); CRS
Report 98-989 (1997 decisions).
See CRS reports listed in note 1.2
Gulf Power Co. v.Federal statuteTaking. Mandatory access provision in Telecommunications Act of
United States, 998requiring that utilities1996, requiring that qualifying utilities give cable companies access to
F. Supp. 1386provide cable TVtheir poles, ducts, etc., is per se taking. Original Pole Attachments Act,
(N.D. Fla. Mar. 6)operators with access toat issue in FCC v. Florida Power Corp., 480 U.S. 245 (1987), did not
their poles, ducts, andcompel access.
rights of way
FDIC v. Mahoney,RTC repudiation ofNo taking. Claim to which security interest attaches does not exist.
Cir. Apr.1)receiver for bank
In re Gomes, 219Bankruptcy trustee’sNo taking. Loss is within reasonable investment-backed expectations of
B.R. 286 (D. Or.effort to recover, aschurch. Under provisions of bankruptcy code in existence since 1978,
Apr. 7)fraudulent transfers,church reasonably could expect that its receipts from tithes might be
pre-bankruptcy-petitionsubject to recoupment by a bankruptcy trustee where donator was
tithes made by debtor toinsolvent when contributions were made.
Greenbrier v.Repeal of low-incomeNo taking (or taking claim not ripe). Twenty-year prepayment right was
United States, 40housing owners' right tonot contractual. HUD was not a party on the mortgage notes between
Fed. Cl. 689 (Apr.prepay HUD-insuredowners and lenders containing the prepayment term; term was prescribed
years and thereby endSince not contractual, there can be no taking claim based on breach of
Pacific NationalFCC's dismissal ofNo taking. Fact that dismissal of application resulted in plaintiff's
Cellular v. Unitedpermit application, thenfinancial commitment letters, allegedly contracts, being deprived of
States, 41 Fed. Cl.concluding it hadeconomically viable use is not taking of contract right. At most was
20 (Apr. 28)violated law andfrustration of such rights. Moreover, communications arena is heavily
granting permit,regulated field, by FCC in particular. Entity entering that arena should
resulting in non-use ofexpect continued regulation by FCC.
Yi v. CitibankApplication ofNo taking. Lien avoidance under federal bankruptcy power is not a
(Maryland), N.A.,bankruptcy law totaking. Bankruptcy proceedings frequently modify property rights
219 B.R. 394 (E.D.disallow claim ofestablished under state law. Fifth Amendment protects creditor’s rights
Va. Apr. 29)creditor holding thirdonly to extent of its interest in the collateral as that interest is defined by
deed of trustbankruptcy laws.
Seldovia NativeAlaska Native ClaimsNo taking. No property rights in ANCSA-specified choices.
Ass'n v. UnitedSettlement Act
States, 144 F.3damendments redefining
769 (Fed. Cir. Maylands available for
14)selection by village
Thune v. UnitedDestruction of huntingNo taking. At most, a tort is involved. If we assume fire's escape
States, 41 Fed. Cl.camp on federal landresulted from wind changes that government could not have anticipated
49 (Fed. Cl. Junewhen controlled burn(as record suggests), no taking liability since taking requires government
5)set by U.S. escapedintent to take or intent to do an act the direct, natural, or probable
consequence of which was to take.
Osprey PacificGSA seizure of boatTaking. Plaintiff charterer had valid right to possess boat.
Corp. v. UnitedU.S. had donated to
States, 41 Fed. Cl.state, on finding state
150 (June 10)had violated federal
Westinghouse Elec.Alleged DOD breach ofNo taking. Plaintiff failed to present sufficient evidence that it possessed
Corp. v. Unitedpromise to makeright to be sole-source provider beyond term of contract. U.S. could not
States, 41 Fed. Cl.plaintiff sole providerhave taken what plaintiff did not possess.
229 (Fed. Cl. Junefor anti-submarine
17)system beyond contract
Eastern EnterprisesFederal statuteUnconstitutional as applied to plaintiff. Four justices supporting
v. Apfel, 524 U.S.requiring company tojudgment hold that taking occurs when, as here, statute imposes severe
498 (June 25)fund health benefits ofretroactive liability on limited class of parties that could not have
miner who worked for itanticipated the liability, and extent of liability is substantially
decades earlier, wheredisproportionate to company’s experience in mining field. Remaining
company left miningjustice supporting judgment sees no taking, but rather a substantive due
businesss beforeprocess violation. Four dissenters find no taking or due process violation.
promise of lifetime
benefits in collective
became explicit in 1974
BMR Gold Corp. v.Traversing of plaintiff’sNo taking. Plaintiff (lessee of property) concedes that it gave permission
United States, 41land by U.S. marines toto marines to traverse its property. Consent precludes taking.
Fed. Cl. 277 (Junereach downed
In re CF&IStatutory amendmentNo taking. Taking requires interference with reasonable expectations.
Fabricators ofauthorizing payment ofHere, purported expectations consist of disbursements from debtor's
Utah, Inc., 150fees to bankruptcyestate. In a bankruptcy case as complex as this, however, patently
F.3d 1233 (10thtrustee, as applied tounreasonable to expect no variability in final amount available to plan
Cir. June 30)bankruptcy proceedingsdistributees.
with already confirmed
Maricopa-StanfieldFederal tribal waterNo taking. Irrigation districts had no right in excess water under earlier
Irrig. Dist. v.rights statute, alleged tostatute (Ak-Chin Settlement Act), so U.S. reallocation of excess water
United States, 158take Arizona irrigationunder later law effected no taking.
F.3d 428 (9th Cir.districts’ water rights
July 7)under earlier statute
Karuk Tribe v.Partitioning ofNo taking. Neither 1864 act creating reservation nor benefits conferred
United States, 41reservation by Hoopa-thereunder vested any compensable property rights.
Fed. Cl. 468 (Aug.Yurok Settlement Act
Vermont AssemblyInterim payment planNo taking. Plaintiffs accuse interim payment plan of limiting
of Home Healthestablished by Balancedreimbursement to such an inadequate level as to constitute a regulatory
Agencies, Inc. v.Budget Act of 1997 totaking. But plaintiffs’ participation in Medicare is voluntary.
Shalala, 18 F.control home health
Supp. 2d 355 (D.care costs by reducing
Vt. Aug. 26)Medicare reimburse-
ment for such services
Schism v. UnitedU.S. requirement thatNo taking. 1956 enactment of statute reducing benefits did not constitute
States, 19 F. Supp.military retirees paytaking of any vested property right, since benefits were noncontractual
Aug. 31)their health benefits,pre-1956 regulations did not establish free lifetime medical care for
after promises at time ofretirees.
enlistment of free
lifetime medical care
Jones v. Clinton,Court’s retaining sealNo taking. Plaintiff had no property interest in discovery materials she
(E.D. Ark. Sept. 1)materials following
summary judgment in
Palm Beach IslesCorps of Engineers'No taking. No taking of acreage below high water mark, since subject
Assocs. v. Uniteddenial of dredge and fillto federal navigation servitude. As to remaining acreage above mark,
States, 42 Fed. Cl.permitPenn Central factors cut against taking – e.g., “regulatory climate” at
340 (Oct. 19)time property was acquired precludes reasonable expectations of
development, and parcel as a whole was entire original parcel.
United States v.Retroactive applicationNo taking. Court has previously found Superfund Act constitutional in
Vertac Chemicalof Superfund Actthe face of a retroactivity argument. Eastern Enterprises v. Apfel, 524
Corp., 33 F. Supp.liabiliity schemeU.S. 498 (1998), does not apply.
WatercraftTahoe RegionalNo taking. As a threshold matter, TRPA ordinances are federal law,
Recreation Ass’n v.Planning Agencysince they are created under mandate of congressionally ratified interstate
TRPA, 24 F. Supp.ordinance barringcompact which is itself federal law. As to taking claim, ordinance
2d 1062 (E.D. Caldischarge fromsubstantially advances legitimate state interests (conservation of Lake
Oct. 28)watercraft propelled byTahoe) and does not deny economic use of boats but merely prohibits use
carbureted two-strokeon Lake Tahoe.
Teegarden v.Forest Service’s actionsNo taking. Decision of Forest Service to concentrate efforts in areas of
United States, 42in fighting forest fire,higher priority did not constitute taking of plaintiff’s timber lands.
Fed. Cl. 252 (Nov.causing damage to
10)owner of timber lands
Sunrise VillageDamage to mobileNo taking. Taking claim in Court of Federal Claims cannot be based on
Mobile Home Parkhome park allegedlyunauthorized government acts. Moreover, if government’s actions
v. United States, 42caused by improperallegedly breached a contract, appropriate remedy is breach of contract
Fed. Cl. 392 (Dec.federal supervision ofclaim, not taking.
work followingCompanion case (same holding and rationale): Dureiko v. United States,
hurricane42 Fed. Cl. 568 (Dec. 9).
Robbins v. UnitedBuyer’s rescission ofNo taking. Affirming, without published opinion, decision of trial court
States, 178 F.3dland sale contract afterat 40 Fed. Cl. 381 (1998).
1310 (Fed. Cir.Corps of Engineers
Dec. 10)indicated property
U.S. WestState public utilityNo taking. No evidence presented that interconnecting company has
Communi-cations,commission decision,purchased any services pursuant to agreement, nor that it ever will. Even
Inc. v. Worldcompursuant to federalif interconnecting company does purchase services, deals are as yet
Technologies, Inc.,telecommunications act,undetermined.
31 F. Supp. 2d 819under which incumbent
(D. Or. Dec. 10)local exchange carrierCompanion cases (same holding and rationale): U.S. West
might receive lessCommunications v. TCG Oregon, 31 F. Supp. 2d 828 (D. Or. Dec. 10);
compensation underU.S. West Communications, Inc. v. AT&T Communications of the
interconnectionPacific Northwest, 31 F. Supp. 2d 839 (D. Or. Dec. 10).
agreement than amount
to which it allegedly is
MonarchNonpayment by U.S. onNo taking. No credible evidence that person who signed note was agent
Assurance P.L.C.note allegedly executedof U.S. authorized to sign.
v. United States, 42by CIA agent, payable
Fed. Cl. 258 (Dec.to plaintiffs