South Carolina Coastal Council Research Articles

Does Preventing "Take" Constitute an Unconstitutional "Taking"?: An Analysis of Possible Defenses to Fifth Amendment Taking Claims Based on the Endangered Species Act

INTRODUCTION The conflict over Humboldt County's Headwaters Forest (Headwaters) represents a classic battle between environmental protection and private property rights. The five hundred to one thousand year-old redwoods of the Headwaters support an. incredibly diverse, delicate, and beautiful ecosystem, and serve as a defining symbol of California.(1) However, the enormous redwood trees also garner a high price in the patio, paneling, hot tub, and furniture markets.(2) The three thousand acre Headwaters was appraised at $500 million in 1993.(3) Moreover, the fate of the Headwaters, in particular, evokes strong feelings because the landowner, the Pacific Lumber Company (PLCO), is a major employer of Humboldt County's residents. Also, PLCO is a subsidiary of the much-maligned finance company, MAXXAM, Inc. (MAXXAM).(4) In this paper, I analyze a legal conflict involving the Headwaters that, although not yet ripe, looms on the horizon. Considering their economic value, PLCO is almost surely going to attempt to harvest the old growth redwoods of the Headwaters. However, harvesting will destroy. the habitat, and possibly the existence, of species protected by the federal Endangered Species Act (ESA).(5) Under the ESA, the Secretary of the Interior, through the U.S. Fish and Wildlife Service (FWS), has identified five inhabitants of the Headwaters worthy of protection: The marbled murrelet, the northern spotted owl, the chinock salmon, the peregrine falcon, and the bald eagle.(6) In all likelihood, additional threatened and endangered species of the Headwaters will continue to be identified. Because of the threat to so many species, any attempt to harvest the Headwaters will be met with an ESA-based lawsuit-initiated by the FWS or an environmental group. If these challenges are successful and PLCO's right to harvest the Headwaters is prevented, PLCO will claim that the ESA regulation constitutes a Fifth Amendment taking.(7) The PLCO case highlights the policy conflicts between the Fifth Amendment's guarantee against without compensation and society's need to protect biodiversity. These issues are bound to arise in future ESA claims.(8) This paper analyzes these conflicts and describes possible defenses to PLCO's claim and future ESA claims. I conclude, based on the Supreme Court's decision in Lucas v. South Carolina Coastal Council, that a restraint on timber harvesting imposed by the ESA would constitute an unconstitutional claim.(9) However, I analyze five possible defenses to a total taking claim: (1) wildlife protection inheres in the bundle of rights granted to landowners under the theory of public trust; (2) an expanded definition of public nuisance includes species destruction; (3) the Christy-Flotilla(10) defense which absolves the government of responsibility because it does not control where protected species live; (4),a defense based on the Andrus v. Allard(11) personal versus real property distinction; and (5) the legislative solution defense. I conclude that the public trust and public nuisance defenses will probably fail.(12) The Christy-Flotilla defense, although approved by some courts, lacks merit(13) The Andrus defense has potential to succeed, because of its logical consistency, but it is based on antedated property law.(14) Finally, legislative solutions, such as the Headwaters Forest Act, may preempt a Lucas total taking claim, because they demonstrate that, despite regulation, the land still possesses value.(15) II. THE PLCO CASE PLCO, the largest producer of high grade redwood lumber in the world, owns 195,000 acres of redwoods and Douglas firs, including the Headwaters.(16) Prior to MAXXAM's 1986 acquisition of PLCO, the 124 year old lumber company harvested its redwoods moderately, under a sustained-yield policy which allowed new trees to grow faster than those cut. In addition, the company never engaged in clear-cutting. …

Recovering Corporate Assets Through Environmental Lawsuits

Over the past decade many environmentally motivated restrictions and withdrawals have been carried out at the expense of private property owners, most of whom seemed to have no effective recourse. This paper (1) summarizes a recent case in which a Michigan oil operator and several mineral owners fought back, winning a judgment worth $120 million from the State of Michigan, and (2) analyzes the essential geotechnical procedures, particularly those involving stochastic exploration risk analysis, required to determine and to justify the plaintiff`s claims for monetary damages. The intent is to provide encouragement and guidance to other private property owners, especially those involved in mineral resources, who may be contemplating similar legal actions. The Fifth Amendment to the US Constitution prohibits the taking of private property for public use without just compensation, and the 14th Amendment forbids the state to deprive any person of property without due process of law. Nevertheless, most knowledgeable attorneys generally conceded that the law concerning takings of private property by state regulatory restriction has been murky and uncertain at best.

Property rights and coastal protection: Lucas and the U.S. Supreme Court

In 1986 David Lucas bought two oceanfront lots on the Isle of Palms near Charleston, South Carolina. Although at the time of purchase both lots were zoned for single family homes, the passage of the 1988 South Carolina Beachfront Management Act prevented Lucas from building on the lots. Lucas filed a lawsuit requesting $1.2 million in compensation under the takings clause of the Fifth Amendment, which states that private property cannot be taken for public use “without just compensation.” In June 1992, in Lucas v. South Carolina Coastal Council, (91–453), the U.S. Supreme Court ruled that the state must show in more detail why Lucas’ planned use of his property would cause public harm or show that the original title permitted the restriction. The decision has broad implications for future government restrictions on land use in general and environmental policy in particular.

Moratoria as Takings underLucas

Abstract When the United States Supreme Court decided Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992), 44 ZD 302, many observers predicted a resurgence of private property rights and some erosion of the public's authority to regulate land uses. One type of land-use regulation that Lucas may impact more heavily is interim zoning regulations such as moratoria. Prior to Lucas, courts were quite lenient on moratoria. Now, in some instances, moratoria may even be found to be “categorical takings” under a Lucas analysis and compensation may be found due and owing for a temporary taking of all economically beneficial or productive use.

Regulatory Takings: When Should Compensation Be Paid?

WHAT is the limit of the government's right to regulate private property without paying compensation? Despite the long history of takings law, this question has defied a definitive answer. Historically, the only regulations that have virtually assured landowners of compensation have been those involving physical acquisitions. In the absence of physical invasions, however, compensation has rarely been awarded, a result that courts and legal scholars have justified with a variety of rules. The recent case of Lucas v. South Carolina Coastal Council provided the U.S. Supreme Court with yet another opportunity to address this question.' The plaintiff Lucas had purchased two beachfront lots in South Carolina with the intention of building single-family homes, a use for which the lots were then zoned. Before he began construction, however, the South Carolina legislature passed the Beachfront Management Act, which prohibited development of the land. Lucas filed suit claiming that because the regulation rendered his land essentially valueless, it was a taking under the Fifth Amendment of the Constitution. The state countered that the regulation was a legitimate exercise of its police power because it protected a valuable public resource. The court overturned the South Carolina Supreme Court's ruling, which had denied compensation.2

Unearthing the Denominator in Regulatory Taking Claims

In 1986, David Lucas purchased two beachfront lots on a South Carolina barrier island with the expectation of constructing single-family homes. His building plans violated no existing regulations. In fact, many of the neighboring parcels already had permanent homes similar to those Lucas wished to construct. Two years later, the South Carolina Legislature enacted the Beachfront Management Act, which prohibited the building of any permanent residential structures on the lots. Lucas's plans were completely frustrated, and the value of his two lots plummeted to almost nothing. In Lucas v South Carolina Coastal Council, the Supreme Court held that David Lucas had suffered a taking of his property for which the Fifth Amendment would guarantee him just compensation.' The Court announced that although government may generally restrict the use of private property without compensation, a taking occurs when the regulation denies all economically beneficial or productive use of land.2 What the Court did not decide, however, is how to determine the relevant parcel of land that is subject to the regulatory

Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations

Although anticipated before its arrival, last term's decision in Lucas v. South Carolina Coastal Council ' has been rightly regarded as anticlimactic. To be sure, the decision represents something of a high water mark in takings jurisprudence, for a six justice majority of the Court2 allowed that some restrictions on land use might in principle be caught by the Takings Clause. But what the Court gave with one hand, it took away with the other. Justice Scalia held that the Takings Clause reached only those land use restrictions that deprived the owner of all economically beneficial uses of property.3 The proper status of permanent but partial restrictions on land use was not explicitly addressed, but these may now be regarded as legitimate and noncompensable exercises under the state police power. Yet even with total regulatory takings, Justice Scalia stopped short of embracing Lucas's theory that the total loss of beneficial use constitutes a per se compensable taking. Rather, he held that even for total regulatory takings a second test had to be passed as well: If the regulated activity constitutes some form of noxious use or nuisance-like activity subject to regulation at common law, then the state need not compensate the landowner for any resulting economic loss.4 Scalia's constitutional edifice thus rests on two critical distinctions. The first is whether the restriction on use is partial or total. If partial, then the constitutional inquiry is at its end, and the restriction is sustained. If total, then

Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council

There was every reason to expect 1992 to be a year of dramatic change in the constitutional law of takings. The United States Supreme Court granted certiorari to four cases involving takings issues, each of which could have led to major revisions in takings jurisprudence. In PFZ Properties, Inc. v. Rodriguez, 1 a Puerto Rican land developer claimed that the government had effectively denied him the right to use his property through its delay and evasiveness in acting on his permit application. The Court could have used Rodriguez to define constitutional limits on anti-development tactics, but instead it dismissed the writ following oral argument.2 General Motors Corp. v. Romein3 involved a regulatory law which upset contractual arrangements between an employer and its employees regarding workers' compensation benefits. While it appeared that the Court might revisit the retroactivity doctrine, instead it affirmed the validity of retroactive economic regulation, just as it has done several times in recent years.4 Retroactivity doctrine is important to takings cases because it potentially limits the application of new regulatory standards to existing contractual relationships such as that of employer and employee. Yee v. City of Escondido5 concerned the validity of a rent control ordinance applied to rentals of mobile home pads.6 The Court

LucasCase: The Need TO Reform Land-Use Law

Abstract The United State's Supreme Court's recent decision in Lircas v. South Carolina Coastal Council, 112 SCt. 28867,44 ZD 302, is the type of decision that stirs observers of land-use law to consider whether the time has arrived for fundamental reform of both the federal and state systems of land-use regulation. Lucas clearly illustrates the lack of coordination, consistency, and concurrency in the proliferating rules, procedures, and programs that affect land development and conservation.

Takings Law: Strategies for Dealing withLucas

Abstract Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), 44 ZD 302, stands as an invitation to litigation for those aggrieved by state and local land-use decisions. In Lucas, the Supreme Court ruled that communities' are liable for compensation for regulatory takings that fall in the category of depriving the property owner all economically beneficial use of the land. Because of this categorical rule, the Lucas decision has far broader impacts than the Court's landmark decision in First English Evangelical Lutherun Church v. Los Angeles County, 107 S. Ct. 2378 (1987),39 ZD 206, which addressed only the remedy for regulatory takings. For these reasons, communities must understand Lucas and develop new strategies for limiting its impacts on land-use planning. More than ever before, community planners and attorneys must work together to prevent adverse takings decisions.

Private Takings of Endangered Species as Public Nuisance: Lucas v. South Carolina Coastal Council and the Endangered Species Act

Private Takings of Endangered Species as Public Nuisance: <em>Lucas v. South Carolina Coastal Council</em> and the Endangered Species Act

Constitutional Baselines by Virtual Contract: A General Theory and Its Application to Regulatory Takings

In Lucas v South Carolina Coastal Council, the Supreme Court held that a regulatory taking, for which compensation must be provided under the Fifth Amendment, occurs when the government institutes a new rule that prevents all economically beneficial use of a parcel of real estate. The Court also concluded, however, that the government remains free to deprive landowners of such use, without providing compensation, if the government's decree simply makes explicit the restrictions already placed on land use by background principles of property and nuisance law. Professors Liebeler and Alchian criticize the Court for its failure-only most recently manifested in the Lucas decision-to identify the specific constitutional standards that constrain the government's power to seize property without compensation. Drawing on the logic of the common law and on recent advances in the theory of specialized assets, the authors argue that the Court can and should enforce identifiable "virtual contracts" that are implicit in the Constitution and the common law. Only by enforcing these virtual contracts can the courts achieve the "average reciprocity of advantage" referred to by Justice Holmes in Pennsylvania Coal Co. v Mahon. That approach would require a judgment for the landowner in Lucas quite apart from issues of state law, and reevaluation of a wide range of other constitutional issues.

Lucas v. South Carolina Coastal Council: Its Historic Context and Shifting Constitutional Principles

Lucas v. South Carolina Coastal Council: Its Historic Context and Shifting Constitutional Principles

Takings '92: The Case of the Curious Case

Abstract On the last day of the US. Supreme Court's Term, with both novices and gurus of land-use law anxiously awaiting, the Court issued its opinion in Lucas v. South Carolina Coastal Council, No. 91-453 (June 29, 1992), 44 Z D 302. The nationwide interest in this regulatory takings case is uncommonly high for a variety of reasons, including the fact that, in 1987, the Court issued a trilogy of famous takings cases-but left confusion in the wake. Since 1987, both friends and foes of land-use regulation have fervently urged the Court to clearly tell them what is, and is not, a regulato y taking. After the Court accepted a record number (four) of land-use law cases for one Term in 1991, with Lucas being the only regulatory takings case, the interest of the news media and the land-use law community swelled. The notoriety of the Lucas case even intensified as, one by one, the Court disposed of the other three land-use cases. Rumors spread that the Court's backlog of cases had reached an all-time high, fueling speculation that the Court might even summer before ruling on Lucas. In this month's commentaries, four seasoned observers, including one private rights advocate, will analyze the meaning of this latest Supreme Court takings case.

Takings Law in Light of Lucas v. South Carolina Coastal Council

Takings Law in Light of Lucas v. South Carolina Coastal Council

TheLucasCase: Old Wine in Old Bottles

Abstract Lucas v. South Carolina Coastal Council, No. 91-453 (U.S. June 29, 1992), 44 ZD 302, is essentially old wine in old bottles. Falling squarely within established just compensation clause jurisprudence, the majority holds that a taking occurs in the rare case where government action denies all economically viable use of property, unless the government action is preventing a nuisance. Although the majority may be criticized for its sometimes careless language and inconsistencies, it is hardly making “sweeping” and “misguided and unsupported changes in [the Court's] taking doctrine.” Slip op. at 26 (Blackmun, J., dissenting).

Planning Staffs “Outed” byLucasOpinion

Abstract Well, the cat's out of the bag now. All of us have become accustomed to seeing statutes, ordinances, and regulations preceded by lengthy legislative “findings” purporting to justify the restrictive legislation that follows. Indeed, the South Carolina statute at issue in Lucas v. South Carolina Coastal Council, No. 91-453 (U.S. June 29, 1992), 44 ZD 302, was replete with them. We are also accustomed to seeing courts engage in the fiction that the legislative body actually held hearings, took evidence, evaluated thoughtfully, and came to these “findings” out of that deliberative process. Based on that mythological process, government lawyers became accustomed to marching into court with those “findings” and obtaining judicial holdings that the “findings” were not subject to contest in litigation over the enforcement or validity of the ensuing regulations.

TheLucasCase: Regulatory Takings Past, Present, and Future

Abstract If you can't use your land for any economic purpose because of a land-use regulation, government has to pay you compensation. For the present (and with a narrow exception) that's the rule announced by the U.S. Supreme Court by a vote of 6-to-3 in a 75-page decision on June 29 in Lucas v. South Carolina Coastal Council, No. 91-453, 44 ZD 302.

Regulatory Takings Redux: Which Land-Use Controls Will Survive?

Abstract The United States Supreme Court may be about to rewrite the law on land-use controls. It has accepted for review the beachfront regulation case of Lucas v. South Carolina Coastal Council, 404 S.E.2d 895 (1991), 44 ZD 93. At issue: the “notion” of regulatory takings under the Constitution's Fifth and Fourteenth amendments. The ramifications for attorneys practicing in the property and local government fields are major.