Court Rulings During 1998 on Constitutional Takings Claims Against the United States

Court Rulings During 1998 on Constitutional Takings Claims Against the United States

Order Code RS20473
February 17, 2000
CRS Report for Congress
Received through the CRS Web
Court Rulings During 1998 on Constitutional
Takings Claims Against the United States
(name redacted)
Legislative Attorney
American Law Division
Summary
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

CRS-2
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.
Case
Challenged gov’t
Holding/rationale
action
Alves v. United
Alleged failure by BLM
No taking. Neither plaintiff’s grazing permit nor his grazing
States, 133 F.3d
to contain trespasses by
“preference” (priority in receiving grazing permit over adjacent public
1454 (Fed. Cir.
livestock of nearby
land) is a property right. Moreover, government cannot be liable for
Jan. 12)
Indian ranchowner
failure to regulate animals under its regulatory control. A fortiori,
government cannot be liable for failing to control privately owned
animals.
Phillips & Green,
DOD deduction of $75
No taking. In return for the $75, plaintiff received a service from DOD.
M.D., P.A. v.
administrative fee from
Garnishment was but one of many ways plaintiff could have recouped
Clark-Amaker, 992
amount garnished from
money owed by defendant. Having selected garnishment, plaintiff cannot
F. Supp. 450
its employee's wages
complain of the administrative cost, as required by Congress.
(D.D.C. Jan. 30)
and paid to plaintiff
Teamsters Pension
Suit by multiemployer
No taking. There was no reasonable expectation that limited liability
Trust Fund v.
pension plan trustee
under retirement plans would last forever, especially when employer
Cristinzio, Inc.,
seeking to recover
entered collective bargaining agreements on at least three occasions after
994 F. Supp. 617
withdrawal liability
1980 enactment of statute imposing withdrawal liability. Every circuit
(E.D. Pa. Feb. 24)
from withdrawing
to consider takings challenges to statute has rejected them.
employer
Allenfield Assocs.
Veteran’s Admini-
Taking. When U.S. occupies private property without consent of owner,
v. United States, 40
stration’s continued
it is liable under the Fifth Amendment for the fair market rental of the
Fed. Cl. 471 (Mar.
occupancy of property
property. Government’s sublease could not give it rights beyond
2)
after expiration of
expiration of prime lease.
sublease
1 CRS Report 91-171 (1990 decisions); CRS Report 92-337 (1991 decisions); CRS Report
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).
2 See CRS reports listed in note 1.

CRS-3
Case
Challenged gov’t
Holding/rationale
action
Gulf Power Co. v.
Federal statute
Taking. Mandatory access provision in Telecommunications Act of
United States, 998
requiring that utilities
1996, requiring that qualifying utilities give cable companies access to
F. Supp. 1386
provide cable TV
their poles, ducts, etc., is per se taking. Original Pole Attachments Act,
(N.D. Fla. Mar. 6)
operators with access to
at issue in FCC v. Florida Power Corp., 480 U.S. 245 (1987), did not
their poles, ducts, and
compel access.
rights of way
FDIC v. Mahoney,
RTC repudiation of
No taking. Claim to which security interest attaches does not exist.
141 F.3d 913 (9th
failed bank's lease, as
Hence, security interest, and claim that it was taken, necessarily vanish.
Cir. Apr.1)
receiver for bank
In re Gomes, 219
Bankruptcy trustee’s
No taking. Loss is within reasonable investment-backed expectations of
B.R. 286 (D. Or.
effort to recover, as
church. 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-petition
subject to recoupment by a bankruptcy trustee where donator was
tithes made by debtor to
insolvent when contributions were made.
church
Greenbrier v.
Repeal of low-income
No taking (or taking claim not ripe). Twenty-year prepayment right was
United States, 40
housing owners' right to
not contractual. HUD was not a party on the mortgage notes between
Fed. Cl. 689 (Apr.
prepay HUD-insured
owners and lenders containing the prepayment term; term was prescribed
9)
mortgages after 20
by HUD regulations which noted that terms were subject to amendment.
years and thereby end
Since not contractual, there can be no taking claim based on breach of
affordability restrictions
contract.
on owners
Pacific National
FCC's dismissal of
No taking. Fact that dismissal of application resulted in plaintiff's
Cellular v. United
permit application, then
financial commitment letters, allegedly contracts, being deprived of
States, 41 Fed. Cl.
concluding it had
economically viable use is not taking of contract right. At most was
20 (Apr. 28)
violated law and
frustration 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 of
expect continued regulation by FCC.
financial commitment
letters
Yi v. Citibank
A p p l i c a t i o n of
No taking. Lien avoidance under federal bankruptcy power is not a
(Maryland), N.A.,
bankruptcy law to
taking. Bankruptcy proceedings frequently modify property rights
219 B.R. 394 (E.D.
disallow claim of
established under state law. Fifth Amendment protects creditor’s rights
Va. Apr. 29)
creditor holding third
only to extent of its interest in the collateral as that interest is defined by
deed of trust
bankruptcy laws.
Seldovia Native
Alaska Native Claims
No taking. No property rights in ANCSA-specified choices.
Ass'n v. United
Settlement Act
States, 144 F.3d
amendments redefining
769 (Fed. Cir. May
lands available for
14)
selection by village
corporation
Thune v. United
Destruction of hunting
No taking. At most, a tort is involved. If we assume fire's escape
States, 41 Fed. Cl.
camp on federal land
resulted from wind changes that government could not have anticipated
49 (Fed. Cl. June
when controlled burn
(as record suggests), no taking liability since taking requires government
5)
set by U.S. escaped
intent to take or intent to do an act the direct, natural, or probable
consequence of which was to take.

CRS-4
Case
Challenged gov’t
Holding/rationale
action
Osprey Pacific
GSA seizure of boat
Taking. Plaintiff charterer had valid right to possess boat.
Corp. v. United
U.S. had donated to
States, 41 Fed. Cl.
state, on finding state
150 (June 10)
had violated federal
property regulations
Westinghouse Elec.
Alleged DOD breach of
No taking. Plaintiff failed to present sufficient evidence that it possessed
Corp. v. United
promise to make
right to be sole-source provider beyond term of contract. U.S. could not
States, 41 Fed. Cl.
plaintiff sole provider
have taken what plaintiff did not possess.
229 (Fed. Cl. June
for anti-submarine
17)
system beyond contract
term
Eastern Enterprises
Federal statute
Unconstitutional as applied to plaintiff. Four justices supporting
v. Apfel, 524 U.S.
requiring company to
judgment hold that taking occurs when, as here, statute imposes severe
498 (June 25)
fund health benefits of
retroactive liability on limited class of parties that could not have
miner who worked for it
anticipated the liability, and extent of liability is substantially
decades earlier, where
disproportionate to company’s experience in mining field. Remaining
company left mining
justice supporting judgment sees no taking, but rather a substantive due
businesss before
process violation. Four dissenters find no taking or due process violation.
promise of lifetime
benefits in collective
bargaining agreements
became explicit in 1974
BMR Gold Corp. v.
Traversing of plaintiff’s
No taking. Plaintiff (lessee of property) concedes that it gave permission
United States, 41
land by U.S. marines to
to marines to traverse its property. Consent precludes taking.
Fed. Cl. 277 (June
r e a c h d o w n e d
30)
helicopter
In re CF&I
Statutory amendment
No taking. Taking requires interference with reasonable expectations.
Fabricators of
authorizing payment of
Here, purported expectations consist of disbursements from debtor's
Utah, Inc., 150
fees to bankruptcy
estate. In a bankruptcy case as complex as this, however, patently
F.3d 1233 (10th
trustee, as applied to
unreasonable to expect no variability in final amount available to plan
Cir. June 30)
bankruptcy proceedings
distributees.
with already confirmed
plans
Maricopa-Stanfield
Federal tribal water
No taking. Irrigation districts had no right in excess water under earlier
Irrig. Dist. v.
rights statute, alleged to
statute (Ak-Chin Settlement Act), so U.S. reallocation of excess water
United States, 158
take Arizona irrigation
under later law effected no taking.
F.3d 428 (9th Cir.
districts’ water rights
July 7)
under earlier statute
Karuk Tribe v.
P a r t itioning of
No taking. Neither 1864 act creating reservation nor benefits conferred
United States, 41
reservation by Hoopa-
thereunder vested any compensable property rights.
Fed. Cl. 468 (Aug.
Yurok Settlement Act
6)
Vermont Assembly
Interim payment plan
No taking. Plaintiffs accuse interim payment plan of limiting
of Home Health
established by Balanced
reimbursement to such an inadequate level as to constitute a regulatory
Agencies, Inc. v.
Budget Act of 1997 to
taking. 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

CRS-5
Case
Challenged gov’t
Holding/rationale
action
Schism v. United
U.S. requirement that
No taking. 1956 enactment of statute reducing benefits did not constitute
States, 19 F. Supp.
military retirees pay
taking of any vested property right, since benefits were noncontractual
2d 1287 (N.D. Fla.
Medicare premiums for
in nature. Despite what recruiters may have said to plaintiffs in 1942,
Aug. 31)
their health benefits,
pre-1956 regulations did not establish free lifetime medical care for
after promises at time of
retirees.
enlistment of free
lifetime medical care
Jones v. Clinton,
Court’s retaining seal
No taking. Plaintiff had no property interest in discovery materials she
12 F. Supp. 2d 931
on certain discovery
had amassed.
(E.D. Ark. Sept. 1)
materials following
summary judgment in
case
Palm Beach Isles
Corps of Engineers'
No taking. No taking of acreage below high water mark, since subject
Assocs. v. United
denial of dredge and fill
to federal navigation servitude. As to remaining acreage above mark,
States, 42 Fed. Cl.
permit
Penn 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 application
No taking. Court has previously found Superfund Act constitutional in
Vertac Chemical
of Superfund Act
the face of a retroactivity argument. Eastern Enterprises v. Apfel, 524
Corp., 33 F. Supp.
liabiliity scheme
U.S. 498 (1998), does not apply.
2d 769 (E.D. Ark.
Oct. 23)
W a t e r c r a f t
Tahoe Regional
No taking. As a threshold matter, TRPA ordinances are federal law,
Recreation Ass’n v.
Planning Agency
since they are created under mandate of congressionally ratified interstate
TRPA, 24 F. Supp.
ordinance barring
compact which is itself federal law. As to taking claim, ordinance
2d 1062 (E.D. Cal.
discharge from
substantially advances legitimate state interests (conservation of Lake
Oct. 28)
watercraft propelled by
Tahoe) and does not deny economic use of boats but merely prohibits use
carbureted two-stroke
on Lake Tahoe.
engines
Teegarden v.
Forest Service’s actions
No taking. Decision of Forest Service to concentrate efforts in areas of
United States, 42
in 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 Village
Damage to mobile
No taking. Taking claim in Court of Federal Claims cannot be based on
Mobile Home Park
home park allegedly
unauthorized government acts. Moreover, if government’s actions
v. United States, 42
caused by improper
allegedly breached a contract, appropriate remedy is breach of contract
Fed. Cl. 392 (Dec.
federal supervision of
claim, not taking.
9)
contractor’s remedial

work following
Companion case (same holding and rationale): Dureiko v. United States,
hurricane
42 Fed. Cl. 568 (Dec. 9).
Robbins v. United
Buyer’s rescission of
No taking. Affirming, without published opinion, decision of trial court
States, 178 F.3d
land sale contract after
at 40 Fed. Cl. 381 (1998).
1310 (Fed. Cir.
Corps of Engineers
Dec. 10)
indicated property
contained wetland

CRS-6
Case
Challenged gov’t
Holding/rationale
action
U . S . W e s t
State public utility
No 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. Worldcom
pursuant to federal
if interconnecting company does purchase services, deals are as yet
Technologies, Inc.,
telecommunications act,
undetermined.
31 F. Supp. 2d 819
under which incumbent
(D. Or. Dec. 10)
local exchange carrier
Companion cases (same holding and rationale): U.S. West
might receive less
Communications v. TCG Oregon, 31 F. Supp. 2d 828 (D. Or. Dec. 10);
compensation under
U.S. West Communications, Inc. v. AT&T Communications of the
i n t e r c o n n e c t i o n
Pacific Northwest, 31 F. Supp. 2d 839 (D. Or. Dec. 10).
agreement than amount
to which it allegedly is
entitled
M o n a r c h
Nonpayment by U.S. on
No taking. No credible evidence that person who signed note was agent
Assurance P.L.C.
note allegedly executed
of U.S. authorized to sign.
v. United States, 42
by CIA agent, payable
Fed. Cl. 258 (Dec.
to plaintiffs
18)

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