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
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. United
States, 133 F.3d
1454 (Fed. Cir.
Alleged failure by BLM
to contain trespasses by
livestock of nearby
No taking. Neither plaintiff’s grazing permit nor his grazing
“preference” (priority in receiving grazing permit over adjacent public
land) is a property right. Moreover, government cannot be liable for
failure to regulate animals under its regulatory control. A fortiori,
government cannot be liable for failing to control privately owned
Phillips & Green,
M.D., P.A. v.
(D.D.C. Jan. 30)
DOD deduction of $75
administrative fee from
amount garnished from
its employee's wages
and paid to plaintiff
No taking. In return for the $75, plaintiff received a service from DOD.
Garnishment was but one of many ways plaintiff could have recouped
money owed by defendant. Having selected garnishment, plaintiff cannot
complain of the administrative cost, as required by Congress.
Trust Fund v.
994 F. Supp. 617
(E.D. Pa. Feb. 24)
Suit by multiemployer
pension plan trustee
seeking to recover
No taking. There was no reasonable expectation that limited liability
under retirement plans would last forever, especially when employer
entered collective bargaining agreements on at least three occasions after
1980 enactment of statute imposing withdrawal liability. Every circuit
to consider takings challenges to statute has rejected them.
v. United States, 40
Fed. Cl. 471 (Mar.
occupancy of property
after expiration of
Taking. When U.S. occupies private property without consent of owner,
it is liable under the Fifth Amendment for the fair market rental of the
property. Government’s sublease could not give it rights beyond
expiration of prime lease.
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).
See CRS reports listed in note 1.
Gulf Power Co. v.
United States, 998
F. Supp. 1386
(N.D. Fla. Mar. 6)
requiring that utilities
provide cable TV
operators with access to
their poles, ducts, and
rights of way
Taking. Mandatory access provision in Telecommunications Act of
1996, requiring that qualifying utilities give cable companies access to
their poles, ducts, etc., is per se taking. Original Pole Attachments Act,
at issue in FCC v. Florida Power Corp., 480 U.S. 245 (1987), did not
FDIC v. Mahoney,
141 F.3d 913 (9th
RTC repudiation of
failed bank's lease, as
receiver for bank
No taking. Claim to which security interest attaches does not exist.
Hence, security interest, and claim that it was taken, necessarily vanish.
In re Gomes, 219
B.R. 286 (D. Or.
effort to recover, as
tithes made by debtor to
No taking. Loss is within reasonable investment-backed expectations of
church. Under provisions of bankruptcy code in existence since 1978,
church reasonably could expect that its receipts from tithes might be
subject to recoupment by a bankruptcy trustee where donator was
insolvent when contributions were made.
United States, 40
Fed. Cl. 689 (Apr.
Repeal of low-income
housing owners' right to
mortgages after 20
years and thereby end
No taking (or taking claim not ripe). Twenty-year prepayment right was
not contractual. HUD was not a party on the mortgage notes between
owners and lenders containing the prepayment term; term was prescribed
by HUD regulations which noted that terms were subject to amendment.
Since not contractual, there can be no taking claim based on breach of
Cellular v. United
States, 41 Fed. Cl.
20 (Apr. 28)
FCC's dismissal of
permit application, then
concluding it had
resulting in non-use of
No taking. Fact that dismissal of application resulted in plaintiff's
financial commitment letters, allegedly contracts, being deprived of
economically viable use is not taking of contract right. At most was
frustration of such rights. Moreover, communications arena is heavily
regulated field, by FCC in particular. Entity entering that arena should
expect continued regulation by FCC.
Yi v. Citibank
219 B.R. 394 (E.D.
Va. Apr. 29)
bankruptcy law to
creditor holding third
deed of trust
No taking. Lien avoidance under federal bankruptcy power is not a
taking. Bankruptcy proceedings frequently modify property rights
established under state law. Fifth Amendment protects creditor’s rights
only to extent of its interest in the collateral as that interest is defined by
Ass'n v. United
States, 144 F.3d
769 (Fed. Cir. May
Alaska Native Claims
lands available for
selection by village
No taking. No property rights in ANCSA-specified choices.
Thune v. United
States, 41 Fed. Cl.
49 (Fed. Cl. June
Destruction of hunting
camp on federal land
when controlled burn
set by U.S. escaped
No taking. At most, a tort is involved. If we assume fire's escape
resulted from wind changes that government could not have anticipated
(as record suggests), no taking liability since taking requires government
intent to take or intent to do an act the direct, natural, or probable
consequence of which was to take.
Corp. v. United
States, 41 Fed. Cl.
150 (June 10)
GSA seizure of boat
U.S. had donated to
state, on finding state
had violated federal
Taking. Plaintiff charterer had valid right to possess boat.
Corp. v. United
States, 41 Fed. Cl.
229 (Fed. Cl. June
Alleged DOD breach of
plaintiff sole provider
system beyond contract
No taking. Plaintiff failed to present sufficient evidence that it possessed
right to be sole-source provider beyond term of contract. U.S. could not
have taken what plaintiff did not possess.
v. Apfel, 524 U.S.
498 (June 25)
requiring company to
fund health benefits of
miner who worked for it
decades earlier, where
company left mining
promise of lifetime
benefits in collective
became explicit in 1974
Unconstitutional as applied to plaintiff. Four justices supporting
judgment hold that taking occurs when, as here, statute imposes severe
retroactive liability on limited class of parties that could not have
anticipated the liability, and extent of liability is substantially
disproportionate to company’s experience in mining field. Remaining
justice supporting judgment sees no taking, but rather a substantive due
process violation. Four dissenters find no taking or due process violation.
BMR Gold Corp. v.
United States, 41
Fed. Cl. 277 (June
Traversing of plaintiff’s
land by U.S. marines to
No taking. Plaintiff (lessee of property) concedes that it gave permission
to marines to traverse its property. Consent precludes taking.
Utah, Inc., 150
F.3d 1233 (10th
Cir. June 30)
authorizing payment of
fees to bankruptcy
trustee, as applied to
with already confirmed
No taking. Taking requires interference with reasonable expectations.
Here, purported expectations consist of disbursements from debtor's
estate. In a bankruptcy case as complex as this, however, patently
unreasonable to expect no variability in final amount available to plan
Irrig. Dist. v.
United States, 158
F.3d 428 (9th Cir.
Federal tribal water
rights statute, alleged to
take Arizona irrigation
districts’ water rights
under earlier statute
No taking. Irrigation districts had no right in excess water under earlier
statute (Ak-Chin Settlement Act), so U.S. reallocation of excess water
under later law effected no taking.
Karuk Tribe v.
United States, 41
Fed. Cl. 468 (Aug.
P a r t itioning
reservation by HoopaYurok Settlement Act
No taking. Neither 1864 act creating reservation nor benefits conferred
thereunder vested any compensable property rights.
of Home Health
Agencies, Inc. v.
Shalala, 18 F.
Supp. 2d 355 (D.
Vt. Aug. 26)
Interim payment plan
established by Balanced
Budget Act of 1997 to
control home health
care costs by reducing
Medicare reimbursement for such services
No taking. Plaintiffs accuse interim payment plan of limiting
reimbursement to such an inadequate level as to constitute a regulatory
taking. But plaintiffs’ participation in Medicare is voluntary.
Schism v. United
States, 19 F. Supp.
2d 1287 (N.D. Fla.
U.S. requirement that
military retirees pay
Medicare premiums for
their health benefits,
after promises at time of
enlistment of free
lifetime medical care
No taking. 1956 enactment of statute reducing benefits did not constitute
taking of any vested property right, since benefits were noncontractual
in nature. Despite what recruiters may have said to plaintiffs in 1942,
pre-1956 regulations did not establish free lifetime medical care for
Jones v. Clinton,
12 F. Supp. 2d 931
(E.D. Ark. Sept. 1)
Court’s retaining seal
on certain discovery
summary judgment in
No taking. Plaintiff had no property interest in discovery materials she
Palm Beach Isles
Assocs. v. United
States, 42 Fed. Cl.
340 (Oct. 19)
Corps of Engineers'
denial of dredge and fill
No taking. No taking of acreage below high water mark, since subject
to federal navigation servitude. As to remaining acreage above mark,
Penn Central factors cut against taking – e.g., “regulatory climate” at
time property was acquired precludes reasonable expectations of
development, and parcel as a whole was entire original parcel.
United States v.
Corp., 33 F. Supp.
2d 769 (E.D. Ark.
No taking. Court has previously found Superfund Act constitutional in
the face of a retroactivity argument. Eastern Enterprises v. Apfel, 524
U.S. 498 (1998), does not apply.
W a t e rcraft
Recreation Ass’n v.
TRPA, 24 F. Supp.
2d 1062 (E.D. Cal.
watercraft propelled by
No taking. As a threshold matter, TRPA ordinances are federal law,
since they are created under mandate of congressionally ratified interstate
compact which is itself federal law. As to taking claim, ordinance
substantially advances legitimate state interests (conservation of Lake
Tahoe) and does not deny economic use of boats but merely prohibits use
on Lake Tahoe.
United States, 42
Fed. Cl. 252 (Nov.
Forest Service’s actions
in fighting forest fire,
causing damage to
owner of timber lands
No taking. Decision of Forest Service to concentrate efforts in areas of
higher priority did not constitute taking of plaintiff’s timber lands.
Mobile Home Park
v. United States, 42
Fed. Cl. 392 (Dec.
Damage to mobile
home park allegedly
caused by improper
federal supervision of
No taking. Taking claim in Court of Federal Claims cannot be based on
unauthorized government acts. Moreover, if government’s actions
allegedly breached a contract, appropriate remedy is breach of contract
claim, not taking.
Buyer’s rescission of
land sale contract after
Corps of Engineers
No taking. Affirming, without published opinion, decision of trial court
at 40 Fed. Cl. 381 (1998).
Robbins v. United
States, 178 F.3d
1310 (Fed. Cir.
Companion case (same holding and rationale): Dureiko v. United States,
42 Fed. Cl. 568 (Dec. 9).
Inc. v. Worldcom
31 F. Supp. 2d 819
(D. Or. Dec. 10)
State public utility
pursuant to federal
under which incumbent
local exchange carrier
might receive less
agreement than amount
to which it allegedly is
No taking. No evidence presented that interconnecting company has
purchased any services pursuant to agreement, nor that it ever will. Even
if interconnecting company does purchase services, deals are as yet
M o n a r c h
v. United States, 42
Fed. Cl. 258 (Dec.
Nonpayment by U.S. on
note allegedly executed
by CIA agent, payable
No taking. No credible evidence that person who signed note was agent
of U.S. authorized to sign.
Companion cases (same holding and rationale): U.S. West
Communications v. TCG Oregon, 31 F. Supp. 2d 828 (D. Or. Dec. 10);
U.S. West Communications, Inc. v. AT&T Communications of the
Pacific Northwest, 31 F. Supp. 2d 839 (D. Or. Dec. 10).
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