The Total Takings Myth
Lynn E. Blais, The Total Takings Myth
The Total Takings My th
Lynn E. Blais 0 1
0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 University of Texas at Austin School of Law , USA
For almost thirty-five years, the U.S. Supreme Court has attempted to
carve out a total takings doctrine within its regulatory takings jurisprudence.
Most regulatory takings claims are evaluated under the “ad hoc” three
factor test first articulated in Penn Central Transportation Co. v. City of New
York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. This began in 1982 with
Loretto v. Teleprompter Manhattan CATV Corp., where the Court held that
a land use ordinance requiring a landowner to endure a permanent physical
occupation of a portion of her property is always a compensable taking. Ten
years later, in Lucas v. South Carolina Coastal Council, the Court held that
a land use restriction depriving an owner of all economically viable use of
her property is also compensable per se. Finally, in 2015, in Horne v.
Department of Agriculture, the Court extended its total takings jurisprudence
to personal property, announcing that the government appropriation of
personal property is a per se compensable taking.
Although the Court has had more than three decades to articulate
theoretical justifications for its total takings jurisprudence and to provide
guidance for lower courts in determining when a regulation constitutes a
total taking, it has failed to do so. This failure reflects the underlying reality
that the total takings doctrine is a myth. More particularly, the categories
that the Court has identified as constituting total takings are analytically
incoherent, and the terms the Court has used to demarcate total takings from
regulations that are not per se compensable cannot be applied in the real
world. As a result, lower courts struggle to apply the total takings doctrine
and the case law remains in utter disarray. In fact, lower courts have
resorted to creating “shadow” total takings doctrines that rely on obvious
distortions of the plain meaning of outcome-determinative terms and deflect
attention from the fundamental question of whether compensation is
This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it. It demonstrates that the Court’s initial total takings opinions were conceptually incoherent and woefully undertheorized. And it shows that attempts by lower courts to
* Leroy G. Denman, Jr. Regents Professor in Real Property Law at the University of Texas at
Austin School of Law. I would like to thank the participants at the Washington & Lee School
of Law faculty workshop for helpful comments on an earlier draft.
rehabilitate the doctrine by crystallizing the bright-line rules through careful
and consistent application were doomed to, and did, fail. This Article also
explains why the entire enterprise was misguided from the start. Although
bright-line rules have their place, it is not in the heart of regulatory takings
doctrine, which is premised on concerns for fairness and justice in
distributing the burdens of land use regulation.
Last term, the Court had a perfect opportunity to begin the process of
repudiating the total takings myth. Murr v. Wisconsin was a run-of-the-mill
regulatory takings case masquerading as a Lucas-type total takings claim,
and it presented the Court with a vehicle to either remedy the central
doctrinal incoherence of Lucas’s bright-line rule or to overrule Lucas and
turn its attention to the much needed task of clarifying and refining the Penn
Central test. Instead, by offering a new multifactored test in a sort of regulatory takings “step zero,” the Court in Murr merely exacerbated the core flaws of the Lucas bright-line rule. Now, more than ever, it is imperative that the Court recognize and begin to dismantle the total takings myth.
I. BRIGHT-LINE RULES AND TOTAL TAKINGS............................................ 53
In June 2015, the U.S. Supreme Court decided a takings case involving an
obscure New Deal government program regulating, of all things, the sale of
raisins.1 This little raisin dispute had been mired in the federal courts for
more than twelve years and last term it reached the nation’s highest court a
second time.2 While the actual dispute between the raisin growers and the
Raisin Administrative Committee appears to have been resolved,3 Horne II
ultimately raises more questions than it answers.
In Horne II, the Court purported to add yet another bright-line rule to its
regulatory takings jurisprudence, holding that any physical appropriation of
personal property is a per se taking and therefore categorically compensable.4
In light of the total takings holding in Horne II, the Court now recognizes
three circumstances in which government regulation of property is always a
taking under the Fifth Amendment.5 In addition to the Horne II rule—that
physical appropriation of personal property is a per se taking—the other two
categories of government regulation that require compensation per se are
those that deprive a landowner of all economically viable use of her land6
and those that impose a permanent physical occupation on real property.7
According to the Court, each of these three types of regulations is
categorically different from the mine-run of governmental restrictions on
property rights because it deprives the property owner of the core interests
that constitute property ownership.8
The Court’s “total takings” jurisprudence comprises these three
circumstances.9 By contrast, regulations limiting the use of real and personal
property that do not fit into one of the three categories—that are, in other
words, not total takings—are analyzed using more nuanced tests in which the
Court evaluates several factors. Land use restrictions that do not deprive the
land owner of all economically beneficial use or impose a permanent physical
occupation are analyzed under an ad hoc, multifactored approach first
articulated in Penn Central Transportation Co. v. City of New York.10
Landowners rarely prevail in takings claims evaluated under the Penn
Central three-factor test.11 Similarly, the Court considers many factors in
evaluating takings challenges to the mine-run of governmental actions that
impact personal property rights, and it has rarely held such restrictions to
require compensation.12 Thus, the Court now purports to draw bright lines
that identify three categories of government regulations that are total takings
and therefore compensable per se, while all other governmental restrictions
on the use of real and personal property are evaluated under multifactored
tests and are rarely held to constitute compensable takings.
However, since the Court first began its quest to carve out bright-line per
se takings rules almost thirty-five years ago, scholars,13 courts,14 and even
Supreme Court Justices15 have lamented the lack of doctrinal coherence and
theoretical foundation in the Court’s total takings jurisprudence. As these
commentators have pointed out, the concept of a deprivation of all
economically viable use requires a theoretical and practical understanding of
the denominator to be used in the calculus.16 That is, a regulation prohibiting
used here because it best describes what the Court claims to be doing in all three
10. 438 U.S. 104 (1978).
11. See David A. Dana, Why Do We Have the Parcel-as-a-Whole Rule?, 39 VT. L. REV.
617, 617 (2015) (“If the [diminution in value] is less than 100%, the Penn Central
Transportation Co. v. City of New York ad hoc, contextual, multi-factor analysis applies, and
generally the government prevails.”).
12. See, e.g., Horne v. Dep’t of Agric., 135 U.S. 2419, 2438–40 (2015) (Sotomayor, J.,
dissenting) (explaining the Court’s approach to regulatory takings claims aimed at
governmental restrictions in the use of personal property that is “a fungible commodity for
13. See, e.g., Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test,
118 PENN ST. L. REV. 601, 602 (2014); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1088
14. See, e.g., City of Coeur d’Alene v. Simpson, 136 P.3d 310, 319 (Idaho 2005)
(“Identifying the denominator parcel is no easy task.”); Machipongo Land & Coal Co. v.
Commonwealth, 799 A.2d 751,768 (Pa. 2002) (“As we have noted above, the Supreme Court
has not instructed conclusively how the denominator problem should be resolved.”).
15. Even the majority in Lucas conceded that the bright-line rule it created lacked
theoretical coherence. See Lucas v. S.C. Coastal Council, 505 U.S. 1008, 1016 n.7. (1992)
(“Regrettably, the rhetorical force of our ‘deprivation of all economically feasible use’ rule is
greater than its precision, since the rule does not make clear the ‘property interest’ against
which the loss of value is to be measured.”); see also id. at 1066 (Stevens, J., dissenting) (“In
short, the categorical rule will likely have one of two effects: Either courts will alter the
definition of the ‘denominator’ in the takings ‘fraction,’ rendering the Court’s categorical rule
meaningless, or investors will manipulate the relevant property interests, giving the Court’s
rule sweeping effect.”).
16. See, e.g., F. Patrick Hubbard, Palazzolo, Lucas, and Penn Central: The Need for
Pragmatism, Symbolism, and Ad Hoc Balancing, 80 NEB. L. REV. 465, 480 (2001) (“Lucas is
factually narrow and conceptually vague. Consequently, the case does not clearly guide and
development on one acre of wetlands in the corner of a five-acre lot can be
viewed as depriving the landowner of 100 percent of that acre of land or 20
percent of the entire lot. The Court has not provided a doctrinal explanation
or theoretical foundation for choosing one view or the other.17 Similarly, no
regulation that imposes a physical occupation on a landowner, such as the
requirement that she allow a cable company to attach a cable to her apartment
building, is ever truly permanent in the metaphysical sense of the word. But
the Court’s limited attempt to define what counts as a permanent physical
occupation versus a temporary physical invasion for per se takings purposes
is theoretically incomplete, and what little theory the Court has offered does
not even explain the outcomes in its own cases applying the rule.18 The new
per se rule announced in Horne II is similarly undertheorized and impossible
to reconcile with prior cases.
Rather than add to the now-copious scholarship criticizing or attempting
to rehabilitate the Court’s total takings jurisprudence, this Article argues that
the Court should acknowledge that its attempt to draw bright-line rules in
regulatory takings jurisprudence failed at its inception and should abandon
the total takings enterprise altogether.19 Notwithstanding the Court’s
continued insistence that there are categories of government regulation that
require compensation per se without consideration of any other factors, this
Article contends that no such categories exist. Because the total takings
categories have no theoretically coherent content or boundaries, lower
courts20 have been forced to make sense of nonsensical standards. In doing
limit lower courts. Instead, Lucas performs the symbolic function of strongly endorsing the
value of property rights and criticizing regulatory excess while also allowing regulation to
restrict the use of property in a wide range of circumstances.”); Danaya C. Wright, A New
Time for Denominators: Toward a Dynamic Theory of Property in the Regulatory Takings
Relevant Parcel Analysis, 34 ENVT’L L. 175, 180 (2004) (“The current approach to the
denominator issue is . . . incoherent and illogical.”).
17. The Court has not just failed to provide an answer to “this difficult question,” it has
actually “produced inconsistent pronouncements” and often simply declined to address the
question. See Lucas, 505 U.S. at 1016 n.7 (“Unsurprisingly, this uncertainty regarding the
composition of the denominator in our ‘deprivation’ fraction has produced inconsistent
pronouncements by the Court. . . . In any event, we avoid this difficulty in the present
case . . . .” (citations omitted)).
18. See infra Part II.
19. Professor Michael McConnell recently suggested that the Court abandon its Lucas
holding as well. See Michael W. McConnell, The Raisin Case, 2015 CATO SUP. CT. REV. 313,
318 (“The total-loss rule has long been recognized as a conceptual disaster area, incapable of
objective and consistent administration. It should be abandoned where it now holds
sway . . . .”).
20. Because the Court’s takings jurisprudence is applied in both federal and state courts,
and state courts are not inferior tribunals to the U.S. Supreme Court, the term “lower courts”
is not a strictly accurate way to refer to the courts that are forced to wrestle with the Supreme
Court’s total takings myth. However, “[a]n overwhelming majority of states whose
constitutions or statutes contain provisions similar to the Takings Clause have interpreted these
provisions as encompassing regulatory takings, and these states have used the analytical
framework developed by the United States Supreme Court when adjudicating regulatory
takings claims.” Phillips v. Montgomery County, 442 S.W.3d 233, 240 (Tenn. 2014). In this
context, state courts are subordinate to the Supreme Court. Therefore, this Article refers to
both lower federal courts and state supreme courts as “lower courts.” Some states, however,
have interpreted the takings clauses in their own state constitutions as providing greater
so, lower courts crafted shadow total takings doctrines that distort the
language the Court used to carve out the categories in the first instance and
now incorporate other factors—some of which are inconsistent with the total
takings cases—to determine whether a regulation constitutes a total taking.
Thus, the jurisprudence of total takings is a myth, and continued attempts to
bring coherence to the concept are both futile and counterproductive.
The unveiling of the total takings myth is not merely an exercise in
semantics. The myth exerts powerful influence over the scope and extent of
regulatory takings litigation and property ownership practices in several
ways. First, the Court’s resort to a vocabulary of bright lines and categorical
takings obfuscates its regulatory takings jurisprudence. By focusing its
attention on total takings doctrine for the past thirty-five years, the Court has
evaded its obligation to provide much-needed guidance on the resolution of
mainstream regulatory takings claims. Eliminating the per se rules will force
courts to face the difficult issues still plaguing regulatory takings
jurisprudence. Second, the allure of using a bright-line rule and a potential
per se takings holding encourages litigants to attempt to shoehorn their
mainstream regulatory takings claims into one of the total takings categories.
This litigation strategy forces lower courts to wrestle with lines that cannot
logically be drawn. As a result, lower courts have developed and adopted
creative interpretations of the Court’s total takings language that often
subsume many of the Penn Central factors into the decision whether to apply
the categorical rule at all. In doing so, these courts introduce extraneous
factors into the total takings inquiry and thus detract from, rather than refine
and develop, the Penn Central test. Third, the Lucas total takings doctrine
encourages landowners to engage in conceptual severance by structuring
ownership interests in novel and economically inefficient ways to take
advantage of the Lucas rule if those interests are impacted by future
This article proceeds in four parts. Part I lays out the history of the Court’s
attempt to draw bright-line rules for total takings beginning with Loretto in
1982 and ending with Horne II in 2015. Next, Part II examines the theoretical
weaknesses inherent in each total takings rule—weaknesses that were
apparent from the conception of the rule and have been the subject of much
judicial and scholarly commentary since. Then, Part III explores the
challenges lower courts face trying to implement the Court’s theoretically
incoherent bright-line rules and the creative but ultimately detrimental ways
they have responded. Finally, the Part IV argues that the Court should
repudiate rather than rehabilitate the total takings doctrine because
brightline rules have no rational place in regulatory takings jurisprudence and the
protection to property owners and requiring compensation for regulatory takings in more
circumstances than would be required by federal precedents. For a fascinating empirical study
of the broader, richer world of state court regulatory takings cases, see generally James E.
Krier & Stewart E. Sterk, An Empirical Study of Implicit Takings, 58 WM. & MARY L. REV.
21. See generally Carol Necole Brown & Dwight H. Merriam, On the Twenty-Fifth
Anniversary of Lucas: Making or Breaking a Takings Claim, 102 IOWA L. REV.1847 (2017).
myth of their existence is detracting from the robust development of the Penn
Central analysis. This section also demonstrates that overruling Lucas
requires nothing more than a straightforward application of the Court’s
settled jurisprudence for remedying its constitutional errors.
I. BRIGHT-LINE RULES AND TOTAL TAKINGS
The Takings Clause of the Fifth Amendment provides, in part, “nor shall
private property be taken for public use, without just compensation.”22
Although there has been much debate about the original meaning of the
Takings Clause and its historical application,23 the story of bright-line rules
and the total takings doctrine is relatively succinct and straightforward.
For its first one hundred years, the application of the Takings Clause
generated “surprisingly little debate.”24 During that time, it was generally
accepted that the provision applied only to circumstances in which the
government actually took title to a landowner’s real property.25 In 1871, in
Pumpelly v. Green Bay Co.,26 the Court first applied the Takings Clause to a
government action that did not take title to real property, holding that a statute
authorizing construction of a dam that resulted in the permanent flooding of
the claimant’s real property caused a taking.27 Then, in 1922, in
Pennsylvania Coal v. Mahon,28 the Court held for the first time that the
application of a regulation that merely limits a landowner’s use of her
property, without taking title or physically invading it, could also constitute
a taking.29 In an opinion wisely characterized as “more practical than
theoretical in its focus,”30 the Court in Mahon set forth the remarkably
unhelpful “general rule” that, “while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.”31 In that
case the Court held that a Pennsylvania law prohibiting coal companies from
mining the support estate, which they owned as a separate estate under state
law, effected a compensable taking.32
After Mahon, more than fifty-five years passed before the Court offered
further guidance on how to determine when a regulation “goes too far.”33 In
1978, in Penn Central, the owners of Grand Central Terminal argued that the
application of New York City’s Landmarks Preservation Law, which
severely restricted their attempts to develop their iconic property to maximize
its value, was a compensable taking.34 In rejecting this claim, the Court
acknowledged that “[t]he question of what constitutes a ‘taking’ for purposes
of the Fifth Amendment has proved to be a problem of considerable
difficulty,” and that the Court resolved takings cases by “engaging
in . . . essentially ad hoc, factual inquiries.”35 Nonetheless, the Penn Central
Court set forth three factors that have particular significance: (
economic impact of the regulation on the claimant,” (
) “the extent to which
the regulation has interfered with distinct investment-backed expectations,”
) “the character of the governmental action.”36 The Court went on to
note that a “‘taking’ may more readily be found when the interference with
property can be characterized as a physical invasion by government, than
when interference arises from some public program adjusting the benefits
and burdens of economic life to promote the common good.”37
These three factors are now generally referred to as the Penn Central
factors, and this short paragraph represents the last serious guidance the Court
has offered to assist lower courts in resolving regulatory takings claims. As
the Court said in 2005, “[t]he Penn Central factors—though each has given
rise to vexing subsidiary questions—have served as the principal guidelines
for resolving regulatory takings claims.”38
Since announcing the Penn Central test, the Court has studiously avoided
resolving the “vexing subsidiary questions” generated by its three-factor test.
Instead, it has devoted its Takings Clause attention to identifying cases that
do not fall within the ambit of the Penn Central test at all. Beginning in 1982,
the Court decided a series of cases in which it drew a bright line between
government actions that constitute total takings, which categorically call for
just compensation, and those that are merely partial interferences with
property rights, which are evaluated under the Penn Central factors. The
total takings cases are discussed in turn below.
A. Permanent Physical Occupations
The Court announced its first bright-line rule in 1982 in Loretto v.
Teleprompter Manhattan CATV Corp.39 In that case, the landowner
challenged a 1973 New York statute prohibiting landlords from interfering
with the installation of cable television equipment on their property or
demanding a payment from the cable company in excess of the amount set
33. Id. at 415.
34. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 119 (1978).
35. Id. at 123–24.
36. Id. at 124 (citations omitted).
38. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005).
39. 458 U.S. 419 (1982).
by state regulation.40 Loretto owned an apartment building in New York City
and after the cable company attached two cable boxes and a cable line to her
building she filed suit, claiming that the application of the statute to her
property was a compensable taking.41 The New York Court of Appeals
applied the Penn Central factors to Loretto’s claim and, concluding that the
economic impact of the regulation was not excessive and that the regulation
did not interfere with any investment-backed expectations, held that the cable
access ordinance did not constitute a taking for which compensation was
The Supreme Court reversed, holding that a regulation that imposes a
permanent physical occupation on real property is a categorical taking
requiring compensation per se.43 The Court made clear that the land use
restriction at issue in Loretto was not a total taking simply because it entailed
a physical invasion.44 Rather, the determinative factor was that the physical
invasion imposed by the statute was permanent rather than temporary.45
The Court justified this bright-line rule by explaining that a permanent
physical occupation was, in effect, a total taking. The Court explained:
Property rights in a physical thing have been described as the rights “to
possess, use and dispose of it.” To the extent that the government
permanently occupies physical property, it effectively destroys each of
these rights. First, the owner has no right to possess the occupied space
himself, and also has no power to exclude the occupier from possession and
use of the space. The power to exclude has traditionally been considered
one of the most treasured strands in an owner’s bundle of property rights.
Second, the permanent physical occupation of property forever denies the
owner any power to control the use of the property; he not only cannot
exclude others, but can make no nonpossessory use of the
property. . . . Finally, even though the owner may retain the bare legal
right to dispose of the occupied space by transfer or sale, the permanent
occupation of that space by a stranger will ordinarily empty the right of any
value, since the purchaser will also be unable to make any use of the
Of course, the taking was total with respect to only a very tiny portion of
Loretto’s property. The two cable boxes were affixed to a small segment of
the roof, occupying only “about one-eighth of a cubic foot of space on the
roof of [Loretto’s] Manhattan apartment building,”47 and the cable line
dangling down the front of the building was less than half an inch in
40. Id. at 424.
42. Id. at 426.
45. Id. (“[W]e have long considered a physical intrusion by government to be a property
restriction of an unusually serious character for purposes of the Takings Clause. Our cases
further establish that when the physical intrusion reaches the extreme form of a permanent
physical occupation, a taking has occurred.”).
46. Id. at 435–36 (citations omitted) (quoting United States v. Gen. Motors Corp., 323
U.S. 373, 378 (1945)).
47. Id. at 443 (Blackmun, J., dissenting).
diameter.48 Still, with respect to that tiny portion of Loretto’s real property,
the Court held that the taking was total and therefore compensation was
required. It stated that “constitutional protection for the rights of private
property cannot be made to depend on the size of the area permanently
B. Deprivation of All Economically Beneficial Use
The Court announced its second bright-line total takings rule ten years after
the first.50 In Lucas v. South Carolina Coastal Council,51 the Court held that
a regulation that deprives a landowner of all economically viable use of her
land is a per se taking.52 Again, the Court justified the rule in total takings
language, reiterating its claim that total takings are categorically
compensable without regard to other factors.
Lucas owned two residential beachfront lots in South Carolina, which he
bought for $975,000 in 1986.53 In 1988, South Carolina enacted the
Beachfront Management Act, which prevented Lucas from building any
habitable structures on his property.54 The trial court held that this restriction
“deprive[d] Lucas of any reasonable economic use of the lots, . . . eliminated
the unrestricted right of use, and render[ed] them valueless.”55
Lucas sought compensation for a regulatory taking. The South Carolina
Supreme Court analyzed Lucas’s claim under the three Penn Central factors
and added a fourth factor, the nature of the state’s interest in the regulation,
which the court identified from prior U.S. Supreme Court cases.56
Ultimately, the state court concluded that the fourth factor was determinative
and held that the regulation was not a taking because it was “designed to
prevent serious public harm.”57
The Supreme Court reversed, announcing a new bright-line rule and
creating the second category of government action that constitutes a total
taking. The Lucas Court held that “where regulation denies all economically
beneficial or productive use of land,” it is categorically compensable without
regard to any case-specific factors.58
Although the Court had never expressly applied this bright-line rule in the
past, it announced it in Lucas as if it were simply reiterating established
doctrine and, therefore, did not have to offer extensive reasons for the rule.59
But as with the justifications for the bright-line rule announced in Loretto,
the sparse reasoning the Court did offer for the Lucas rule sounded in total
takings: “We have never set forth the justification for this rule. Perhaps it is
simply, as Justice Brennan suggested, that total deprivation of beneficial use
is, from the landowner’s point of view, the equivalent of a physical
C. Physical Appropriations
The 2015 Horne II decision is the latest case in the Court’s total takings
jurisprudence.61 Marvin and Laura Horne grow raisins.62 Since the New
Deal, raisin sales in the United States have been extensively regulated by the
Department of Agriculture through the use of “Marketing Orders.”63 In most
years, the marketing order for raisins requires growers to give a percentage
of their crops to the U.S. government.64 The amount required to be given to
the government (called “reserves”) is determined by the Raisin
Administrative Committee, “a Government entity composed largely of
growers and others in the raisin business appointed by the Secretary of
Agriculture.”65 The Raisin Administrative Committee acquires title to the
reserve raisins and decides how to dispose of them at its discretion.66 Options
for disposal include selling them in noncompetitive markets, donating them
to charitable causes, releasing them to growers who agree to reduce their own
raisin production, or disposing of them by “any other means” consistent with
the purposes of the raisin program.67 The order typically also provides that
the raisin producers retain the right to the “net proceeds from the disposition
of reserve tonnage raisins”68 and requires that the reserve raisins be sold “at
prices and in a manner intended to maxim[ize] producer returns.”69
In 2002, the Hornes challenged the reserve requirement by refusing to set
aside any raisins for the government.70 The government sent trucks to the
Hornes’ facility and demanded the raisins, but the Hornes refused to turn
them over.71 As a result, the government assessed a fine against the Hornes
equal to the value of the reserves they had refused to turn over to the
government—approximately “$480,000—as well as an additional civil
penalty of just over $200,000” for their failure to obey the government’s
marketing order.72 The Hornes challenged both fines, claiming that the
reserve requirement was a per se taking of their personal property.73
The Ninth Circuit rejected the Hornes’ argument that the reserve
requirement was a per se taking, reasoning that “the Takings Clause affords
less protection to personal than to real property” and concluding that the
Hornes “are not completely divested of their property rights” because
growers retain an interest in the proceeds from any sale of reserve raisins by
the Raisin Administrative Committee.74
The Supreme Court reversed, holding that the Raisin Marketing Order’s
requirement that the Hornes turn over a portion of their raisin crop to the
government is a physical appropriation that categorically calls for
compensation.75 The Horne II Court brushed off intimations in prior cases
that real property should be treated differently from personal property76 and
held that the physical appropriation of personal property is a per se
Although its prior cases had created considerable confusion over whether
regulations of personal property should be subject to the same takings
standards as regulation of real property, the Court treated its decision in
Horne II as an unremarkable application of the direct appropriation
jurisprudence that applies to real property. According to the Court:
There is no dispute that the “classic taking [is one] in which the government
directly appropriates private property for its own use.” Nor is there any
dispute that, in the case of real property, such an appropriation is a per se
taking that requires just compensation. Nothing in the text or history of the
Takings Clause, or our precedents, suggests that the rule is any different
when it comes to appropriation of personal property. The Government has
a categorical duty to pay just compensation when it takes your car, just as
when it takes your home.78
This facile analogy fails to acknowledge, however, that there are many
cases in which the Court has held that Government can indeed take title to
personal property—including, in fact, your car79—without paying just
compensation. Thus, Horne II actually announced a new bright-line rule
applicable to the physical appropriation of personal property, rather than
simply applying the well-settled rule of eminent domain. Unfortunately, as
with the Court’s first two bright-line rules, the line dividing the total taking
in Horne II from noncompensable appropriations of personal property is
hardly bright at all.
II. THE MYTH OF BRIGHT-LINE RULES
In announcing these three bright-line rules and establishing its
jurisprudence of total takings, the Court sought to define categories of
government restrictions on property rights that are, in every instance, the
theoretical and functional equivalent of taking title to the property. Providing
clear definitions of these categories, the Court reasoned, would permit lower
courts, land owners, and government actors to carve out from the difficult
realm of regulatory takings analysis those cases that could be identified and
resolved with relative ease.80
Unfortunately, it turns out that the bright-line rules demarking government
regulations that are total takings from those restrictions that are evaluated
under the ad hoc Penn Central factors are actually quite unclear. Rather, the
Court’s total takings cases are analytically inconsistent with other cases in
which it declined to find a per se taking, and its total takings jurisprudence is
insufficiently theorized. Thus, the Court’s purported bright-line rules are
actually blurry standards lacking analytic rigor and theoretical content.
A. Permanent Occupations Versus Temporary Invasions
In announcing the first bright-line rule applicable to permanent physical
occupations, the Court in Loretto viewed the rule’s application as a
straightforward exercise. Indeed, the Court stated that ease of line drawing
was a virtue of its new rule: “whether a permanent physical occupation has
occurred presents relatively few problems of proof,” because “[t]he
78. Id. at 2425–26 (alteration in original) (citation omitted) (quoting Tahoe–Sierra
Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002)).
79. See, e.g., Bennis v. Michigan, 516 U.S. 442, 452–53 (1996) (holding that the
government can order the forfeiture of a car used by a husband in criminal activity even if the
car was jointly owned by the wife who knew nothing about the crime and rejecting the wife’s
claim that the taking of her interest in the car required just compensation).
80. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436–38
(1982) (explaining that the permanent physical occupation rule “avoids otherwise difficult
line-drawing problems” because determining “whether a permanent physical occupation has
occurred presents relatively few problems of proof”).
placement of a fixed structure on land or real property is an obvious fact that
will rarely be subject to dispute.”81 Notwithstanding the Court’s confidence
in the clarity and simplicity of its new bright-line rule, however, the
elusiveness of the line between a permanent physical occupation and a
temporary physical invasion can hardly be overstated.
The Court in Loretto emphasized that it was the permanent nature of the
regulatory invasion in that case that rendered it a per se taking. To make that
point clear, the Court distinguished two recently decided cases that involved
temporary, rather than permanent, physical invasions that therefore did not
implicate the total takings rule—Kaiser Aetna v. United States82 and
Pruneyard Shopping Center v. Robins.83 In Kaiser Aetna, the Court applied
the Penn Central factors in holding that the government’s imposition of a
navigational servitude requiring public access to a previously private pond
was a compensable taking.84 The Court affirmed that reasoning in Loretto,
noting that “the easement of passage, not being a permanent occupation of
land, was not considered a taking per se.”85 Similarly, in Pruneyard, the
Court applied the Penn Central factors to a state constitutional requirement
that shopping center owners permit individuals to enter their property to
exercise free speech and petition rights on their property, and concluded that
the land use restriction was not a compensable taking.86 In Loretto, the Court
distinguished Pruneyard the same way it distinguished Kaiser Aetna—by
noting that the physical invasion was “temporary and limited in nature,” and
therefore not a per se taking.87
Notwithstanding the Court’s insistence that the per se rule offers a bright
line distinguishing between permanent and temporary physical invasions,
that distinction is far from clear. Indeed, even the attachment of the cable
boxes and cable lines to Loretto’s property obviously was not permanent in
the common sense meaning of that word. The Oxford English Dictionary
defines “permanent” as “[c]ontinuing or designed to continue or last
indefinitely without change; abiding, enduring, lasting; persistent. Opposed
to temporary.”88 Merriam-Webster’s Collegiate Dictionary concurs,
defining “permanent” as “continuing or enduring without fundamental or
marked change; stable.”89 As the dissent in Loretto pointed out, however,
the statute at issue “[did] not require [Loretto] to permit the cable installation
forever, but only ‘[s]o long as the property remains residential and a CATV
company wishes to retain the installation.’ This is far from ‘permanent.’”90
In that sense, therefore, the cable boxes and cable line in Loretto are no more
“permanent” than the boaters in Kaiser Aetna or the picketers in Pruneyard—
81. Id. at 437.
82. 444 U.S. 164 (1979).
83. 447 U.S. 74 (1980).
84. Kaiser Aetna, 444 U.S. at 180.
85. Loretto, 458 U.S. at 433.
86. Pruneyard Shopping Ctr., 447 U.S. at 96.
87. Loretto, 458 U.S. at 434.
88. Permanent, OXFORD ENGLISH DICTIONARY (3d ed. 2005) (emphasis added).
89. Permanent, MERRIAM-WEBSTER’S DICTIONARY (11th ed. 2006).
90. Loretto, 458 U.S. at 448 (Blackmun, J., dissenting) (citation omitted).
intrusions that the Loretto Court said were temporary, not permanent. Just
as the intrusion by the cable company could last for a long time or end
tomorrow, so too could the intrusions by the boaters and picketers.
After Loretto, then, it appeared that what the Court meant by permanent
was something more like fixed: the cable box in Loretto was a fixed
attachment to Loretto’s property, while the boaters in Kaiser Aetna and the
picketers in Pruneyard were transient passers-through.
Unfortunately, attempts to make sense of the Court’s Loretto total takings
doctrine based on fixed versus transient invasions were nullified just five
years later by Nollan v. California Coastal Commission,91 in which the Court
held that an easement of ingress and egress is a permanent physical
occupation.92 In Nollan, a beachfront landowner challenged the imposition
of a condition on his building permit that required him to convey an easement
of ingress and egress across his privately owned beach.93 Nollan argued that
the easement requirement was a taking for which compensation was due and
that California could not evade the compensation requirement by making the
easement grant a condition on Nollan’s home remodel building permit.94
Although Nollan is best known for announcing the essential nexus
requirement for conditions on permits, for our purposes the most interesting
part of Nollan is the Court’s relatively offhand holding that an easement is a
permanent physical occupation. Observing that “perhaps because the point
is so obvious, we have never been confronted with a controversy that required
us to rule upon it,” the Court stated that “a permanent physical occupation”
occurs for purposes of the bright-line rule “where individuals are given a
permanent and continuous right to pass to and fro, so that the real property
may continuously be traversed, even though no particular individual is
permitted to station himself permanently upon the premises.”95
However, contrary to the Court’s observation, it had been presented just a
few years earlier with not one, but two controversies involving takings
challenges to government actions that imposed permanent rights of access on
real property. It held in both those cases that the easements were temporary
invasions, not permanent occupations. In 1979, the Court had applied the
Penn Central factors to the government’s imposition of an easement of
ingress and egress on a private pond in Kaiser Aetna. In 1980, the Court had
applied those same factors to a right of access to a privately owned shopping
center in Pruneyard. And in 1982, the Court had affirmed those cases in
Loretto by noting that the easements of passage were temporary physical
invasions, not permanent physical occupations.
Yet in Nollan, the Court announced that an easement of passage is
selfevidently a permanent physical occupation, without overruling Kaiser Aetna
or Pruneyard. Indeed, the Nollan Court did not seriously attempt to
distinguish either of those cases. Rather, in a three-sentence footnote, the
91. 483 U.S. 825 (1987).
92. Id. at 841.
93. Id. at 828.
94. Id. at 829.
95. Id. at 831–32.
Court asserted that Pruneyard “is not inconsistent” with Nollan “since there
the owner had already opened his property to the general public, and in
addition permanent access was not required,” and that Kaiser Aetna “is not
inconsistent because it was affected by traditional doctrines regarding
navigational servitudes.”96 Because neither of these statements (which
cannot really be called explanations) address the temporal distinction
between permanent and temporary occupations, neither shed any light on
why the Court concluded that the rights of passage in Pruneyard and Kaiser
Aetna are less permanent than the right of passage in Nollan.
Moreover, the Court’s holding in Nollan that the right-of-way at issue in
that case was categorically different from the rights-of-way at issue in Kaiser
Aetna and Pruneyard put to rest the Court’s claim in Loretto that the line
between permanent physical occupations and temporary physical invasions
would be easy to draw. After Nollan, the concept of a permanent physical
occupation, which is a total taking, is no longer limited to “[t]he placement
of a fixed structure on land or real property”97 but may sometimes include
the imposition of an easement of passage in which people come and go across
private property at various times.
B. Deprivation of All Economically Viable Use and the Denominator Problem
As with the Loretto bright-line rule, the Lucas bright-line rule became
blurry in the very opinion in which it was announced. Although in Lucas the
Court buried its disclaimer in a footnote, the majority was well aware that it
had announced an unworkable rule. As the Court conceded:
Regrettably, the rhetorical force of our “deprivation of all economically
feasible use” rule is greater than its precision, since the rule does not make
clear the “property interest” against which the loss of value is to be
measured. When, for example, a regulation requires a developer to leave
90% of a rural tract in its natural state, it is unclear whether we would
analyze the situation as one in which the owner has been deprived of all
economically beneficial use of the burdened portion of the tract, or as one
in which the owner has suffered a mere diminution in value of the tract as
Justice Blackmun elaborated on the denominator problem in his dissent:
The threshold inquiry for imposition of the Court’s new rule, “deprivation
of all economically valuable use,” itself cannot be determined objectively.
As the Court admits, whether the owner has been deprived of all economic
value of his property will depend on how “property” is defined. The
“composition of the denominator in our ‘deprivation’ fraction” is the
96. Id. at 832 n.1.
97. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 437 (1982).
98. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n.7 (1992).
dispositive inquiry. Yet there is no “objective” way to define what that
denominator should be.99
Moreover, just as the Court neglected in Nollan to explain or overturn its
inconsistent prior permanent physical occupation cases, the Court failed in
Lucas to reconcile its new rule with prior cases that had made inconsistent
pronouncements about the appropriate denominator. For example, in Mahon,
the case that first acknowledged the possibility of a compensable regulatory
taking, the Court held that a law restricting the subsurface extraction of coal
from the support estate was a compensable taking because the support estate
was recognized as a separate legal estate in Pennsylvania and the law
“purport[ed] to abolish” the entire support estate.100 In contrast, sixty-five
years later in Keystone Bituminous Coal v. DeBenedictis,101 the Court held
that a nearly identical law was not a taking because the support estate
comprised only a small percentage of all the coal the company owned,
without overruling Mahon.102 While the Court acknowledged this
inconsistency in Lucas, it chose not to resolve it.103
Indeed, Lucas compounded the confusion over the denominator issue by
questioning the continued viability of one of the Court’s prior denominator
holdings without overruling it. In Penn Central, the Court rejected the
claimant’s attempt to engage in “conceptual severance” of its property
holdings and instead evaluated the impact of the challenged regulation on the
“parcel as a whole,” which, according to the Court, consisted of the entire
“city tax block designated as the ‘landmark site.’”104 In particular, Penn
Central made clear that:
“Taking” jurisprudence does not divide a single parcel into discrete
segments and attempt to determine whether rights in a particular segment
have been entirely abrogated. In deciding whether a particular
governmental action has effected a taking, this Court focuses rather both
on the character of the action and on the nature and extent of the
interference with rights in the parcel as a whole—here, the city tax block
designated as the ‘landmark site.’105
The Court walked back that statement in Lucas, calling it “an extreme—
and . . . unsupportable—view of the relevant calculus.”106 But by merely
questioning, rather than overruling, Penn Central on this fundamental issue
the Lucas Court obfuscated, rather than clarified, the denominator issue.
Since Lucas, the Court has only exacerbated the denominator enigma.107
One year after the Lucas decision the Court again embraced a broad view of
the relevant denominator and rejected the claimant’s argument that the
denominator should be defined by the scope of the property taken.108 The
Court pointed out that, “[t]o the extent that any portion of property is taken,
that portion is always taken in its entirety; the relevant question, however, is
whether the property taken is all, or only a portion of, the parcel in
question.”109 And then, in 2002, the Court once again relied on what it had
called in Lucas an “unsupportable . . . view of the relevant calculus”110 to
reject a Lucas total takings claim in Tahoe–Sierra Preservation Council, Inc.
v. Tahoe Regional Planning Agency.111 In Tahoe–Sierra, the Court rejected
the property owner’s attempt to engage in conceptual severance over time,
holding that temporary restrictions on a parcel are not “total takings” for the
period in which the restriction is in effect.112
Most recently, in Murr v. Wisconsin,113 the Court further confused the
denominator dilemma and undermined any pretense that Lucas created a
bright-line rule by adopting a vague and subjective multifactored test to
identify the appropriate denominator in regulatory takings cases. In Murr,
the common owners of two contiguous lots subject to a county land use
restriction argued that the restriction constituted a Lucas total taking of one
of the lots and that the lower court erred in treating the two lots together as
the relevant denominator.114 The Court rejected this argument and held that
the lower courts had been correct in treating the two parcels as the relevant
denominator for the regulatory takings inquiry. In doing so, the Court offered
a new multifactored test to help lower courts identify the appropriate
denominator. Under Murr, to determine the appropriate denominator, lower
courts should: (
) “give substantial weight to the treatment of the land, in
particular how it is bounded and divided, under state and local law”; (
to the physical characteristics of the landowner’s property”; and (
the value of the property under the challenged regulation, with special
attention to the effect of burdened land on the value of other holdings.”115
These vague, subjective factors hardly bring clarity to the already confused
denominator dilemma. Moreover, the Court tethered the denominator factors
to considerations that are already part of the Penn Central inquiry, inviting
lower courts to double count these factors or to engage in merits inquiries at
the denominator stage.
In particular, the Court in Murr explained that, in applying its
multifactored denominator test, a court should focus on “the reasonable
expectations of an acquirer of land,” “reasonable private expectations,”
whether “the property is located in an area that is subject to, or likely to
become subject to, environmental or other regulation,” and whether the
regulation of one lot increases the value of the landowner’s other lots or is
“unmitigated.”116 Even these considerations “may not exhaust the list of
potentially relevant factors” because the “Court also emphasize[d] that ‘the
reasonable expectations at issue derive from background customs and the
whole of our legal tradition.’”117 Thus, the Murr test not only fails to resolve
the denominator dilemma but also essentially incorporates important aspects
of the Penn Central test—including “the whole of our legal tradition”—into
the denominator inquiry.118 And, of course, the fact that this multifactored
test is to be applied before the Lucas inquiry effectively undermines any
plausible assertion that Lucas created a meaningful bright-line rule.
Thus, the Lucas total takings rule purports to draw a bright line between
regulations that deprive a landowner of all economically viable use of her
property and those that do not. But even after its latest attempt in Murr, the
Court has failed to provide a workable standard or meaningful theoretical
guidance for determining the appropriate denominator for that inquiry. This
theoretical gap at the heart of the Lucas total takings rule is so enormous that
one scholar has called it a “conceptual black hole.”119
C. Physical Appropriations, Retained Interests, and Concomitant Government Benefits
The bright-line rule announced in Horne II—that a government regulation
effecting a direct appropriation of personal property is a categorical taking—
115. Id. at 1945–46. The dissent articulated factors somewhat differently from the
majority, arguing that the majority created “an elaborate test looking not only to state and local
law, but also to (
) ‘the physical characteristics of the land,’ (
) ‘the prospective value of the
regulated land,’ (
) the ‘reasonable expectations’ of the owner, and (4) ‘background customs
and the whole of our legal tradition.’” Id. at 1950 (Roberts, J., dissenting).
116. Id. at 1945–46 (majority opinion).
117. Ilya Somin, A Loss for Property Rights in Murr v. Wisconsin, WASH. POST (June 23,
2017) (quoting Murr, 137 S. Ct. at 1945),
118. Murr, 137 S. Ct. at 1955 (Roberts, J., dissenting) (“The result is that the government’s
regulatory interests will come into play not once, but twice—first when identifying the
relevant parcel, and again when determining whether the regulation has placed too great a
public burden on the property.”).
119. Fee, supra note 24, at 1032.
III. BLURRY LINES IN THE LOWER COURTS
Lower courts are confounded by the total takings myth. The total takings
per se rules may be the law of the land, but they are impossible to apply on
their own terms. Moreover, the Court’s opinions announcing these rules do
not provide the theoretical foundation or analytic rigor needed for the lower
courts to construct coherent operational doctrine based on the Court’s
Consequently, lower courts have created a shadow jurisprudence of total
takings to resolve cases involving total takings claims. But the shadow total
takings jurisprudence is problematic on many fronts. In some circumstances,
lower courts engage in semantic contortions so extreme that they undermine
any claim to analytic consistency and reasoned decision-making.139 In other
circumstances, lower courts import into their shadow total takings
jurisprudence extraneous factors unrelated to the Court’s per se rules and
divorced from the principles underlying the Takings Clause itself. Finally,
the entire shadow total takings enterprise detracts from the important work
of developing a coherent regulatory takings jurisprudence built on the
fundamental principles underlying the Takings Clause.
This section highlights some of the difficulties caused by the lower courts’
efforts to apply Loretto and Lucas by analyzing the shadow doctrines of each
case.140 It is not intended to be a comprehensive catalogue of lower court
decisions in total takings cases, or even a thorough analysis of all the mischief
that has been sown by the total takings myth. The goal here is merely to
demonstrate that the total takings myth has caused more problems than it has
solved, and that the Court would do well to repudiate it.
A. The Shadow Loretto Doctrine
Because the permanent-temporary line that the Court attempted to draw in
Loretto simply cannot do the work set out for it, lower courts have had to
resort to exceptional linguistic contortions to apply the Loretto per se rule. It
is generally agreed that the Loretto Court could not really have meant to draw
138. While it is not uncommon for the Supreme Court to announce new constitutional
standards in broad terms and delegate to lower courts the task of fleshing out the doctrine in
its application, that strategy cannot work when the doctrine is inadequately theorized and
incapable of being implemented logically.
139. Cf. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 375 (1998)
(“Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound
results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a
standard other than the one it enunciates spreads in both directions, preventing both consistent
application of the law by subordinate agency personnel (notably ALJ’s), and effective review
of the law by the courts.”).
140. The decision in Horne II is too recent to have engendered a robust shadow doctrine of
its own, but there is no doubt that it will do so in the fullness of time. In particular, Horne II
opens a Pandora’s box of problems in the ongoing challenge to distinguish between monetary
and nonmonetary exactions for Takings Clause purposes. The Eastern District of Washington
recently wrestled with a litigant’s claim that the imposition of a quarterly monetary assessment
under the Fair and Equitable Tobacco Reform Act of 2004, 7 U.S.C. § 518d (2012), constitutes
a per se taking under Horne II. See United States v. King Mountain Tobacco Co., 131 F. Supp.
3d 1088, 1093–94 (E.D. Wash. 2015).
a bright line between permanent and temporary physical invasions, at least
not in any temporal sense of those two terms. Recognizing that there is no
theoretically coherent way to determine when a physical invasion is
permanent and when it is temporary in the common understanding of those
terms, lower courts have simply redefined the word “permanent” to mean
something else. Some courts define “permanent” to mean “substantial” or
“not inconsequential.”141 In doing so, however, these courts neglect a key
premise of Loretto itself—that a permanent physical occupation is a taking
regardless how inconsequential it is. Other lower courts focus on the “fixed”
nature of the cables in Loretto and equate “permanent” occupations with
occupations that are “fixed.” Those courts have created a shadow total
takings doctrine that is inconsistent with Loretto’s progeny, most notably
In Hendler v. United States,142 for example, the Federal Circuit pointed out
that no physical occupation is ever permanent and therefore looked to
whether the challenged physical invasion was long-standing and substantial,
as opposed to transient and relatively inconsequential, to determine whether
it constituted a total taking under Loretto.143 Hendler challenged the EPA’s
authorization of government agents to construct wells on private property to
monitor and extract migrating hazardous substances from a Superfund
cleanup site located nearby.144 The district court denied the landowner’s
motion for summary judgment based on Loretto, stating that the court needed
more information about the government’s “long-range intentions” regarding
the wells before it could determine whether they were permanent or
temporary invasions.145 The Federal Circuit vacated and remanded for lack
of jurisdiction and noted that, regardless of how much longer the wells would
be on the claimant’s property, the intrusion already constituted a permanent
physical occupation.146 According to the court, in a Loretto total takings
inquiry “permanent does not mean forever, or anything like it.”147 Rather,
the court explained that
[a]ll takings are “temporary,” in the sense that the government can always
change its mind at a later time . . . . The long drawn out battle [over
temporary versus permanent takings] was not a fight over principle, but a
dispute over the illogical use of a word. If the term “temporary” has any
real world reference in takings jurisprudence, it logically refers to those
governmental activities which involve an occupancy that is transient and
relatively inconsequential, and thus properly can be viewed as no more than
a common law trespass quare clausum fregit.148
141. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1357 (Fed. Cir. 2006);
Hendler v. United States, 952 F.2d 1364, 1376–78 (Fed. Cir. 1991).
142. 952 F.2d 1364 (Fed. Cir. 1991).
143. Id. at 1376–78.
144. Id. at 1369–70.
145. Id. at 1374.
146. Id. at 1377.
147. Id. at 1376.
148. Id. at 1376–77.
The court concluded that the wells were “at least as ‘permanent’ in this sense
as the CATV equipment in Loretto.”149
While the Federal Circuit has at times attempted to cabin the broad
language in Hendler,150 it continues to consider factors other than duration
when applying the Loretto total takings test. For example, in John R. Sand
& Gravel Co. v. United States,151 it considered a landowner’s claim that the
EPA’s erection of a security fence around a Superfund cleanup site
constituted a permanent physical occupation.152 The fence was six feet tall
and anchored to the ground with posts set forty-eight inches deep, but it had
been moved several times during the course of the cleanup and was expected
to be removed when the cleanup was complete.153 Thus, it was clearly not
“permanent” in the sense of lasting forever. Nonetheless, the court held that
the fence was a permanent physical occupation, explaining that:
“Permanent” has a special meaning in the determination of whether a
physical occupation has occurred. In the context of physical takings
“‘permanent’ does not mean forever, or anything like it.” A government
occupation is “permanent” when the government’s “intrusion is a
substantial physical occupancy of private property.” The government’s
occupation may be permanent even if it is not “exclusive, or continuous
In perhaps the most striking substitution of the term “substantial” for the
Loretto requirement of permanence, the Federal Circuit held in 2012 that a
U.S. Border Patrol easement to install, maintain, and service underground
sensors on private property constituted a “permanent physical taking” even
though the easement was subject to termination by either party at any time.155
In particular, the easement provided that the sensors would be removed when
they were no longer needed by the Border Patrol or within thirty days after
the landowner notified the Border Patrol that he wished to develop the
property.156 Notwithstanding that the agreement between the parties
expressly provided for the impermanence of the sensors, the Federal Circuit
rejected the trial court’s finding that physical invasion was not permanent.157
State supreme courts have similarly declined to impart temporal relevance
to the permanent-temporary distinction when reviewing Loretto total takings
claims. For example, in Benson v. South Dakota,158 the Supreme Court of
South Dakota held that invasions that might well last forever did not
constitute a per se taking under Loretto because they were “not fixed
structures placed on the land.”159 In that case, landowners challenged a state
statute permitting the shooting of small game from a public right-of-way.160
The landowners claimed that the lawful hunting from the roadway left
shotgun shells littered all over their property, and they argued that the shells
constituted a permanent physical occupation and therefore a total taking
under Loretto.161 The court rejected that argument, concluding that the “acts
of the hunters result[ed] in temporary and intermitted [sic] physical invasions
rather than a permanent occupation” because they were not “fixed physical
Thus, faced with the incoherence of the permanent-temporary distinction
drawn by the Court in Loretto, lower courts have responded by incorporating
concepts of substantiality and fixedness into their Loretto total takings
inquiries and using these factors to determine whether a physical invasion is
a total taking. This shadow total takings doctrine seems eminently
reasonable—whether a landowner should be compensated for a forced
physical invasion of her property perhaps should depend on how substantial
the invasion is or whether the invading item is fixed to the land. However,
that is not what the Court held in Loretto, and the facile substitution of
“substantial” or “fixed” for Loretto’s requirement of “permanent”
undermines the analytic rigor and legitimacy of the total takings test.
In fact, the introduction of concepts of substantiality and fixedness into the
Loretto test is inconsistent with Loretto and its progeny. One of the most
salient aspects of the Loretto decision was its rejection of substantiality as a
factor in determining permanence. As the Loretto Court insisted, “permanent
occupations of land . . . are takings even if they occupy only relatively
insubstantial amounts of space and do not seriously interfere with the
landowner’s use of the rest of his land.”163 Subsequently, in Nollan, the
Court made clear that easements of ingress and egress constituted permanent
157. Another important factor in the court’s decision was that the easement had not
terminated at the time of the litigation. See id. at 1365 (distinguishing an earlier case because
there, “by the time the court decided the issue, the easement had terminated”). But, of course,
this factor should be irrelevant. While the fact that an easement has ended is a clear indication
that it was not permanent, that conclusion does not mean that the inverse is true—it is entirely
possible for a temporary easement to remain in effect at the time the status of the easement is
158. 710 N.W.2d 131 (S.D. 2006).
159. Id. at 152.
163. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 (1982).
physical occupations, even though such easements did not result in the
attachment of any fixed physical structures on the landowner’s property.164
Thus, the centrality of substantiality and fixedness to the lower courts’
shadow Loretto total takings doctrine is impossible to reconcile with the
Loretto doctrine itself.
B. The Shadow Lucas Doctrine
The Lucas total takings test has vexed the lower courts even more than the
Loretto test. This may be because land use regulations causing an economic
impact are much more prevalent than regulations causing a physical invasion.
Or, it may be because the Lucas total takings test invites landowners to
engage in conceptual severance, either in their ownership instruments or their
pleadings, in an attempt to recast virtually any land use restriction as one that
deprives the property owner of all economically beneficial use of something.
The Loretto total takings rule, in contrast, does not offer the landowner a
similar opportunity for contrivance. Either way, lower courts have devoted
enormous resources to their attempts at applying the Lucas total takings rule,
and their struggles have also generated a shadow total takings doctrine.
The Supreme Court adopted its own shadow total takings doctrine for the
Lucas bright-line rule last term in Murr. The Murr multifactored test not
only fails to resolve the denominator dilemma, but it neglects to analyze,
reject, or build on, the extensive work lower courts have done since Lucas to
address the issue. Thus, lower courts will now be compelled to start anew,
crafting a new Lucas shadow takings doctrine from the Court’s vague and
subjective multifactored test.165
Prior to Murr, three troubling trends had emerged in the Lucas shadow
total takings jurisprudence in lower courts.166 First, some courts simply
rejected Lucas’s insistence on drawing a bright line at 100 percent
deprivation of economically viable use. These courts have found a Lucas
total taking even when the challenged land use regulation leaves some value
remaining. Second, and relatedly, courts disagree about the meaning of the
doctrine’s central concept—economically beneficial use. Some lower courts
reason that in Lucas the Court meant to protect certain use values over others,
while other courts conclude that the rule only applies if a landowner is left
with no economically beneficial use of any kind. Finally, because the Court
provided no doctrinal or theoretical guidance on the denominator issue in
Lucas, lower courts wrestled unsuccessfully with the intractable denominator
dilemma. The decision in Murr merely kicks that can down the road.
164. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 832 (1987).
165. It may be of some comfort to these courts that the Murr Court has unqualified
confidence in their ability to take on this daunting task. See Murr v. Wisconsin, 137 S. Ct.
1933, 1946 (2017) (“State and federal courts have considerable experience in adjudicating
regulatory takings claims that depart from these examples in various ways. The Court
anticipates that in applying the test above they will continue to exercise care in this complex
166. Given the Murr Court’s failure to engage these lower court cases, these trends
continue to warrant attention.
1. Almost All Economically Beneficial Use
Perhaps the most surprising aspect of the Lucas shadow total takings
doctrine is that some lower courts have simply ignored the Court’s
admonition that a total taking occurs only in the extraordinarily rare case in
which a land use restriction deprives the property owner of all economically
beneficial use. While this 100 percent threshold is problematic for a variety
of reasons,167 the Court has steadfastly reaffirmed it. In Tahoe–Sierra, the
[O]ur [Lucas] holding was limited to “the extraordinary circumstance when
no productive or economically beneficial use of land is permitted.” The
emphasis on the word “no” in the text of the opinion was, in effect,
reiterated in a footnote explaining that the categorical rule would not apply
if the diminution in value were 95% instead of 100%. Anything less than
a “complete elimination of value,” or a “total loss,” the Court
acknowledged, would require the kind of analysis applied in Penn
Nonetheless, lower courts have not faithfully embraced that 100 percent
threshold. To the contrary, it is not uncommon for a lower court to conclude
that a challenged regulation is a Lucas total taking even though it deprives
the landowner of something less than 100 percent of the value of her property.
For example, in Loveladies Harbor, Inc. v. United States,169 the Federal
Circuit held that a land use restriction was a Lucas total taking even though
the restriction did not deprive the land of all value.170 The government had
denied the landowner’s application for a Clean Water Act § 404 permit to fill
and develop wetlands on its property.171 The trial court had found that the
denial of the permit reduced the fair market value of the land from over $2
million to $12,500—less than 1 percent of the original value.172 Agreeing
with the trial court’s conclusion that this remaining value was de minimis,
the Federal Circuit held that the relevant parcel was “deprived of all
economically feasible use” and therefore held that the permit denial was a
total taking under Lucas.173
In Lost Tree Village Corp. v. United States,174 (Lost Tree Village II) the
Federal Circuit similarly held that a land use restriction constituted a Lucas
total taking even though it did not deprive the land of all of its value.175 Lost
Tree Village II also involves a § 404 permit application, the denial of which
left a small portion of the landowner’s holdings with only minimal residual
value.176 After recognizing that the permit denial decreased the value of the
property 99.4 percent from more than $4 million with a § 404 permit to
$27,500 without the permit,177 the court concluded that the denial of the
permit constituted a total taking under Lucas.178
2. Economically Beneficial Use Versus Sale Value
The Federal Circuit’s rejection of Lucas’s 100 percent threshold is most
likely the result of residual uncertainty over what type of value counts for
purposes of the Lucas total takings test. As noted above, Lucas held that a
regulation that “denies all economically beneficial or productive use of land”
is a per se taking.179 Unfortunately, in Lucas the Court also used other
phrases to describe the boundary of its bright-line rule, including: “denies an
owner economically viable use of his land”180 and “eliminate[s] all
economically valuable use.”181 Later, the Court described the Lucas test as
requiring compensation whenever a regulation results in “the complete
elimination of a property’s value.”182 Lower courts have struggled to
implement the Lucas rule in close cases in part because they cannot make
sense of these disparate directives. Again, the complete lack of theoretical
groundwork in Lucas leaves the lower courts without meaningful guidance
to resolve this issue.
For its part, the Federal Circuit has concluded that Lucas intended to
distinguish between the value derived from economic or productive use of
land and sale or market value when it defined a total taking as the deprivation
of “all economically beneficial use.” Thus, in Lost Tree Village II that court
refused to consider residual sale value in applying the Lucas test and held
that the denial of the § 404 permit constituted a total taking even though the
property retained a market value of nearly $30,000.183 In doing so, the court
distinguished Palazzolo v. Rhode Island,184 in which the Supreme Court
found that a decrease in value of more than 93 percent was not a Lucas
taking.185 The decision was not made not on the ground that the diminution
in Lost Tree Village II was much closer to 100 percent than the diminution
of value in Palazzolo, but rather because the type of value that remained in
Lost Tree Village II was different from the type of value that remained in
175. Id. at 1119.
176. Id. at 1113.
177. Id. at 1114.
178. Id. at 1119.
179. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).
180. Id. at 1016 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)).
181. Id. at 1028.
182. Lingle v. Chevron U.S.A., 544 U.S. 528, 539 (2005).
183. Lost Tree Village II, 787 F.3d at 1114.
184. 533 U.S. 606 (2001).
185. Id. at 616.
Palazzolo.186 In rejecting the government’s argument that a landowner’s
ability to sell a regulated parcel precludes a successful Lucas claim, the
Federal Circuit stated:
Even if we assume that Plat 57’s value necessarily enables Lost Tree to sell
the parcel, we disagree that all sales qualify as economic uses. When there
are no underlying economic uses, it is unreasonable to define land use as
including the sale of the land. Typical economic uses enable a landowner
to derive benefits from land ownership rather than requiring a landowner
to sell the affected parcel.187
The Ninth Circuit draws a similar distinction. That court upheld a Lucas
total takings jury finding even though the landowner was able to sell his
restricted property for $800,000 more than he paid for it before the restriction
was enacted.188 The Ninth Circuit explained the importance of the distinction
between use value and sale value this way:
Focusing the economically viable use inquiry solely on market value or on
the fact that a landowner sold his property for more than he paid could
inappropriately allow external economic forces, such as inflation, to affect
the takings inquiry . . . . Although the value of the subject property is
relevant to the economically viable use inquiry, our focus is primarily on
use, not value.189
By contrast, other courts consider all possible uses or sources of value in
applying the Lucas total takings rule. In District Intown Properties Ltd. v.
District of Columbia,190 for example, the Federal Circuit explained—albeit
in dicta—that a land use restriction prohibiting any construction on the lots
constituting the lawn of a historic landmark would not effect a Lucas total
taking because the landowner had not proved that the economic or market
value of the lots was totally destroyed as a result of the restriction.191
Similarly, the Eighth Circuit rejected a Lucas total takings challenge raised
by the owner of hundreds of TouchPlay lottery machines after Iowa enacted
186. Lost Tree Village II, 787 F.3d at 1116–17 (“In Palazzolo, the 93% loss in value was
insufficient to trigger Lucas because the landowner was left with value attributable to
187. Id. at 1117.
188. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1432 (9th Cir.
1996), aff’d, 526 U.S. 687 (1999). Although the judgment in this case was affirmed, the Court
addressed only the issue of whether it was error to submit the total takings question to a jury.
189. Id. at 1432–33.
190. 198 F.3d 874 (D.C. Cir. 1999).
191. Id. at 882–83. In his concurrence, Judge Stephen Williams took the majority to task
for expressing this view, even in dicta, asserting that the majority “gratuitously takes an even
harsher stance against compensation than does present law.” Id. at 890 (Williams, J.,
concurring) (“The majority finds that District Intown has failed to offer evidence that the
regulation denies it ‘economically viable use of [the] land,’ even though the Mayor’s own
agent found that ‘any construction that destroyed the lawn would be incompatible with the
lawn’s status as an historic landmark.’ Thus, so long as the lawn is untouched, ‘economically
viable’ uses are permissible. It is hard to imagine what ‘economically viable’ use that
constraint leaves, unless the majority means that the very barest thread of value, yielded by
some thoroughly bucolic use, is enough to defeat a total takings claim. By this standard, no
regulation can ever effect a total taking, and at best will be tested only under the far weaker
partial takings rubric.”).
legislation ending the TouchPlay lottery game, a legislative action that
eliminated virtually all beneficial use and most of the sale value of the
machines.192 Indeed, the trial court concluded that the machines “have
virtually no market value outside Iowa” and only salvage value in Iowa.193
Nonetheless, the Eighth Circuit held that the statute “did not deprive [the
owner] of ‘all economically beneficial uses’ of its property.”194 The
Supreme Court of South Carolina has also rejected a Lucas total takings claim
because the challenged land use restriction left the landowner with residual
recreation and conservation uses.195
3. The Intractable Denominator Dilemma
By far the biggest challenge to implementing the Lucas total takings rule
in the lower courts is the denominator dilemma. Even if courts could agree
on what types of value count for purposes of the Lucas total takings test, and
whether residual sale or salvage value dooms a Lucas claim, to determine
whether a challenged land use regulation deprives the owner of all
economically viable use a court must first establish the appropriate
denominator for the inquiry.196 This issue is at the heart of most Lucas
claims.197 But, as explained above, the Lucas opinion provided neither
practical nor theoretical guidance for this fundamental analytic step.198 As a
result, lower courts have developed shadow Lucas total takings doctrines
involving various multifactored tests to determine the appropriate
denominator. These shadow doctrines, in turn, have essentially swallowed
Lucas’s purported bright-line rule, replacing it with multifactored inquiries—
different from the Penn Central multifactored inquiry—that resolve
regulatory takings claims at the denominator stage, and Murr has merely
entrenched this dilemma.
The denominator dilemma is essentially an issue of conceptual severance.
As the Ninth Circuit has explained:
Property interests may have many different dimensions. For example, the
dimensions of a property interest may include a physical dimension (which
describes the size and shape of the property in question), a functional
dimension (which describes the extent to which an owner may use or
dispose of the property in question), and a temporal dimension (which
describes the duration of the property interest).199
Property owners engage in conceptual severance when they “delineat[e] a
property interest consisting of just what the government action has removed
from the owner, and then assert that that particular whole thing has been
permanently taken” by the challenged regulation.200 Because the Court has
issued conflicting opinions and offered inconsistent guidance on the issue of
conceptual severance,201 lower courts must contend with landowners’
creative attempts to divide their ownership interests into the smallest legally
protected units possible to enhance the likelihood of prevailing in a Lucas
Courts have, for the most part, rejected attempts at conceptually severing
property along functional and temporal dimensions. The Supreme Court
itself rejected temporal conceptual severance in Tahoe–Sierra when it
declined to apply the Lucas total takings rule to a thirty-two-month
development moratorium.203 And while landowners have been creative in
their attempts to claim a Lucas total taking based on functional conceptual
severance, lower courts have been generally consistent in rejecting those
199. Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 774
(9th Cir. 2000), aff’d, 535 U.S. 302 (2002).
200. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the
Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1676 (1988) (coining the phrase
“conceptual severance” and providing the first sustained analysis of the problem of conceptual
severance in this seminal article).
201. Id. at 1675–77 (discussing the Court’s inconsistent holdings regarding conceptual
severance). Compare Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 130 (1978)
(stating that “‘[t]aking’ jurisprudence does not divide a single parcel into discrete segments
and attempt to determine whether rights in a particular segment have been entirely
abrogated”), with Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 (1987) (treating an
easement as a legally distinct property interest and holding that requiring a landowner to grant
an easement over her property is a per se taking).
202. In a forthcoming article, Lee Fennell insightfully describes the denominator dilemma
as an instantiation of a more general aggregation problem that runs through various legal
doctrines. See Lee Anne Fennell, Accidents and Aggregates, 59 WM. & MARY L. REV.
(forthcoming 2018) (manuscript at 52–53).
203. Tahoe–Sierra, 535 U.S. at 331 (“Of course, defining the property interest taken in
terms of the very regulation being challenged is circular. With property so divided, every
delay would become a total ban; the moratorium and the normal permit process alike would
constitute categorical takings. Petitioners’ ‘conceptual severance’ argument is unavailing
because it ignores Penn Central’s admonition that in regulatory takings cases we must focus
on ‘the parcel as a whole.’” (citing Penn Cent., 438 U.S. at 130–31)).
attempts as well. For example, in Clajon Production Corp. v. Petera,204 a
Wyoming rancher argued that the state’s two-license limit on supplemental
hunting licenses available to large landowners constituted a “complete
evisceration of a single stick in the bundle of property rights—i.e., the right
to hunt on one’s property” and was therefore a per se taking under Lucas.205
The Tenth Circuit rejected the landowner’s attempt to conceptually sever his
land into functional components and held that “the relevant denominator
must be derived from the entire bundle of rights associated with the parcel of
land.”206 However, until the Court clarifies its position on separating sticks
from the bundle of rights for purposes of determining the denominator in a
regulatory takings claim, landowners will continue to face incentives to
present functional conceptual severance total takings claims in the lower
The more persistent, and theoretically intractable, denominator problem in
Lucas total takings cases involves geographical severance—the problem that
Murr took on and failed to resolve. Most land use restrictions apply to only
a portion of a landowner’s total property holdings, either because the
restriction applies to a portion of a lot or because the landowner owns more
than one lot.208 When that occurs, landowners nonetheless often bring Lucas
total takings claims using geographical conceptual severance to argue that
the regulation has deprived them of all economically viable use of the
restricted portion of their property.
Two cases illustrate the denominator dilemma in the context of
geographical severance and, at the same time, highlight the incoherence this
dilemma brings to the Lucas total takings doctrine. First, in Forest
Properties, Inc. v. United States,209 the landowner brought a Lucas total
takings challenge to the denial of a § 404 permit to dredge and fill a nine-acre
lake on his sixty-two-acre tract.210 The landowner owned the lake and
fiftythree contiguous upland acres.211 He planned to build a residential
development on the upland fifty-three acres and to dredge and fill various
204. 70 F.3d 1566 (10th Cir. 1995).
205. Id. at 1577.
207. Compare Pa. Coal v. Mahon, 260 U.S. 393, 415 (1922) (treating the mineral estate as
a separate property interest from the rest of the fee for denominator purposes), with Penn Cent.,
438 U.S. at 130–31 (“‘Taking’ jurisprudence does not divide a single parcel into discrete
segments and attempt to determine whether rights in a particular segment have been entirely
abrogated. In deciding whether a particular governmental action has effected a taking, this
Court focuses rather both on the character of the action and on the nature and extent of the
interference with rights in the parcel as a whole—here, the city tax block designated as the
‘landmark site.’”), and Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 501–
02 (1987) (rejecting the conceptual severance of the mineral estate from the rest of the fee for
208. If a land use restriction eliminated the beneficial use of every portion of the entire
holdings of a property owner, the Lucas test would be easily satisfied, and there would be no
209. 177 F.3d 1360 (Fed. Cir. 1999).
210. Id. at 1362–63.
211. Id. at 1362.
part of the lake to create peninsulas to enhance the value of the upland lots.212
The Army Corps of Engineers found that the lake was a protected wetland
and denied the landowner’s request for a permit to dredge and fill the lake.213
The landowner sought compensation, claiming that the 9.4 acres of
lakebottom land was a separate property interest and therefore the permit denial
constituted a Lucas total taking.214 Notwithstanding that the landowner had
purchased the lake bottom and upland portions in different transactions with
different instruments and held them with separate titles, the court held that
the entire sixty-two acres should be treated as the denominator for purposes
of the takings claim.215 According to the Federal Circuit, the lower court
“properly looked to the economic reality of the arrangements, which
transcended these legalistic bright lines.”216 Therefore, a complete
prohibition on the use of nine out of sixty-two acres was held not to be a
Lucas total taking.217
The second case provides a striking contrast to the first. In Lost Tree
Village Corp. v. United States,218 (Lost Tree I) the landowner bought
approximately 1300 acres on Florida’s mid-Atlantic coast and over the course
of about twenty-five years developed most of the land into an upscale gated
residential community.219 The community currently “includes two golf
courses, a beach club, a private hotel, condominiums, and single family
homes.”220 Ultimately, the landowner was left with just a couple of parcels
of undeveloped land on a peninsula on the southernmost corner of its
holdings.221 One of these parcels, Plat 57, is a 4.99-acre wetland. When the
Army Corps of Engineers denied the landowner’s request for a permit to fill
and develop Plat 57 into a residential lot, the landowner filed a takings claim,
arguing that Plat 57 itself should be the denominator and that the denial of
the permit therefore constituted a total taking under Lucas.222 The Court of
Federal Claims disagreed, holding that the relevant denominator was Plat 57,
Plat 55 (a nearby developed plat), and some scattered wetlands, and therefore
rejected the Lucas claim.223 The Federal Circuit, however, reversed, holding
that Plat 57 alone was the relevant parcel for denominator purposes224 and
concluding that the denial of a permit to dredge and fill Plat 57 was a Lucas
total taking.225 Thus, in contrast to Forest Properties, a complete prohibition
on the use of 4.99 out of 1300 acres was held to constitute a Lucas total
212. Id. at 1363.
213. Id. at 1362–63.
214. Id. at 1364.
215. Id. at 1364–65.
216. Id. at 1366.
217. Id. at 1367.
218. 707 F.3d 1286 (Fed. Cir. 2013).
219. Id. at 1288.
221. Id. at 1290.
222. Id. at 1293.
223. Id. at 1293–94.
224. Id. at 1294.
225. Lost Tree Vill. Corp. v. United States, 787 F.3d 1111, 1118–19 (Fed. Cir. 2015).
Notwithstanding the stark contrast between the outcomes of the two cases
discussed above, the Federal Circuit’s resolution of these two cases was not
necessarily as arbitrary as the bare factual presentation these examples might
suggest. In fact, the Federal Circuit has developed a multifactored inquiry
for determining the relevant denominator. The Court of Federal Claims
explained the Federal Circuit’s approach to the Lucas denominator issue,
[o]n [the denominator] question, there is no bright-line rule; rather, the
court takes “a flexible approach, designed to account for factual nuances.”
. . . .
The relevant-parcel analysis focuses on, among other things, “the
owner’s actual and projected use of the property.” Relevant takings
precedent has yielded a number of factors that bear on the inquiry,
) the degree of contiguity between property interests, (
dates of acquisition of property interests, (
) the extent to which a parcel
has been treated as a single income-producing unit, (4) the extent to which
a common development scheme applied to the parcel, and (
) the extent to
which the regulated lands enhance the value of the remaining lands. The
court previously also stated that a sixth factor, “(
) the extent to which any
earlier development had reached completion and closure” was also a
relevant consideration in the relevant-parcel analysis.226
Over the years, other lower courts have developed their own multifactored
tests for determining the denominator in Lucas total takings cases, employing
many of the factors used by the Federal Circuit.227 Additional factors that
courts have considered relevant for determining the appropriate denominator
in Lucas total takings challenges include: whether the parcels are divided by
a road,228 the timing of the development of the parcels,229 whether the parcels
are put to the same use or different uses,230 and the treatment of the parcels
under state law.231
In Murr, the Court effectively replaced these relatively objective, nuanced,
and focused multifactored tests with a vague, broadly drawn three-factor
inquiry that seeks to determine what “reasonable expectations about property
ownership” reveal about the parcel and regulation at issue.232 These
“reasonable expectations . . . derive from background customs and the whole
of our legal tradition.”233 As Ilya Somin observed, the Murr test “is a recipe
for confusion, uncertainty, and constant litigation.”234
As with the shadow Loretto doctrines developed to determine when a
physical invasion is permanent rather than temporary, these shadow Lucas
doctrines, including the new Murr test, belie the myth that the Court has
created a total takings doctrine premised on bright-line rules.235 These
shadow doctrines require fact-intensive inquiries to resolve the total takings
claims, and the facts relevant to these inquiries are often far afield of the
concerns that animate the Takings Clause.
Moreover, in the Lucas context, the shadow doctrines are likely to be
outcome determinative. Because landowners rarely prevail on regulatory
takings claims that do not fall within one of the purported bright-line
categories of the total takings myth,236 the denominator determination in
Lucas claims is usually outcome determinative. Either the denominator is
determined to be coextensive with the regulated parcel and the landowner
prevails under Lucas, or the denominator is determined to be larger than the
affected parcel and the court applies the Penn Central factors, in which case
the landowner will rarely prevail.237 The Murr Court recognized the risk that
“the answer to [the denominator] question might be outcome-determinative,”
but insisted that “[d]efining the property at the outset . . . should not
necessarily preordain the outcome in every case.”238
Ultimately, however, the Court’s own actions betrayed its assertion. After
thoroughly evaluating the denominator under its new multifactored test, the
Court concluded that the appropriate denominator included both parcels,
which effectively ruled out a viable Lucas total takings claim. The Court
then dispatched Petitioners’ Penn Central claim with a scant four-sentence
paragraph.239 Thus, by preordaining the result of the Penn Central inquiry,
234. Somin, supra note 117.
235. See Marc R. Poirier, The Virtue of Vagueness in Takings Doctrine, 24 CARDOZO L.
REV. 93, 112 (2002) (“A supposedly clear categorical takings rule that is applied this
unpredictably and infrequently, with such large exceptions and qualifications, is not much of
236. See Michelman, supra note 99, at 1621 (“In all the years between 1922 and 1987,
however, the Court never once clearly applied the open-ended balancing test in favor of a
takings claim and against a regulating government.”).
237. See Dana, supra note 11, at 634 (“What would be the result of a regime where ‘the
property’ almost always or always was the exact area restricted by regulation? In many cases,
the result would be a finding by the court that the relevant ‘property’ had been deprived of all
economically viable use or reduced to zero market value, and that the government therefore
owed just compensation.”); McConnell, supra note 19, at 315 (“Regulatory takings are subject
to a vague and forgiving balancing test—the Penn Central test—that almost never results in
compensation being due.”).
238. Murr, 137 S. Ct. at 1944.
239. Id. at 1955 (Roberts, C.J., dissenting) (“The majority assures that, under its test,
‘[d]efining the property . . . should not necessarily preordain the outcome in every case.’ The
underscored language cheapens the assurance.”).
the Murr denominator test will swallow not only the purported bright-line
rule of Lucas but also the entire regulatory takings inquiry.240
IV. REPUDIATING THE TOTAL TAKINGS MYTH
Where does this leave us? As demonstrated above, over the past
thirtyfive years the Court has created three purported per se rules within regulatory
takings jurisprudence that are doctrinally and theoretically incoherent and
impossible for lower courts to apply. As a result, the total takings myth has
fostered more, not less, confusion in regulatory takings law. Given the
opportunity in Murr to resolve some of the incoherence in one branch of the
total takings doctrine, the Court merely exacerbated the problem. Moreover,
by focusing the attention of litigants and lower courts on the contours of these
purported bright lines, the total takings myth has interfered with the important
work of clarifying foundational regulatory takings doctrine. In response to
the chaos it has created, the Court is presented with two choices—it can either
clarify its bright-line rules or it can repudiate the total takings myth and
refocus its attention on refining the Penn Central balancing test to more fairly
and consistently implement its regulatory takings doctrine.241 The time has
come for the Court to end the total takings charade and repudiate the total
takings myth, beginning by overruling Lucas.
A. The Problem with Bright-Line Rules in Regulatory Takings Law
The total takings myth was adopted as part of the Court’s, and particularly
Justice Antonin Scalia’s,242 attempt to replace constitutional standards with
constitutional rules in the 1980s and early 1990s.243 As noted above, the total
takings rules were justified in part by the benefits of carving out a small
portion of otherwise messy regulatory takings claims for easy resolution.244
The bright-line rules, however, have been anything but easy to implement.
Indeed, rather than readily resolving a small portion of regulatory takings
litigation, the total takings myth has made fixing the boundaries of these
purported bright-line rules the focus of regulatory takings claims. The
struggles of the lower courts in their attempts to determine and clarify the
edges of the Lucas and Loretto bright-line rules, and their ultimate resort to
standards and multifactored tests, suggests the difficulties the Supreme Court
might encounter if it seeks to sharpen those rules into actual bright lines.
Even if the Court could crystallize the edges of the total takings doctrine
into actual bright-line rules, it should not do so. Much has been written about
the relative virtues of rules and standards, and this Article does not intend to
add to that literature.245 It is sufficient to note the broad outlines of consensus
regarding the relative strengths and weaknesses of each type of legal
standard. It is widely accepted that bright-line rules are best suited to
circumstances where certainty and ease of administration are more important
than precision and particularized decision-making.246 Bright-line rules focus
on one or two triggering facts and limit the discretion of the decision-maker
once those facts are determined, thereby sacrificing fine-grained equity for
broad-stroke goals, such as predictability and administrability.247 As a result,
bright-line rules facilitate advance planning, offer ease of administration, and
limit the potential for arbitrary decision-making.248 At the same time,
brightline rules are likely to be both over- and under-inclusive, thereby sacrificing
particularized equity based on relevant circumstances.249
Standards, in contrast, permit consideration of multiple relevant factors
and provide a decision-maker discretion to tailor the legal outcome to the
particularized facts of each case.250 As a result, standards offer less
predictability than rules and are costlier to implement, but they are thought
to provide a more just and fair result in each particular case.251
Advocates of bright-line rules in regulatory takings doctrine celebrate the
potential for clarity, efficiency, notice, and property rights protection offered
by takings formalism.252 But even if these benefits were achievable, they
come at a steep cost—the loss of circumstantial justice and fairness.253
Regulatory takings law is quintessentially about justice and fairness. As
the Court has often repeated, “[t]he Fifth Amendment’s guarantee that private
property shall not be taken for a public use without just compensation was
245. For an overview and synopsis of the relative strengths and weakness of rules and
standards, see Sullivan, supra note 242, at 57–69. For the seminal discussion of rules and
standards in the context of property law, see CAROL M. ROSE, Crystals and Mud in Property
Law, in PROPERTY AND PERSUASION 199, 199 (1994). The general discussion of the strengths
and weaknesses of rules and standards that follows draws heavily from these two important
246. See Sullivan, supra note 242, at 58.
247. Id. at 62–63.
248. Id. at 62.
250. Id. at 58–59.
251. See, e.g., Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs.
Standards Revisited, 79 OR. L. REV. 23, 33 (2000).
252. See, e.g., Mark Fenster, Takings Formalism and Regulatory Formulas: Exactions and
the Consequences of Clarity, 92 CALIF. L. REV. 609, 619–20 (2004) (detailing the potential
benefits of bright-line rules in regulatory takings doctrine).
253. See id. at 652–81 (discussing the ways in which “disappointment and frustration” are
“endemic to takings formalism”).
designed to bar 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.”254 The doctrine is purposefully ad hoc and multifaceted,255 and the
Court has “frequently observed that whether a particular restriction will be
rendered invalid by the government’s failure to pay for any losses
proximately caused by it depends largely ‘upon the particular circumstances
[in that] case.’”256 While regulatory takings law serves other values as
well,257 the Court has consistently and adamantly insisted that fairness and
justice are the central concerns of the regulatory takings doctrine.258
But, as they stand now, the Court’s total takings rules are the antithesis of
justice and fairness. Instead, these bright-line rules create takings “cliffs and
ledges”259—a property owner whose land is regulated right up to the edge of
the precipice receives no compensation at all, while a landowner whose
property is regulated over the cliff is compensated for 100 percent of the
value of her property. Justice John Paul Stevens highlighted the inequity of
the Lucas takings cliff in his dissent in Lucas: “In addition to lacking support
in past decisions, the Court’s new rule is wholly arbitrary. A landowner
whose property is diminished in value 95% recovers nothing, while an owner
whose property is diminished 100% recovers the land’s full value.”260 A
similar cliff is created by the bright-line rule in Loretto, such that a landowner
subjected to a substantial physical invasion that is long-lasting but not quite
permanent (say, ninety-nine years) would likely not be entitled to any
compensation, while a landowner subject to a so-called permanent physical
occupation would be fully compensated.261
Similarly, the bright-line rules of the total takings myth create takings
contradictions in which seemingly identically situated landowners are treated
differently based on idiosyncrasies unrelated to any purpose underlying
Takings Clause doctrine. For example, under Lucas, if a landowner owns a
one-acre lot and a land use restriction prohibits all use of one-half of the lot,
the landowner will not be entitled to compensation. But if her neighbor owns
two separate one-half acre lots and is prohibited from all use of one of those
separate lots, she will be fully compensated.262 Similarly, under Horne II, a
person subject to an order to turn over $400,000 worth of raisins as part of a
market regulatory scheme is entitled to full compensation under the Takings
Clause, while a person ordered to turn over $400,000 in fees for a similar
scheme would not be entitled to any compensation.263 The takings cliffs and
contradictions created by the total takings myth are the antithesis of the
fairness and justice goals of regulatory takings doctrine.
Not only are these takings cliffs and contradictions arbitrary and unfair,
they create adverse incentives for land ownership and takings litigation.264
The Lucas bright-line rule encourages landowners to structure their holdings
in the smallest possible legal unit to take advantage of the Lucas rule if the
state imposes land use restrictions on their property in the future. Justice
Stevens foresaw precisely this adverse incentive in his dissent in Lucas:
“[D]evelopers and investors may market specialized estates to take advantage
of the Court’s new rule. The smaller the estate, the more likely that a
regulatory change will effect a total taking.”265 The Lucas bright-line rule
also encourages takings claimants to characterize every regulatory takings
claim as a Lucas claim in order to avoid having to litigate their challenges
under the Penn Central test.266 This distortion in litigation practices wastes
judicial resources and diverts the attention of lower courts from the important
task of implementing and refining the Penn Central factors.
B. The Return to Standards in Regulatory Takings Law
Because bright-line rules have no place in regulatory takings doctrine, the
Court should begin the task of dismantling the total takings myth. Doing so
262. Fee, supra note 24, at 1030. The Murr decision may ameliorate this contradiction in
some cases but at the expense of any pretense that Lucas provides a bright-line rule.
263. United States v. King Mountain Tobacco Co., 131 F. Supp. 3d 1088, 1095 (E.D. Wash.
2015) (holding that quarterly assessments under the Fair and Equitable Tobacco Reform Act
are not appropriations for purposes of the Horne II total takings rule).
264. But see Susan Rose-Ackerman, Against Ad-Hocery: A Comment on Michelman, 88
COLUM. L. REV. 1697, 1700 (1988) (arguing that “what takings law needs is a good dose of
formalization” to foster certainty in private investment decisions).
265. See Lucas, 505 U.S. at 1065–66; see also Brown & Merriam, supra note 21, at 19–44
(describing landowners’ attempts to segment their property ownership interests in order to
prevail on Lucas total takings claims).
266. See Brown & Merriam, supra note 21, at 44 (“Every plaintiff’s attorney is trying
desperately to get out from under the Penn Central analysis, or at least ought to be, because
of the unpredictability of Penn Central’s ad hoc approach and because property owners are at
a dramatic disadvantage under Penn Central.”).
would not be hard for the Court to justify.267 Under any but the most
restrictive views of the Court’s authority (and obligation) to revisit erroneous
constitutional precedent, a decision to renounce the total takings myth should
be a simple one.
In a constitutional democracy, adherence to precedent is a “foundation
stone of the rule of law”268 that “promotes the evenhanded, predictable, and
consistent development of legal principles [and] fosters reliance on judicial
decisions.”269 And the Court has made clear that “[c]onsiderations in favor
of stare decisis are at their acme in cases involving property and contract
rights.”270 Still, constitutional precedent is not immutable,271 and the Court
has a particular obligation to revisit erroneous constitutional precedent
because it is the only branch of government that can readily reverse a
mistaken constitutional interpretation.272 Thus, while the Court employs a
presumption against overruling its prior cases,273 it nonetheless will do so if
consideration of several relevant factors demonstrates that the values of stare
decisis should give way to the importance of coherent, correct constitutional
interpretation. In Citizens United v. FEC,274 the Court announced factors
relevant to analyzing continued reliance on constitutional precedents,
) how long the precedent has been in existence, (
) the reliance
interests at stake in changing the legal rule, (
) whether the precedent is
workable in lower courts, and (4) whether the original decision announcing
267. Not surprisingly, substantial disagreement exists among scholars on the importance of
constitutional precedent and the wisdom of the Court’s current approach to overruling its prior
constitutional interpretations. Compare, e.g., Lawrence B. Solum, The Supreme Court in
Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated
Rights, 9 U. PA. J. CONST. L. 155, 155 (2006) (noting that “[c]onstitutional stare decisis is a
hot topic” and arguing that the Court should be bound by its prior decisions), with Caleb
Nelson, Stare Decisis and Demonstrably Erroneous Decisions, 87 VA. L. REV. 1, 1 (2001)
(arguing against a rebuttable presumption against overruling prior decisions if the prior
decision is “demonstrably erroneous”). This Article does not intend to engage in that
particular debate. Rather, it assumes that the Court will sometimes find it necessary to
overturn settled constitutional precedent and that it will apply the basic rules it generally
applies when deciding whether to do so.
268. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2036 (2014).
269. Payne v. Tennessee, 501 U.S. 808, 827 (1991).
270. Id. at 828.
271. See Pearson v. Callahan, 555 U.S. 223, 233 (2009) (“Although ‘[w]e approach the
reconsideration of [our] decisions . . . with the utmost caution,’ ‘[s]tare decisis is not an
inexorable command.’” (alterations in original) (quoting State Oil Co. v. Kahn, 522 U.S. 3, 20
272. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954–55 (1992) (Rehnquist,
C.J., concurring in part and dissenting in part) (“Erroneous decisions in . . . constitutional
cases are uniquely durable, because correction through legislative action, save for
constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional
interpretations that ‘depar[t] from a proper understanding’ of the Constitution.”); cf. Kimble
v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (noting that in a statutory interpretation
case, stare decisis carries greater weight because “unlike in a constitutional case, critics of our
ruling can take their objections across the street, and Congress can correct any mistake it
273. Citizens United v. FEC, 558 U.S. 310, 362 (2010) (stating that “precedent is to be
respected unless the most convincing of reasons demonstrates that adherence to it puts us on
a course that is sure error”).
274. 558 U.S. 310 (2010).
the precedent was well reasoned.275 All of these factors counsel in favor of
repudiating the total takings myth.
In fact, the Court recently corrected another mistake in its regulatory
takings jurisprudence when it jettisoned a long-standing regulatory takings
rule with little fanfare in Lingle v. Chevron U.S.A. Inc.276 Twenty-five years
before Lingle, in Agins v. City of Tiburon,277 the Supreme Court first stated
that a regulation of private property “effects a taking if [it] does not
substantially advance legitimate state interests.”278 In the ensuing years, the
Court repeated that legal standard often, and it eventually became “ensconced
in . . . Fifth Amendment takings jurisprudence.”279 The Court itself,
however, never actually held a regulation to be a compensable taking on the
basis of the “substantially advance” test.280 Finally, when the Ninth Circuit
applied the test in an outcome-determinative manner in 2004, the Court
granted certiorari and reversed.281 Conceding that its original use of the
“substantially advance” formula in Agins was “regrettably imprecise,”282 the
Court explained that test sounds more in the nature of due process than
regulatory takings and therefore it “is not a valid method of discerning
whether private property has been ‘taken’ for purposes of the Fifth
Amendment.”283 In Lingle the Court never mentioned stare decisis and did
not invoke the stare decisis factors mentioned above. Rather, the Court
simply announced that the “substantially advances” test “is not a valid
takings test” and thereby repudiated a takings myth that had been circulating
Commentators have lauded Lingle and the Court’s decision to reverse
course and disentangle substantive due process from takings claims, largely
because the substantive due process language was detracting from the
development of core regulatory takings doctrine.285 As Mark Fenster
Viewed four years later, Lingle’s narrow project of separating regulatory
takings from substantive due process has been largely successful. Courts
no longer apply stray language from an earlier decision that Lingle struck
from the overstuffed box of key phrases that compose the takings canon,
275. See id. at 362–63.
276. 544 U.S. 528 (2005).
277. 447 U.S. 255 (1980).
278. Id. at 260.
279. Lingle, 544 U.S. at 531.
280. Id. at 546 (“[I]n no case have we found a compensable taking based on [a substantially
advance] inquiry. Indeed, in most of the cases reciting the ‘substantially advances’ formula,
the Court has merely assumed its validity when referring to it in dicta.”).
281. Chevron USA, Inc. v. Bronster, 363 F.3d 846, 849–55 (9th Cir. 2004), rev’d sub nom.
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005).
282. Lingle, 544 U.S. at 542.
284. Id. at 545.
285. See, e.g., D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term
Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69
ALB. L. REV. 343, 349 (2006); J. Peter Byrne, Due Process Land Use Claims after Lingle, 34
ECOLOGY L.Q. 471, 471–72 (2007); Fenster, supra note 252, at 527.
and they now seem to understand the distinction between takings and
substantive due process claims.286
Benjamin Barros agreed, arguing that by eliminating substantive due
process language from regulatory takings claims “the Court took at least a
modest step in clarifying its regulatory takings doctrine” and created “great
potential” for further clarification.287
The total takings myth should not be much more difficult to dispatch than
Lingle, and the repudiation of the purported bright-line rules will provide
similar jurisprudential benefits. The Lucas doctrine should be the first to go,
because it causes the most mischief in the lower courts and is the least
justifiable of the total takings rules. Applying the Citizens United factors,
Lucas is an easy case for overturning a failed precedent: (
) the original
Lucas opinion is widely perceived to be poorly reasoned and dramatically
) it has proved unworkable in the lower courts,289 (
has been on the books for almost twenty-five years, and (4) landowners
cannot assert any legitimate or reasonable reliance on its holding.290 The
Court’s recent decision in Murr is certain to generate a flood of Lucas total
takings litigation, so the Court will have ample opportunity in the near future
to apply the Citizens United factors and overturn Lucas.
The Court missed an important opportunity to begin the work of
dismantling the total takings myth in Murr. Overruling Lucas would be an
important first step toward addressing and resolving the very real problems
still plaguing the Court’s regulatory takings jurisprudence. Although the
Court has repeatedly said that the Lucas total takings rule should apply only
“exceedingly rarely,”291 it is, in fact, invoked in a large number of regulatory
takings cases.292 Removing the siren’s call of Lucas from regulatory takings
doctrine will eliminate the adverse incentives that drive litigants to cast their
run-of-the-mill regulatory takings claims as total takings claims and will
redirect judicial attention to the merits of underlying regulatory takings
claims. The Court’s current approach to regulatory takings, encapsulated in
286. Fenster, supra note 252, at 526–27.
287. Barros, supra note 285, at 349.
288. See, e.g., Michael W. McConnell, The Raisin Case, 2015 CATO SUP. CT. REV. 313,
318 (“The total-loss rule has long been recognized as a conceptual disaster area, incapable of
objective and consistent administration. It should be abandoned where it now holds
sway . . . .”).
289. See supra Part II.B.
290. Indeed, in order to claim reliance on the Lucas total takings rule, a property owner
would have to assert that she structured her ownership interests in such a way that if a
particular type of land use, or the development of a particular portion of her property, were
restricted by a land use regulation, she would be entitled to compensation per se.
291. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1018 (1992); see also Tahoe–Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330 (2002) (“[O]ur holding
[in Lucas] was limited to ‘the extraordinary circumstance when no productive or economically
beneficial use of land is permitted.’” (quoting Lucas, 505 U.S. at 1017)).
292. See Brown & Merriam, supra note 21, at 3–4 (reviewing more than 1600 cases raising
Lucas claims in the past twenty-five years).
A. Permanent Physical Occupations............................................... 54 B . Deprivation of All Economically Beneficial Use ........................ 56 C. Physical Appropriations............................................................. 57 II. THE MYTH OF BRIGHT-LINE RULES ...................................................... 59 A . Permanent Occupations Versus Temporary Invasions............... 59 B . Deprivation of All Economically Viable Use and the Denominator Problem .............................................................. 62 C. Physical Appropriations , Retained Interests, and Concomitant Government Benefits ........................................... 65 III. BLURRY LINES IN THE LOWER COURTS . .............................................. 68 A. The Shadow Loretto Doctrine..................................................... 68 B. The Shadow Lucas Doctrine ....................................................... 72
1. Almost All Economically Beneficial Use............................ 73
2. Economically Beneficial Use Versus Sale Value ................ 74
3. The Intractable Denominator Dilemma ............................... 76 IV. REPUDIATING THE TOTAL TAKINGS MYTH. ......................................... 82 A. The Problem with Bright-Line Rules in Regulatory Takings Law............................................................................................ 82 B. The Return to Standards in Regulatory Takings Law................. 85 CONCLUSION ............................................................................................... 88
1. Horne v. Dep't of Agric ., 135 S. Ct . 2419 ( 2015 ) (Horne II) .
2. The first time the case went to the Supreme Court, the issue was jurisdictional. The Court held that the Agricultural Marketing Agreement Act of 1937 (AMAA) provides a comprehensive remedial scheme that withdraws Tucker Act jurisdiction over takings claims brought as a defense to AMAA fines . Horne v. Dep't of Agric ., 133 S. Ct . 2053 , 2063 ( 2013 ) (Horne I).
3. The Court declined to remand the case to a lower court to assess takings damages, noting that “[t]his case, in litigation for more than a decade, has gone on long enough .” Horne II , 135 S. Ct . at 2433. Instead, the Court set damages itself, effectively terminating the litigation . Id.
4. Id. at 2430-31 ( holding that the government's demand that the Hornes turn over a percentage of their raisins without charge for the government's control and use is a unique taking that requires compensation).
5. The Fifth Amendment provides , in part, “ [n]or shall private property be taken for public use, without just compensation .” U.S. CONST. amend. V.
6. Lucas v. S.C. Coastal Council, 505 U.S. 1003 , 1015 ( 1992 ).
7. Loretto v. Teleprompter Manhattan CATV Corp ., 458 U.S. 419 , 437 ( 1982 ).
8. See id. at 435 (“ Property rights in a physical thing have been described as the rights 'to possess, use and dispose of it.' To the extent that the government permanently occupies physical property, it effectively destroys each of these rights.” (quoting United States v . Gen. Motors Corp., 323 U.S. 373 , 378 ( 1945 ))).
9. In Lucas, the Court announced the “categorical rule that total regulatory takings must be compensated . ” Lucas , 505 U.S. at 1026. Justice John Paul Stevens's dissent in that case reduced this phrase to “total takings” several times . Id. at 1065 (Stevens, J., dissenting). Scholars have since referred to Lucas-type takings as “total takings,” but the phrase has not entered the common lexicon as a description of the Court's three per se rules. The term is
22. U.S. CONST. amend V.
23. See generally RICHARD A. EPSTEIN, SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL PROTECTION FOR PRIVATE PROPERTY ( 2008 ) (arguing that except in very limited circumstances the Takings Clause bars the government from acting in ways that diminish the value of private property); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process , 95 COLUM. L. REV. 782 , 782 ( 1995 ) (arguing that the original understanding of the Takings Clause was that it “required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used”).
24. John E. Fee, The Takings Clause as a Comparative Right, 76 S. CAL. L. REV . 1003 , 1009 ( 2003 ).
25. Rubenfeld , supra note 13, at 1081.
26. 80 U.S. 166 ( 1871 ).
27. Id . at 177-81.
28. 260 U.S. 393 ( 1922 ).
29. Id . at 414-16.
30. Fee , supra note 24, at 1015.
31. Mahon , 260 U.S. at 415.
32. Id . at 416.
48. Id .
49. Id . at 436.
50. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 , 1015 ( 1992 ). Although the Court in Lucas claimed that it was simply applying a long-standing rule that had never been determinative in a takings case but had been asserted repeatedly in many, id . at 1016 n.6 ( 1992 ), most commentators agree with the Lucas dissent's assertion that this case was the first to recognize this bright-line rule, see , e.g., Rubenfeld, supra note 13 at 1080.
51. 505 U.S. 1003 ( 1992 ).
52. Id . at 1015.
53. Id . at 1006.
54. Id . at 1007.
55. Id . at 1009.
56. Lucas v. S.C. Coastal Council, 404 S.E.2d 895 , 899 (S.C. 1991 ) ; see Goldblatt v . Hempstead , 369 U.S. 590 , 593 ( 1962 ) (finding prohibition against excavating below the water table in order to extract gravel not a taking when weighing public interest); Miller v . Schoene , 276 U.S. 272 , 279 - 80 ( 1928 ) (analyzing the “public interest” to find that state action destroying diseased cedar trees of certain property owners to prevent the infection of apple orchards is not a taking); Hadacheck v . Sebastian , 239 U.S. 394 , 410 ( 1915 ) (weighing the “good of the community” to find that an ordinance prohibiting the manufacture of bricks near residents in Los Angeles did not effect a taking); Mugler v . Kansas , 123 U.S. 623 , 668 - 69 ( 1887 ) (analyzing the community interest in a takings claim about the prohibition on the manufacture and sale of intoxicating liquors).
57. Lucas , 404 S.E.2d at 901.
58. Lucas , 505 U.S. at 1015.
59. Id . at 1016 (“ As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation 'does not substantially advance legitimate state interests or denies an owner economically viable use of his land.'” (quoting Agins v . City of Tiburon , 447 U.S. 255 , 260 ( 1980 ) )). Interestingly, the Court has since repudiated the first half of this statement, acknowledging that the question whether a government regulation “substantially advance[s] legitimate state interests” sounds in due process, not takings law . Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 , 531 ( 2005 ).
60. Lucas , 505 U.S. at 1017.
61. Horne v. Dep't of Agric ., 135 S. Ct . 2419 , 2431 ( 2015 ).
62. Actually , the Hornes “ handle” raisins too, and the marketing orders at issue in this case technically apply only to raisin handlers. But by custom in the industry handlers pass on the entire cost of the marketing-order regime to growers. The Hornes became raisin handlers before beginning this litigation so that they could challenge the costs that the marketing orders were imposing on them as growers . Id. at 2424.
63. Id .
64. Id .
65. Id . Whether such a committee, made up of politically unaccountable industry insiders, can constitutionally exercise the power of eminent domain is an interesting topic for another article .
66. Id .
99. Id . at 1054 (Blackmun, J., dissenting) ( citation omitted); see also Frank Michelman , Takings, 1987 , 88 COLUM. L. REV. 1600 , 1614 ( 1988 ) (“We have long understood that any land-use regulation can be characterized as the 'total' deprivation of an aptly defined entitlement . . . . Alternatively, the same regulation can always be characterized as a mere 'partial' withdrawal from full, unencumbered ownership of the landholding affected by the regulation . . . .”).
100. Pa . Coal v. Mahon , 260 U.S. 393 , 414 ( 1922 ).
101. 480 U.S. 470 ( 1987 ).
102. Id . at 496.
103. Lucas , 505 U.S. at 1016 n.7 (“Unsurprisingly, this uncertainty regarding the composition of the denominator in our 'deprivation' fraction has produced inconsistent pronouncements by the Court . . . . In any event, we avoid this difficulty in the present case, since the 'interest in land' that Lucas has pleaded (a fee simple interest) is an estate with a rich tradition of protection at common law, and since the [court below] found that the Beachfront Management Act left each of Lucas's beachfront lots without economic value .”).
104. Penn Cent . Transp. Co. v. City of New York, 438 U.S. 104 , 131 ( 1978 ).
105. Id . at 130-31.
106. Lucas , 505 U.S. at 1016 n. 7. Oddly, the Court in Lucas did not aim its criticism directly at the Penn Central holding, focusing instead on the state supreme court's denominator determination . Id . However, the Penn Central Court employed the same denominator as the state supreme court, so the Lucas Court's disapproval applies equally to the Penn Central calculus .
107. For a thorough discussion of the Court's lack of consistency on the denominator issue, see, for example , Daniel L. Siegel, How the History and Purpose of the Regulatory Takings Doctrine Help to Define the Parcel as a Whole, 36 VT . L. REV. 603 , 604 - 08 ( 2012 ).
108. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal ., 508 U.S. 602 , 643 - 44 ( 1993 ).
109. Id . at 644.
110. Lucas , 505 U.S. at 1016 n.7.
111. 535 U.S. 302 ( 2002 ).
112. Id . at 332 n.27.
113. 137 S. Ct . 1933 ( 2017 ).
114. Id . at 1941 .
149. Id . at 1376.
150. See Boise Cascade Corp . v. United States , 296 F.3d 1339 , 1356 (Fed. Cir. 2002 ) (asserting that “this dicta in Hendler . . . has been widely misunderstood and criticized as abrogating the permanency requirement established . . . in Loretto”).
151. 457 F. 3d 1345 (Fed . Cir. 2006 ).
152. Id . at 1353.
153. Id . at 1348.
154. Id . at 1357 (citation omitted) (quoting Hendler v . United States , 952 F.2d 1364 , 1376 - 77 (Fed. Cir. 1991 )).
155. Otay Mesa Prop. v. United States , 670 F.3d 1358 , 1365 (Fed. Cir. 2012 ). Interestingly, the government argued that the easement was permanent and the landowner argued that the mutual right to terminate rendered the easement temporary. Both parties agreed that the easement constituted a taking, and both seemed to believe that less compensation would be owed for the condemnation of a permanent easement than for a temporary easement. The Court of Appeals was skeptical . Id. at 1368 (“ It does not seem to us logical that Otay Mesa should receive less compensation for the taking of a permanent easement than it would for the taking of a temporary easement .”).
156. Id . at 1361-62.
167. As Justice Stevens pointed out in his Lucas dissent, “the Court's new rule is wholly arbitrary. A landowner whose property is diminished in value 95% recovers nothing, while an owner whose property is diminished 100% recovers the land's full value .” Lucas v. S.C. Coastal Council, 505 U.S. 1003 , 1064 ( 1992 ) (Stevens , J., dissenting).
168. Tahoe-Sierra Pres . Council, Inc. v. Tahoe Reg'l Planning Agency , 535 U.S. 302 , 330 ( 2002 ) (footnote omitted) (quoting Lucas, 505 U .S. at 1017 , 1019 n.8).
169. 28 F. 3d 1171 (Fed . Cir. 1994 ).
170. Id . at 1182.
171. Id . at 1173. Many federal takings claims involve § 404 of the Clean Water Act, the provision that establishes criteria the Army Corps of Engineers must apply in evaluating applications for permits to dredge and fill protected wetlands . See Clean Water Act , 33 U.S.C. § 1344 ( 2012 ).
172. Loveladies Harbor , Inc., 28 F.3d at 1174 -75.
173. Id . at 1182.
174. 787 F. 3d 1111 (Fed . Cir. 2015 ).
192. Hawkeye Commodity Promotions , Inc. v. Vilsack, 486 F.3d 430 , 442 ( 8th Cir . 2007 ).
193. Id . at 441.
194. Id . (quoting Lucas v . S.C. Coastal Council, 505 U.S. 1003 , 1019 ( 1992 )).
195. Dunes W. Golf Club , LLC v. Town of Mount Pleasant , 737 S.E.2d 601 , 614 - 18 (S.C. 2013 ) (“On these facts, we find there was no categorical taking because the [land use restriction] permits numerous recreation and conservation uses, and Appellant has failed to produce any evidence that those permitted uses are not economically beneficial .”).
196. See Keystone Bituminous Coal Ass'n v . DeBenedictis , 480 U.S. 470 , 497 ( 1987 ) (“Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property 'whose value is to furnish the denominator of the fraction.'” (quoting Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 HARV . L. REV. 1165 , 1192 ( 1967 ))). The denominator problem at the heart of Lucas's incoherence is not unique to the total takings myth. Rather, the same challenge plagues one of the three Penn Central factors-determining the degree of interference with the landowner's distinct investment-backed expectations. Thus, even if the Court overrules Lucas as a first step in repudiating the total takings myth, it will not render the denominator dilemma moot . See infra Part III.
197. To be clear, repudiating the Lucas total takings rule will not eliminate the denominator dilemma in regulatory takings cases because Penn Central's reasonable investment-backed expectations factor requires the determination of the relevant denominator as well. But removing the distortion created by the total takings rule will facilitate clarification of the denominator issue in Penn Central cases .
198. See , e.g., Laura S. Underkuffler, Property and Change: The Constitutional Conundrum , 91 TEX. L. REV. 2015 , 2019 ( 2013 ) (“Despite the Court's recognition of this crucial problem more than twenty years ago, it has-to date-never explained the reasons for its choices or otherwise attempted to resolve this issue .”).
226. Lost Tree Vill. Corp. v. United States , 100 Fed. Cl. 412 , 427 - 28 ( 2011 ) (citations omitted) (first quoting Loveladies Harbor, Inc ., v. United States , 28 F.3d 1171 , 1181 (Fed. Cir. 1994 ) ; then quoting Forest Props ., Inc. v. United States , 177 F.3d 1360 , 1365 (Fed. Cir. 1999 ) ; and then quoting Lost Tree Vill . Corp. v. United States , 92 Fed. Cl. 711 , 718 ( 2010 )).
227. See , e.g., Coeur D ' Alene v . Simpson , 136 P.3d 310 , 321 - 24 ( Idaho 2006 ) ; Giovanella v . Conservation Comm'n of Ashland , 857 N.E.2d 451 , 461 - 62 (Mass. 2006 ) ; K&K Constr. , Inc. v. Dep't of Nat. Res. , 575 N.W.2d 531 , 535 - 37 (Mich. 1998 ).
228. Coeur D'Alene , 136 P.3d at 321.
229. Palm Beach Isles Assocs. v. United States , 231 F.3d 1354 , 1358 (Fed. Cir. 2000 ).
230. Loveladies Harbor, 28 F.3d at 1178.
231. Coeur D'Alene , 136 P.3d at 310.
232. Murr v. Wisconsin , 137 S. Ct . 1933 , 1945 ( 2017 ).
240. Id . at 1956 ( “In deciding whether there is a taking under [the Penn Central factors], the regulation will seem eminently reasonable given its impact on the pre-packaged parcel. Not, as the Court assures us, 'necessarily' in 'every' case, but surely in most .”).
241. Of course, a third option also begs for consideration: the Court could reject the entire regulatory takings doctrine as misguided . See, e.g., Rubenfeld, supra note 13 , at 1077 ( arguing that the Takings Clause requires compensation only when the government “uses” private property, not when it merely regulates the landowner's use of the property); Mark Tunick, Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses, 3 U. PA. J. CONST . L. 885 , 887 - 88 ( 2001 ) (arguing that land use regulations should be evaluated for constitutional validity under the Due Process Clause, not the Takings Clause). I leave consideration of this option to a future paper .
242. See Kathleen M. Sullivan , The Justices of Rules and Standards , 106 HARV. L. REV. 22 , 83 ( 1992 ) (“Justice Scalia, more than any other current Justice, favors operative rules and condemns operative standards .”). See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV . 1175 ( 1989 ).
243. Cf. Albert W. Alschuler , Bright Line Fever and the Fourth Amendment , 45 U. PITT. L. REV . 227 , 231 ( 1984 ); Sullivan, supra note 242 at 77-83.
244. See supra Introduction.
254. Armstrong v. United States , 364 U.S. 40 , 49 ( 1960 ) ; see also Penn Cent . Transp. Co. v. City of New York, 438 U.S. 104 , 123 ( 1978 ).
255. Penn Cent ., 438 U.S. at 123; see also Lucas v. S.C. Coastal Council, 505 U.S. 1003 , 1071 ( 1992 ) (Stevens , J., dissenting) ( “[T]he Court's new rule and exception conflict with the very character of our takings jurisprudence. We have frequently and consistently recognized that the definition of a taking cannot be reduced to a 'set formula' and that determining whether a regulation is a taking is 'essentially [an] ad hoc, factual inquir [y]. '” (second and third alterations in original) (quoting Penn Cent ., 438 U.S. at 124)).
256. Penn Cent ., 438 U.S. at 123 ( quoting United States v . Cent. Eureka Mining Co., 357 U.S. 155 , 168 ( 1958 )).
257. Eagle , supra note 13, at 613 (“ These values include the roles of just compensation in preventing wasteful and excessive government, by ensuring that property taken is worth more to the government than it is in the marketplace; and in protecting individual liberty, by placing a check on a government's ability to squelch opposition by taking the land of political opponents .”).
258. See Andrea L. Peterson , The Takings Clause: In Search of Underlying Principles Part I-A Critique of Current Takings Clause Doctrine , 77 CALIF. L. REV. 1299 , 1304 ( 1989 ) (“The Court has repeatedly stated that the ultimate issue in a takings case is whether 'fairness and justice' require that compensation be paid for economic injuries caused by the government .”).
259. See Fennell, supra note 202 , at 52 ( recognizing regulatory takings law's formidable “cliff effect”).
260. Lucas , 505 U.S. at 1064 (Stevens, J., dissenting).
261. As noted above, lower courts have interpreted the permanent-temporary distinction in Loretto to soften this cliff effect. But the ability of lower courts to artfully avoid the cliffs created by the Court's bright-line rules is not a persuasive justification for maintaining the total takings myth .