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    October 13, 2021 Feature

    Whither Regulatory Takings?

    Michael M. Berger

    “This case stems from the reversion [to agricultural zoning] of . . . 1,060 acres of largely vacant and barren, rocky lava flow land . . . [that] was good for growing rocks. . . . [The] evidence failed to establish a taking.”1

    Ninth Circuit Court of Appeals

    “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”2

    Justice Clarence Thomas

    Introduction: Of Rocks, Regs, and Nursery Rhymes

    Wisdom and insight are often to be found in children’s rhymes and stories.3 A classic nursery rhyme presents this conundrum, which may help to illuminate the issues Justice Thomas noted that swirl around regulatory takings:

    “Mother may I go out to swim?

    Yes, my darling daughter.

    Hang your clothes on a hickory limb

    But don’t go near the water.”4

    Just as it makes no sense to tell your daughter she may go swimming but cannot go near the water, it makes no sense to tell property owners that their rights are vouchsafed by the Fifth Amendment5 and that overly stringent government regulation that violates that guarantee requires compensation—but almost never allow anyone to recover on that theory. For the uninitiated, it has become very difficult for a property owner to prevail in a regulatory taking case. Indeed, two commentators likened such litigation to a “high-stakes game of craps.”6 This statement explains Justice Thomas’s comment that if the Court really does not believe in regulatory takings, it “should say so.”

    So, now let us apply the theory to a concrete (or, at least, hard rock) situation. I would like a figurative show of hands: how many of you would be willing to buy more than a thousand acres of land zoned for “agricultural” use when the state agency that zoned it that way says it is “not suitable for agriculture?”7 The land was likened by a federal district judge to “a giant asphalt parking lot covered with big rocks.”8 The best that an appellate court could say about it in hindsight was that an obviously exasperated expert witness responded to cross-examination by saying that the property might be “good for growing rocks.”9 Not many hands raised, I suspect.

    Would you be surprised if I told you that a jury spent eight days evaluating evidence about the property and the impact of the state’s regulatory actions and concluded that, when the state insisted that it be zoned “agricultural,” a regulatory taking had occurred under both of the United States Supreme Court’s Fifth Amendment regulatory taking standards?10 By the way, the trial judge agreed with the jury and denied the government’s motion for judgment as a matter of law. The judge concluded that ample evidence supported the jury’s findings under both Supreme Court takings theories.11

    The kicker here is that the Ninth Circuit Court of Appeals reviewed that record and concluded that “no reasonable jury” could have so concluded.12 Period. And then the Supreme Court denied certiorari—with only the single dissenting voice quoted above.13

    So, what happened? Those of us not privy to the internal conferences at One First Street will never know, of course. But we should take a look at both this rocky expanse of Hawaiian volcanic detritus14 and the similar legal detritus that led the Ninth Circuit to conclude that there was nothing untoward and, in the classic words of the cop preserving a crime scene or merely discouraging curious looky-loos, “nothing to see here; move along.”15

    The concluding line in Justice Thomas’s dissent from the denial of certiorari may have outed a previously undisclosed rift in the Supreme Court over regulatory takings jurisprudence. As we near the hundredth anniversary of the granddaddy of regulatory takings cases, Pennsylvania Coal Co. v. Mahon,16 it may be that a group of Justices no longer believes that there should be such a concept in our constitutional law, even as a theoretical matter. Such a thought might seem unthinkable in light of the strong line of cases in the last forty years upholding and expanding the concept,17 but for Justice Thomas to pen the words “If there is no such thing as a regulatory taking, we should say so” is enough to give one more than a little pause about the internal discussions that may have occurred while the petition was being considered.

    While the case awaited the Supreme Court’s ruling on the pending petition for certiorari, the Court placed it on its conference calendar for discussion—and then removed it—five times before finally ruling. Why those multiple relistings happened, only the Justices know.18 Were they arguing about whether to discard the regulatory takings concept? Was Justice Thomas trying to convince three others to join him so that cert could be granted? Did the others understand Justice Thomas’s message but conclude that they would rather leave the law as the vast Serbonian bog19 that it has become? It now seems possible, in light of Justice Thomas’s words and the fact that no other Justice joined his cogent dissent, that others are considering a retreat from this bulwark of protection of private property rights.

    Or are they? The second half of Justice Thomas’s binary conclusion points just as clearly in the other direction: “And if there is, we should make clear when one occurs.” The remainder of his dissenting opinion provides a clear, albeit condensed, explanation of how confused the basic regulatory takings jurisprudence has become and the need for the Supreme Court to address it. And that, after all, may be the true legacy of Bridge Aina Le‘a.

    This article will explore both halves of Justice Thomas’s quandary, along with the jurisprudential background that led us to this spot. Ever the optimist,20 I continue to believe that the Supreme Court will not abandon property owners to the vicissitudes and vacillations of lower court holdings and, instead, will eventually “take the bull by the tail and face the situation,” in the scholarly, yet perceptive, words of W.C. Fields.21 After all, it took a similar period of time for the Supreme Court to rid regulatory takings law of half of the silliness in the Williamson County case22 when, after rejecting numerous petitions for certiorari and pleas in lower court opinions and scholarly journals,23 the Court not only disapproved a foolish—indeed self-destructive—requirement of suing in state court in order to “ripen” a federal takings claim, but did so in unusually trenchant language.24

    The thrust of this article is severalfold. First, Holmes was right. His simple conclusion on behalf of eight Justices encapsulated the crux of modern government: while government needs to be able to regulate, zealous regulators can “go too far” and, when they do, regulation becomes a taking. The Constitution drew a line in the sand that may not be crossed without consequences. Second, a cautious Supreme Court thereafter left the Holmesian standard intact and nibbled around the edges, adding alternative descriptors that confused and confounded the situation. Third, the solution to the problem of how to define a regulatory taking lies in the simplicity of the common law. One of the genius features of the common law is the jury. Over a wide variety of legal and factual situations, one thing remains true: the jury always knows the answer. Thus, what the Supreme Court needs to do to make sense of the hash that has become regulatory takings law is to sweep away the debris left by earlier decisions (specifically including any that confirmed or denied the existence of a taking based solely on the size or percentage of value impacted by a regulation) and allow the jury to examine the factual impacts of the regulation on specific property. If the jury believes that regulatory action went “too far,” that should essentially be the end of the matter. That is, in fact, what happened at the trial of Bridge Aina Le‘a, but that gets ahead of the story.

    In sum, Penn Central aptly concluded that there is no “set formula” for regulatory takings because each case is sui generis and must be decided “ad hoc” on its own facts (just like everything else in American litigation).25 Del Monte Dunes then held that regulatory takings liability is a jury question.26

    The Seventh Amendment has two facets. First, it guarantees a jury trial. Equally important, it then cautions judges not to second-guess the jury’s findings (generally referred to as the Re-examination Clause). If you want a cohesive rule that will do justice in the generality of cases, trust the jury and rein in the judges—just as the Seventh Amendment demands.

    I. A Brief Sketch of the Background

    The modern history of takings law began some four decades ago, when the Supreme Court started hearing takings cases (i.e., cases emanating from the Fifth Amendment’s guarantee that private property would not be taken for public use without just compensation) other than those arising from “direct” condemnations (those in which a government agency overtly sought to acquire private property to put it to public use).27 To those overt acquisitions, one might add the few direct physical invasion cases (the constitutional equivalent of trespass cases)28 involving such things as aircraft overflights and floodings.29 But the tantalizing hint dropped by the Court in Mahon in 1922 that some purely regulatory actions might be “recognized as takings” if they went “too far”30 went unremarked by the Court for more than half a century.

    The Supreme Court began its tentative return on April Fools’ Day in 1974, when, as Professor David Callies described it, the Court “dipped its collective toe in th[e] dank swamp” of land use regulations by deciding Village of Belle Terre v. Boraas.31 There, the Court upheld an ordinance restricting the number of unrelated people who could occupy a single house in the name of preserving a “quiet place where yards are wide, people few and motor vehicles restricted . . . where family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”32

    The dam broke in 1978. In that year, the Supreme Court began examining government regulatory actions that impacted private property rights without actually intending to acquire an interest in the property. First came Penn Central.33 There, the Court was confronted with an emotional case from New York, involving the preservation of the historic Grand Central Terminal. Its owners wanted to cantilever a fifty-story office building over the storied train station (making it look like all the other high-rise towers in that neighborhood), and the historic preservationists were aghast.34 Note that nobody who was on the Court when it decided Mahon was still on the Court—or even alive. Having been out of the field for fifty years, and lacking any institutional memory from Holmes and the others, the Court floundered. Or did it? At oral argument of the Supreme Court’s most recent takings case, Justice Barrett provided this possible bit of history and clarity about the origins and intent of the Penn Central holding: “Penn Central is deliberately designed to be very permissive towards regulations, given the pervasiveness of regulations on property use in modern life. And so it’s – it’s stacked in favor of regulations.”35 If Justice Barrett is correct, her summary is contrary to the general consensus of experts who have pondered Penn Central’s provenance for decades.36 But she is now inside the Court and may have access to information denied (or at least unavailable) to the rest of us.

    In any event, in Penn Central, the Supreme Court said that it really had no “set formula” for determining whether a regulation effected a taking, but provided several “factors” to examine to guide that determination. Those factors were classically stated as the economic impact on the property owner, the owner’s distinct37 investment-backed expectations, and the character of the governmental action.38 The generality of that exposition led the Court to find no liability in that case because the regulation allowed the owner “not only to profit from the Terminal, but also to obtain a ‘reasonable return’ on its investment.”39

    In Kaiser Aetna,40 the federal government sought to force open a privately owned marina for use by the general public by simply asserting that the federal “navigational servitude” allowed it to do so by ukase. That ploy did not work. The Supreme Court held that, if the government wanted to create such an interest, it would have to purchase it. Kaiser Aetna was followed the next year by Agins.41 That was the first classic land use case involving a regulatory taking (i.e., involving a challenge to a city’s regulatory action that prevented property use or development).42 It was the first of a series of cases that seemed to present a bit of an embarrassment to the Court because of the Justices’ inability to address the issue once it was before them on the merits.

    The issue repeatedly argued in the early 1980s seemed simple enough: if a regulation is recognized as a taking, is the remedy to strike it down or to compensate the property owner? 43 When the Supreme Court finally got around to deciding the issue, it began with this self-conscious note: “Four times this decade, we have considered similar claims and have found ourselves, for one reason or another, unable to consider [what the answer should be].”44 That “one reason or another” led to a series of cert grants and then non-substantive opinions that resulted in the peculiar law of “ripeness” as applied to regulatory takings cases that for years bedeviled the bar (not to mention property owners). But that is a different story.45

    Having thus tantalized the bar for the better part of a decade about the appropriate remedy, the Court concluded (rather matter-of-factly in the end) that the Fifth Amendment, of course, means exactly what it says: when property is taken, the government must pay compensation to the owner— regardless of the nature or extent of the taking.46 And that (we all thought) was that. Boy, were we wrong.

    II. How We Got Here

    Sadly, having laid down the outlines of how to determine whether a taking had occurred (in the process of declining to determine the remedy for such an event if one had occurred),47 the Court had only laid the groundwork for confusion. On reflection, “confusion” may be too bland a word. In fact, looking at the series of Supreme Court opinions since the Court resolved the remedy issue thirty-five years ago, one might be tempted to say that anarchy was the intended result. Consider this series of Supreme Court conclusions about regulatory takings law delivered during that time frame conceding that the Court knew that it was providing no guidance but continued in that manner anyway:

    “In Justice Holmes’ well-known, if less than self-defining, formulation, ‘while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.’”48

    “The rub, of course, has been—and remains—how to discern how far is ‘too far.’”49

    “[W]e have ‘generally eschewed’ any set formula for determining how far is too far, choosing instead to engage in ‘essentially ad hoc factual inquiries.’”50

    “Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking.”51

    “Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine ‘a number of factors’ rather than a simple ‘mathematically precise’ formula.”52

    “Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings.”53

    The blunt fact is that none of the Supreme Court’s post-Mahon opinions—regardless of the author or the side of the philosophical/jurisprudential divide on which the author sat or whether the vote was close or unanimous—improved on the directness and simplicity of the Holmes formulation. That is what led Justice Thomas to say: “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”54

    To be effective, the Supreme Court must be respected. Its decisions need to make sense to the populace so they will be obeyed. It has, after all, no army to enforce its decrees. As President Andrew Jackson once classically (and possibly apocryphally) put it after the Court issued a decision with which he disagreed, “John Marshall has made his decision: now let him enforce it.”55 By leaving regulatory takings law in the muddle exemplified by the conclusions quoted above, the Supreme Court risks losing any respect the general public may have for it in this rather esoteric field of the law.

    The result of dealing in such bland generalities is that lower courts have been left essentially on their own, tethered to nothing but their own beliefs and instincts. Indeed, we have regressed to the days when justice was described as being measured by the length of the chancellor’s foot.56 Anyone feeling that that is an exaggeration need only read and compare the analyses in any of a bushel of lower court opinions trying to make sense of the Supreme Court’s guidance.

    What, for example, does one make of the courts applying the identical Supreme Court precepts and concluding that a diminution in value of 83.4% is not sufficient to establish a taking,57 while a diminution of 73.1% suffices?58 In each case, of course, the goal was to determine whether the “economic impact” of the regulation on the property owner was sufficiently high to satisfy either the Lucas categorical standard or the Penn Central takings analysis.59 As Justice Thomas put it in his Bridge Aina Le‘a dissent, “A know-it-when-you-see-it test is no good if one court sees it and another does not.”60

    III. The Shocking State of Regulatory Takings Law

    The law regarding regulatory takings of property under the Fifth Amendment is in disarray for one reason: the Supreme Court’s guidance for determining when a taking has occurred remains obscure notwithstanding more than forty years of litigation and Court opinions in the modern era of takings law.

    Early in the process, Justice Stevens had this to say about the Court’s takings decisions: “Even the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence.”61

    Notwithstanding numerous decisions since then, the Court has refrained from establishing any clarity. Indeed, as shown by the quotes from numerous Supreme Court opinions above, it seems more correct to say that the Court has refused to establish any clarity. As the Court itself confessed after twenty-seven years of watching lower courts struggle to apply the Penn Central mode of analysis, “[E]ach [of the Penn Central factors] has given rise to vexing subsidiary questions . . . .”62 And, yet, no assistance has come from the Supreme Court to help resolve those vexing subsidiary questions.

    The result of the Supreme Court’s reluctance to provide guidance is anarchy. A prominent text summed up the Court’s regulatory takings decisions as belonging to “the gastronomic school of jurisprudence,” that is, an area governed by gut feeling in the individual case.63

    Indeed, scholars from all points on the ideological spectrum have criticized Penn Central and its vaunted factors because the case offers virtually no guidance to anyone.64 Putting things in graphic perspective, Professor Echeverria entitled his classic article Is the Penn Central Three Factor Test Ready for History’s Dustbin? 65

    The reason for Professor Echeverria’s caustic title was his conclusion that property owners almost never win Penn Central cases and any rule that is so one-sided is plainly unworkable.66 He reached this conclusion notwithstanding that his sympathies generally lie with the regulatory agencies. That conclusion about Penn Central (which holds for Lucas, as well) has been echoed by others.67

    It simply cannot be true that virtually no regulatory taking case has merit. In sum, it is time for the Supreme Court to reconsider its vague “polestar” Penn Central opinion and make the parameters clear to lower courts and litigants. The current judicial approach de facto transforms American common law—to borrow Justice Frankfurter’s tart imagery—into the law of “a kadi under a tree” and dispensing idiosyncratic justice by the seat of his pantaloons, “according to considerations of individual expediency.”68 Or, as Justice Scalia put it with typical directness, “Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes.”69

    There is chaos under both Lucas and Penn Central as to the extent of the economic impact that a property owner must demonstrate to prove a taking. Penn Central noted three key “factors” to analyze for determining whether government regulation affects a taking. The first was the “economic impact” on the property owner. Regularly, since Penn Central, the Supreme Court has repeated that, if a regulation deprives property owners of the “economically viable use” or “economically beneficial or productive use” of their property, a taking has occurred. (The first formulation appeared initially in Agins; the latter refinement appeared in Lucas.)70 And it has continued to stress the importance of “economic impact” as a determinative factor.71

    However, in none of those cases did the Court even attempt to explain the parameters of that economic impact. The concept was simply and broadly stated, and lower courts have been left to fend (or flounder) for themselves. “The Supreme Court has never given us definite numbers—it has never said that a value loss less than a specified percentage of pre-regulation value precludes a regulatory taking or that one greater than some threshold (short of a total taking) points strongly toward a taking.”72

    Candidly, although I am critical of the Supreme Court for providing virtually no guidance whatever, I am just as glad that it did not provide any hard and fast dollar or percentage guidelines for what it takes to constitute a regulatory taking. As discussed hereafter, my preference is for all the evidence to be presented to the jury and to let the jury decide whether the impact is sufficient to require compensation (i.e., whether the regulator went “too far”).73

    Other considerations have added to the chaos in regulatory takings law. For example, to establish a Lucas “categorical” taking, should the jury be concerned with the impact of the regulation on “use” or “value”?

    Lucas seemed clear in its conclusion that elimination of economically beneficial or productive use was the key to whether a taking had occurred. The Court employed that word thirty-seven times in that one opinion. However, the Ninth Circuit and several others have converted that standard into one of value, rather than use. That word choice allows courts to hold, as in Bridge Aina Le‘a, that any residual value eliminates the possibility of Lucas liability.74 A recent survey of litigation under Lucas showed that lower courts are irreparably divided and mired in “[c]onsiderable confusion” about “the distinction between use and value.”75 That result does not fit with Lucas and needs correction.76 Lucas does not equate a deprivation of use with elimination of value. The Supreme Court understood the difference. As the dissent noted there, a number of ostensible “uses” remained for Mr. Lucas to “make,” thus confirming that the property retained some value (as one would expect of virtually any property, particularly coastal property). The issue, however, as the majority knew, was whether these remaining uses77 were economically productive, not merely that they existed in vacuo. Converting the Lucas rule to one of value rather than use, as Brown and Merriam note, “would significantly heighten the already substantial impediments to property owners’ ability to mount successful Lucas challenges.”78

    Nor was Lucas alone in its concern about the impact of regulations on use. It built on the Court’s earlier decisions. For example, in Mahon, a taking was found because the regulation made removal of coal “commercially impracticable.”79 In Federal Power Commission v. Hope Natural Gas Co.,80 the Court found a taking based on a confiscatory rate of return, regardless of the lifetime value of the utility. And, in Penn Central, the Court upheld the regulation because the owner was able “to obtain a ‘reasonable return’ on its investment.”81

    To be sure, part of the confusion has its roots in Supreme Court opinions in which the difference between “use” and “value” appears muddled. For example, in Tahoe-Sierra, the Court said that the Lucas rule applies where “a regulation deprives property of all value.”82 In Lingle, the Court said that “complete elimination of value is the determinative factor”83 in a Lucas evaluation. That is not what Lucas said. Clarification from the Supreme Court is in order, and the sooner the better.

    Moreover, the Supreme Court has allowed lower courts to inject confusion into the issue of whether a property owner may collect compensation for a temporary taking of property—under either Lucas or Penn Central.

    The Constitution requires just compensation for all takings. Thus, the issue is not (or, at least, it should not be) whether property was taken temporarily, but whether it was taken at all. The words of the Fifth Amendment are clear and general: “nor shall private property be taken for public use without just compensation.” There is no restriction regarding the type of property or duration of the taking.84

    The Court dealt with this issue in the context of land use years ago. In First English Evangelical Lutheran Church v. County of Los Angeles,85 the Court plainly held that the Fifth Amendment’s just compensation guarantee applies to all takings, whether they be physical or regulatory, permanent or temporary:

    [T]emporary’ takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. . . . Where th[e] burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during th[e] period [the regulation was in effect].86

    In First English, the Court took direct aim at the remedy for government regulatory action that took the use of private property for any period of time. That, held the Court, would require compensation because “invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy.”87 Compensation for the lost use of the property while the regulation precluded use of the property was held constitutionally mandatory. The duration of the taking goes to the quantum of compensation, not liability.

    First English built on an odd dissenting opinion (odd because five Justices agreed on its substance) in San Diego Gas & Electric Co. v. City of San Diego.88 As summarized there:

    The fact that a regulatory “taking” may be temporary, by virtue of the government’s power to rescind or amend the regulation, does not make it any less of a constitutional “taking.” Nothing in the Just Compensation Clause suggests that “takings” must be permanent and irrevocable. Nor does the temporary reversible quality of a regulatory “taking” render compensation for the time of the “taking” any less obligatory. This Court more than once has recognized that temporary reversible “takings” should be analyzed according to the same constitutional framework applied to permanent irreversible “takings.”89

    Thus, temporary takings are conceptually the same as permanent takings. Any other conclusion wholly undercuts First English, which plainly held that temporary takings have the same constitutional status as permanent takings. In Tahoe-Sierra, the Court concluded that Penn Central’s three-factor test supplied the correct “approach [for] claims that a regulation has effected a temporary taking,” because that approach permitted “careful examination and weighing of all the relevant circumstances.”90 The reason that the Court did not evaluate Tahoe-Sierra as a Penn Central temporary taking was that the property owners there did not raise that issue. They claimed solely that they had suffered a categorical Lucas taking.91 Thus, under the Supreme Court’s teachings, Penn Central cannot be construed in a manner that would preclude the viability of temporary regulatory taking claims.

    Nor can Lucas be read to eliminate the possibility of a temporary taking. Nothing in Lucas eliminates the possibility of recovery for a “complete loss” for a temporary period of time.92 Indeed, such a temporary taking is wholly in line with First English, which held that either invalidation of a regulation or voluntary removal of the regulation would still leave the regulator liable to compensate for a taking during the interim. And remember that the taking in Lucas lasted for only two years. That did not preclude a finding of a taking.

    Some courts, such as the Ninth Circuit, have held that there can be no temporary taking under Lucas as a matter of law and have thus truncated the Lucas formulation. Its superficial analysis was that Lucas liability can only attach to deprivations of “all economically beneficial or productive use” and, by definition, a temporary taking cannot ever satisfy the “all” criterion.

    That, however, is too crabbed a view of Lucas. As noted above, Lucas did not deal with a loss of “all use.” Instead, the Supreme Court carefully modified that phrase by inserting between “all” and “use” the words “economically beneficial or productive.” Thus, analysis under Lucas cannot end with the conclusion that “some” use might remain without considering further whether that use is economically beneficial or productive. In Bridge Aina Le‘a, for example, there was no evidence that this hard, rocky slab of lava could be economically used for anything under the state’s reverted agricultural zoning. The best proof of that may be the Ninth Circuit’s rather flip conclusion that the property owner’s expert testified that the property was useful for “growing rocks.”93 Plainly, he was being sarcastic in response to the Respondent’s counsel’s goading. The evidence was clear that the property lost all of its economically beneficial or productive use for the period of time from announcement of the reversionary order through the Hawaii Supreme Court’s holding that the state’s action was invalid.

    The Ninth Circuit appears to have overread Tahoe-Sierra in another way. There, the Supreme Court held that a regulation that was designed to be temporary, having a designated ending point, could not be construed as a Lucas taking because its duration was known in advance. However, Tahoe-Sierra did not hold that no temporary taking could ever be found.94 On the contrary, it relegated most temporary taking analysis to Penn Central. But nothing in Tahoe-Sierra holds that a Lucas finding cannot be made where the regulation is not designed to be temporary but merely becomes so where the regulation is struck down by a court.95 In that instance, the facts need to be examined to determine whether the impact is severe enough to invoke Lucas for the period of time before the regulatory action was invalidated (i.e., while the regulatory action precluded all economically productive or beneficial use).

    Distilling the Supreme Court’s cases yields this result: (1) under First English, a temporary taking can require compensation; (2) under Lucas, if the taking is designed to last only for a limited period, then it is a question of fact whether the impact was severe enough to eliminate all economically productive use for a significant period of time; (3) under Penn Central, if the regulation is temporary only because the government later decided to eliminate it or because a court later invalidated it, then all factors should be examined to determine whether the severity of the impact caused a compensatory taking.

    It should be apparent that the Supreme Court’s desire to refrain from establishing overly firm rules has not served well. That desire leads to the other extreme and allows so much flexibility to lower courts that this constitutional field is left with no real standards at all. As the late Judge Oakes of the Second Circuit put it, “[Penn Central] jurisprudence permits purely subjective results, with the conflicting precedents simply available as makeweights that may fit pre-existing value judgments . . . .”96 The result is a continuous roiling of the litigational waters, with a steady stream of academic criticism and certiorari petitions to the Supreme Court, which should be unnecessary.97

    Fortunately, as the Supreme Court was preparing for its summer 2021 recess, it decided a case that allowed it to summarize the proper Fifth Amendment approach: “The duration of an appropriation—just like the size of an appropriation—bears only on the amount of compensation.”98 Neither affects liability.

    IV. An Object Lesson: Bridge Aina Le‘a

    Bridge Aina Le‘a is the proverbial “Exhibit A” of much that is wrong with the existing system. After an eight-day trial, a jury found that both of the Supreme Court’s announced standards had been met and that the State of Hawaii had taken property within the meaning of the Fifth Amendment. That is, the jury concluded that the evidence showed a “categorical” or per se taking under Lucas for a five-year period and that it also showed a taking under the ad hoc factual analysis prescribed by Penn Central. The district court agreed that both findings were supported by evidence and sustained by the Supreme Court’s decisions. The Ninth Circuit reversed, holding that “the jury could not reasonably find for [the property owner]” and, indeed, that “no reasonable jury could [so] conclude . . . .”99

    The fundamental problem with the guidance provided by the Supreme Court is that its generalities allow a reviewing court like the Ninth Circuit simply to substitute itself for the jury and reweigh everything the jury considered and—if it desires—reach a different (even opposite) conclusion based on the same evidence. That outcome perverts the American system of trial and appeal and essentially eliminates the Seventh Amendment.

    Here is the story.100 The property in question was what the Ninth Circuit described as “1,060 acres of largely vacant and barren, rocky lava flow land . . . .”101 In fact, as the district court put it, it was akin to “a giant asphalt parking lot covered with big rocks.”102 The state’s Land Use Commission (LUC) had formally concluded that its soils were “very poor,” “not suitable for agriculture,” and not adequate for grazing.103 Yet the state zoned it for “agricultural use” anyway.104

    Because the land was plainly unsuited for agriculture, a prior owner had it rezoned for urban uses so it could be developed for housing. In a nutshell, inappropriateness of the agricultural zoning was what led to the urban rezoning. Indeed, the LUC’s rezoning order contained findings supporting the reclassification from agricultural to urban use, including that (1) “[t]he Land Study Bureau rated the Property’s soils as Class E (very poor)” and (2) “[t]he Property is not suitable for agriculture and there are no agricultural activities on the site.” Although Bridge Aina Le‘a was in the early stages of developing the property for housing that was needed in the area, the LUC issued an order to show cause why it should not “revert” the land to agricultural because the process was not proceeding fast enough to suit it. By the time of the “reversion,” the property owner had spent more than $20 million on the project.105 That reversion to a zone that no one actually believed was usable for this land was the genesis of the litigation.

    Bridge Aina Le‘a pursued an administrative appeal in the state circuit court to overturn the LUC’s decision to “revert” the zoning on the property from urban to agricultural. That court concluded that “[t]here was no evidence submitted in the order to show cause proceeding [leading to the reversionary order] that the [property] is suitable for agricultural use.”106

    The circuit court overturned the state’s reversion order, and the Hawaii Supreme Court affirmed.107 In other words, the state action that prevented use of the property for more than five years and interdicted a pending sale of the property was invalid under state law.108

    Bridge Aina Le‘a then filed a second suit in the Hawaii state courts alleging that the state had unconstitutionally taken its property, and the state removed it to federal court. The case was tried to a jury on the issue of liability for a taking. After eight days, the jury found that the state had taken property from Bridge Aina Le‘a under both of the takings standards established by the Supreme Court, findings that the district court held “independently supported” the overall finding of a taking.109

    An expert who testified for Bridge Aina Le‘a, concluded that none of the statutorily permissible uses would have been economically beneficial or productive for the five years that the reversion order precluded use.110 In sum, all the allowed economic activities in the agricultural district for that time period would have been infeasible.111

    Bridge Aina Le‘a had a sale pending for $40.7 million.112 The state’s action in abruptly (and, as the Hawaii courts eventually held, illegally) removing the urban designation from the property and reverting it to agricultural use ended the buyer’s ability to finance the purchase, and the sale fell through.113

    Trial lasted for eight days, at the end of which the jury found that the state had taken the property within the meaning of both Lucas and Penn Central.

    The Ninth Circuit reversed. That court concluded that a total (or, at least, near total) elimination of value had to be established for either kind of taking. Rather than acting in the true role of an appellate court, the Ninth Circuit took it upon itself to retry the case, reweigh the evidence, and redetermine the credibility of testimony, all in contravention of settled law. Here is a sampling.

    • Item: The Ninth Circuit concluded that the land “retained substantial residual value in its agricultural use classification” which “allowed Bridge to use the land in economically beneficial ways.”114 The court recited no evidence to support this conclusion, merely its own conclusion that nothing short of a total elimination of value would suffice.115 But the jury heard evidence that there was no economically beneficial use that could be made of this property as agricultural land. And the jury was entitled to accept that evidence—particularly as this was a Hawaiian jury dealing with a peculiarly Hawaiian form of lava-impacted land.
    • Item: Disregarding the jury’s conclusion that no economically beneficial or productive use could be made of this land in an agricultural zone, the Ninth Circuit simply recited the laundry list of theoretically available uses set forth in the statute. But the jury heard about those “uses.” It also heard testimony that none of those uses was economically beneficial (and no contrary testimony that such uses could productively be made on this land), and the jury was entitled to resolve the evidence by agreeing with Bridge Aina Le‘a’s expert that none of those theoretical uses was viable.
    • Item: The Ninth Circuit chose not to believe Bridge Aina Le‘a’s economic expert even though the jury relied on him.116 That witness concluded that the property suffered a massive loss in value as a result of the state’s action, amounting to an 83.4% reduction overnight—a conclusion that the state did not dispute. In the Ninth Circuit’s words, “The parties agree, uncritically” to this conclusion.117 Nonetheless, the Ninth Circuit took it upon itself to re-examine that same evidence and conclude that the evidence was so defective that the jury could not properly have relied on it. But that was not the Ninth Circuit’s job.
    • Item: The jury heard evidence showing that the state’s action derailed a $35.7 million sale. The Ninth Circuit’s analysis shows only that it disagreed with how the jury evaluated the evidence.118 But those factual resolutions were for the jury, not for the Ninth Circuit. The Seventh Amendment’s Re-Examination Clause is directly contrary to what happened on appeal.
    • Item: The Ninth Circuit did the same thing when evaluating Penn Central’s “investment-backed expectations” criterion. The jury heard the testimony of Bridge Aina Le‘a’s manager, a man with many years of investment and property management experience, as to the anticipated profits from this project. That the Ninth Circuit chose not to credit his testimony is no reason to hold that the jury could not do so. Typical is this statement: “We will assume that Bridge reasonably expected an amendment to the 1991 Order’s affordable housing condition, but we do not see what it proves.”119 But the jury plainly did. And that is what matters. The same kind of appellate second-guessing relates to the Hawaii Supreme Court’s conclusion (when it invalidated the state’s reversion of the property from urban to agricultural) that development of the property was underway. Said the Ninth Circuit: “But again, we do not see what this proves.”120 But again, the question is whether the jury saw what it proved. And the jury found that it showed unconstitutional action by the state.

    If ad hoc factual determinations are the rule, and the Supreme Court has provided only generalized guidance on how to analyze the issues, then there is no principled basis on which to overturn a jury’s findings that a regulatory action has “gone too far” in the words of Mahon. Appellate courts cannot be allowed—after trial—to pronounce ex cathedra that the severe regulatory actions before them are not severe enough to warrant constitutional condemnation. More, the judicial system’s traditional fact-finder—the jury— needs to be trusted to do its job of examining each set of sui generis facts and determining whether, under proper instructions, they pass the legal threshold. Otherwise, the system becomes one of judicial whim on the part of appellate courts far removed from the actual facts.

    What cannot be allowed, if the system is to function properly, is to permit a reviewing court to retry a case by reweighing all the evidence on its own and reaching its own conclusion and then saying that conclusion is mandated as a “matter of law.”

    Such a system brings to mind the sage words of one of California’s greatest jurists, Chief Justice Roger Traynor, who reminded judges that, when writing opinions, they must never forget that the opinion “must persuade his colleagues, make sense to the bar, pass muster with the scholars, and if possible allay the suspicion of any man in the street who regards knowledge of the law as no excuse for making it.”121

    Sadly, as shown by the many scholarly and judicial critiques of its ruling, Penn Central failed all of those tests.

    V. Holmes Was Right

    Not long ago, in a substantive debate about takings law in general, I wrote that “perhaps we should all set aside the panoramic language of Justice Holmes in Pennsylvania Coal, an opinion whose text can be (and is) read as meaning all things to all people.”122 But that was in the context of disputation about the underlying validity of takings concepts in general. The point here is different. This is an examination of the execrable state of regulatory takings jurisprudence, how we got here, and what should be done about it. In this context, we need to begin at the beginning, and that means Holmes and Mahon.

    Although most people tend to remember Mahon for the single nugget about recognizing a regulation that “goes too far” as a taking, it is both more comprehensive and less simplistic than that. In Mahon, Justice Holmes presented a picture of the modern state that (for better or for worse) has not undergone significant structural change in the century that has elapsed since he penned those words. He began with the proposition that government must regulate, and, in that process, “to some extent values incident to property” might be “diminished.”123 We may disagree about the extent to which government needs to regulate, but few would argue with the proposition that at least part of government is regulatory and that regulations can impact property value.

    But Holmes qualified that proposition by concluding that there is a constitutional line in the sand beyond which regulation qua regulation may not go without consequence. If there were no limit, then “the contract and due process clauses are gone.”124 The Constitution expressly declared a consequence for government actions that take property for public use125: payment. “[I]n most if not all cases there must be an exercise of eminent domain and compensation to sustain the act.”126 The constitutional theory was plainly stated in the Fifth Amendment: “The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation.”127

    As Professor Merrill recently explained, Holmes was applying a rule to prevent the government from evading its constitutional duty: “The proposition rests in significant part on the idea that an express requirement of constitutional law cannot be evaded by the expansive interpretation of another governmental power that effectively nullifies it.”128

    Holmes was not unsympathetic to government regulatory needs and the sometimes fuzzy line between police power and eminent domain.129 However, he recognized the “natural tendency of human nature” to expand the reach of the police power and firmly concluded “that cannot be accomplished . . . under the Constitution of the United States.”130 The analysis continues with the familiar “general rule” that “if regulation goes too far it will be recognized as a taking,”131 and it concludes with a stern warning: “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”132

    In short, the opinion is a concise primer on the exercise of governmental power and the relationship between regulator and regulated in the modern industrial state. It is as much common sense as common or constitutional law.

    Perhaps the reason that the Supreme Court did not tinker with Mahon for the next half-century was that the message was so clear—and virtually unanimous133—that the Court did not believe any would be in doubt as to where the constitutional line was drawn. Remember, although the actual case involved only the issue of the coal company’s right to mine under one house, the Supreme Court explained that it exercised its discretion and took the case to deal with the broader issues so “further suits should not be brought in vain.”134 The Court’s intent was clearly to lay down a broad, general rule.135 And it did so. As Professor Eagle put it recently, “The most definitive guide to regulatory takings law remains Justice Holmes’s 1922 admonition in Pennsylvania Coal . . . .”136

    VI. Trust the Jury—As Both Penn Central and Del Monte Dunes Mandated—and Restrain the Judges as the Seventh Amendment Commands

    The right to a jury trial is the bulwark of American liberties.137 “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence”138 that it “should be jealously guarded by the courts.”139 Reverence for, and reliance on, juries has long been a cornerstone of our system of justice,140 “enshrined since the Magna Carta.”141 Professor Amar summarized that “[n]o idea was more central to our Bill of Rights . . . than the idea of the jury.”142 Remember that one of the charges in the Declaration of Independence justifying our split with England was “[f]or depriving us in many cases, of the benefits of Trial by Jury.”143 As the Supreme Court explained, “Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue.”144

    Indeed, in numerous cases challenging municipal actions on a vast array of constitutional grounds, juries have determined the issues. The common factor in these cases is “misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . .”145 For example, juries were invoked in cases examining policies related to such diverse (and important and invasive) subjects as city budget policy,146 municipal policy governing the use of force during arrests,147 municipal employment policy,148 city medical care policy,149 school district sexual abuse policy,150 the conflict between a police department’s chain-of-command policy and a township’s sexual harassment policy,151 and even the question whether “extortion of outsiders, businessmen, or developers . . . was ‘the way things are done and have been done’ in the Town.”152 There is no reason why juries cannot or should not evaluate the constitutional validity of municipal land use actions.

    The Seventh Amendment has two fundamental parts: the first guarantees the right to trial by jury wherever it was allowed at common law, and the second safeguards that right against judicial interference. The latter, sometimes referred to as the “Re-Examination Clause” says plainly that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

    The two parts of the jury concept must be allowed to work together. In takings cases, the decision of each case must be “ad hoc” based on its own facts, as the Court concluded in Penn Central,153 and those ad hoc determinations must be made by a jury (if demanded), as the Court held in Del Monte Dunes. Moreover, Del Monte Dunes concluded that the jury trial right applied “not only to common-law causes of action but also to statutory causes of action ‘analogous to common law causes of action ordinarily decided in English law courts . . .”154 in 1791, when the Seventh Amendment was adopted.155 The phrase “suits at common law” was intended to do no more than to distinguish suits traditionally tried to juries from those tried in admiralty or equity.156 The Seventh Amendment right to a jury trial applies to “all but” those cases involving solely equitable remedies.157 When “legal” issues are presented, a jury is mandated upon request.158

    Then comes the key: the Re-Examination Clause at the end of the Seventh Amendment. In plain English, once the jury has done its job, judges need to keep their hands off the result.

    As noted earlier, one of the key problems in Bridge Aina Le‘a was that the Court of Appeals could not keep its hands off the jury’s work product. Instead of simply reviewing the jury’s work in light of the evidence produced (as the trial judge did), the appellate judges decided to replace the jury with themselves. They essentially hijacked the case and redetermined facts that the jury had decided based on either conflicting or unopposed evidence and then reweighed the evidence while redetermining the credibility of witnesses. That is the sort of judicial interference with the process that has tainted this legal field for years and that needs to be forcefully ended.

    As Professor Tribe put it, the Re-Examination Clause “was adopted principally to protect jury verdicts from after-the-fact judicial interference, especially by appellate courts.”159 Professor Amar agrees that the Re-Examination Clause, “limiting appellate relitigation of facts found by a local jury, further illustrates the notion that appellate review was generally not seen as authorizing a ‘new trial’ by the appellate judges.”160

    The idea that facts are found “by a local jury,” as Professor Amar put it is a critical part of the litigational puzzle. In Bridge Aina Le‘a, for example, the case dealt with the uses to which more than a thousand acres of volcanic lava could be put and how it should be treated by regulators. That issue raises questions of fact that are more properly dealt with by local Hawaiian citizens than by appellate judges far removed from the scene. An amicus curiae brief in Bridge Aina Le‘a that was filed by four Takings Scholars (including one from the University of Hawaii) put it thus:

    [W]ho would know more than a jury of local people about lava fields, one type of lava versus another, and what the local experience has been as to the practical use of those areas? School children in Hawaii know the difference between pahoehoe and a’a. They go on field trips to volcanos. It is around them all the time.161

    As the Seventh Amendment dictates, deference to the local jurors’ knowledge should have been the rule applied. The Supreme Court has long held that traditional jury functions are to be performed by juries, not usurped by reviewing courts: “[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. ‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’”162

    Strangely, regulatory taking cases seem to be particularly subject to this kind of appellate court “fact-finding.” That is strange, because appellate courts have bemoaned becoming involved in land regulation cases, complaining that they were not created to be “the Grand Mufti of local zoning boards.”163 Nor, they have said, do they “sit as . . . super zoning board[s] or . . . zoning board[s] of appeals.”164 In other words, they do not want the job of reviewing land use cases. And yet, repeatedly (as demonstrated in spades in Bridge Aina Le‘a), they have inserted themselves into just such a position by ruling “as a matter of law” that regulatory actions do not meet the standards to become takings.

    Conclusion

    Enough. It is time to hit the reset button. In the forty-plus years that the courts have been deciding regulatory takings cases, they have failed to come up with a coherent legal standard. Penn Central—the Supreme Court’s erstwhile “polestar” in the field—is neither law nor helpful. It is no more than an aspirational hope that lower courts will evaluate each case on its own merits. But all that has done is to allow courts (like the Ninth Circuit in Bridge Aina Le‘a) to do whatever they please. They are tethered to no actual rules or standards, and they do not even feel compelled to comply with the Seventh Amendment as a litigational roadmap.

    For the good of the judicial system, and the citizens who rely on it to protect their rights and resolve their disputes, the Supreme Court needs to do with Penn Central what it did with Williamson County in Knick. It needs to candidly admit that it made a mistake and sweep the decks clean of the multiple confusing cases decided both by the Supreme Court itself and by federal appellate courts like the Ninth Circuit. It should retain the idea that each regulatory taking case needs to be evaluated on its own facts and that such an evaluation needs to be made by a jury. Absent grievous error, the jury’s answer should always prevail.

    As this article was going to press, the Supreme Court decided two cases that may help to civilize takings law. They will not resolve the core issues raised here, but they will surely help. In Pakdel v. San Francisco,165 the Court fortified the distaste that Knick had shown for the confusing ripeness rules that had bedeviled takings law for decades. It also reinforced that “the Fifth Amendment enjoys ‘full-fledged constitutional status’” and thus property owners’ claims may not be relegated “‘to the status of a poor relation’ among the provisions of the Bill of Rights.”166 In Cedar Point, the Court emphasized that the Fifth Amendment guards against all takings, whether they be permanent or temporary, physical or regulatory, and regardless of the size of the taking. Although neither case dealt with the underlying flaws of Penn Central and its progeny, the Court’s distaste for governmental overreaching is apparent. Moreover, the opinion quotes the country’s Founders on the importance of protecting the rights of property owners and the importance of each of the classic “sticks” in the bundle of sticks that we all studied in first-year property law courses. We should be optimistic about the future.

    Endnotes

    1. Bridge Aina Le‘a v. State of Hawaii, 950 F.3d 610, 617, 630 (9th Cir. 2020).

    2. Bridge Aina Le‘a v. State of Hawaii Land Use Commission, 141 S. Ct. 731 (2021) (Thomas, J., dissenting).

    3. See, e.g., Robert Bly, More Than True: The Wisdom of Fairy Tales (2018).

    4. For history, see Mother, May I Go out to Swim, Robert Waltz & David E. Engle, The Traditional Ballad Index (2021), http://www.fresnostate.edu/folklore/ballads/Br3325.html.

    5. When we speak of the Fifth Amendment’s just compensation guarantee, we include the Fourteenth Amendment’s incorporation of that guarantee against state and local government. See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897).

    6. R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731,735–36 (2011). For expanded discussion, see sources cited infra notes 62–73 and accompanying text.

    7. Bridge Aina Le‘a, LLC v. Haw. Land Use Comm’n, Civ. No. 11-00414 SOM-KJM, 2018 WL 3149489, at *7.

    8. Id.

    9. Bridge Aina Le‘a v. State of Hawaii, 950 F.3d 610, 617, 630 (9th Cir. 2020).

    10. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

    11. Aina Le‘a, 2018 WL 3149489, at *20.

    12. Aina Le‘a, 950 F.3d at 630, 637.

    13. Aina Le‘a, 141 S. Ct. 731.

    14. There are several kinds of Hawaiian lava. “The smooth variety is called pahoehoe, and the rougher variety is known as a’a (pronounced ah-ah). A’a is a Hawaiian word meaning ‘stony with rough lava’. . . . If you’ve ever been to the Big Island of Hawaii and gone for a hike, you’ve seen a’a lava. It’s incredibly rough and jagged black rock that takes forever to walk across; and tears your shoes apart as you go.” A’a Lava, Universe Today (Apr. 22, 2009), c. The evidence in Bridge Aina Le‘a showed that the a’a had to be dynamited to be useful.

    15. See Nothing to See Here, Urb. Dictionary, https://www.urbandictionary.com/define.php?term=nothing%20to%20see%20here (last visited June 11, 2021).

    16. Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922). Mahon is discussed in greater detail. See infra text accompanying notes 122–35.

    17. See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 652 (1981) (Brennan, J., dissenting, but expressing the substantive views of five Justices); Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984); First Eng. Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Preseault v. ICC, 494 U.S. 1 (1990); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994); City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702 (2010) (plurality opinion); Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013); Horne v. U.S. Dep’t of Agric., 135 S. Ct. 2419 (2015).

    18. For possible insight, see Kimberly Strawbridge Robinson, Supreme Court Adds Layer of Due Diligence: Relists Explained, Bloomberg Law (Jan. 4, 2021), https://news.bloomberglaw.com/bankruptcy-law/supreme-court-adds-layer-of-due-diligence-relists-explained.

    19. I am not alone in borrowing this terminology to describe takings law. The Texas Supreme Court has described the attempt to decide when a regulation has gone too far as a “sophistic Miltonian Serbonian Bog.” Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 671 n.52 (Tex. 2004).

    20. See Michael M. Berger, The Joy of Takings, 53 Wash. U.J.L. & Pol’y 189 (2017).

    21. W.C. Fields, Quotes, https://www.quotes.net/quote/12967 (last visited June 11, 2021).

    22. Williamson Cnty. Reg. Plan. Agency v. Hamilton Bank, 473 U.S. 172 (1985).

    23. See the harsh criticisms collected in Michael M. Berger & Gideon Kanner, Shell Game! You Can’t Get There from Here. Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 Urb. Law. 671, 702–03 (2004)

    24. See Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (calling Williamson County “not just wrong [but] exceptionally ill-founded [and] unworkable in practice”). As the Court finally recognized, suing in state court to “ripen” a virtually identical federal issue, actually consigned the issue to the “preclusion” dumpster; see also Ilya Somin, Knick v. Township of Scott: Ending a Catch-22 That Barred Takings Cases from Federal Court, Cato Sup. Ct. Rev. 153 (2019) (noting “a long-overdue end to a badly misguided precedent”). For an up-to-date look at takings law in the post-Knick era, see David Callies, Regulatory Takings After Knick (2020).

    25. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123 (1978). Spoiler alert: this is just about the only thing that I believe the Supreme Court got right in Penn Central. Of this, more later.

    26. City of Monterey v. Del Monte Dunes, 526 U.S. 687, 720–21 (1999).

    27. Direct condemnations had provided a steady stream of cases, many arising from wartime acquisitions, largely related to valuation issues. See, e.g., United States v. Gen. Motors Corp., 323 U.S. 373 (1945); Pewee Coal Co. v. United States, 341 U.S. 114 (1951); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). Cases in which the government does not intend to take property but the effect of its actions is to do so are grouped in the category of “inverse” or “reverse” condemnation and subjected to the same rule of compensation once a taking is found. In every inverse condemnation case, the governmental defendant denies that it has taken anything. For example, even after losing the Del Monte Dunes case at all judicial levels, counsel for the city was quoted as saying, “Will it change anything? No. It was clear we complied with the law then. We comply with the law now.” Kristi Belcamino, Monterey Loses Long Court Battle, Herald (Monterey Cnty.), May 25, 1999, at A10.

    28. See Del Monte Dunes, 526 U.S. at 717.

    29. E.g., United States v. Causby, 328 U.S. 256 (1946); United States v. Dickinson, 331 U.S. 745 (1947).

    30. This phrase has recently been referred to as an “anti-circumvention” rule (i.e., a way to preclude government from indirectly circumventing the requirement to pay for property taken for public use). See Thomas W. Merrill, The Eagle Theory, 9 Brigham-Kanner Prop. Rts. J. 17, 31 (2020).

    31. 416 U.S. 1 (1974); see Callies, supra note 24, at 4.

    32. 416 U.S. at 6, 9.

    33. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

    34. Not only was there a group of picketers outside the Supreme Court building during oral argument, but it was led by President Kennedy’s widow, a surefire way to attract attention. See generally Gideon Kanner, Making Laws & Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill Rts. J. 679, 743 (2005).

    35. Transcript of Oral Argument at 68, Cedar Point Nursery v. Hassid, No. 20-107 (U.S. Mar. 22, 2021) (emphasis added).

    36. See, e.g., Steven J. Eagle, Opening Remarks: The State of Regulatory Takings Jurisprudence, 9 Brigham-Kanner Prop. Rts. J. 5, 7 (2020) (“Now I—and just about every other regulatory takings scholar—have bemoaned the fact that Penn Central is in fact both incoherent and not very predictive.”); Kanner, supra note 34, at 680 (noting “dubious provenance and inconsistency with the Supreme Court’s preexisting taking jurisprudence”). See authorities cited infra note 64.

    37. At some point, and without explanation, “distinct” was transmogrified into “reasonable,” a more difficult hurdle for a property owner to clear.

    38. Id. at 123. Other courts have concluded that there may be ten or more such “factors” to analyze. E.g., Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851, 860 (Cal. 1997).

    39. 438 U.S. at 136. This may not have been entirely accurate, see William W. Wade, Sources of Regulatory Takings Economic Confusion Subsequent to Penn Central, 41 Env’t L. Rep. News & Analysis 10936, 10937 (2011), but Penn Central’s counsel conceded the point at oral argument, Penn Central, 438 U.S. at 129-30, 129 n.26.

    40. Kaiser Aetna v. United States, 444 U.S. 164 (1979).

    41. Agins v. City of Tiburon, 447 U.S. 255 (1981). For a post-mortem on Agins, see Gideon Kanner & Michael M. Berger, The Nasty, Brutish, and Short Life of Agins v. City of Tiburon, 50 Urb. Law. 1 (2019).

    42. As we are discussing confusion in the jurisprudence, it may be worth noting that Agins did not employ the Penn Central mode of analyzing factors (although the ink on the Penn Central opinion was still—figuratively—wet), but created its own rule of takings liability based on deprivation of “economically viable use” or failure to substantially advance a legitimate state interest. The latter half of that test was scrapped twenty-seven years later when the Supreme Court conceded that it was really a due process test, not a takings test. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 540 (2005).

    43. California, the source of much regulatory takings litigation, was adamantly in the “strike it down” camp, its supreme court expressing the concern that compensation could cause government to grind to a halt. That was the rationale of the Agins case noted above.

    44. First Eng. Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 310 (1987).

    45. Ripeness in regulatory taking cases is unlike ripeness as applied elsewhere in the law. See, e.g., Michael M. Berger & Daniel R. Mandelker, A Plea to Allow the Federal Courts to Clarify the Law of Regulatory Takings, 42 Land Use Law & Zoning Digest, Jan. 1990, at 3; Michael M. Berger & Gideon Kanner, Shell Game! You Can’t Get There from Here. Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 Urb. Law. 671 (2004); Michael M. Berger, The Ripeness Game: Why Are We Still Forced to Play?, 30 Touro L. Rev. 297 (2014). The fundamental issue was resolved in Knick v. Township of Scott, as noted supra note 24.

    46. First Eng., 482 U.S. at 318–19 (“Where th[e] burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during th[e] period [that the regulation was in effect].”).

    47. Rather like Lord Dundreary’s conundrum from Our American Cousin (the play President Lincoln was watching on the last day of his life), “[I]f you had a brother would he eat cheese?”

    48. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).

    49. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005). Having noted that, Lingle said that the Penn Central factors are “storied but cryptic,” id. at 537, adding yet more unhelpful verbiage to the stew the Supreme Court was concocting.

    50. Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 326 (2002) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1005 (1992), which, in turn, quoted Penn Central, 438 U.S. at 124).

    51. Palazzolo, 533 U.S. at 617.

    52. Tahoe-Sierra, 535 U.S. at 326.

    53. Id. at 326 n.23 (quoting with approval from Palazzolo, 533 U.S. at 633 (O’Connor, J., concurring)).

    54. Bridge Aina Le‘a v. State of Hawaii Land Use Comm’n, 141 S. Ct. 731 (2021) (Thomas, J., dissenting).

    55. Horace Greeley, 1 The American Conflict: A History of the Great Rebellion in the United States of America, 1860–’65, at 106 (1865).

    56. For discussion, see, for example, H. Jefferson Powell, Cardozo’s Foot: The Chancellor’s Conscience and Constructive Trusts, 56 Law & Contemp. Prob. 7 (1993).

    57. Bridge Aina Le‘a v. State of Hawaii, 950 F.3d 610, 632 (9th Cir. 2020).

    58. Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21, 36 (1999).

    59. See also Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed. Cir. 2004) (concluding that a 92% loss of value in one part of the land and a 78% loss in another part “is manifestly insufficient” under Lucas); Cienega Gardens v. United States, 331 F.3d 1319, 1344 (Fed. Cir. 2003) (concluding that Lucas requires a loss of “100% of a property interest’s value”); Lost Tree Vill. Corp. v. United States, 787 F.3d 1111, 1115–17 (Fed. Cir. 2015) (concluding that the Lucas rule applied to a 99.4% deprivation because the residual value was attributable to noneconomic uses); Colony Cove Props. v. City of Carson, 888 F.3d 445, 451 (9th Cir. 2018) (reversing trial court’s Penn Central verdict in favor of the property owner); Laurel Park Cmty., LLC v. City of Tumwater, 698 F.3d 1180, 1189 (9th Cir. 2012) (finding that a “less than 15%” economic loss with respect to one property and no effect on two other properties “does not support a takings claim”); St. Bernard Parish Gov’t v. United States, 887 F.3d 1354, 1366 (Fed. Cir. 2018) (reversing trial court); Love Terminal Partners v. United States, 889 F.3d 1331, 1345 (Fed. Cir. 2018) (reversing trial court). Adding to this confusion, many lower courts (including the Ninth Circuit in Bridge Aina Le‘a) refer to older Supreme Court cases that were decided before Lucas or Penn Central or any of the other recent decisions in order to show that large value diminutions did not result in takings. It would be a service if the Supreme Court acknowledged that these older cases cannot be so invoked. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (75%); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (88%).

    60. Bridge Aina Le‘a v. State of Hawaii Land Use Comm’n, 141 S. Ct. 731, 732 (2021) (Thomas, J., dissenting). Justice Sotomayor echoed this thought at the oral argument of the most recent takings case. Transcript of Oral Argument, supra note 35, at 54 (“Ad hoc won’t satisfy many people. . . . We need something that gives clear guidance.”).

    61. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting).

    62. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005).

    63. 1 Norman Williams, Jr. & John M. Taylor, American Land Planning Law 103 (2003 rev. ed.).

    64. See, e.g., Joseph L. Sax, The Property Rights Sweepstakes: Has Anyone Held the Winning Ticket?, 34 Vt. L. Rev. 157, 159 (2009) (noting that the Penn Central inquiry is an “open-ended, I-(hope)-I-know-it-when-I-see-it approach” to takings adjudication); Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Penn. St. L. Rev. 601, 602 (2014) (suggesting that “the [Penn Central] doctrine has become a compilation of moving parts that are neither individually coherent nor collectively compatible”); John D. Echeverria, Is the Penn Central Three-Factor Test Ready for History’s Dustbin? 52 Land Use L. & Zon. Dig. 3, 7 (2000) (“[T]he Penn Central test . . . is so vague and indeterminate that it invites unprincipled, subjective decision making by the courts.”); David L. Callies, Regulatory Takings and the Supreme Court: How Perspectives on Property Rights Have Changed from Penn Central to Dolan, and What State and Federal Courts Are Doing About It, 28 Stetson L. Rev. 523, 574 (1999) (surveying inconsistent judicial approaches and concluding that “state (and some lower federal) courts are not hearing (or not wanting to hear) the U.S. Supreme Court”).

    65. Echeverria, supra note 64.

    66. Id. at 4.

    67. E.g., Joseph William Singer, Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601, 606 (2015) (noting that “it is really hard to win a regulatory takings claim”) (emphasis added); Stewart E. Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 Yale L.J. 203, 227 (2004) (“Whenever the Court conducts a Penn Central analysis of a state or local regulation, the regulation stands.”) (emphasis added); Daniel R. Mandelker, Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer, 55 Real Prop., Trust & Estate L.J. 69, 96–97 (2020) (noting that “a takings claim is almost impossible to win”) (emphasis added); Carol N. Brown & Dwight Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa L. Rev. 1847 (2017) (indicating that Lucas plaintiffs succeed in only 1.7% of cases); Adam R. Pomeroy, Penn Central After 35 Years: A Three Part Balancing Test or A One Strike Rule?, 22 Fed. Cir. B.J. 677 692 (2013) (only 4 of 45 cases studied resulting in the property owner prevailing); Mark W. Cordes Takings Jurisprudence as Three-Tiered Review, 20 J. Nat. Resources & Env’t L. 1, 35 (2006) (noting that “the Penn Central factors have rarely resulted in takings being found”) (emphasis added); District Intown Properties Ltd. P’ship v. District of Columbia, 198 F.3d 874, 886 (D.C. Cir. 1999) (Williams, J., concurring) (“Few regulations will flunk this nearly vacuous test.”) (emphasis added).

    68. Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (Frankfurter, J., dissenting).

    69. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989).

    70. The Supreme Court has repeated these terms almost as a mantra in virtually every regulatory taking case that it has reviewed. A representative sample would include Dolan v. City of Tigard, 512 U.S. 374, 385 (1994); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485 (1987); Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 14 (1984).

    71. E.g., Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005).

    72. Robert Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q. 307, 334 (2007); see also Richard A. Epstein, From Penn Central to Lingle: The Long Backwards Road, 40 J. Marshall L. Rev. 593, 604 (2007) (“No one knows how much diminution in value is required.”).

    73. See infra notes 136–64 and accompanying text.

    74. See, e.g., Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 882 (D.C. Cir. 1999) (“To come within Lucas, a claimant must show that its property is rendered ‘valueless’ by a regulation.”); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998) (“Determining whether all economically viable use of a property has been denied entails a relatively simple analysis of whether value remains in the property after the governmental action.”).

    75. Brown & Merriam, supra note 67, at 1856.

    76. See Callies, supra note 24, at 7 (“Note that the Court writes of use and not value.”).

    77. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1044 (1992) (Blackmun, J., dissenting) (noting that “[p]etitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer”).

    78. Brown & Merriam, supra note 67, at 1857.

    79. 260 U.S. at 414.

    80. 320 U.S. 591 (1944).

    81. 438 U.S. at 136.

    82. Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 332 (2002).

    83. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005).

    84. Decisional law is replete with eminent domain cases in which private property was taken “for the duration” of a war, for example. Compensation was mandatory for that period. See, e.g., United States v. Gen. Motors Corp., 323 U.S. 373 (1945); Kimball Laundry Co. v. United States. 338 U.S. 1 (1949).

    85. First Eng. Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

    86. Id. at 318–19.

    87. Id. at 322.

    88. 450 U.S. 621 (1981) (Brennan, J., dissenting). Justices Stewart, Marshall, and Powell joined Justice Brennan’s dissent. In addition, although Justice Rehnquist concurred with Chief Justice Burger and Justices Blackmun, White, and Stevens that the case was not final, he then noted his agreement with Justice Brennan’s group of four on the merits—if only the case had been final. Id. at 633 (Rehnquist, J., concurring).

    89. Id. at 657. As the Supreme Court later noted, First English “endorsed” Justice Brennan’s view and concluded that “nothing that we say today qualifies [First English’s] holding.” Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 328 (2002).

    90. Tahoe-Sierra, 535 U.S. at 333–36.

    91. Id. at 333.

    92. 505 U.S. at 1010–14 (noting that state’s amendment of statute did not preclude taking during the two years the original statute was in effect); id. at 1032–33 (Kennedy, J., concurring.) (“If this deprivation amounts to a taking, its limited duration will not bar constitutional relief.”).

    93. Bridge Aina Le‘a v. State of Hawaii, 950 F.3d 610, 630 (9th Cir. 2020).

    94. Indeed, Tahoe-Sierra expressly noted: “We do not hold that the temporary nature of a land use restriction precludes finding that it affects a taking; we simply recognize that it should not be given exclusive significance one way or the other.” Tahoe-Sierra, 535 U.S. at 337.

    95. See First Eng. Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

    96. James L. Oakes, “Property Rights” in Constitutional Analysis Today, 56 Wash. L. Rev. 583, 613 (1981).

    97. There is no end to the academic criticisms of takings law. See, e.g., Joseph L. Sax, Takings and Police Power, 74 Yale L.J. 36, 37 (1964) (noting “a welter of confusing and apparently incompatible results”); Frank Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of Just Compensation Law, 80 Harv. L. Rev. 1165, 1170 (1967) (“liberally salted with paradox”); Raymond R. Coletta, Reciprocity of Advantage and Regulatory Takings: Toward a New Theory of Takings Jurisprudence, 40 Am. U.L. Rev. 297, 299–300 (1990) (noting that regulatory takings law is a “chameleon of ad hoc decisions that has bred considerable confusion”).

    98. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).

    99. Aina Le‘a, 950 F.3d at 630, 637.

    100. To the extent that this discussion relies on facts drawn from the trial record and not recited in any published opinion, the facts can be found in the district court’s files and on the author’s computer.

    101. Id. at 617.

    102. Bridge Aina Le‘a, LLC v. Haw. Land Use Comm’n, Civ. No. 11-00414 SOM-KJM, 2018 WL 3149489, at *7.

    103. Id. That is, of course, an understatement; the evidence established that this hard, lava flow land had to be broken up with dynamite to be made useful at all. Hardly “agricultural.”

    104. Aina Le‘a, 950 F.3d at 618.

    105. DW Aina Le‘a Dev., LLC v. Bridge Aina Le‘a, LLC., 339 P.3d 685, 688 (Haw. 2014).

    106. Aina Le‘a, 2018 WL 3149489, at *8.

    107. DW Aina Le‘a Dev., 339 P.3d at 712.

    108. As the Chief Justice put it recently, regulatory takings law is designed to weigh “the effect of a regulation on specific property rights as they are established at state law.” Murr v. Wisconsin, 137 S. Ct. 1933, 1955 (2017) (Roberts, C.J., dissenting).

    109. Aina Le‘a, 2018 WL 3149489, at *20, *26.

    110. In typical fashion, Hawaii’s zoning regulations provide a laundry list of theoretically permitted uses in each zone. Id. at *6–7. That, of course, is no guarantee that each use is actually possible or economically productive.

    111. See id. at *7.

    112. Bridge Aina Le‘a v. State of Hawaii, 950 F.3d 610, 620 (9th Cir. 2020).

    113. Id. at 633.

    114. Id. at 629–30.

    115. Id.

    116. Id. at 627–28.

    117. Id. at 631.

    118. Id. at 633.

    119. Id. at 634.

    120. Id. at 635.

    121. Roger Traynor, Badlands in an Appellate Judge’s Realm of Reason, 7 Utah L. Rev. 157, 166 (1960).

    122. Michael M. Berger, Property, Democracy, and the Constitution, 5 Brigham-Kanner Prop. Rts. Conf. J. 45, 53 (2016).

    123. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

    124. Id.

    125. Note that “public use” has not literally meant “use by the public” for many years. See Kelo v. City of New London, 545 U.S. 469 (2005).

    126. Pa. Coal, 260 U.S. at 413.

    127. Id.

    128. Merrill, supra note 30, at 31–32 (2020). For further explication, see Thomas W. Merrill, Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630, 1637 (2015).

    129. The location of the line separating police power from eminent domain would repeatedly bedevil the Supreme Court. See, e.g., Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984) (“The ‘public use’ requirement [in eminent domain] is thus coterminous with the scope of a sovereign’s police powers.”).

    130. Pa. Coal, 260 U.S. at 415.

    131. Id. at 416.

    132. Id.

    133. It should not go unremarked that Holmes wrote on behalf of an eight-Justice majority over the spirited dissent of his usual constitutional soulmate, Justice Brandeis.

    134. Pa. Coal, 260 U.S. at 414.

    135. Mahon has been cited thousands of times. (You can check that out on your computer: I almost said you could Shepardize it, but that would just verify my age. Does Shepard’s qua Shepard’s even exist anymore?) When the remedy issue was roiling the waters during the 1980s, Mahon was repeatedly cited with approval in the case that finally broke the logjam, First English, showing that it retained resilience even though the Supreme Court had only months earlier decided against a coal company raising a similar issue. See Keystone Bituminous Coal Co. v. DiBenedictis, 480 U.S. 470 (1987). Candidly, the only difference that I see between the cases is that Mahon dealt with anthracite coal, while Keystone dealt with bituminous coal.

    136. Steven J. Eagle, Opening Remarks: The State of Regulatory Takings Jurisprudence—A Tribute to Eagle, 9 Brigham-Kanner Prop. Rts. J. 5, 7 (2020).

    137. Dimick v. Schiedt, 293 U.S. 474, 486 (1935); Chauffeurs, Teamsters v. Terry, 494 U.S. 558, 565 (1990); see also 4 William Blackstone, Commentaries on the Laws of England 342 (1769) (identifying jury as the “grand bulwark” of English liberty).

    138. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959).

    139. Jacob v. City of New York, 315 U.S. 752, 752–53 (1942) (noting “basic and fundamental feature of our system of federal jurisprudence”).

    140. See United States v. Gaudin, 515 U.S. 506, 512–13 (1995) (“[T]he application-of-legal-standard-to-fact sort of question[s] ha[ve] typically been resolved by juries.”); TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976) (recognizing that a jury is well suited to weigh the “delicate assessments of the inferences a ‘reasonable [decisionmaker]’ would draw from a given set of facts”).

    141. United States v. Booker, 543 U.S. 220, 239 (2005).

    142. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169, 1169 (1995).

    143. The Declaration of Independence, para. 15 (1776).

    144. Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737 (1989) (emphasis added).

    145. Monroe v. Pape, 365 U.S. 167, 187 (1961).

    146. See Berkley v. Common Council, 63 F.3d 295 (4th Cir. 1995) (en banc).

    147. Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert. denied, 117 S. Ct. 1086 (1997).

    148. Richardson v. Leeds Police Dep’t, 71 F.3d 801 (11th Cir. 1995).

    149. See Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991).

    150. Gonzalez v. Ysleta Ind. Sch. Dist., 996 F.2d 745 (5th Cir. 1993).

    151. Gares v. Willingboro Twp., 90 F.3d 720 (3d Cir. 1996).

    152. Roma Constr. Co. v. aRusso, 96 F.3d 566 (1st Cir. 1996).

    153. See Tahoe-Sierra Pres. Council v. Tahoe Reg. Plan. Agency, 535 U.S. 302, 326 (2002) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1005 (1992), which, in turn, quoted Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978)).

    154. City of Monterey v. Del Monte Dunes, 526 U.S. 687, 710–11 (1999).

    155. See Custis v. Loether, 415 U.S. 189, 193 (1974). I have often wondered why the courts pay such deference to what the law was in England in the late 1700s. After all, we had just successfully concluded a revolution to free ourselves of the English yoke. Why worry about what the English did at the time that we severed our legal connection? But I digress.

    156. Parsons v. Bedford, 3 Pet. 433, 446 (1830).

    157. Granfinanciera v. Nordberg, 492 U.S. 33, 43–44 (1989); see Chauffeurs, Teamsters v. Terry, 494 U.S. 558, 564 (1990).

    158. Dairy Queen v. Wood, 369 U.S. 469, 472–73 (1962).

    159. Laurence Tribe, American Constitutional Law, § 3-32, at 624 (“The Seventh Amendment Right to Trial by Jury as a Limit on Federal Judicial Power”).

    160. Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 472–73 (1989).

    161. Brief for Four Takings Scholars as Amici Curiae in Support of Petitioner at 13, Bridge Aina Le‘a, LLC v. State of Hawaii Land Use Comm’n, No. 20-54, 2000 WL 5110615 (U.S. 2021).

    162. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150–51 (2000) (emphasis added) (citation omitted; quoting Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)).

    163. Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989); Dodd v. Hood River Cnty., 136 F.3d 1219, 1230 (9th Cir. 1998); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005); River Park, Inc. v. City of Highland Park, 23 F.3d 164, 165 (7th Cir. 1994). See generally Steven J. Eagle, Penn Central and Its Reluctant Muftis, 66 Baylor L. Rev. 1 (2014).

    164. Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir. 1985); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting) (“Our role is not and should not be to sit as a zoning board of appeals.”).

    165. 141 S. Ct. 2226 (2021).

    166. Id. at 2231 (quoting Knick).

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    Michael M. Berger

    Senior Counsel, Manatt, Phelps & Phillips, LLP; co-chair of the firm’s Appellate Practice Group. I have spent more than a half-century defending the rights of private property owners in court, including arguing four regulatory takings cases in the United States Supreme Court and participating as amicus curiae in many of the other important takings cases in that era. I have also taught takings law at the University of Miami, Washington University in St. Louis, and the University of Southern California. I would like to thank Professors Gideon Kanner, David Callies, and Janet Madden for their generous comments on this article as it was being written. Candor requires that I note that I wrote the petition for certiorari in the Bridge Aina Le‘a case that provides the jumping off point for this article.