United States v. Riverside Bayview Homes

Secondary Discussion Question 7

Under the reasoning of page 128 of the opinion, when will a taking ever be unconstitutional under the Fifth Amendment?

A bit of background is in order here. The general notion of a "taking" has its constitutional roots in the Fifth Amendment, which states, among other things: "No person shall ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation."   This last clause, stating that private property shall not be taken for public use without just compensation, is known as "the takings clause."  (You may read a brief digression on the rest of the Fifth Amendment if you wish.)

As to takings, the Framers presumably had in mind situations in which the government came along and took your land to build a palace, or construct a barracks, or simply because the King wanted bigger forests in which to hunt wild boar.

Riverside Bayview Homes, in contrast, is about a "regulatory taking" rather than this traditional, absolute taking. A "regulatory taking" involves a regulation that reduces the value of land but does not involve an actual transfer of title. The incomplete nature of the regulatory taking makes it a much trickier proposition, for constitutional purposes, than a traditional taking. Just how much reduction in value is enough to make a "taking"? After all, governments enact regulations all the time that may lead to some reduction in value. Zoning regulations, limits on the discharge of air or water pollutants, the need to follow standards on working hours or occupational safety--all of these activities reduce the value of residential or commercial property. Are they all takings?

At the time of Riverside Bayview Homes, the Supreme Court had noted the question of regulatory takings, but not done much about it. The second paragraph of section II states that the Court has "frequently suggested that governmental land-use regulation under extreme circumstances may amount to a 'taking' of the affected property." That "suggested" is a clue that the Supreme Court had actually yet to hold that such a taking had occurred.

(The Supreme Court's jurisprudence on regulatory takings has since become actual rather than hypothetical.   We won't examine this jurisprudence further here, however. We'll simply concentrate on what the Court actually did in Riverside Bayview Homes.)

The Court in Riverside Bayview Homes essentially noted three different barriers to holding that the governmental regulation at issue in the case constituted a taking:

First, the Court notes that the requirement of a permit system is not the same as a taking. Permits may be granted rather than denied, in which case there is presumably no taking. This barrier to finding a taking would presumably apply with respect to any permitting scheme, although presumably this particular barrier falls if the party asserting the taking has been denied a permit for the relevant activity.

Second, the denial of a permit for, i.e., dredging or filling a wetland, is not necessarily enough of a reduction in the value of the land in question to constitute a taking. Land has many uses, after all. Perhaps the land is nearly as valuable to the owner as a duck blind or gently swaying cattails on a warm summer night as it would be if converted from wetlands to dry land. One might also imagine that "the land" is open to some definition: perhaps "the land" is a whole parcel of land, only a small fraction of which is wetlands, and thus the value of "the land" may remain nearly the same whether the section 404 permit is granted or denied with respect to the wetlands on that land. This barrier to finding a taking would presumably apply in any case where a permit was denied, although one might imagine overcoming the barrier on the particular facts of any case.

Third, the Court, in the final paragraph of section II, discusses how the availability of a remedy affects the existence of a taking. Generally, says the Court, "so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional." The Constitution does not prohibit takings, after all; it simply prohibits takings without just compensation. The Tucker Act provides a presumptive "means of obtaining compensation for any taking that may occur," and so, according to the Supreme Court, the Circuit Court below was wrong to worry so profoundly about the takings aspects of the section 404 permitting scheme as to interpret the Corps' rule narrowly for fear of otherwise creating a constitutional violation.

Note that this last idea -- that the availability of a remedy for a taking means that the taking is not unconstitutional -- is potentially quite broad. To see why, we first need to examine the Tucker Act and then examine the implications of the Court's position in light of that examination of the Tucker Act.

The crucial, opening sentence of the Tucker Act reads:

"The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort."

The Tucker Act is written as if it's simply a jurisdictional statute. It doesn't distinguish section 404 takings claims from other takings claims arising under other parts of the Clean Water Act, nor does it distinguish regulatory-takings claims from traditional takings claims, nor does it distinguish takings claims under the Fifth Amendment from any other constitutional claim against the government. Indeed, the statute doesn't set forth any distinction among constitutional claims, statutory claims, contractual claims, and any other non-tort-based damages claims against the US government. It just says, "If you have a claim against the federal government, then go to the Court of Federal Claims." (Later portions of the statute tell you that the Court of Federal Claims has the powers of a US District Court, and that appeals from the Court of Claims go to the US Court of Appeals for the Federal Circuit.)

The Tucker Act does at least imply that remedies exist for the claims with respect to which the Court of Federal Claims has jurisdiction. The fact that the Tucker Act tells you where to sue the United States on a constitutional claim implies that the United States does allow you to sue it on some constitutional claims, and thus that the United States has waived its sovereign immunity with respect to at least some constitutional claims. The Tucker Act does not itself say anything explicit about waivers of sovereign immunity, however. So the Tucker Act stands for the proposition that you can sue the federal government (in the Court of Federal Claims) for all sorts of things, including constitutional claims, which in turn include takings claims.

Yet the Court appears to cite the Tucker Act for the proposition that a remedy is potentially available for those alleging unconstitutional takings, and thus that the taking isn't really unconstitutional at all. Since the Tucker Act doesn't distinguish among takings claims against the federal government, the Court's reasoning implies that no taking by the federal government is unconstitutional. 

On one level, that's quite a broad proposition: there are no unconstitutional takings.  On another level, maybe it makes no difference at all.  The Constitution says that no takings shall occur without just compensation.  If the Tucker Act ensures that the landowner receives just compensation, then the result is acceptable: the land gets taken, but the landowner is compensated, and thus made whole.

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This page was last updated on 03/09/99.