Mahon Statute--The Kohler Act

This case involves only mining which causes subsidence of a dwelling house. But the Kohler Act contains provisions in addition to that quoted above; and as to these, also, an opinion is expressed. These provisions deal with mining under cities to such an extent as to cause subsidence of--

(a) Any public building or any structure customarily used by the public as a place of resort, assemblage, or amusement, including, but not limited to, churches, schools, hospitals, theaters, hotels, and railroad stations.

(b) Any street, road, bridge, or other public passageway, dedicated to public use or habitually used by the public.

(c) Any track, roadbed, right of way, pipe, conduit, wire, or other facility, used in the service of the public by any municipal corporation or public service company as defined by the Public Service Law, section 1.

Pennsylvania Coal: Important Excerpts from Holmes and Brandeis

 Holmes (majority opinion)

1. p. 813:  "To make it commercially  impracticable  to  mine  certain  coal  has  very  nearly  the  same effect for  constitutional purposes as appropriating or destroying it. This we think that we are warranted in assuming that the statute does."

2. Id.: "The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so short  sighted as to acquire only surface rights without the right of support,   we see no more authority for supplying the latter without compensation than there was for taking the  right of way in the first place and  refusing  to  pay  for  it  because  the  public  wanted  it   very  much.  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.... When  this  seemingly absolute  protection  is found  to  be  qualified  by  the  police  power,  the  natural  tendency of  human nature  is  to  extend  the  qualification  more  and  more  until  at  last  private property disappears. But that cannot be accomplished in this way under the Constitution of the United States.

3. Id.: "The general rule at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." [How far is too far? How far did Holmes think it was?]

4. Id.: "We assume, of course that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought."

Brandeis (dissenting opinion)

1. p. 814: "But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public." [Does the police power purpose go to the public use requirement? Or to whether a taking has occurred?]

2. Id. at 814-815: "It is said that one fact for consideration in determining whether the limits of the police power have been exceeded is the extent of the resulting diminution in value; and that here the restriction destroys existing rights of property and contract. But values are relative. If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property."

 [How does this understanding of the "too far" test compare to Holmes understanding? This debate is over what we call the denominator issue in regulatory takings jurisprudence.]

Physical Takings vs. Regulatory Takings

 Notice that the cases we have discussed so far all involve physical takings: Berman (blighted land taken from original owners and transferred to developers for re-development; Midkiff (Fee Simples taken from oligopolist landlords and re-sold to tenants); Kelo (land taken from homeowners and leased to developers); Causby (government aircraft physically intruding on private airspace); Loretto (cable companies authorized to trespass on private apartment buildings): Cedar Point ("California regulation grants labor organizations a 'right to take access' to an agricultural employer’s property").

Physical takings--no matter how small--trigger a per se rule requiring just compensation. Period! 

What is the difference between a physical taking and a regulatory taking? Was the taking in Mahon a regulatory taking, or was it a physical taking requiring certain coal to physically be left in the ground to provide physical support for structures built on the surface?

Physical Takings vs. Regulatory Takings: Let's Think About These Questions

Here are some questions which, I think, may help tease out some important issues about physical takings vs. regulatory takings and about the distinction between forbidding harmful behavior (crimes or nuisances) and regulations that are designed, not to forbid a harmful use, but to require a beneficial use. Here are the questions:

1. Suppose the police shut down an illegal drug house under laws prohibiting the sale of illegal drugs. Does this constitute a "taking" of real property that requires just compensation? If your answer is no (as I assume it is), how is this case different from Mahon?

2. Both Penn Central and Causby deal with government control of the airspace over private land. Should the cases have been decided the same way? Why or why not? Which taking of airspace caused more economic damage?

3. Is it possible to draw a distinction between regulations of property that forbid a harmful or wrongful activity and regulations that attempt to take (use) private property for the benefit of the public? What about landmark preservation laws? Do they forbid a harmful use (destroying a landmark)? Or do they attempt to acquire a public benefit (a public landmark museum) without the cost of paying for it?

The Law of Public Use

Here is a nice statement of the law of "public use" from  Justice O'Connor's dissent (p. 802):

"Our cases have  generally  identified  three  categories  of  takings  that comply with the public use requirement, though it is in the nature of things that the boundaries  between these categories are not always firm. Two are relatively  straightforward  and   uncontroversial.  First,  the  sovereign  may transfer private property to public ownership—such as for a road, a hospital, or a military base. 

 Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use—such as with a railroad, a public utility, or a stadium…. 

[Third] But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain  circumstances  and  to  meet  certain  exigencies,  takings  that  serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See.e.g., Berman v. Parker, 348 U.S. 26 (1954);Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)."
   

Should the Constitution be forsaken whenever Justices believe it is "too constricting" or "too impracticable"?  Should we allow warrant-less searches by the police whenever compliance with the Fourth Amendment is deemed  too constricting and impractical? 

See also this great quotation from Justice Thomas' dissent (p. 805):

"Long ago, William Blackstone wrote that “the law of the land ... postpone[s] even public necessity
to the sacred and inviolable rights of private property.”1   Commentaries   on   the   Laws   of   England   134-135   (1765)   (hereinafter Blackstone).   The  Framers  embodied  that  principle  in  the  Constitution, allowing  the  government  to  take  property  not  for  “public  necessity,”  but instead  for  “public  use.”  Amdt.  5.  Defying   this  understanding,  the  Court replaces the Public Use Clause with a “‘[P]ublic [P]urpose’”  Clause, ante, at 2662- 2663 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause,  ante, at 2662 (capitalization added)), a restriction that is satisfied, the  Court  instructs,  so   long  as  the  purpose  is  “legitimate”  and  the  means “not  irrational,”  ante,  at  2667   (internal  quotation  marks  omitted).  This deferential  shift  in  phraseology  enables  the   Court  to  hold,  against  all common sense, that a costly urban-renewal project whose stated  purpose is a vague  promise  of  new  jobs  and  increased  tax  revenue,  but  which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”"

Miller v. Schoene

As part of our discussion of Penn Central, I would like to discuss Miller v. Schoene (discussed at casebook p. 828).

The Court held there was no compensable taking in that case. Do you agree? Disagree? Why?

Why not tax the apple growers who benefit from the taking and use the proceeds to compensate the owners of the cedar trees?

Categorical Rules vs. Ad Hoc Balancing Tests

In the Penn Central case, the Supreme Court admits that its test for "regulatory takings" is essentially an "ad hoc" test, because the Court has been "unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries be compensated by the government, rather than remain disproportionately concentrated on a few persons." (p. 827)

Is liberty secure when the Court is unable to draw a clear line in the sand to protect that liberty?

Suppose the Court said that free speech was protected only by a multi-factor ad hoc balancing test that would seek to weigh the importance of the speech against the state's police power interests in restricting speech? How secure would freedom of speech be if freedom depended upon convincing a court in each case about the worthiness of your message?

Should the Court adopt a categorical rule in regulatory takings cases, one that requires compensation whenever a regulation results in, for example, a decrease in value in excess of 10% or 20%? This would allow most ordinary regulations of property to go forward without compensation, but would draw a reasonably clear line protecting property from confiscatory regulations beyond a reasonably ascertainable point.

U.S v. Causby (p. 730)

 This is an “inverse condemnation” action brought by a landowner against the United States.  

What is “inverse condemnation?” [What is a “condemnation” action?]

This is simply a shorthand description used by courts to describe an action brought by a property owner who claims his property has been de facto taken by a government entity. 

    What is the landowner’s complaint?

    He claims that his property, a chicken farm, has been taken without compensation by army and navy aircraft flying over his land at very low altitudes – his land is located near an airport and the “path of glide” to one of the runways passes directly over his property. 

These low overflights produce a great deal of noise and vibration and has resulted in the destruction of his chicken business (Chicken Little—sometimes the sky really is falling! p. 731)

    Should this be considered a taking? Why or why not?

    The United States government admitted that if the overflights had rendered the land totally useless and uninhabitable there would be a compensable taking and the government would be required to pay damages.  But also argues that since the damage is not total, there is no taking and no compensation needs to be paid. (p.732).

What do you think of that argument?  (See p. 733)

 “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.”

The size of the taking goes to the amount of compensation, not to whether a taking has occurred. 

Wild Plum Trees

 

                                        Wild Plum Trees in Bloom

Yesterday, when I told you about how sad I felt when the county took some of my land to widen 82nd street in Hickman, these are the wild ditch trees I mentioned (not the actual trees, but the same type of tree). They were taken and the county refused to value them because they were not landscape trees. But they were beautiful in Spring, and provided a nice habitat for little critters. They meant a lot to me. I loved walking the gravel roads of rural Lancaster County! And those trees announced the coming of Spring.

I told you about my personal experience because I wanted to give you an idea how it feels to have your home taken by government--even for a legitimate public use. If having these wild plum tress (and a small strip of ditch land) taken caused me quite a bit of grief, how much more must it hurt to have your entire home taken for the benefit of economic development and Pfizer or General Motors! I understand how Ms. Kelo felt about her little pink house. It is like how Holmes described the doctrine of adverse possession of land:

 "The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life."

Post-Kelo Reform in Nebraska

I want to make sure you understand why this law is considered by commentators such as Prof. Somin to be only a "cosmetic" response to Kelo (as opposed to a law that makes a real difference).

Although the law prohibits takings made "primarily for an economic development purpose," it specifically allows takings that are secondarily for economic development purposes if the taking is "based upon a finding of blighted or substandard conditions."

If you were a lawyer advising a city wishing to use the power of eminent domain in furtherance of economic development, how would you take advantage of this law? Would you build a record focusing on "blight" or "substandard conditions" in the targeted area, and then take the "substandard property" and transfer it to private developers such as GM or some other large company who would bring jobs and economic growth to the community?

The law is not useless, but it has some loopholes that will permit economic development takings to take place under the guise of eliminating "blight" or "substandard conditions."

By the way, although Kelo is an unpopular decision, economic development takings often produce great benefits to communities. Economic growth--good jobs and an influx of money into the local economy--is a good thing that benefits many families and many sub-communities. Everyone likes the economic benefits, but no one wants their home to be in the path of change.

76-710.04. Economic development purpose; restriction on use of eminent domain.

(1) A condemner may not take property through the use of eminent domain under sections 76-704 to 76-724 if the taking is primarily for an economic development purpose.

(2) For purposes of this section, economic development purpose means taking property for subsequent use by a commercial for-profit enterprise or to increase tax revenue, tax base, employment, or general economic conditions.

(3) This section does not affect the use of eminent domain for:

(a) Public projects or private projects that make all or a major portion of the property available for use by the general public or for use as a right-of-way, aqueduct, pipeline, transmission line, or similar use;

(b) Removing harmful uses of property if such uses constitute an immediate threat to public health and safety;

(c) Leasing property to a private person who occupies an incidental part of public property or a public facility, such as a retail establishment on the ground floor of a public building;

(d) Acquiring abandoned property;

(e) Clearing defective property title;

(f) Taking private property for use by a utility or railroad;

(g) Taking private property based upon a finding of blighted or substandard conditions under the Community Development Law if the private property is not agricultural land or horticultural land as defined in section 77-1359; and

(h) Taking private property for a transmission line to serve a privately developed facility generating electricity using wind, solar, biomass, or landfill gas. Nothing in this subdivision shall be construed to grant the power of eminent domain to a private entity.

Source:Laws 2006, LB 924, § 2; Laws 2010, LB1048, § 9.

Cross References

Community Development Law, see section 18-2101.

Annotations

This section does not prevent a city from acquiring private property for use as a deceleration lane on an existing public road for traffic control and safety purposes, even if the deceleration lane is contiguous to access to a retailer. City of Omaha v. Tract No. 1, 18 Neb. App. 247, 778 N.W.2d 122 (2010).

This section prohibits the use of eminent domain only where its primary purpose is economic development, and not where economic development may be a collateral benefit. City of Omaha v. Tract No. 1, 18 Neb. App. 247, 778 N.W.2d 122 (2010).

How effective is this legislation in dealing with the perceived injustice of Kelo? Does your answer depend on how the courts construe subsection (g) and permissible takings involving blighted or substandard property?

Neb.Rev.Stat. §76-701 to §76-724 generally govern the procedures and particulars of eminent domain in Nebraska.

Justice Black in Causby: "Old Concepts" of Private Ownership of Land

                   Easy Duncan Has Her Eye on Justice Black's Reasoning (photo by Katie Duncan)


Justice Black (p. 736) rejects the idea of introducing "old concepts of private ownership of land" into Takings cases concerning regulation of air travel.

What other "old concepts" of constitutional liberty should the Court discard? Should we discard old concepts of freedom of speech in an age of internet pornography and the war on terror? Old concepts of protection against search and seizure? Of religious liberty?

Easy wants to know!

Causby Case's Legal Latin : "Cuius est solum eius est usque ad coelum et ad inferos"

But first, this Tweet from Chicken Little: "I told you the sky was falling! #ToldYouSo

                                           Picture of Chicken Little Shouting "The sky is falling!"

From Wikipedia:

Cuius est solum, eius est usque ad coelum et ad inferos (Latin for whoever owns the soil, it is theirs up to Heaven and down to Hell) is a principle of property law which can be traced back to 1766, when William Blackstone boldly proclaimed the doctrine in his treatise Commentaries on the Laws of England. It was not a principle of Roman law, despite the Latin phrasing of the maxim, nor was the theory recognized in early common law. Rather, it is best viewed as hyperbole invented by Blackstone, without any prior foundation in English law. By the end of the 19th century, frequent repetition had transformed Blackstone's naked assertion into a supposed rule of American law.[1]

As the name describes, the principle is that a person who owns a particular piece of land owns everything above and below it as well. Consequently, the owner could prosecute trespass against people who violated the border but never actually touched the soil. As with any other property rights, the owner can sell or lease it to others, or it may be taken or regulated by the state.

For example, suppose three people owned neighboring plots of land. The owners of the plots on the ends want to build a bridge over the center plot connecting their two properties. Even though the bridge would never touch the soil of the owner in the middle, the principle of cuius est solum would allow the middle owner to stop its construction or demand payment for the right to do so.

By the same principle, a person who wants to mine under somebody's land would have to get permission from the owner to do so, even if the mine entrance was on neighboring land.

Or as I like to put it, the owner of real property owns it "half way to China and all the way to Heaven." Why only half-way to China? Because the Chinese landowner owns his land half way to America. No? You got to think globally, Sir William!

Dr. Seuss and Loretto

                                                        Picture of Dr, Seuss Character, Horton


Non-binding quiz:

1. How would Dr. Seuss describe the holding in Loretto v. Teleprompter ?

Notice this is a case in which the government authorized private person A (cable television company) to trespass on the land of private person B (residential property owned by Landlords)

Now suppose instead of  cable tv, the State of New York required landlords to allow a local health club to install a swimming pool on the roof of their buildings. The health club charges tenants a fee to access the swimming pool and the landlord is compensated with a $1 payment for just compensation.

If Loretto had come out the other way, what result in the swimming pool hypo?

Causby and Public Highway in the Air: Taking?

Notice on p. 731-732 that Congress has confiscated all of the "navigable airspace" of the United States and declared it to be a public highway for air travel. Is this a Taking of private property for public use? If so, is Just Compensation required to be paid?

The Court says this is not compensable (see p. 735).

Do you agree? What is your reasoning? Is this a physical taking of private property? If so, isn't it a per se taking?

Takings vs. non-Takings

Notice that in most of the rest of the cases we will read in this unit, the government is arguing that whatever it has done does not constitute a "Taking" and the property owner is arguing that it does indeed amount to a "Taking."

Causby--partial trespasses through lower airspace are (or are not) takings

Loretto--small physical takings are (or are not) takings.

Penn Coal and the rest of the "regulatory takings" cases--regulations that reduce the value of private property are (or are not) takings.

The reason for this being the fighting issue between the government and the property owner is obvious. No?

If the government "takes" private property it must pay just compensation under the Takings Clause. If the government's action does not amount to a "Taking," then the Takings Clause and the requirement of just compensation does not apply (and the entire cost of the "non-taking" will be born by the poor property owner).

  Josh ("it's a Taking") Duncan and Becca ("it's not a Taking") Duncan in jolly old London (photography by yours truly)

Susette Kelo's Christmas Card

           

                              Susette Kelo's Little Pink House


"Oh but ain't that America, for you and me
Ain't that America, we're something to see baby
Ain't that America, home of the free, yeah
Little pink houses for you and me, oh for you and me" --Johnny Cougar (Mellancamp)


Prof. Ben Barros, has the following post over at PropertyProf:

From the Hartford Courant:

"Susette Kelo's holiday cards feature a snowy image of her pink house and a message that reads, in part, 'Your houses, your homes, your family, your friends. May they live in misery that never ends. I curse you all. May you rot in hell. To each of you I send this spell.'The cards were conceived and produced by a friend of Kelo's and sent to city officials and members of New London's development agency."

Kelo said she also considered sending the cards to five U.S. Supreme Court justices who ruled in June 2005 that New London had the right to take homes in the Fort Trumbull neighborhood to make way for a riverfront project slated to include condominiums, a hotel and office space.

Bah, Humbug. It seems to me that Ms. Kelo has enlisted in the War on Christmas! The ghost of Christmas present needs to pay a visit to Ms. Kelo. Of course, New London city officials (and certain members of the Supreme Court) would also benefit from being taken by the ghosts of Christmas to visit the homes of those whose lives have been destroyed by their "evolving" interpretation of the Takings Clause. And as Tiny Tim might say, "God bless us, everyone."\

Kelo's attitude, as expressed in her greeting card, is less than gracious, but it does illustrate the destructive force that eminent domain decisions can bring to bear on ordinary persons whose homes are taken and whose lives are turned upside down. Even generous "just compensation" cannot always heal the wounds that are sometimes caused when homes are taken. It reminds me of Holmes' famous statement about adverse possession:"The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life."

It seems that the City of New London's decision to take Susette Kelo's "little pink house" was one that cut at her life.

Kelo's Bitterness & Holmes' Wisdom

Kelo's attitude, as expressed in her greeting card, is less than gracious, but it does illustrate the destructive force that eminent domain decisions can bring to bear on ordinary persons whose homes are taken and whose lives are turned upside down. Even generous "just compensation" cannot always heal the wounds that are sometimes caused when homes are taken. It reminds me of Holmes' famous statement about adverse possession:"The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life."

It seems that the City of New London's decision to take Susette Kelo's "little pink house" was one that cut at her life.

Justice O'Connor in Kelo (p. 803)

 Take a careful look at Justice O'Connor's dissent on page 803. She thinks Berman and Midkiff are correct, but Kelo is wrong because it is distinguishable from those "public use equals public purpose" cases. How does she distinguish them?

"The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society—in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm...Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in
contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or
any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn."

Do you find this persuasive?  Does this have any relevance to the textual language limiting takings of private property to "public use?" If public use means public purpose and public purpose means anything advancing general welfare, is O'Connor's attempt to distinguish Berman and Midkiff persuasive? If Ms. Kelo's well-maintained home stood in the path of mitigating New London's severe economic distress, why isn't this a sufficient public purpose for the taking?

If the Constitution can mean anything the Court wants it to mean, the Court can hold that some public purposes are more equal than other public purposes. 

I do like O'Connor's Madison quotation on p. 805: "[T]hat alone is a just government which impartially secures to every man whatever is his own."

The Kelo Decision: Two Short Videos

 Linked Here

 

And here is another short video

Little Pink House Movie on Amazon Prime

 If you would enjoy watching a movie over the weekend about the Kelo case and the Takings Clause, the movie, Little Pink House, is available to stream for free on Amazon Prime video. The movie is generally quite accurate concerning the case and the background facts of the case.

Here is the link to this movie about Kelo.

Kelo Outline from Oyez

 From Oyez:

 

Facts of the case

New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Susette Kelo and others whose property was seized sued New London in state court. The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically, the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for New London.

Question

Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy?

 

Holding (5-4 decision) 

  In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'"

Kelo's Precedents: Berman and Midkiff

 Both summaries from Oyez:

Berman v Parker:

Facts of the case

In 1945, Congress passed the District of Columbia Redevelopment Act, creating the District of Columbia Redevelopment Land Agency, whose purpose would be to identify and redevelop blighted areas of Washington, D.C. Congress gave the new agency the power of eminent domain – the ability to seize private property with just compensation. Berman and the other appellants owned a department store in one blighted area targeted by the commission and objected to the seizing of their property solely for beautification of the area. The landowners brought a civil suit in federal district court challenging the constitutionality of the Act. Their case was dismissed. They then appealed directly to the U.S. Supreme Court.

Question

Did the seizing of Berman and the other appellants' property for the purpose of beautification and redevelopment of the community violate the Takings Clause of the Fifth Amendment?

Conclusion

No. In a unanimous opinion authored by Justice William O. Douglas, the Court found that the Fifth Amendment does not limit Congress' power to seize private property with just compensation to any specific purpose. The Court concluded that the power to determine what values to consider in seizing property for public welfare is Congress' alone. "If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."

Hawaii Housing Authority v Midkiff: 

Facts of the case

After extensive hearings in the mid-1960s, the Hawaii legislature discovered that while Federal and State governments owned nearly 49 percent of the land in Hawaii, another 47 percent was owned by only 72 private landowners. To combat this concentration of ownership, the legislature enacted the Land Reform Act of 1967. The Act adopted a method of redistribution in which title in real property could be taken from lessors and transferred to lessees. Frank E. Midkiff, a landholder, challenged the Act.

Question

Did the Land Reform Act of 1967 violate the Public Use Clause of the Fifth Amendment?

                                                   Conclusion

In a unanimous decision, the Court held that the Public Use Clause did not preclude Hawaii from taking title in real property, with just compensation, for the purpose of reducing the concentration of ownership. Noting that Hawaii's statute was rationally related to a conceivable public purpose, the Court argued that "debates over the wisdom of takings" were best carried out by legislatures, not by federal courts. The Court also held that the fact that the property taken by eminent domain was transferred to private beneficiaries did not condemn the law to having a solely private purpose.                           

                           

What Exactly is the Holding in Kelo?

                                              Ms. Kelo's Little Pink House
 

The "Takings Clause" of the 5th Amendment provides:  "nor shall private property be taken for public use, without just compensation."


Prof. Ilya Somin describes the holding this way:

"In a close 5-4 decision, the Supreme Court endorsed the New London takings, upheld the 'economic development' rationale for condemnation, and advocated broad judicial deference to government decisionmaking on public use issues. Justice Stevens' majority opinion endorsed a 'policy of deference to legislative judgment in this field.' The Court rejected the property owners' argument that the transfer of their property to private developers rather than to a public body required any heightened degree of judicial scrutiny. It also refused to require the City to provide any evidence that the takings were likely to actually achieve the claimed economic benefits that provided their justification in the first place."

He also observes that "Although Kelo was consistent with existing precedent, the decision was greeted with widespread outrage across partisan, ideological, racial, and gender lines." If Kelo did not change the law of public use takings, why was it met with so much outrage?

Excerpts From Oral Argument in Kelo

 JUSTICE O'CONNOR:  For example, Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we
would have higher taxes.  Now, is that okay?
MR. HORTON:  Yes, Your Honor.  That would be okay.  I -- because otherwise you're in the
position of drawing the line.

JUSTICE SCALIA:  Mr. Horton, you're paying for it, but you're also taking property from somebody
who doesn't want to sell it.  Does that count for nothing?  Yes, you're paying for it, but you're
giving the money to somebody who doesn't want the money, who wants to live in the house that she's  lived in her whole life.  That counts for nothing?
MR. HORTON:  No, of course not, Your Honor.

JUSTICE SCALIA:  What this lady wants is not more money.  No amount of money is going to satisfy
her.  She is living in this house, you know, her whole life and she does not want to move.  She
said I'll move if it's being taken for a public use, but by God, you're just giving it to some
other private individual because that individual is going to pay more taxes.  I -- it seems to me
that's, that's an objection in principle, and an objection in principle that the public use
requirement of the Constitution seems to be addressed to.

MR. BULLOCK:  Your Honors, first  of all, just a couple of matters regarding the Connecticut Supreme Court's decision. The  Connecticut Supreme Court did not apply the test that we suggest in our case, they explicitly, the  majority explicitly declined to apply heightened scrutiny in this, in this instance. I think the key to understanding their argument is the answer to the question of, can you take a  Motel 6 and give it to a fancier hotel?  Their answer is yes.  And that's what's really at stake here. These condemnations are taking place throughout the country.  A city in California condemns the 99 cents store in order to give it to  Costco.  Now, were they giving enormous benefits to Costco?  Of course they were.  But they did so  because they wanted to get the tax revenue, and that's the problem with these types of  condemnations, the desire to help a private party and the desire to help the public are really one and the same.
....And finally, Your Honors, the Respondents talk about the effect that this may have upon poor people.  Not all neighborhoods, not all poor  neighborhoods are blighted.  But the one thing that all poor neighborhoods share in common is that  they don't produce much in the way of tax revenue, so you're going to put poor neighborhoods and  working class neighborhoods like the ones that exist in Fort Trumbull in jeopardy if the Court  affirms the decision below. And that's why so many organizations that are concerned about the rights of senior citizens and the  rights of minorities and poor folks like legal services corporations have joined in our side to support the property owners in this case.

Excerpt From Oral Argument in Kelo

One of my favorite Scalia quotes is "The Constitution says what it says and it doesn't say what it doesn't say." In other words, when reading the Constitution, we should neither add to the text, nor take away from the text (we should neither go above or below the line of the text).

Here he is basically saying the Constitution says "public use" and it does not say "public purpose." 

JUSTICE SCALIA:  Mr. Bullock, do you equate purpose with use?  Are the two terms the same? Does the  public use requirement mean nothing more than that it have a public purpose?

MR. BULLOCK:  No, Your Honor.

JUSTICE SCALIA: That's your answer to Justice Souter.

JUSTICE SOUTER:  But if that is your answer then the slum clearance cases have got to go the other
way.
MR. BULLOCK:  I'm sorry --

JUSTICE SOUTER:  If that is your answer, then I suppose the slum clearance cases were wrongly
decided.

MR. BULLOCK:  Well, your Honor, this Court did hold in Berman and Midkiff that the police power and eminent domain power are coterminous.  That was a holding especially of this Court's opinion in
Midkiff.  And there are certain amici that have been filed in this case, amicus briefs filed in
this case that have called upon this Court to re-examine that.
And of course, this Court is free to do so.

Kelo and "more natural interpretations" of Constitutional Protections

Notice Justice Stevens' gem on page 795. The issue is whether the "public use" requirement of the Takings Clause requires, well, some kind of "use" by the "public." Stevens says no and explains his view as follows:

"Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th Century, it embraced the broader and more natural interpretation of public use as 'public purpose.'"

The Court said this interpretation was necessary because the "narrow view [interpreting public use to mean use by the public]...proved to be impractical given the diverse and always evolving needs of society." page 795. 

Protecting constitutional liberties often get in the way of what Government wishes to do. Should we only protect constitutional rights when they don't interfere with what Government wants to do? 

How is the term public purpose a more natural interpretation of public use than would be, say, public use?

The first move is to change public use to public purpose.

The next move (see p.797) is to define public purpose broadly to mean just about anything the Government wants it to mean. ("affording legislatures broad latitude in determining what public needs justify the use of the takings power").

Before you can say "God save this honorable Court," the protection of the public use requirement has been read out of the Constitution and replaced with a phrase allowing the Government to take private property for nearly any purpose it chooses.

Notice also Justice O'Connor's dissent on page 801 in which she argues that by "wash[ing] out any distinction between public and private use of property" the Court has "thereby effectively delet[ed] the words 'for public use' from the Takings Clause."

Indeed "public" now includes "private" and "use" means "purpose" not "use." Thus, the Clause means "public purpose including by means of private use."

Notice Justice Thomas's dissent on page 806. He argues that allowing private property to be taken for any public purpose deprives victims of "the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes."

Notice also Justice Thomas argues that "these losses will fall disproportionately on poor communities." What does he mean by this? How likely is it that a large company might seek to condemn land located in the "exclusive" affluent neighborhoods of a city or town?

Justice O'Connor makes the same point on p. 805:

Any property may now be taken for the benefit of another private
party, but the fallout from this decision will not be random. The beneficiaries
are likely to be those citizens with disproportionate influence and power in
the political process, including large corporations and development firms. As
for the victims, the government now has license to transfer property from
those with fewer resources to those with more. The Founders cannot have
intended this perverse result. “[T]hat alone is a just government,” wrote
James Madison, “which impartially secures to every man, whatever is his
own.”

And now for something completely different. Justice Scalia has recently ranked Kelo as one of the all-time worse decisions of the Court (link):

Justice Antonin Scalia predicted Monday that the Supreme Court’s decision in Kelo v. City of New London will be overturned.
Speaking to students at the Chicago-Kent School of Law, Scalia criticized the decision allowing the city of New London to use eminent domain to seize property for economic development, the Chicago Sun-Times reports. “I do not think that the Kelo opinion is long for this world,” Scalia said.
Scalia ranked Kelo among the top cases in which the court made a mistake of political judgment, according to the Sun-Times account. The others were the Dred Scott v. Sanford decision in favor of a slave owner and the Roe v. Wade decision finding a constitutional right to abortion.
“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it has made very few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another. ... And Kelo, I think, was a third.”

Did the Court in Berman, Midkiff & Kelo Judicially Amend the Constitution?

 Consider this great insight from Judge Bork:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Do you see what Judge Bork is saying here?  It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text. When judges amend the Written Constitution from the bench they violate the rule of law and instead embrace the law of rulers.

 Consider this excerpt from Paulsen & Paulsen, The Constitution: An Introduction (p. 26):

No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.

The bottom line is such an "unconstitutional" ruling, although still enforceable by the judiciary, is not a legitimate part of the rule of law. It was wrong when it was decided, and it is ripe for overruling by a later Court. 

Should Kelo be overruled? Why or why not?

Kelo: The Court Clarifies the Question Presented

 The Court gives us two propositions that are perfectly clear:

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid  just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. [page 794-795]

Do you all see how this case is different from the two situations mentioned by the Court? 

How is it different? 

Kudos! Thinking Like a Lawyer in Class {Last Year}

                                     

                                                Picture of a Motel 6
                                               

 There were two good instances of students thinking like a lawyer in class when we discussed Kelo last year. We were talking about public use takings and common carrier/public-access such as on railroads and public utilities (e.g., electric and telephone).

And Justice O'Connor had said that a taking of a Motel 6 in order to transfer the land to a Ritz Carlton should not be recognized as a public use. I think she is right, but....

But isn't a Ritz open to the public, to anyone willing to pay its nightly room charge?

What about taking homes from Ms. Kelo and her neighbors in order to transfer the land for use as executive, upscale condominiums?

Both of these arguments were good examples of thinking like a lawyer. The condo argument, although a good one, falls short because once the land is sold to the owner of the condo it is not open to public access. It becomes a private home for whomever purchased the condo from the developer.

But the Ritz argument stands. Yet there seems to be something wrong about taking the land from one private hotel (the Motel 6) and transferring it to another, even if the second owner puts the land to a more profitable use.

What about a taking from a small independent grocer in order to sell the property to a Walmart? Public use? Walmart is open to the public, but....

Could the answer be that true public access takings involve public utility monopolies (or oligopolies) such as the railroad, the electric company, and the landline telephone/wifi company? Eminent domain is necessary to allow the public utilities to acquire large masses of private land to run their rails or their wires? The farther away we move from true public utilities to commercial businesses like the Ritz and Walmart, the less persuasive is the argument for public use takings.

Kelo and Star Trek: Is Justice Stevens a Vulcan?

Here is a nice comment on Kelo from Prof. Ben Barros at the PropertyProf Blog:

[A] few weeks ago, I posted on some of Tom Merrill's remarks at the GELPI Takings Conference, where he described two frameworks for looking at issues like public use: the utilitarian frame and the moral rights frame. The utilitarian frame is concerned with promoting the common good, and as a result would favor a broad reading of "public use". The moral rights frame, in contrast, would be more concerned with a property owner's interest in maintaining possession of property, and as a result would favor a narrow reading of "public use".

I covered Kelo last week in my Property Theory seminar. In a reaction paper discussing the case, one of my students described the majority opinion as Vulcan, imagining the following conversation between Kirk and Spock:

Kirk: We can't just kick people out of their homes!

Spock: Captain, your concern about a few property owners is irrational; this taking is clearly for the greater good.

While Merrill's categories might have more academic appeal, I think that the Spock/Kirk distinction is a lot more fun. Plus, there is the somewhat unexpected result that Justice Stevens is playing the role of the arch-rational Spock, while Justice Thomas is playing the role of the emotional Kirk.

I like this take on Kelo. I'm usually a Kirk myself, but Vulcans make the trains run on time!

Another literary analogy might be Justice Stevens as George Orwell--see p. 795, where he embraces the "more natural interpretation of public use as public purpose." Wouldn't an interpretation of public use as public use be more natural? As Orwell said: “War is peace. Freedom is slavery. Ignorance is strength.” And 2 plus 2 equals 5.

And I hope no one missed the fact that Pfizer was our past, is our present, and will be our future Overlord. We want your house, we own your government, we demand the power to poke you in the arm!

Justice Thomas on the "Most Natural Reading" of Public Use

                                 Picture of Justice Thomas at Nebraska Law a Few Years Ago

 

Here is the most natural meaning of the term "public use" according to Justice Thomas:

"The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property,as opposed to taking it for any public purpose or necessity whatsoever." 545 U.S. at 508 (edited from casebook).

Under this interpretation, how do Berman, Midkiff and Kelo come out?

Is Omaha about to get Keloed?

 Here is a link to a news article about the Omaha Economic Development Corp. and its "proposed airport area business park funded by $90 million in state funds." [hat tip: Sullivan Jones who emailed the link to me]

 Here is a money quote about the possible use of eminent domain to take the homes of families who live near the airport:

At the end of the two-hour meeting, however, key questions from the 75 or so people there remained anything but clear.

That is: Will the scores of households in the targeted area north of Carter Lake and west of Eppley Airfield be forced to move? Will eminent domain be in play?

“I can’t answer that,” said Michael Maroney, executive director of the Omaha Economic Development Corp., which is leading a coalition that has been awarded the state grant....“I’m madder than hell because I still don’t know,” said Racheal Hoefker, who attended the meeting with her husband, Justin Ryley. “I’m scared of the eminent domain. If I have to move, I want to know.”

 As I recall the neighborhood near Eppley, the homes are the kinds of homes working class people can afford. They are small (with one-car garage), older, but for the most part well-maintained. This sounds like a possible Kelo situation right here in Cornhusker Country. Homeowners in the path of economic development should indeed be "scared of the eminent domain." Just ask Ms. Kelo about how it uproot you from your home and your community.

Here is a recent article updating this p[roject.

Nebraska has a statute covering economic development takings:

76-710.04.

Economic development purpose; restriction on use of eminent domain.

(1) A condemner may not take property through the use of eminent domain under sections 76-704 to 76-724 if the taking is primarily for an economic development purpose.

(2) For purposes of this section, economic development purpose means taking property for subsequent use by a commercial for-profit enterprise or to increase tax revenue, tax base, employment, or general economic conditions.

(3) This section does not affect the use of eminent domain for:

(a) Public projects or private projects that make all or a major portion of the property available for use by the general public or for use as a right-of-way, aqueduct, pipeline, transmission line, or similar use;

(b) Removing harmful uses of property if such uses constitute an immediate threat to public health and safety;

(c) Leasing property to a private person who occupies an incidental part of public property or a public facility, such as a retail establishment on the ground floor of a public building;

(d) Acquiring abandoned property;

(e) Clearing defective property title;

(f) Taking private property for use by a utility or railroad;

(g) Taking private property based upon a finding of blighted or substandard conditions under the Community Development Law if the private property is not agricultural land or horticultural land as defined in section 77-1359; and

(h) Taking private property for a transmission line to serve a privately developed facility generating electricity using wind, solar, biomass, or landfill gas. Nothing in this subdivision shall be construed to grant the power of eminent domain to a private entity.

 

Annotations

• This section does not prevent a city from acquiring private property for use as a deceleration lane on an existing public road for traffic control and safety purposes, even if the deceleration lane is contiguous to access to a retailer. City of Omaha v. Tract No. 1, 18 Neb. App. 247, 778 N.W.2d 122 (2010).

• This section prohibits the use of eminent domain only where its primary purpose is economic development, and not where economic development may be a collateral benefit. City of Omaha v. Tract No. 1, 18 Neb. App. 247, 778 N.W.2d 122 (2010).

Property Spring 2026: Assignment For Week Five

Do me (and yourselves) a favor this weekend: Read the post called Let Me Walk You Through a RAP Problem carefully 4 or 5 times. That is my best shot at helping you achieve a lucid understanding of the basics of the Rule Against Perpetuities. If you work hard walking with me through RAP 4 or 5 times, I believe you will come away with a good basic understanding of how the Rule works.

--Casebook p. 355-361; 366-370

--Casebook p. 371-379; 385-405

If we get this far:

-- Casebook P. 412-420

Duncan v. Vassaur: What Would Gomer Say To My Uncle Billy?

                                                          Picture of TV Character, Gomer Pyle

"Ill-gotten gains!"


Edgar and Betty, husband and wife, own Blackacre as Joint Tenants

Betty "shot and killed" Edgar

Betty then purports to convey a FSA in Blackacre to her father, William Duncan ("Uncle Billy")

Edgar's father, as administrator of his son's intestate estate, sues claiming a one-half interest in the property.

Who owns Blackacre?

See p. 415, the Oklahoma "slayer statute."

Does this statute apply to survivorship rights under a Joint Tenancy? 

Nevertheless, the court holds that "the murder here involved was inconsistent with the continued existence of the joint tenancy and that at the time the murder was committed, the joint tenancy was terminated and separated." p. 416

Do you agree that when one joint tenant murders the other that is conduct that evidences an intention to no longer hold the property in joint tenancy? What about an unsuccessful attempt to murder one's fellow joint tenant?

Mann v. Bradley (p. 412)

 1954  Grantor--> Mr. and Mrs. Mann as joint tenants

1971  Mr. and Mrs. Mann divorce:

"The property settlement agreement "provided that the family residence should be sold and that the proceeds be equally divided between them upon the occurrence of any one of the three following events:
(1) The remarriage of Mrs. Mann;
(2) When the youngest child of the couple attains the age of 21; or
(3) The mutual agreement of the parties to sell." p. 412

The settlement agreement also provided that the property "shall remain in the joint names of the parties." p. 413

"Betty Rea Mann continued to reside in the family residence with her children until her death in October of 1972. A short time after her death, Mr.Mann, the petitioner herein, informed his children that the family residence now belonged to him by virtue of the right of survivorship in the joint
tenancy ownership with their mother." 

Question: what do you think was the purpose of the settlement agreement with respect to the jointly owned family home? Was it to maintain the joint tenancy with a right of survivorship between the divorcing couple? Did the separation agreement adequately manifest the intention of the parties? Where did it go wrong?

Take a look at p. 413:

 The modern tendency is to not require that the act of the cotenant be destructive of one of the essential four unities of time, title, possession or interest before a joint tenancy is terminated…. The joint tenancy may be terminated by mutual agreement, as here, where the parties treated their interests as belonging to them in common. McDonald v. Morley, 101 P.2d 690 (Cal. 1940). An agreement between the joint tenants to hold as tenants in common may be inferred from the manner in which the parties deal with the property. 

The district court and the court of appeals properly applied these tenets to the facts of this case. The intent of the parties as shown in the property settlement agreement is central to the issue presented. This agreement provided for the ultimate sale of the property and the division of the proceeds, which evinces the intent to no longer hold the property in joint tenancy from the effective date of the agreement. The entire tenor of those provisions of the agreement pertaining to this property is inconsistent with any purpose of the parties to continue the right of survivorship, which is the sine qua non of joint tenancy.

Nor does the provision of the agreement which stipulates that the property “shall remain in the joint names of the parties” dictate a different result. This wording is consistent with any form of continued concurrent ownership of the property...In our view, this language in fact strongly supports the proposition that the parties intended to change the ownership from joint tenancy, and that since they were, by the provisions of the agreement, going to sell and divide the proceeds, the property would remain in their joint names, which is precisely the way tenants in common hold property.

Joint Tenancy Car Crash

                                             Picture of Serious Automobile Crash

Suppose Schutz and Duncan are joint tenants and, one day on our way to a faculty fight club meeting, we are involved in a terrible car crash. When Dr. Quincy arrives at the scene of the accident, he looks into the car and sheds a silent tear. In other words, Schutz and I are pronounced dead at the scene and there is no way of knowing which of us died first.

Who owns Blackacre?

Consider the following Nebraska statute:

30-123 Simultaneous death of joint tenants. Where there is no sufficient evidence that two joint tenants have died otherwise than simultaneously the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

Source

1. Laws 1947, c. 112, § 3, p. 306.

Now what do you think?

Now suppose that at the scene of the accident Schutz is pronounced dead, but when the EMT checks on me I look at her and say with my last breath: "At least Justice Alito still lives." Now who owns Blackacre?

By the way, suppose Grutz conveys Blackacre "to Duncan and Schutz for their joint lives, then to the survivor."

Car crash occurs. Who owns Blackacre?

Consider this Nebraska statute (our Legislature never sleeps; it is always looking out for us):

30-122 Simultaneous death of beneficiaries of another person's disposition of property. Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

Source

1. Laws 1947, c. 112, § 2, p. 306.

Importance of Careful Legal Drafting and Preparation

 Take a look at note 1 on page 401 for more examples of legal malpractice.

What happens when a lawyer drafts a deed conveying Blackacre to a  son and his mother "as tenants by the entireties"?

Or to an unmarried romantic couple as "tenants by the entireties."

A court may--or may not--clean up the mess.

As Socrates said: “The only true wisdom is in knowing you know nothing." 

Or, as I have been saying, lawyers need to know what they don't know. Either don't take on work that is beyond your legal expertise, or, if you take the work, make sure you learn what you need to know to do the work your client is entitled to receive.

Breaking News

 Now that the other Property section has moved to another classroom, we can go back to our original class time.

Today, we will meet from 3:15 until 4:30, but starting tomorrow (Wednesday February 11), we will return to our originally scheduled time: 3:00 to 4:15.

Takings: Nebraska Constitution

Becca Duncan Reacts to Government Land Grabs (Science Class at Lincoln Christian High School circa 2010)


Art. I, Section 21 provides:

"The property of no person shall be taken or damaged for public use without just compensation therefor."

What is a Taking?

The Fifth Amendment to the U.S. Constitution provides: "nor shall private property be taken for public use without just compensation." This clause is usually referred to as the "Takings Clause" although some refer to it as the "Eminent Domain Clause."

The primary issues upon which we will focus are (1) what constitutes a "taking" of private property and (2) when is a taking for a "public use."

Takings that don't satisfy the "public use" requirement are strictly prohibited. In other words, the government may not take private property unless it is for a "public use." Takings that satisfy the public use requirement are permitted so long as the government pays the property owner "just compensation" (i.e., the FMV of the property that has been taken). As one Hornbook puts it: if the government takes property it must "pay the market value of the owner's loss, as fixed by a jury in a condemnation action."

Take a look at page 791 of the Casebook, which deals with regulatory Takings (i.e. regulations that reduce the value of private property). The issue is whether a confiscatory regulation is a "taking" that requires the government to pay just compensation to the private landowner. The authors of the Casebook say this:

"Obviously, a broad interpretation of the takings clause would impose substantial financial burdens on the attempt of government to regulate land use."

Is this true? Or is the real issue who must bear the financial cost of a regulatory burden, the government (and thus all of us who benefit from the regulatory program) or a few private landowners? The cost is there regardless of who pays. The issue is who should bear the cost of a program that benefits the public.

Many advocates of extensive regulations designed to protect the environment are opposed to interpreting the Takings Clause as protecting property owners against “regulatory” takings. 

Why do you think they feel this way?   

Does the Takings Clause prohibit environmental regulations? 

Or does it merely require government to pay fair value for regulations deemed to be a taking. 

Notice that the Takings Clause does not create these costs – it simply spreads them to the public that benefits from the regulatory taking.