34 Trends 1 (2002-2003)

handle is hein.journals/trends34 and id is 1 raw text is: 

14.: 4LZ -


Supreme Court

roundup: 2001-0A

BY FEDERICO CHEEVER


    fter the tumult of the U.S. Supreme Court's

       October 2000 term (with decisions in Solid
       Waste Agency of Northern Cook County and
American Trucking Association), the October 2001
term was relatively quiet on environmental and ener-
gy issues. Still, the Court did decide some cases that
dealt with fundamental questions of federalism and
property rights central to the protection of nature
and regulation of resource use. This Supreme Court
roundup analyzes three such decisions.

Tahoe-Sierra Preservation Council Inc. v. Tahoe
Regional Planning Agency
   In an appeal from the 9th Circuit, the Supreme
Court waded once again into the murky waters of
takings jurisprudence in the case of Tahoe-Sierra
Preservation Council Inc. v. Tahoe Regional'
Planning Agency. The court dealt with a novel situ-
ation in Tahoe-Sierra: temporary, regulatory tak-
ings. During 1981-1983 and 1984, respondent, the
Tahoe Regional Planning Agency (TRPA), imposed
two temporary moratoria on development in- the
Lake Tahoe Basin. The moratoria were intended to
maintain the status quo while TRPA studied the
effect of development around Lake Tahoe and
designed a strategy for environmentally sound
growth. The moratoria prohibited virtually all devel-
opment on a substantial portion of the property sub-
ject to TRPA's jurisdiction. In total, the moratoria
lasted 32 months. Petitioners - real estate owners in
the Tahoe Basin - filed suit claiming that the mora-
toria constituted an uncompensated, regulatory tak-.
ing of their property.
   The federal district court held that the moratoria
amounted to a taking of property under the per se
regulatory taking rule enunciated in Lucas v. South
Carolina Coastal Commission, 505 U.S. 1003
(1992). The Ninth Circuit reversed the district court
holding, rejecting application of the Lucas rule. The
Supreme Court upheld the Ninth Circuit's ruling
that the Lucas per se rule did not apply to this tem-
porary, regulatory taking.
   Justice Stevens, writing for the majority, drew a
relatively clear line between the jurisprudence of
physical takings and regulatory taking. He observed
that [t]his longstanding distinction between acqui-
sitions of property for public use, on the one hand,
and regulations prohibiting private uses, on the
other, makes it inappropriate to treat cases involving
physical takings as controlling precedents for the
evaluation of a claim that there has been a 'regula-
tory taking.'


Federico Cheever is an associate professor of law at.
the University of Denver College of Law.


   Next, the Court held that the Lucas rule finding
a per se taking of property when regulation
deprives a landowner of all economically benefi-
cial uses of her land, applied only to permanent
and unconditional takings and not to temporary
taking of the sort imposed by TRPA, stating:

    An interbst in real property is defined by the
    metes and bounds that describe its geographic
    dimensions and the term of years that describes
    the temporal aspect of the owner's interest...
    Both dimensions must be considered if the
    interest is to be viewed in its entirety. Hence, a
    permanent deprivation of the owner's use of the
    entire area is a taking of the parcel as a whole,
    whereas a temporary restriction that merely
    causes a diminution in value is not. Logically, a
    fee simple estate cannot be rendered valueless
    by a temporary prohibition on economic use,
    because the property will recover value as soon
    as the prohibition is lifted.

    The Court did leave the door open for challenges
of other temporary regulatory deprivations of prop-
erty when the length of the deprivation is unreason-
able, observing in dictum that [i]t may well be true
that any moratorium that lasts for more than one year
should be viewed with special skepticism.
   The Court also dwelt on the costs that would be
imposed on local government by requiring compen-
sation for temporary takings. The Court noted,
[t]he interest in facilitating informed decisionmak-
ing by regulatory agencies counsels against adopt-
ing a per se rule that would impose such severe
costs on their deliberations.
   Chief Justice Rehnquist and Justices Scalia and
Thomas dissented, attacking the majority's narrow
view of Lucas and, more specifically, the majority's
distinction between temporary and permanent
deprivations of property. Chief Justice Rehnquist's
dissent points out that the permanent deprivation
in Lucas was two years long, considerably shorter
than the temporary moratoria imposed by the
TRPA. He also noted that the characterization of
whether a deprivation is permanent or tempo-
rary is usually made by the regulating government
body, but should not be conclusive, as in the majori-
ty's analysis. Justice Thomas, joined by Justice
Scalia, wrote separately to challenge the majority's..
conclusion that the temporary moratorium was not
a taking of the parcel as a whole.

New York v. FERC
   In a consolidated appeal from the D.C. Circuit,
the Supreme Court upheld the significant elements
of the Federal Energy Regulatory Commission's
                           (Continued on page 14)
                           0 Printed on recycled paper


September/October 2002
Volume 34, Number 1

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