Significant Cases

Lighthouse off the coast of Oregon.  Courtesy of Jeff Bank (DOJ/ENRD)

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Although the Fifth Amendment has allowed private property owners to demand just compensation for the taking of property since the ratification of the Bill of Rights in 1791, no federal court had jurisdiction over such claims until the enactment of the Tucker Act in 1887.  In addition, while there was a smattering of cases throughout the nineteenth century that bore the vestigial qualities of present-day Fifth Amendment takings claims, e.g.,  Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166, 20 L. Ed. 557 (1871) (flooding of land); Bowditch v. City of Boston, 101 U.S. 16 (1879) (fire caused by necessity); United States v. Pacific R.R., 120 U.S. 227 (1887) (destruction of property during Civil War; on appeal from Court of Claims), they typically were resolved under tort or implied contract theories. 

The twentieth century brought several significant changes that led to the explosion of Fifth Amendment takings litigation: 

  • The United States undertook a rapid expansion of its land holdings for purposes of preservation, military installations, and infrastructure.
  • The explosion in population density throughout the United States led to the imposition of myriad land-use restrictions.
  • The industrialization of the United States and the attendant deterioration and depletion of our natural resources necessitated the creation of numerous environmental regulations.

While there have been countless significant Fifth Amendment takings cases over the past one hundred years, the following stand out as either having a lasting legacy or playing a major role in the development of today's takings jurisprudence.  Those cases in which the Environment and Natural Resources Division played a prominent role are identified in bold.

Table of Fifth Amendment Takings Significant Cases


Hadacheck v. Sebastian, 239 U.S. 394 (1915) (recognizing that where there is no physical occupation of the property by the government, landowner had to suffer near total economic impact to sustain a takings claim; 87.5% diminution was insufficient)


United States v. Cress, 243 U.S. 316 (1917) (holding that inevitably recurring flooding caused by public works project resulted in a taking of a flowage easement)


Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) (generally regarded as the first case to address the concept of regulatory takings; held that government regulation will not be considered a taking requiring compensation unless the regulation "goes too far")


Omnia Commercial Co. v. United States, 261 U.S. 502 (1923) (incidental or consequential impacts to contractual expectations are not compensable under the Fifth Amendment)


United States v. Sponenbarger, 308 U.S. 256 (1939) (flood control program does not constitute a taking merely because it causes increased volume or velocity of otherwise inevitable flooding; Court recognized that benefits of government action can offset damage to property)


United States v. Causby, 328 U.S. 256 (1946) (one of the first takings cases handled by the Lands Division, held that repeated low altitude overflights by military aircraft, which deprive landowner of use and enjoyment of their property, constituted a taking)


United States v. Dickinson, 331 U.S. 745 (1947) (seminal erosion and flooding takings case, held that a cause of action does not accrue until the situation becomes stabilized)


United States v. Pewee Coal Co., 341 U.S. 115 (1951) (government's seizure and direction of operations of a coal mine to prevent a national strike of coal miners constituted a taking)


United States v. Cent. Eureka Mining Co., 357 U.S. 155 (1958) (no taking where the government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort)


Armstrong v. United States, 364 U.S. 40 (1960) (established oft-cited principle that purpose of Just Compensation clause is to "bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole")


Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (established liability test, which considers the economic impact of the regulation on the value of the property, the investment-backed expectations of the property owner, and the nature of the governmental action, for evaluating whether there has been a regulatory taking; recent Supreme Court cases have confirmed the vitality of this test) (United States participated as amicus curiae)


Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (a permanent physical occupation is a taking no matter how small the area occupied, and without regard to whether there is only minimal economic impact on the owner)


Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) (regulatory takings claim not ripe until agency charged with implementing regulations has reached a final decision) (United States participated as amicus curiae)

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (mere requirement that landowner obtain a permit before engaging in a certain use of his property is not a taking)


First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) (temporary takings require compensation even if the regulatory prohibition is subsequently lifted) (United States participated as amicus curiae)

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) (regulatory takings analysis requires comparison of value taken with value remaining in property as a whole; here State requirement that coal company leave 2% of coal in place to prevent subsidence held not to constitute a taking)


Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990) (National Trails System Act cannot be challenged as causing an uncompensated taking unless the property owner has first pursued a Tucker Act remedy in the Court of Federal Claims)


Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) (wells installed to monitor water pollution constituted a permanent physical occupation; no compensation paid due to offsetting benefit)


Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (a regulation which denies all economically viable use is a categorical taking without regard to the other Penn Central liability factors; background principles of property law help to define scope of property interest) (United States participated as amicus curiae)


Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993) (claimant must concede the validity of the government action that forms the basis of the takings claim)


Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (categorical takings claim for deprivation of all economic use was precluded by undisputed value of portion of tract for construction of residence; 94% diminution in value not a categorical taking) (United States participated as amicus curiae)


Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002) (land use moratorium which temporarily deprived property of all economically viable use does not constitute a categorical taking; instead the question of whether a taking has occurred must be decided by applying the Penn Central regulatory takings test) (United States participated as amicus curiae)


Bass Enters. Prod. Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004) (agency delay in approving permits to drill gas wells did not constitute a temporary taking in view of need for government to carefully evaluate whether there was a public safety risk)


Moden v. United States, 404 F.3d 1335 (Fed. Cir. 2005) (distinguishing takings from torts by requiring that for a taking the physical invasion must be the direct, natural, or probable result of an authorized governmental activity)


John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (takings case holding that the statute of limitations in the Court of Federal Claims is jurisdictional and cannot be equitably tolled)


Arkansas Game and Fish Comm’n v. United States, 133 S. Ct. 511 (2012) (government-induced flooding that is temporary in duration is not categorically exempt from the Takings Clause, but the determination a taking has occurred depends on the specific facts of the case, including duration of the flooding, foreseeability, the character of the land at issue, and the owner’s reasonable investment-backed expectations)


Casitas Municipal Water Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013) (takings case involving water rights holding that the compensable property interest in water under state law was a right of beneficial use and that the plaintiff’s claim was not ripe because the diversion of water down a fish ladder had not impinged on that right)

Horne v. Department of Agriculture, 133 S. Ct. 2053 (2013) (in action seeking judicial review of agency enforcement action imposing fines and penalties, court held that petitioner’s claim that such fines and penalties were a taking of private property could be raised as an affirmative defense to the enforcement action)


Updated May 12, 2015

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