Regulatory Takings: A Historical Overview and Legal Analysis for Natural Resource Management
Stedfast, Susan M., Environmental Law
The past ten years have witnessed an explosive increase in the intensity of public debate on how to best use our nation's natural resources.(1) On one side of the debate are the well-established national environmental groups that have supported increased regulation and engaged in litigation for the enforcement of existing regulations.(2) In these efforts, environmental groups have sought to secure the public interest through the conservation and preservation of natural resources.(3) Newer to the scene is the Wise Use Movement that seeks to represent the views of private landowners and businesspeople in the debate over natural resource policy.(4) In particular, the Wise Use Movement advocates decreased regulation and the protection of private landowners' rights. Like environmental groups, the Wise Use Movement focuses much of its energy on the legislative process in order to obtain policies, laws, and regulations consistent with its positions.(5)
The environmental groups draw inspiration for their ongoing efforts from the large number of environmental statutes enacted in the 1970s, including the Coastal Zone Management Act,(6) the Endangered Species Act,(7) and the Clean Water Act.(8) These same statutes, however, have also functioned as a catalyst for the Wise Use Movement, as each additional grant of governmental regulatory authority increases the possibility of undue regulatory activity.(9)
As the level of regulation aimed at protecting natural resources and the
environment has increased, so has the number of private and public entities affected.(10) A recurring issue in this debate is the appropriate level of government regulation of natural resources.(11) Environmental groups, for example, have typically proposed maintaining or increasing current levels of regulation, while the Wise Use Movement favors decreasing current levels or eliminating regulation.(12) A variety of intermediate positions are espoused by others involved in the debate, including industry; regulatory agencies; federal, state, and local governments; and interested citizens who rely upon natural resources for income or recreational opportunities. The debate is intensified by the assertion that in many instances the level of regulation to which a landowner is subject is so high that an unconstitutional taking has occurred.(13)
The debate over the appropriate level of regulation raises additional issues with long-term implications of its own. If the level of regulation is such that landowners often claim an unconstitutional taking, costly and time-consuming litigation will likely follow.(14) Similar litigation will ensue to the extent that landowners that disfavor environmental regulations contest the enforcement of such regulations.(15) To the extent that courts decide in favor of landowners challenging regulations, the effectiveness of regulation for management of natural resources is decreased. Conversely, to the extent that landowner claims are found invalid, it is the landowners' efforts and resources that will have been wasted.
An examination of regulatory takings case law is needed to improve the discourse about the appropriate level of regulation and the parameters of unconstitutional regulatory takings. Recent court decisions on this issue further accentuate the need for a fresh look at regulatory takings case law. This Article examines such case law to promote informed dialogue among resource managers, policy makers, private landowners, activists, and interested citizens. Part II introduces the concept of a taking and its constitutional underpinnings. Part III summarizes and analyzes the earliest takings case law and emphasizes the concept of police powers and the establishment of the regulatory takings concept. Part IV details takings cases from 1962 to 1999, highlights guidelines utilized in takings cases, and examines trends in this area of the law. Part V offers hypothetical takings claims to elucidate the guidelines established by the case law. …