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Report to the Chairman, Subcommittee on the Constitution, Committee on 
the Judiciary, House of Representatives:

September 2003:

REGULATORY TAKINGS:

Implementation of Executive Order on Government Actions Affecting 
Private Property Use:

GAO-03-1015:

GAO Highlights:

Highlights of GAO-03-1015, a report to Chairman, Subcommittee on the 
Constitution, Committee on the Judiciary, House of Representatives 

Why GAO Did This Study:

Each year federal agencies issue numerous proposed or final rules or 
take other regulatory actions that may potentially affect the use of 
private property. Some of these actions may result in the property 
owner being owed just compensation under the Fifth Amendment. In 1988 
the President issued Executive Order 12630 on property rights to 
ensure that government actions affecting the use of private property 
are undertaken on a well-reasoned basis with due regard for the 
potential financial impacts imposed on the government.

GAO was asked to provide information on the compliance of the 
Department of Justice and four agencies—the Department of Agriculture, 
the Army Corps of Engineers, the Environmental Protection Agency, and 
the Department of the Interior—with the executive order. Specifically, 
GAO examined the extent to which (1) Justice has updated its 
guidelines for the order to reflect changes in case law and issued 
supplemental guidelines for the four agencies, (2) the four agencies 
have complied with the specific provisions of the executive order, and 
(3) just compensation awards have been assessed against the four 
agencies in recent years.  

We provided the agencies with a draft of this report for comment. They 
provided technical and editorial suggestions that we incorporated as 
appropriate.

What GAO Found:

Justice has not updated the guidelines that it issued in 1988 pursuant 
to the executive order, but has issued supplemental guidelines for 
three of the four agencies. The executive order provides that Justice 
should update the guidelines, as necessary, to reflect fundamental 
changes in takings case law resulting from Supreme Court decisions. 
While Justice and some other agency officials said that the changes in 
the case law since 1988 have not been significant enough to warrant a 
revision, other agency officials and some legal experts said that 
fundamental changes have occurred and that the guidelines should be 
updated. Justice issued supplemental guidelines for three agencies, 
but not for Agriculture because of unresolved issues such as how to 
assess the takings implications of denying or limiting permits that 
allow ranchers to graze livestock on federal lands managed by 
Agriculture. 

Although the executive order’s requirements have not been amended or 
revoked since 1988, the four agencies’ implementation of some of these 
requirements has changed over time as a result of subsequent guidance 
provided by the Office of Management and Budget (OMB). For example, 
the agencies no longer prepare annual compilations of just 
compensation awards or account for these awards in their budget 
documents because OMB issued guidance in 1994 advising agencies that 
this information was no longer required. According to OMB, this 
information is not needed because the number and amount of these 
awards are small and the awards are paid from the Department of the 
Treasury’s Judgment Fund, rather than from the agencies’ 
appropriations. Regarding other requirements, agency officials said 
that they fully consider the potential takings implications of their 
regulatory actions, but provided us with limited documentary evidence 
to support this claim. For example, the agencies provided us with a 
few examples of takings implications assessments because, agency 
officials said, these assessments are not always documented in writing 
or retained on file. In addition, our review of the agencies’ 
rulemakings for selected years that made reference to the executive 
order revealed that relatively few specified that a takings 
implication assessment was done and few anticipated significant 
takings implications. 

According to Justice, 44 regulatory takings lawsuits brought against 
the four agencies by property owners were concluded during fiscal 
years 2000 through 2002, and of these, 14 cases resulted in just 
compensation awards or settlement payments totaling about $36.5 
million. The executive order’s requirement for assessing the takings 
implications of planned actions applied to only three of these cases. 
The actions associated with the other 11 cases either predated the 
order’s issuance or were otherwise excluded from the order’s 
provisions. The relevant agency assessed the takings potential of its 
action in only one of the three cases subject to the order’s 
requirements. According to Justice, as of the end of fiscal year 2002, 
54 additional regulatory takings lawsuits involving the four agencies 
were pending resolution.

www.gao.gov/cgi-bin/getrpt?GAO-03-1015.

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Anu K. Mittal at 
(202) 512-3841 or mittala@gao.gov.

[End of section]

Contents:

Letter: 

Results in Brief: 

Background: 

Justice Has Not Updated Its 1988 Guidelines, but Has Issued 
Supplemental Guidelines for Three of the Four Agencies: 

Implementation of Key Provisions by the Four Agencies Has Changed Over 
the Life of the Executive Order: 

Few Awards of Just Compensation Were Made Against the Four Agencies for 
Takings Cases Concluded during Fiscal Years 2000 through 2002: 

Agency Comments and Our Evaluation: 

Appendixes:

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Summary of Significant Supreme Court Regulatory Takings 
Cases: 

Cases Decided After 1988: 

Cases Decided Before 1988: 

Appendix III: Proposed and Final Rules That Address the EO, for the 
Four Agencies, Calendar Years 1989, 1997, and 2002: 

Appendix IV: Regulatory Takings Cases Concluded during Fiscal Years 
2000 through 2002 Related to Actions of the Four Agencies: 

Appendix V: GAO Contacts and Staff Acknowledgments: 

GAO Contacts: 

Acknowledgments: 

Tables :

Table 1: Number of Proposed and Final Rules Addressing the EO for Four 
Agencies, Calendar Years 1989, 1997, and 2002: 

Table 2: Awards of Just Compensation or Settlement Payments for 
Concluded Regulatory Takings Cases for the Four Agencies, Fiscal years 
2000 through 2002: 

Table 3: Proposed and Final Rules That Address the EO, for the Four 
Agencies, Calendar Years 1989, 1997, and 2002: 

Table 4: Regulatory Takings Cases Concluded with Payments, for the Four 
Agencies, Fiscal Years 2000 through 2002: 

Table 5: Regulatory Takings Cases Concluded Without Payments, for the 
Four Agencies, Fiscal Years 2000 through 2002: 

Abbreviations:

EO: Executive Order 12630:

EPA: U.S. Environmental Protection Agency:

GAO: General Accounting Office:

OMB: Office of Management and Budget:

Letter September 19, 2003:

The Honorable Steve Chabot 
Chairman, Subcommittee on the Constitution 
Committee on the Judiciary 
House of Representatives:

Dear Mr. Chairman:

Each year federal agencies issue numerous proposed or final rules or 
take other regulatory actions that may potentially affect the use of 
private property. Agencies take these actions to meet a variety of 
societal goals, such as protecting the environment, promoting public 
health and safety, conserving natural resources, and preserving 
historic sites. At the same time, these actions may place restrictions 
on the use of private property, such as limiting the development of 
land that includes critical wildlife habitat or wetlands needed for 
flood control, thereby potentially depriving the landowner of the use 
or economic value of the property. In such cases, the property owner 
may be owed just compensation under the Fifth Amendment to the 
Constitution.

In 1988 the President issued Executive Order 12630 (EO),[Footnote 1] 
"Governmental Actions and Interference with Constitutionally Protected 
Property Rights," to ensure that government actions are undertaken on a 
well-reasoned basis with due regard for the potential financial impacts 
imposed on the government by the Just Compensation Clause of the Fifth 
Amendment. Specifically, the EO requires executive branch agencies, 
among other things, to (1) prepare annual compilations of awards of 
just compensation resulting from landowner lawsuits alleging takings, 
(2) account for takings awards levied against them in their annual 
budget submissions, (3) designate an agency official responsible for 
implementing the order, and (4) consider the potential takings 
implications of their proposed actions and document significant takings 
implications in notices of proposed rulemaking. The EO also requires 
the Department of Justice (Justice), specifically the U.S. Attorney 
General, to issue general guidelines to provide agencies with a uniform 
framework for their implementation of the EO and to issue supplemental 
guidelines for each agency, as appropriate, that reflect that agency's 
unique responsibilities. In addition, the EO requires the Attorney 
General to update the general guidelines, as necessary, to reflect 
fundamental changes in takings case law resulting from U.S. Supreme 
Court decisions. Furthermore, the EO requires the Office of Management 
and Budget (OMB) to ensure that the policies of executive branch 
agencies are consistent with the EO's requirements and that just 
compensation awards made against the agencies are included in agencies' 
budget submissions.

If a landowner believes that a government regulatory action has 
resulted in a taking of his or her private property, that landowner may 
file a lawsuit seeking just compensation under the Fifth Amendment. In 
general, these suits must be brought in the United States Court of 
Federal Claims.[Footnote 2] Justice is generally responsible for 
litigating these cases on behalf of the government.[Footnote 3] Such 
cases, many of which may take years to resolve, may result in a 
dismissal, a decision in favor of the government, a settlement payment 
made to the landowner, or an award of just compensation. In general, 
these awards and settlements are paid from the Department of the 
Treasury's Judgment Fund.[Footnote 4] Relative to the thousands of 
regulatory actions taken by federal agencies each year, the number of 
lawsuits seeking just compensation related to these actions is 
small.[Footnote 5]

You asked us to provide information on measures taken by Justice to 
implement certain provisions of the EO and the efforts of four 
agencies--the Department of Agriculture, the U.S. Army Corps of 
Engineers, the Environmental Protection Agency (EPA), and the 
Department of the Interior[Footnote 6]--to comply with the EO's 
requirements. Specifically, we examined the extent to which (1) Justice 
has updated its guidelines to reflect changes in case law and issued 
supplemental guidelines for the four agencies, (2) the four agencies 
have complied with the specific provisions of the EO, and (3) awards of 
just compensation have been assessed by the courts against the four 
agencies in recent years and, in these cases, whether the agencies 
assessed the potential takings implications of their actions before 
implementing them.

To report on the extent to which Justice has updated its guidelines and 
issued supplemental guidance for the four agencies, we obtained copies 
of these documents and interviewed knowledgeable agency officials. We 
also conducted legal research and sought the opinions and reviewed the 
publications of other relevant individuals, including representatives 
of private property rights and environmental groups and law school 
professors, as to whether changes in takings case law since 1988 
warranted revisions to the guidelines. To determine the extent of the 
four agencies' compliance with specific provisions of the EO, we 
interviewed knowledgeable agency officials and reviewed the documents 
they provided. We also interviewed OMB and Justice officials regarding 
the agencies' compliance with specific provisions, as appropriate. In 
addition, we reviewed 375 Federal Register notices published in 1989, 
1997, and 2002 relating to regulatory actions of the four agencies and 
referencing the EO. These years were selected judgmentally: 1989 
represents the first full year under the EO, 1997 represents an 
intermediate year, and 2002 represents the most recent full year. In 
addition, these years provide 1 year's experience under each of the 
past three presidential administrations. We undertook this analysis to 
determine if and how the agencies documented their compliance with the 
EO. Finally, regarding awards of just compensation made against the 
agencies and, in these cases, whether the agencies had assessed the 
takings potential of their actions, we obtained from Justice a list of 
all regulatory takings cases related to the four agencies that were 
concluded during fiscal years 2000 through 2002. We initially sought 
this type of data for the full 15-year period since the EO's issuance, 
but Justice officials indicated that the full set of data was not 
readily available. We then discussed these cases with relevant 
officials at the four agencies and analyzed documents they provided. We 
also discussed these cases with the Clerk of the U.S. Court of Federal 
Claims and officials responsible for administering the Department of 
the Treasury's Judgment Fund and reviewed documents they provided.

Results in Brief:

Justice has not updated the general guidelines that it issued pursuant 
to the EO in June 1988, but has issued supplemental guidelines for 
three of the four agencies. Officials at Justice and two of the four 
agencies generally expressed the view that changes in takings case law 
related to U.S. Supreme Court decisions since 1988 have not been 
significant enough to warrant a revision of the guidelines. Justice 
officials also noted that the guidelines are intended to provide a 
general framework for agencies to follow in implementing the EO, and 
thus do not require frequent revision. However, Interior and 
Agriculture officials said that it would be helpful to their staff if 
Justice updated a summary of the key aspects of relevant case law 
contained in an appendix to the guidelines to reflect significant 
developments over the past 15 years. Similarly, some representatives of 
property rights groups and law school professors stated that the 
guidelines should be updated. In general, they noted that the body of 
relevant case law has evolved significantly over the past 15 years. For 
example, one law professor, noting the detailed manner in which Justice 
discussed takings cases in the original guidelines, said that case law 
covering the past 15 years should be thoroughly discussed in the 
guidelines as well. Regarding the supplemental guidelines for 
individual agencies, although Justice issued final guidelines for three 
of the four agencies, it has not issued guidelines for the Department 
of Agriculture. According to Justice and Agriculture officials, 
Agriculture's guidelines were never completed because the two agencies 
disagreed on issues such as how to assess the takings implications of 
agency actions related to grazing and special use permits. However, 
both Justice and Agriculture officials told us that Agriculture's 
compliance with the EO has not been encumbered by the lack of 
supplemental guidelines.

Although the executive order's requirements have not been amended or 
revoked since 1988, the four agencies' implementation of some of its 
key provisions has changed over time because of subsequent guidance 
provided by OMB. For example, the agencies no longer prepare annual 
compilations of just compensation awards or account for these awards in 
their budget documents because OMB issued guidance in 1994 advising 
agencies that this information is no longer required. According to OMB, 
this information is not needed because the number and amount of these 
awards is small, and the awards are paid from the Department of the 
Treasury's Judgment Fund, rather than from the agencies' 
appropriations. Regarding the EO requirement for a designated official, 
the four agencies have each designated an official--typically the chief 
counsel, general counsel, or solicitor--to be responsible for ensuring 
the agency's compliance with the EO. Finally, although the four 
agencies told us that they fully consider the potential takings 
implications of their planned regulatory actions, they provided us with 
limited documentary evidence to support this claim. Specifically, 
agency officials told us that takings implication assessments are not 
always documented in writing, and, because of the passage of time, 
those assessments that were documented may no longer be on file with 
the agency. Similarly, our independent review of 375 Federal Register 
notices published in 1989, 1997, and 2002 relating to regulatory 
actions of the four agencies and referencing the EO revealed that 50 of 
the notices specified that a takings implication assessment was done, 
and of these, 10 indicated that the agency anticipated significant 
takings. Given the limited nature of the available information, we 
could not fully assess the extent to which the EO's requirements for 
assessing potential takings were fully considered by the agencies.

According to Justice data, 44 regulatory takings cases brought against 
the four agencies were concluded during fiscal years 2000 through 2002. 
Of these, the courts decided in favor of the plaintiff in 2 cases, 
resulting in awards of just compensation totaling about $4.2 million. 
The Justice Department settled in 12 other cases, providing total 
payments of about $32.3 million. Of the 14 cases resulting in award or 
settlement payments, 10 related to actions of Interior, 3 related to 
actions of the Corps of Engineers, and 1 related to an action of 
Agriculture. The EO's requirements for assessing the takings 
implications of planned regulatory actions applied to only 3 of the 14 
cases. For the other 11 cases, the associated regulatory action either 
predated the EO's issuance or the matter at hand was otherwise excluded 
from the EO's provisions. Based on available evidence, we found that 
the relevant agency assessed the takings potential of its action in 
only one of the three cases subject to the EO's requirements. As of the 
end of fiscal year 2002, Justice reported that 54 additional regulatory 
takings cases involving the four agencies were pending resolution.

Background:

The just compensation clause of the Fifth Amendment states "nor shall 
private property be taken for public use, without just compensation." 
Initially, this clause applied to the government's exercise of its 
power of eminent domain. In eminent domain cases, the government 
invokes its eminent domain power by filing a condemnation action in 
court against a property owner to establish that the taking is for a 
public use or purpose, such as the construction of a road or school, 
and to have the amount of just compensation due the property owner 
determined by the court.[Footnote 7] In such cases, the government 
takes title to the property, providing the owner just compensation 
based on the fair market value of the property at the time of taking. 
In later years, Supreme Court decisions established that regulatory 
takings are subject to the just compensation clause as well. In 
contrast to the direct taking associated with eminent domain, 
regulatory takings arise from the consequences of government regulatory 
actions that affect private property. In these cases, the government 
does not take action to condemn the property or offer compensation. 
Instead, the government effectively takes the property by denying or 
limiting the owner's planned use of the property, referred to as an 
inverse taking.[Footnote 8] An owner claiming that a government action 
has effected a taking and that compensation is owed must initiate suit 
against the government to obtain any compensation due.[Footnote 9] The 
court awards just compensation to the owner upon concluding that a 
taking has occurred.

In 1987, concerned with the number of pending regulatory takings 
lawsuits and with court decisions seen as increasing the exposure of 
the federal government to liability for such takings, the President's 
Task Force on Regulatory Relief began drafting an executive order to 
direct executive branch agencies to more carefully consider the takings 
implications of their proposed regulations or other actions. According 
to a former Assistant Attorney General, this order was needed to 
protect public funds by minimizing government intrusion upon private 
property rights and to budget for the payment of just compensation when 
such intrusions were inevitable. The President issued this order, EO 
12630, on March 15, 1988.

According to the EO, actions subject to its provisions include 
regulations, proposed regulations, proposed legislation, comments on 
proposed legislation, or other policy statements that, if implemented 
or enacted, could cause a taking of private property. Such actions may 
include rules and regulations that propose or implement licensing, 
permitting, or other conditions, requirements or limitations on private 
property use. The EO also enumerates agency actions that are not 
subject to the order, including the exercise of the power of eminent 
domain and law enforcement actions involving seizure, for violations of 
law, of property for forfeiture, or as evidence in criminal 
proceedings.

Among other things, the EO requires the U.S. Attorney General to issue 
guidelines to help agencies evaluate the takings implications of their 
proposed actions, and, as necessary, to update these guidelines to 
reflect fundamental changes in takings case law resulting from U.S. 
Supreme Court decisions. The Attorney General issued these guidelines 
on June 30, 1988, to establish a basic, uniform framework for federal 
agencies to use in their internal evaluations of the takings 
implications of administrative, regulatory, and legislative policies 
and actions.[Footnote 10] In addition, the guidelines discuss agency 
responsibilities for implementing the EO and the process for preparing 
agency-specific supplemental guidelines.

The Attorney General's guidelines provide that agencies should assess 
the takings implications of their proposed actions to determine their 
potential for a compensable taking and that decision makers should 
consider other viable alternatives, when available, to meet statutorily 
required objectives while minimizing the potential impact on the public 
treasury. In cases where alternatives are not available, the potential 
takings implications are to be noted, such as in a notice of proposed 
rulemaking. The guidelines also state that takings implication 
assessments are internal, predecisional management aids and that they 
are not subject to judicial review. In addition, the form and manner of 
these assessments are left up to each agency.

The guidelines also include an appendix that provides detailed 
information regarding some of the case law surrounding consideration of 
whether a taking has occurred and the extent of any potential just 
compensation claim. For example, the appendix discusses the Penn 
Central Transportation Co. v. City of New York[Footnote 11] case in 
which the Supreme Court set out a list of three "influential factors" 
for determining whether an alleged regulatory taking should be 
compensated: (1) the economic impact of the government action, (2) the 
extent to which the government action interfered with reasonable 
investment-backed expectations, and (3) the "character" of the 
government action. However, the appendix provides a caveat that it is 
not intended to be an exhaustive account of relevant case law, adding 
that the consideration of the potential takings of an action as well as 
the applicable case law will normally require close consultation 
between agency program personnel and agency counsel.

In addition to requiring guidelines, the EO requires OMB to ensure that 
the policies of executive branch agencies are consistent with the EO's 
principles, criteria, and requirements. For example, for proposed 
regulatory actions subject to OMB review, agencies are required to 
include a discussion summarizing the potential takings implications of 
these actions in their submissions to OMB. The EO also requires OMB to 
ensure that all takings awards levied against the agencies are properly 
accounted for in agencies' budget submissions.

Despite the existence of the EO, some Members of Congress hold the view 
that the enforcement of the just compensation clause with respect to 
regulatory takings is inadequate and that statutory measures are needed 
to reduce the infringement on private property rights resulting from 
government regulation and to ensure compensation in the event of such 
infringement. For example, a variety of legislation has been proposed 
in Congress over the past 10 years to achieve those goals. In general, 
according to a study prepared by the Congressional Budget Office, these 
bills included measures that would (1) increase the requirements for 
analysis and reporting that federal agencies must meet before making 
decisions that could restrict the uses of private property, (2) relax 
the procedural requirements that must be satisfied before a federal 
court will hear the merits of a takings claim, and (3) require that the 
budget of an agency whose action triggers a regulatory compensation 
claim be the source of any compensation awarded.[Footnote 12] Although 
property rights advocates have supported these legislative initiatives, 
others, including some environmental groups, have questioned the need 
for legislation and voiced the view that the consideration of the 
takings potential of an agency action should not impede the 
government's ability to protect the environment or provide other 
societal benefits.

Justice Has Not Updated Its 1988 Guidelines, but Has Issued 
Supplemental Guidelines for Three of the Four Agencies:

Justice has not updated the general guidelines that it issued pursuant 
to the EO in June 1988 for evaluating the risk of and avoiding 
regulatory takings, but it has issued supplemental guidelines for three 
of the four agencies. Officials at Justice and two of the four agencies 
said that changes in takings case law related to Supreme Court 
decisions made since 1988 have not been significant enough to warrant a 
revision of the general guidelines. Justice officials also noted that 
because the guidelines provide a general framework for agencies to 
follow in implementing the EO, they do not require frequent revision. 
However, Interior and Agriculture officials said that it would be 
helpful to their staffs if Justice updated a summary of the key aspects 
of relevant case law contained in an appendix to the guidelines to 
reflect significant developments in the past 15 years. Similarly, some 
law professors and representatives of property rights groups noted that 
the body of relevant case law has evolved significantly over the past 
15 years, requiring an update to the guidelines. Regarding supplemental 
guidelines, Justice has issued these guidelines for three of the four 
agencies, but has not done so for Agriculture. According to Justice and 
Agriculture officials, Agriculture's supplemental guidelines went 
through several drafts in the early 1990s, but were never completed 
because the two agencies disagreed on issues such as how to assess the 
takings implications of changes in grazing and special use 
permits.[Footnote 13] However, Justice and Agriculture officials told 
us that Agriculture's compliance with the EO has not been encumbered by 
the agency's lack of supplemental guidelines.

Agency Officials and Other Experts Differ on the Need to Update the 
Guidelines to Reflect Changes in Takings Case Law:

Agency officials and other experts differ on the need to update the 
Attorney General's guidelines to reflect changes in regulatory takings 
case law since 1988. Justice officials said the guidelines have not 
been updated since 1988 because there have been no fundamental changes 
in regulatory takings case law, the EO's criterion for an update. They 
said that the guidelines, as written, still cover the main issues in 
determining the risk of a regulatory taking and that subsequent Supreme 
Court decisions have not substantially changed this analysis. For 
example, these officials said the three-factor test outlined in the 
1978 Penn Central case remains the most important guidance for 
analyzing the potential for a taking that is subject to just 
compensation. Justice officials also emphasized that the guidelines 
address only a general framework for agencies' evaluations of the 
takings implications of their proposed actions and thus are not 
intended to be an up-to-date, comprehensive primer on all possible 
considerations. The guidelines state that the individual agencies must 
still conduct their own evaluations, including necessary legal 
research, when assessing the takings potential of a proposed regulation 
or action.

Two of the four agencies supported Justice's position that the 
guidelines do not need to be updated. Officials at the other two 
agencies expressed the view that an appendix to the guidelines that 
summarizes key regulatory takings case law should be updated. Regarding 
agencies that supported Justice's position, Corps of Engineers staff 
indicated that based on their review of relevant Supreme Court 
decisions since 1988, there has been no fundamental change in the 
criteria for assessing potential takings and thus no update to the 
Attorney General's guidelines is necessary. Similarly, EPA staff said 
that some of the takings cases decided since 1988 gave the appearance 
that the Court was changing the three-pronged test set out in the Penn 
Central decision. However, these officials noted that more recent cases 
have returned to the Penn Central test, thereby removing the need for 
updating the Attorney General's guidelines. In contrast, officials at 
Interior and Agriculture said that it would be helpful if Justice 
updated the summary of key takings cases contained in an appendix to 
the guidelines to reflect significant developments in case law over the 
past 15 years.

Other legal experts also said that the Attorney General's guidelines 
should be updated, noting that regulatory takings case law has not 
remained static over the past 15 years. For example, a Congressional 
Research Service attorney who has written extensively on the issue of 
regulatory takings said that the guidelines should be updated to 
reflect more recent Supreme Court decisions. This attorney noted that 
while the EO does not define a "fundamental" change regarding the need 
for an update, a number of important cases have been decided since the 
guidelines were issued. For example, the attorney pointed to the Lucas 
v. South Carolina Coastal Council[Footnote 14] decision of 1992 
concerning a state ban on the development of beachfront property. This 
attorney noted that this case laid out a categorical exception to the 
Penn Central test for regulations that deny a property owner all 
economically viable use of the owner's lands. The attorney stated that 
Lucas made new law in clarifying when, notwithstanding a denial of all 
economically viable use, there is no taking.

Similarly, other legal experts concerned with the protection of private 
property rights said that there have been significant developments in 
regulatory takings case law since 1988. These experts also cited Lucas 
and other cases and said that these cases further develop and/or limit 
the application of the three-pronged test outlined in the Penn Central 
case. These experts said that the mere passage of time and the sheer 
number of regulatory takings cases concluded since 1988 argue for 
updating the guidelines.

In addition, one of these experts, a law professor who has written and 
lectured on the issue of regulatory takings, said that the level of 
specificity with which Justice prepared the original guidelines sets a 
precedent. This expert explained that there have been many important 
changes in regulatory takings case law since 1988 and that the 
guidelines should be updated to reflect these changes given the 
detailed manner in which the original guidelines were prepared.

At the same time, another legal expert, an attorney from an 
environmental research group, indicated that the guidelines might not 
require updating. In general, this attorney said that regulatory 
takings cases concluded since 1988 reaffirm the three-pronged test in 
the Penn Central case. According to this attorney, the Lucas case was 
initially thought to be more significant, but more recently it has been 
read and interpreted more narrowly by the courts and therefore does not 
constitute a fundamental change in the law.[Footnote 15]

Appendix II provides a summary of Supreme Court regulatory takings 
cases decided since 1988 that were cited as being important by 
officials we contacted or in the relevant literature and that may be 
appropriate for inclusion in the guidelines.

Justice Has Issued Supplemental Guidelines for Three of the Four 
Agencies:

The Attorney General has issued supplemental guidelines required by the 
EO for three of the four agencies--the Corps of Engineers, EPA, and 
Interior.[Footnote 16] Although several attempts were made to draft 
supplemental guidelines for Agriculture in the early 1990s, the 
Attorney General did not finalize and issue these guidelines because of 
unresolved issues.[Footnote 17] However, Justice and Agriculture 
officials indicated that the latter agency's lack of supplemental 
guidelines has not hindered its compliance with the EO.

The EO directed the Attorney General, in consultation with each 
executive branch agency, to issue supplemental guidelines for each 
agency as appropriate to the specific obligations of that agency. The 
Attorney General's guidelines state that the supplement should 
prescribe implementing procedures that will aid the agency in 
administering its specific programs under the analytical and procedural 
framework presented in the EO and the Attorney General's guidelines, 
including the preparation of takings implication assessments.

In general, for certain agency actions, the three agencies' 
supplemental guidelines include specific categorical exclusions from 
the EO's provisions. For example, Interior's guidelines exclude its 
nonlegislative actions to which the affected property owners have 
consented; regulations or permits authorizing the taking, possession, 
transportation, or use of migratory birds or wildlife; biological 
opinions issued pursuant to the Endangered Species Act under certain 
conditions; listings of certain species under the Endangered Species 
Act; and denial of permits to import species into or export species 
from the United States. Similarly, the Corps of Engineers' guidelines 
exclude its denials "without prejudice" (i.e., the applicant can apply 
again) of Clean Water Act section 404 permits, because these denials 
are not considered substantive decisions. In addition, EPA's guidelines 
exclude its actions related to the transportation, storage, disposal, 
registration, distribution, and use of pesticides; protection of public 
water systems and underground sources of drinking water; control of 
emissions of air pollutants; disposal of hazardous, solid, and medical 
waste; and control of actual or threatened releases of hazardous 
substances or pollutants or contaminants.

The Attorney General has not issued supplemental guidelines for 
Agriculture because Justice and Agriculture could not reach agreement 
on how to assess the potential takings implications of the latter 
agency's actions related to grazing and special use permits covering 
applicants' use of public lands.[Footnote 18] In this regard, 
Agriculture officials said that because the agency issues, modifies, or 
denies literally thousands of grazing and special use permits every 
year, the agency was concerned about the resource implications of 
having to do a takings implication assessment in each case. In 
addition, in Agriculture's view, the granting of a permit for the use 
of public lands does not convey "property rights" to the permit 
recipient, and thus agency actions to condition or deny such a permit 
do not constitute a potential taking. Accordingly, Agriculture argued 
that these permit actions should be excluded from the EO's requirements 
or, if not, that the agency be allowed to do a generic takings 
implication assessment that would apply to multiple permits. 
Agriculture officials indicated that Justice officials did not agree 
with these suggestions, and the matter was never resolved. According to 
Agriculture officials, this lack of resolution resulted, in part, 
because of ongoing litigation against Agriculture alleging a taking 
related to the agency's denial of a grazing permit[Footnote 19] and 
changing priorities related to the arrival of a new administration in 
1993. Despite Agriculture's lack of supplemental guidelines, agency 
officials said that their implementation of the EO and the Attorney 
General's guidelines has not been encumbered. Justice officials agreed 
with this assessment.

Implementation of Key Provisions by the Four Agencies Has Changed Over 
the Life of the Executive Order:

Although the EO's requirements have not been amended or revoked since 
1988, the four agencies' implementation of some of its key provisions 
has changed over time because of subsequent guidance provided by OMB. 
For example, the agencies no longer prepare annual compilations of just 
compensation awards or account for these awards in their budget 
documents because OMB issued guidance in 1994 advising agencies that 
this information is no longer required. According to OMB, this 
information is not needed because the number and amount of these awards 
is small and the awards are paid from the Department of the Treasury's 
Judgment Fund, rather than from the agencies' appropriations. Each of 
the four agencies has designated an official--typically the chief 
counsel, general counsel, or solicitor--to be responsible for ensuring 
the agency's compliance with the EO. Finally, the four agencies told us 
that they fully consider the potential takings implications of their 
planned regulatory actions, but provided us with limited documentary 
evidence to support this claim.

Agencies No Longer Prepare and Report Annual Compilations of Just 
Compensation Awards or Include Information on These Awards in Their 
Annual Budget Submissions:

The EO requires each executive branch agency to submit annually to OMB 
and Justice an itemized compilation report of all just compensation 
awards entered against the United States for regulatory takings related 
to the agencies' activities. The EO also requires that agencies include 
information on these awards in their annual budget submissions. 
However, at present, the agencies are not complying with these 
provisions because of guidance provided by OMB.

Regarding annual compilations of just compensation awards, OMB first 
provided guidance on the form and content of compilations in its 
Circular A-11, issued in June 1988.[Footnote 20] However, in a 
subsequent version of this circular issued in July 1994, OMB advised 
agencies that the submission of this information is no longer 
necessary.[Footnote 21] According to OMB officials, this information is 
not needed because just compensation awards or settlements related to 
regulatory takings cases do not affect agency budgets but are paid from 
the Department of the Treasury's Judgment Fund. Furthermore, OMB and 
Justice officials said that because the number of just compensation 
awards and settlements paid by the federal government annually and the 
total dollar amount of these payments are relatively small, the overall 
budget implications for the government are small. Hence, these 
officials said the annual reporting of just compensation awards was 
unnecessary. OMB officials offered similar reasons for not requiring 
agencies to include information on just compensation awards in their 
annual budget documents.

Although OMB no longer requires agencies to comply with these EO 
provisions, the provisions remain in the EO. However, OMB and Justice 
officials noted that because the provisions of executive orders are not 
the equivalent of statutory requirements, not complying with these 
provisions does not have the same implications. Instead, executive 
orders are policy tools for the executive branch and are subject to 
changing interpretation and emphasis with each new administration. 
Furthermore, these officials said that the relative lack of regulatory 
takings cases and associated just compensation awards each year is an 
indication that the EO has succeeded in raising agencies' awareness of 
the need to carefully consider the potential takings implications of 
their actions, even if subsequent OMB guidance has excused the agencies 
from some of the EO's provisions.

The Four Agencies Have Designated Officials to Ensure the Agencies' 
Implementation of the EO:

Each of the four agencies has designated an official to be responsible 
for ensuring that the agency's actions comply with the EO's 
requirements. In general, the responsible official at each agency is 
the agency's senior legal official.[Footnote 22] EPA's and Interior's 
supplemental guidelines specifically identify the designated official 
by title. Concerning Agriculture and the Corps of Engineers, we did not 
find written evidence of this designation, although agency officials 
assured us that their senior legal official fulfilled this role. 
Justice officials indicated that the designated official at each of the 
four agencies is effectively performing the compliance assurance and 
liaison functions required by the EO. However, as a practical matter, 
staff attorneys, in consultation with relevant program officials, 
determine the potential takings implications of an agency's planned 
actions.

Agencies Report That They Fully Consider the Takings Implications of 
Their Planned Actions but Provided Little Evidence to Support This 
Claim:

The four agencies said that they fully consider the potential takings 
implications of their planned regulatory actions, but provided us with 
limited documentary evidence to support this claim. Officials at each 
of the four agencies indicated that the requirements of the EO and the 
provisions of the Attorney General's guidelines primarily guide their 
consideration of the takings potential of agency actions. Officials at 
the Corps of Engineers, EPA, and Interior also cited the Attorney 
General's supplemental guidelines for each agency as being important, 
particularly for identifying agency-specific exclusions to the EO's 
provisions. For example, EPA officials indicated that their agency 
performs relatively few takings implication assessments because most of 
its actions are excluded from the provisions of the EO, as enumerated 
in its guidelines. These officials explained that EPA's program 
responsibilities generally do not include land management, and in past 
lawsuits alleging regulatory takings that involved EPA, another federal 
agency usually took the action giving rise to the takings claim, and 
EPA typically served as an advisor or consultant to that agency.

Officials at three of the agencies--Agriculture, the Corps of 
Engineers, and Interior--also said that their agency has provided 
relevant internal guidance. For example, an Agriculture internal 
regulation on rulemaking requires implementation of the EO, including 
the preparation of takings implication assessments, as 
appropriate.[Footnote 23] Similarly, the Corps' Chief Counsel issued 
internal guidance in a memo that addresses legal analyses and takings 
implication assessments related to wetland and other permit decisions. 
For Interior, the agency's departmental manual requires that it assess 
the potential takings implications of planned rulemakings before they 
are published in the Federal Register.[Footnote 24]

Agencies provided us a few written examples of takings implication 
assessments. Agency officials said that these assessments are not 
always documented in writing, and, because of the passage of time, 
those assessments that were put in writing may no longer be on file. 
They also noted that these assessments are internal, predecisional 
documents that generally are not subject to the Freedom of Information 
Act or judicial review; thus they are not typically retained in a 
central file for a rulemaking or other decision, and therefore they are 
difficult to locate. For example, the Corps of Engineer's internal 
guidance memo states that takings implication assessments should be 
removed from the related administrative file once the agency has 
concluded a decision on a permit.

In addition, agency officials also noted that they do not maintain a 
master file of all takings implication assessments. For example, in 
many cases, attorneys assigned to field offices conduct these 
assessments. In these cases, agency officials said that headquarters 
staff may not have copies. Nevertheless, with the exception of EPA, 
each agency provided us with some examples of written takings 
implication assessments.[Footnote 25] These assessments varied in form 
and the level of detail included.[Footnote 26]

We also had difficulty independently verifying the four agencies' 
preparation of takings implication assessments from the information 
contained in Federal Register notices related to their proposed and 
final rulemakings. Specifically, 375 notices mentioned the EO in 1989, 
1997, and 2002, but relatively few provided an indication as to whether 
a takings implication assessment was done. Most of these rules included 
only a simple statement that the EO was considered and, in general, 
that there were no significant takings implications. In contrast, 50 
specified that an assessment of the rule's potential for takings 
implications was prepared, and of these, 10 noted that the rule had the 
potential for "significant" takings implications.[Footnote 27] Table 1 
summarizes this information. In addition, appendix III provides more 
detailed information on these rules.

Table 1: Number of Proposed and Final Rules Addressing the EO for Four 
Agencies, Calendar Years 1989, 1997, and 2002:

Rules that reference the EO; Agriculture: 8; Corps: 3; EPA: 92; 
Interior: 272; Total: 375.

Number of these rules that specify that a takings implication 
assessment was prepared; Agriculture: 1; Corps: 0; EPA: 0; Interior: 
49; Total: 50.

Number of the assessments that found significant takings implications; 
Agriculture: 0; Corps: 0; EPA: 0; Interior: 10; Total: 10.

Source: GAO.

Note: GAO's analysis of relevant Federal Register notices.

[End of table]

Given the limited amount of information available from the agencies or 
available from the Federal Register notices we reviewed, we could not 
fully assess the extent to which the EO's requirements were fully 
considered by the agencies.

Few Awards of Just Compensation Were Made Against the Four Agencies for 
Takings Cases Concluded during Fiscal Years 2000 through 2002:

According to Justice data, 44 regulatory takings cases brought against 
the four agencies were concluded during fiscal years 2000 through 
2002.[Footnote 28] Of these cases, the courts decided in favor of the 
plaintiff in 2 cases, resulting in awards of just compensation totaling 
about $4.2 million. The Justice Department settled in 12 other cases, 
providing total payments of about $32.3 million. Of these 14 cases with 
awards or settlements payments, 10 related to actions of Interior, 3 to 
actions of the Corps of Engineers, and 1 to an action of Agriculture. 
However, the EO's requirements for assessing the takings implications 
of planned regulatory actions applied to only 3 of these 14 cases. For 
the other 11 cases, the associated regulatory action either predated 
the EO's issuance or the matter at hand was otherwise excluded from the 
EO's provisions. Based on available evidence, we found that the 
relevant agency assessed the takings potential of its action in only 1 
of the 3 cases subject to the EO's requirements. As of the end of 
fiscal year 2002, Justice reported that 54 additional regulatory 
takings cases involving the four agencies were pending resolution.

Fourteen Takings Cases Concluded during Fiscal Years 2000 through 2002 
Ended with Awards of Just Compensation or Settlement Payments:

Fourteen of 44 regulatory takings cases involving the four agencies and 
concluded during fiscal years 2000 through 2002 resulted in government 
payments, according to Justice data. The U.S. Court of Federal Claims 
awarded payment of just compensation in 2 cases for a sum totaling 
about $4.2 million. Justice settled the remaining 12 cases, for a sum 
totaling about $32.3 million.[Footnote 29] In general, the cases 
settled were concluded with compromise agreements, including stipulated 
dismissals or settlement agreements, reached among the litigants and 
approved by the applicable court. In these cases, the agreement usually 
provides that the parties have agreed to end the case with a payment to 
the plaintiff, but no finding that a taking occurred. For example, in 
one case concluded in 2001 that alleged a taking of an oil and gas 
lease on federal land managed by Interior's Bureau of Land Management, 
the litigants negotiated a stipulated dismissal that provided that a 
payment of $3 million be made to the plaintiffs. This payment was to 
cover all claims made by the plaintiffs in the case. However, the 
stipulated dismissal also provided that the final outcome should not be 
construed as an admission of liability by the United States government 
for a regulatory taking. In addition, the dismissal required that the 
plaintiffs surrender their interests in a portion of the lease. In the 
2 cases with award payments, the court concluded that a taking had 
occurred and thus it awarded just compensation.

Of these 14 cases with awards or settlement payments, the 10 Interior 
cases generally dealt with permits related to mining claims on federal 
lands managed by that agency or matters related to granting access on 
public lands. For example, one case involving mining claims resulted in 
the plaintiff receiving a settlement of almost $4 million. In another 
case, involving the denial of preferred access to a lake on land 
managed by the agency, the plaintiff received a settlement of $100,000. 
The three Corps' cases generally related to its denial or issuance with 
conditions of wetlands permits for private property. One of these 
cases, concerning the filling of a wetland in Florida, resulted in a 
settlement payment of $21 million, accounting for more than half of the 
total compensation awards and settlement payments related to the 14 
cases. The single Agriculture case concerned the title to mineral 
rights in a national forest managed by the agency. The plaintiff 
received an award of $353,000 in this case. Table 2 provides a breakout 
by agency on the number of cases and the amount of the award or 
settlement involved. In addition, appendix IV provides detailed 
descriptions of the particulars for each case.

Table 2: Awards of Just Compensation or Settlement Payments for 
Concluded Regulatory Takings Cases for the Four Agencies, Fiscal years 
2000 through 2002:

(Dollars in thousands).

Agriculture; Number of concluded cases: 1; 
Number of cases with payments: 1; Just compensation awards: $353; 
Settlements: $0; Total: $353.

Corps; Number of concluded cases: 15; Number of cases with payments: 3; (Dollars in 
thousands): Just compensation awards: 0; 
Settlements: 22,085; Total: 22,085.

EPA; Number of concluded cases: 2; Number of cases with payments: 0; 
Just compensation awards: 0; Settlements: 0; Total: 0.

Interior; Number of concluded cases: 26; 
Number of cases with payments: 10; Just compensation awards: 3,851; 
Settlements: 10,216; Total: 14,067.

Total; Number of concluded cases: 44; Number of cases with payments: 
14; Just compensation awards: 4,204; Settlements: $32,301; Total: 
$36,505.

Source: GAO.

Note: GAO's analysis of data provided by the Department of Justice's 
Environment and Natural Resources Division.

[End of table]

In addition to the cases concluded during fiscal years 2000 through 
2002, Justice reported that an additional 54 regulatory takings cases 
involving the four agencies were still pending resolution at the end of 
fiscal year 2002.[Footnote 30]

Only Three of the Takings Cases Concluded with Awards of Just 
Compensation or Settlement Payments Were Subject to the EO:

Based on information provided by the four agencies, only 3 of the 14 
cases with payments were subject to the EO's requirement to conduct a 
regulatory takings implication assessment. For the other 11 cases, the 
agency action involved either predated the EO's issuance or was 
otherwise excluded from the EO's requirements.

Of the three cases subject to the EO's requirements, we found evidence 
that a regulatory takings implication assessment had been done in only 
one instance.[Footnote 31] In that case, the Corps of Engineers denied 
a wetlands permit sought by the plaintiff to fill wetlands on the 
plaintiff's property in order to develop a commercial medical center. 
The plaintiff brought suit alleging a compensable taking had occurred. 
In its takings implication assessment, the Corps had concluded that the 
permit denial did not constitute a taking because the applicant was 
still free to use the property for other purposes that did not involve 
filling the wetland. Therefore, the Corps concluded that the permit 
denial did not deprive the plaintiff of all viable economic use of the 
property. However, the case ended with a stipulated dismissal and a 
payment of $880,000 to the plaintiff.

Agency Comments and Our Evaluation:

We provided a draft of this report to Agriculture, the Corps of 
Engineers, EPA, Interior, Justice, and OMB for review and comment. With 
the exception of OMB, the agencies provided us with technical 
corrections and editorial comments that we have incorporated as 
appropriate. OMB indicated that it did not have any comments on the 
draft. In addition, two of the agencies, Agriculture and EPA, provided 
an overall reaction to the report. Agriculture indicated that the 
report provides a thorough and reasonable review of the issues 
regarding the EO's implementation and that the agency does not disagree 
with the information presented. Similarly, EPA indicated that it 
generally agreed with the information provided in the report.

As agreed with your office, unless you publicly announce its contents 
earlier, we plan no further distribution of this report until 30 days 
after the date of this letter. We will send copies of this report to 
the Attorney General; the Secretary of Agriculture; the Secretary of 
the Army; the Administrator, Environmental Protection Agency; the 
Secretary of the Interior; the Director, Office of Management and 
Budget; and interested congressional committees. We will make copies 
available to others upon request. In addition, the report will be 
available at no charge on the GAO Web site at http://www.gao.gov.

If you have any questions concerning this report, I can be reached at 
202-512-3841 or mittala@gao.gov. Major contributors to this report are 
listed in appendix V.

Sincerely yours,

Signed by:

Anu K. Mittal 
Acting Director, Natural Resources and Environment:

[End of section]

Appendixes:

Appendix I: Objectives, Scope, and Methodology:

The Chairman of the House Subcommittee on the Constitution, Committee 
on the Judiciary, asked us to provide information on measures taken by 
the Department of Justice to implement certain provisions of Executive 
Order 12630 (EO) regarding regulatory takings of private property and 
the efforts of four agencies--the Department of Agriculture, U.S. Army 
Corps of Engineers, Environmental Protection Agency, and the Department 
of the Interior[Footnote 32]--to comply with the requirements of the 
EO. Specifically, the Chairman asked us to examine the extent to which 
(1) Justice has updated its guidelines to implement the EO to reflect 
changes in case law and issued supplemental guidelines for the four 
agencies, (2) the four agencies have complied with the specific 
provisions of the EO, and (3) awards of just compensation have been 
assessed against the four agencies by the courts for regulatory takings 
in recent years and, in these cases, whether the agencies assessed the 
potential takings implications of their actions before implementing 
them.

To report on the extent to which Justice has updated its guidelines and 
issued supplemental guidance for the four agencies, we obtained copies 
of these documents and interviewed knowledgeable agency officials. At 
Justice, these officials included attorneys in the agency's Environment 
and Natural Resources Division. At the four agencies, these officials 
included attorneys in each agency's legal office (i.e., Office of the 
Chief Counsel, General Counsel, or Solicitor). We also discussed these 
matters with officials of the Office and Management and Budget's Office 
of Information and Regulatory Affairs. In addition, we conducted legal 
research and sought the opinions and reviewed the publications of other 
relevant individuals at the Congressional Research Service; private 
property rights groups, including the Defenders of Property Rights; 
environmental groups, including the Georgetown Environmental Law and 
Policy Institute; and law schools, as to whether changes in takings 
case law since 1988 warrant revisions to the guidelines. In the course 
of this work, we identified and summarized key regulatory takings cases 
heard before the Supreme Court that have been concluded since 1988. Our 
work may not have identified all such cases. Furthermore, we do not 
take a position as to whether these cases, individually or 
collectively, constitute a fundamental change in the body of regulatory 
takings case law that would trigger the need to update Justice's 
guidelines.

To determine the extent of the four agencies' compliance with specific 
provisions of the EO, we interviewed knowledgeable officials in the 
legal offices of these agencies and reviewed the documents they 
provided. These documents included written takings implication 
assessments of the takings potential of proposed regulatory actions. At 
each agency we requested examples of these assessments, although we did 
not ask the agencies to conduct an exhaustive search of their records 
for these assessments because the agencies generally expressed concerns 
about the time and resources such a search could require. In addition, 
the agencies indicated that assessments are not always written or, if 
written, are not always retained in official files. During the course 
of our work, we also asked for copies of written assessments associated 
with specific regulatory takings cases that were concluded with either 
a settlement or just compensation payment. In addition, we obtained 
copies of some additional takings implication assessments from Federal 
Register notices.

Furthermore, regarding the agencies' compliance with specific 
provisions of the EO, we interviewed Justice and OMB Officials, as 
appropriate. We also reviewed OMB's Circular A-11, Preparation and 
Submission of Budget Estimates, and discussed with OMB officials how 
the guidance in that circular has changed over time and affected the 
four agencies' compliance with the EO. In addition, we reviewed 375 
Federal Register notices of proposed and final regulatory actions 
published in 1989, 1997, and 2002 relating to the four agencies and 
referencing the EO to determine if and how the agencies documented 
their compliance with the EO. These years were selected judgmentally: 
1989 represents the first full year under the EO, 1997 represents an 
intermediate year, and 2002 represents the most recent full year. These 
years also provide 1 year's experience under each of the past three 
presidential administrations.

Finally, regarding awards of just compensation made against the 
agencies and, in these cases, whether the agencies had assessed the 
takings potential of their actions, we obtained from Justice a list of 
all takings cases related to the four agencies that were concluded 
during fiscal years 2000 through 2002. We initially sought this type of 
data for the full 15-year period since the EO's issuance, but Justice 
officials indicated that the full set of data was not readily available 
and would be very labor intensive to provide. We then discussed these 
cases with relevant officials at the four agencies and analyzed 
documents they provided. In particular, we focused on cases in which 
just compensation awards or settlement payments were made, and, for 
these cases, whether the agencies had assessed the potential takings 
implications of their actions before implementing them. We also 
discussed the cases with the Clerk of the U.S. Court of Federal Claims 
and officials responsible for administering the Department of the 
Treasury's Judgment Fund and reviewed documents they provided, in part, 
to verify the information on the cases with just compensation awards or 
settlement payments.

We conducted our work between October 2002 and September 2003 in 
accordance with generally accepted government auditing standards.

[End of section]

Appendix II: Summary of Significant Supreme Court Regulatory Takings 
Cases:

This appendix summarizes regulatory takings cases decided by the U.S. 
Supreme Court since 1988, the year the EO was issued and the Attorney 
General promulgated guidelines related to the EO. These cases were 
cited as being important to the body of relevant case law by legal 
experts in our interviews with them or in various written products they 
prepared, including books, law review articles, reports, papers, 
speeches, or testimonies. The cases discussed are not intended to be an 
exhaustive list of all such cases. In addition, the appendix discusses 
certain cases that were decided prior to 1988 because they are 
referenced in some of the more recent cases discussed below or are 
cited elsewhere in this report.

Cases Decided After 1988:

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning 
Agency, 535 U.S. 302 (2002):

Issue: Were two moratoria imposed by the Lake Tahoe Regional Planning 
Agency compensable takings?

Background: The Tahoe Regional Planning Agency issued two ordinances 
prohibiting all development on vacant lots within residential 
subdivisions in the Lake Tahoe Basin for a period of 32 months. A group 
of about 400 individual owners brought suit contending that the 
ordinances constituted compensable takings. (Subsequent to the 
landowners bringing suit in 1984, development moratoria continued to 
prohibit use of many of the parcels; however, the Supreme Court was 
only asked to address the 32-month moratoria.):

Decision: The Supreme Court held that the temporary moratorium on 
development was not a per se or categorical taking. Instead, the 
question of whether the Takings Clause of the Fifth Amendment requires 
compensation when the government enacts a temporary regulation denying 
a property owner any economic use of his property is to be decided by 
applying the factors of Penn Central rather than any categorical rule. 
The Court also stated that First English Evangelical Lutheran Church v. 
County of Los Angeles (discussed below) concerned the question of 
whether compensation is an appropriate remedy for a temporary taking, 
not whether or when such a taking has occurred.

Palazzolo v. Rhode Island, 533 U.S. 606 (2001):

Issue: Did state denials rejecting developer's proposals to fill in or 
build on all or most of a lot, principally consisting of wetlands, 
cause a taking?

Background: A landowner made several applications to the state for a 
permit to fill 11 acres of wetlands, build 74 houses, or construct a 
private beach club. The state denied these applications, but informed 
him that he would be allowed to build at least one house on the 
property. The landowner estimated that the limitations imposed by the 
state equated to a 94 percent diminution in value of the property and 
brought suit, arguing for an extension of the Lucas v. South Carolina 
Coastal Council (Lucas) test (discussed below) to his situation.

Decision: The Supreme Court rejected extending Lucas to a situation 
where there had been less than a complete denial of the economically 
viable use of the property. The Court noted that the ability to build a 
house on the property was of significant worth. The Court remanded the 
case back to state court for evaluation under the Penn Central test. 
The Court also ruled that the acquisition of title after the effective 
date of the regulation that was the basis for the regulatory takings 
claim did not bar the claim.

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 
(1999):

Issues: Was it proper to submit the determination of a city's liability 
for a regulatory taking to a jury and did the rough-proportionality 
standard of Dolan v. City of Tigard (Dolan) (discussed below) apply to 
challenges based on denial of development?

Background: Del Monte Dunes and its predecessor landowner sought to 
develop an oceanfront parcel of land within the jurisdiction of the 
city of Monterey. The city, in a series of repeated rejections, denied 
proposals to develop the property, each time imposing more rigorous 
demands on the developers. The property owner brought a civil rights 
suit against the city alleging, among other things, that the rejections 
had effected a regulatory taking. The case was tried before a jury, 
which ruled in favor of Del Monte Dunes.

Decision: The Supreme Court ruled that the issues of whether the city's 
repeated rejections of the property owner's development proposals 
deprived the owner of all economically viable use of the owner's 
property and whether the city's decision to reject Del Monte Dunes' 
development plan was reasonably related to a legitimate public purpose 
were factual questions for a jury to resolve. The Court also stated 
that the "rough proportionality" standard of Dolan did not apply. Dolan 
dealt with situations in which land-use decisions condition approval of 
development on the dedication of property to public use. The Court held 
that Dolan did not apply to the present case in which the landowner's 
challenge was based on denial of development.

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997):

Issue: Was a landowner's regulatory taking claim ripe for adjudication?

Background: A landowner claimed that the Tahoe Regional Planning Agency 
committed a regulatory taking when it determined that the landowner's 
undeveloped residential lot near Lake Tahoe was ineligible for 
development. However, the planning agency had indicated that the 
landowner was entitled to receive certain "Transferable Development 
Rights" that she could sell to other landowners with the agency's 
approval. The landowner did not seek those rights but instead brought 
an action for just compensation for the agency's alleged taking of her 
property. In response, the planning agency claimed that the landowner's 
takings claim was not ripe because she failed to apply to transfer her 
development rights, and thus, the amount of her takings claim could not 
be determined.

Decision: The Supreme Court ruled that the planning agency had made a 
final decision in determining that the landowner's property was 
ineligible for development, and thus, her claim was ripe for 
adjudication. The Court reasoned that the valuation of the landowner's 
transfer rights is simply an issue of fact about possible market prices 
and went to the issue of how much just compensation was owed, not 
whether there had been a taking. The Court discussed Agins v. City of 
Tiburon (discussed below), in which it held that because the owners who 
were challenging ordinances restricting the number of houses they could 
build on their property had not submitted a plan for development of 
their property, there was no concrete controversy regarding the 
application of the specific zoning provisions.

Dolan v. City of Tigard, 512 U.S. 374 (1994):

Issue: The Court stated that it granted certiorari to resolve a 
question left open by its decision in Nollan v. California Coastal 
Commission (discussed below): What is the required degree of connection 
between the exactions imposed by the city and the projected impacts of 
the proposed development?

Background: A landowner applied to the city of Tigard for a permit to 
redevelop her plumbing and electrical supply store site. As a condition 
of granting the landowner's permit application, the city required the 
landowner to dedicate a portion of her property as a public greenway to 
minimize flooding and to dedicate an additional portion of her land as 
a pedestrian/bicycle pathway to reduce traffic congestion, in 
accordance with the city's land use plan. The landowner challenged the 
dedication requirements on the grounds that they were not related to 
the proposed development and, therefore, constituted an uncompensated 
taking of her property under the Fifth Amendment.

Decision: The Supreme Court found that preventing flooding and reducing 
traffic congestion were legitimate public purposes and that there was a 
nexus between the conditions imposed by the city and these purposes. 
The Supreme Court then applied a "rough proportionality" test, stating 
that the city has the burden of establishing the constitutionality of 
its conditions by making an "individualized determination" that the 
conditions in question were proportional to the stated purposes. The 
Court ruled that the city's dedication requirements constituted an 
uncompensated taking of the landowner's property because the city had 
failed to show either the need for a public, as opposed to a private, 
greenway or that the additional number of vehicle and bicycle trips 
generated by the proposed development was reasonably related to the 
city's requirement for a dedicated pedestrian/bicycle path.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992):

Issue: Is a government regulation of land that completely eliminates 
its economic use a compensable taking?

Background: A landowner bought two residential lots on a South Carolina 
barrier island, intending to build single-family homes. Subsequently, 
the state enacted a statute that barred him from erecting permanent 
habitable structures on the land. The landowner filed suit in state 
court, claiming that the law caused a taking of his property without 
just compensation. The South Carolina trial court found that the 
statute rendered the landowner's parcel valueless, and awarded 
compensation. The South Carolina Supreme Court reversed the award of 
compensation, holding that, under previous U.S. Supreme Court cases, 
when a regulation is designed to prevent "harmful or noxious uses" of 
property akin to public nuisances, no compensation was due the 
landowner, regardless of the regulation's effect on the property's 
value.

Decision: The Court reversed the South Carolina Supreme Court's 
decision, ruling that the state court erred in applying the "harmful or 
noxious" uses principle to decide this case. The Court stated that 
regulations that deny the property owner all "economically viable uses 
of his land" constitutes a per se, or categorical, regulatory taking 
that requires compensation, without inquiring into the public interest 
advanced in support of the restraint. However, the Court also noted 
that no taking has occurred if the state law simply makes explicit the 
limitations on land ownership already existing as a result of the 
background principles of a state's law of property and nuisance. The 
Supreme Court remanded the case for the South Carolina court to 
determine whether these principles would have prohibited the landowner 
from building on his property.

Cases Decided Before 1988:

Nollan v. California Coastal Commission, 483 U.S. 825 (1987):

Issue: Was there a nexus between the condition on the requested permit 
and a legitimate state government purpose of protecting the public view 
of a beach?

Background: The California Coastal Commission demanded a lateral public 
easement across the Nollans' beachfront lot in exchange for a permit to 
demolish an existing bungalow and replace it with a three-bedroom 
house. The public easement was designed to connect two public beaches 
that were separated by the Nollan property. The Coastal Commission had 
asserted that the public easement condition was imposed to promote the 
legitimate state interest of diminishing the "blockage of the view of 
the ocean" caused by construction of the larger house.

Decision: The Court found that there had been a taking, as it found no 
"essential nexus" between the government's purpose and its condition on 
construction that required the property owners to grant an easement 
allowing the public access to their beachfront. The Court ruled that 
while the Coastal Commission could have required that the Nollans 
provide a viewing spot on their property for passersby, there was no 
nexus between visual access to the ocean and a permit condition 
requiring lateral public access along the Nollans' beachfront lot.

First English Evangelical Lutheran Church v. County of Los Angeles, 482 
U.S. 304 (1987):

Issue: Did an interim ordinance prohibiting construction of any 
structures in a flood zone cause a temporary taking of property 
requiring compensation?

Background: A church purchased a 21-acre parcel of land located in a 
canyon along the banks of a river that is a natural drainage channel 
for a watershed area. The church operated a campground on the site. 
Flooding destroyed the campground and its buildings. In response to the 
flooding of the canyon, the County of Los Angeles adopted an interim 
ordinance that prohibited construction in an interim flood protection 
area, including the site on which the campground had stood. The church 
filed suit, seeking just compensation for loss of the use of the 
campground.

Decision: The Court ruled that even if a regulation that has been found 
to result in a taking is repealed or invalidated the government must 
pay just compensation for the interim period that the regulation was in 
effect.

Agins v. City of Tiburon, 447 U.S. 255 (1980):

Issue: Did a zoning ordinance limiting the number of houses that 
landowners could build on their property cause a taking?

Background: The landowners acquired 5 acres of unimproved land for 
residential development in Tiburon, California. Subsequently, the city 
adopted two ordinances that modified existing zoning requirements. The 
density restrictions under the ordinances permitted the landowners to 
build between one and five single-family residences on their 5-acre 
tract. The landowners did not seek approval to develop their land, and 
instead brought suit for just compensation. The complaint alleged that 
their land had greater value than other suburban property in California 
due to the scenic views, and that the ordinances destroyed the value of 
their property.

Decision: The Court held that the zoning ordinance on its face did not 
cause a taking. The court stated that the ordinance was rationally 
related to the legitimate public goal of open-space preservation, the 
ordinance benefits property owners as well as the public, and the 
landowners may still be able to build up to five houses on a lot. The 
Court also found that because the landowners had not submitted a plan 
for development of their property, there was no concrete controversy 
regarding the application of the specific zoning provisions.

Penn Central Transportation Co. v. City of New York, 438 U.S. 104 
(1978):

Issue: Did the city's use of a historic preservation ordinance to block 
construction of an office tower atop a designated historic landmark 
cause a taking?

Background: The Landmark Preservation Commission denied Penn Central 
permission to build a multistory office building above Grand Central 
Station in New York City. Penn Central alleged the regulation took its 
property.

Decision: The Court ruled that there had been no taking of property. In 
evaluating the case, the Court set forth a three-pronged test for 
determining whether a government regulation has resulted in a taking: 
(1) the character of the governmental actions; (2) the economic impact 
of the action on the property owner; and (3) the extent to which the 
regulation has interfered with the distinct, investment-backed 
expectations of the owner.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922):

Issue: Did a state law barring coal mining that might cause subsidence 
of overlying land result in a taking of private property in a case 
where the mineral estate owner is different from the surface estate 
owner?

Background: A coal company conveyed the surface ownership of its 
property and retained the right to remove coal from the subsurface. 
Subsequently, a state law was enacted, forbidding the mining of coal in 
such a way as to cause the subsidence of housing in situations where 
the surface and subsurface ownership belong to different parties. As a 
result, the coal company was unable to exercise its right to remove the 
coal.

Decision: The Court held that a taking occurred. The Court stated 
"while property may be regulated to a certain extent, if regulation 
goes too far it will be recognized as a taking." The Court reasoned 
that the extent of the taking under the state law--abolishing the right 
to mine coal, which it deemed "a very valuable estate"--was great. 
Moreover, because the state law applied only where surface and 
subsurface land is in different ownership, it benefits a narrow private 
interest rather than a broad public one.

[End of section]

Appendix III: Proposed and Final Rules That Address the EO, for the Four 
Agencies, Calendar Years 1989, 1997, and 2002:

Table 3: Proposed and Final Rules That Address the EO, for the Four 
Agencies, Calendar Years 1989, 1997, and 2002:

Agency: Agriculture; 

Year: 1989; Rules that reference the EO: 1; Number 
of these rules that specify a takings implication assessment was 
prepared: 0; Number of the assessments that found significant takings 
potential: 0.

Year: Agency: 1997; Rules that reference the EO: Agency: 5; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 1; Number of the assessments that found significant takings 
potential: Agency: 0.

Year: Agency: 2002; Rules that reference the EO: Agency: 2; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 0; Number of the assessments that found significant takings 
potential: Agency: 0.

Sub-total: Corps: Rules that reference the EO: 
8; Number of these rules that specify a takings implication assessment 
was prepared: 1; Number of the assessments that found 
significant takings potential: 0.

Agency: Corps; 

Year: 1989; Rules that reference the EO: 1; Number of 
these rules that specify a takings implication assessment was prepared: 
0; Number of the assessments that found significant takings potential: 
0.

Year: Agency: 1997; Rules that reference the EO: Agency: 2; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 0; Number of the assessments that found significant takings 
potential: Agency: 0.

Year: Agency: 2002; Rules that reference the EO: Agency: 0; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 0; Number of the assessments that found significant takings 
potential: Agency: 0.

Sub-total; Rules that reference the EO: 3; 
Number of these rules that specify a takings implication assessment was 
prepared: 0; Number of the assessments that found 
significant takings potential: 0.

Agency: EPA; 

Year: 1989; Rules that reference the EO: 0; Number of 
these rules that specify a takings implication assessment was prepared: 
0; Number of the assessments that found significant takings potential: 
0.

Year: Agency: 1997; Rules that reference the EO: Agency: 0; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 0; Number of the assessments that found significant takings 
potential: Agency: 0.

Year: Agency: 2002; Rules that reference the EO: Agency: 92; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 0; Number of the assessments that found significant takings 
potential: Agency: 0.

Sub-total; Rules that reference the EO: 
92; Number of these rules that specify a takings 
implication assessment was prepared: 0; Number of the 
assessments that found significant takings potential: 
0.

Agency: Interior; 

Year: 1989; Rules that reference the EO: 15; Number 
of these rules that specify a takings implication assessment was 
prepared: 0; Number of the assessments that found significant takings 
potential: 0.

Year: 1997; Rules that reference the EO: Agency: 62; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 2; Number of the assessments that found significant takings 
potential: Agency: 1.

Year: 2002; Rules that reference the EO: Agency: 195; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 47; Number of the assessments that found significant takings 
potential: Agency: 9.

Year: Sub-total; Rules that reference the EO: 
272; Number of these rules that specify a takings implication 
assessment was prepared: 49; Number of the assessments 
that found significant takings potential: 10.

Agency: Total; Year: 1989; Rules that reference the EO: 17; Number of 
these rules that specify a takings implication assessment was prepared: 
0; Number of the assessments that found significant takings potential: 
0.

Year: 1997; Rules that reference the EO: Agency: 69; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 3; Number of the assessments that found significant takings 
potential: Agency: 1.

Year: 2002; Rules that reference the EO: Agency: 289; Number of 
these rules that specify a takings implication assessment was prepared: 
Agency: 47; Number of the assessments that found significant takings 
potential: Agency: 9.

Total; Rules that reference the EO: 375; Number of these rules that specify a takings 
implication assessment was prepared: 50; Number of 
the assessments that found significant takings potential: 10.

Source: GAO.

Notes: GAO's analysis of related Federal Register notices.

Regarding EPA rules mentioning the EO in 2002, EPA officials attributed 
the significant increase seen that year to the widespread use of a 
template that was developed for use in applicable notices of proposed 
and final rulemakings. This template states that EPA had complied with 
the EO and the Attorney General's supplemental guidelines. Interior 
officials were unable to explain the significant increase in the number 
of Interior rules mentioning the EO in 2002.

[End of table]

[End of section]

Appendix IV: Regulatory Takings Cases Concluded during Fiscal Years 2000 
through 2002 Related to Actions of the Four Agencies:

Table 4: Regulatory Takings Cases Concluded with Payments, for the Four 
Agencies, Fiscal Years 2000 through 2002:

Fiscal year and case names: 2000: 

James Koconis & Ted G. Koconis v. 
United States; Court name and case number: Court of Federal 
Claims 94-517L; Agency: Corps of Engineers; Payment type and 
amounts: Settlement; $880,000; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act; Was the action subject to the Executive Order 12630?: 
Year: Yes; Was a takings implication assessment done by agency?: 
Yes.

Fiscal year and case names: Speerex Ltd., et al. v. United 
States; Court name and case number: Court of Federal Claims 97-
351L; Agency: Interior; Payment type and amounts: 
Settlement; $110,000; Agency action related to the alleged taking: 
Year: Anticipated rejection of drilling permits on oil and gas leases; 
Was the action subject to the Executive Order 12630?: No--
plaintiff made claim before agency action; Was a takings implication 
assessment done by agency?: No.

Fiscal year and case names: W.C. Bell and Davis O. Heniford v. 
United States; Court name and case number: Court of Federal 
Claims 97-857L; Agency: Corps of Engineers; Payment type and 
amounts: Settlement $205,000; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act; Was the action subject to the Executive Order 12630?: 
Year: No--excluded under supplemental guidelines; Was a takings 
implication assessment done by agency?: No.

Fiscal year and case names: Lake Pleasant Group v. United States; 
Court name and case number: Court of Federal Claims 92-848L; 
Court of Appeals, Federal Circuit 95-5061; Agency: Interior; 
Payment type and amounts: Settlement; $100,000; Agency action 
related to the alleged taking: Denial of plaintiff's preferred 
access to lake; Was the action subject to the Executive Order 12630?: 
Year: No--predated EO; Was a takings implication assessment done by 
agency?: No.

2001: 

Fiscal year and case names: Del-Rio Drilling Programs, Inc., et 
al. v. United States; Court name and case number: Court of 
Federal Claims 569-86L (37 Fed. Cl. 157) rev'd, Court of Appeals, 
Federal Circuit 97-5055 (146 F.3d 1358); Agency: Interior; 
Payment type and amounts: Settlement $300,000; Litigation Costs 
$591; Agency action related to the alleged taking: Bureau of 
Indian Affairs' failure to grant surface use for oil and gas leases on 
Indian lands due to the tribe's lack of consent; Was the action subject 
to the Executive Order 12630?: No--predated EO; Was a takings 
implication assessment done by agency?: No.

Fiscal year and case names: Arnold E. Howard, et al. v. United 
States; Court name and case number: U.S. District Court, District 
of Alaska F98-0006CV (JKS); Agency: Interior; Payment type and 
amounts: Settlement $838,000; Agency action related to the 
alleged taking: (1) Legislative taking of mining claims under § 
120 of Pub. L. No. 105-83 or alternatively (2) taking under 
implementation of Mining in the Parks Act; Was the action subject to 
the Executive Order 12630?: Either (1) No, legislative taking not 
covered by EO or; (2) No, plaintiff made claim before final agency 
action; Was a takings implication assessment done by agency?: No.

Fiscal year and case names: Devon Energy Corporation, et al. v. 
United States; Court name and case number: Court of Federal 
Claims 98-665L; Agency: Interior; Payment type and amounts: 
Attorney fees $380,000; Agency action related to the alleged taking: 
Year: Denial of applications to permit drilling; Was the action subject 
to the Executive Order 12630?: Yes[A]; Was a takings implication 
assessment done by agency?: No.

Fiscal year and case names: Florida Rock Industries, Inc. v. 
United States; Court name and case number: Court of Federal 
Claims 266-82L; Agency: Corps of Engineers; Payment type and 
amounts: Settlement $21,000,000; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act; Was the action subject to the Executive Order 12630?: 
Year: No--predated EO; Was a takings implication assessment done by 
agency?: No.

Fiscal year and case names: Shirl Pettro v. United States; Court 
name and case number: Court of Federal Claims 96-651L (47 Fed. 
Cl. 136); Agency: Agriculture; Payment type and amounts: 
Court Order of Just Compensation $74,479; Attorney fees $250,294; 
Litigation costs $28,217; Agency action related to the alleged taking: 
Year: Temporary denial of access to minerals from national forest due 
to dispute over title to mineral rights; Was the action subject to the 
Executive Order 12630?: No--legal action not within the scope of 
the EO; Was a takings implication assessment done by agency?: No.

Fiscal year and case names: W.A. Moncrief, Jr. et al. v. United 
States; Court name and case number: Court of Federal Claims 97-
565L; Agency: Interior; Payment type and amounts: 
Settlement $3,000,000; Agency action related to the alleged taking: 
Year: Anticipated and actual denial of drilling permits to protect 
Lechuguilla Cave; Was the action subject to the Executive Order 12630?: 
Year: Yes; Was a takings implication assessment done by agency?: 
No.

2002: 

Fiscal year and case names: Kantishna Mining Company, et al. v. 
Bruce Babbitt, et al.; Court name and case number: U.S. District 
Court, District of Alaska 98-00007CV (JKS); Court of Appeals, Ninth 
Circuit, 01-35201, 01-35248; Agency: Interior; Payment type and 
amounts: Settlement; $872,000; Interest; $528,000; Agency action 
related to the alleged taking: (1) Legislative taking of mining 
claims under § 120 of Pub. L. No. 105-83 or alternatively (2) taking 
under implementation of Mining in the Parks Act; Was the action subject 
to the Executive Order 12630?: Either (1) No, legislative taking 
not covered by EO or; (2) No, plaintiff made claim before final agency 
action; Was a takings implication assessment done by agency?: No.

Fiscal year and case names: John W. Taylor v. United States; 
Court name and case number: Court of Federal Claims 99-131L; 
Agency: Interior; Payment type and amounts: Settlement; 
$175,000; Agency action related to the alleged taking: Delay in 
issuing an incidental take permit under § 10 of the Endangered Species 
Act; Was the action subject to the Executive Order 12630?: No--
excluded under supplemental guidelines[B]; Was a takings implication 
assessment done by agency?: No.

Fiscal year and case names: Board of County Supervisors of Prince 
William County, Virginia v. United States; Court name and case number: 
Year: Court of Federal Claims 90-364L (47 Fed. Cl. 714); aff'd, Court 
of Appeals, Federal Circuit (276 F.3d 1359); Agency: Interior; 
Payment type and amounts: Court Order of Just Compensation 
$1,153,578; Interest $2,697,534; Agency action related to the alleged 
taking: Legislative taking of land under Pub. L. No. 100-647 to 
add land to the Manassas National Battlefield Park; Was the action 
subject to the Executive Order 12630?: No--excluded for eminent 
domain; Was a takings implication assessment done by agency?: No.

Fiscal year and case names: Richard P. Cook, et al. v. United 
States; Court name and case number: Court of Federal Claims 94-
344L; Agency: Interior; Payment type and amounts: 
Settlement $3,911,838; Agency action related to the alleged taking: 
Year: Legislative taking of rights to a patent for mining claims with 
the establishment of the Jemez National Recreation Area by 16 U.S.C. § 
460jjj; Was the action subject to the Executive Order 12630?: No-
-legislative taking not covered by EO; Was a takings implication 
assessment done by agency?: No.

Fiscal year and case names: Totals; Court name and case number: 
Year: 14 Cases; Agency: [Empty]; Payment type and amounts: 
$36,504,531; Agency action related to the alleged taking: ; Was 
the action subject to the Executive Order 12630?: ; Was a 
takings implication assessment done by agency?: .

Source: GAO.

Note: GAO analysis of data provided by the Department of Justice's 
Environment and Natural Resources Division, counsel or solicitor staff 
at the four agencies and from court documents.

[A] While Interior initially reported the EO did not apply to this 
case, further examination revealed that the action neither predated nor 
was excluded from the EO. Interior commented that while a formal 
takings implication assessment was not prepared in this case, there was 
a "good faith" discussion of its takings implications within the 
department.

[B] While the supplemental guidelines for Interior provide an exclusion 
for the issuance of the permit, the EO provides that the duration of 
the process shall be "kept to the minimum necessary." GAO makes no 
judgment on whether there was undue delay in this case.

[End of table]

Table 5: Regulatory Takings Cases Concluded Without Payments, for the 
Four Agencies, Fiscal Years 2000 through 2002:

2000:

Fiscal year and case names: Northwest Explorations Joint Venture 
v. Bruce Babbitt; Court name and case number: U.S. District 
Court, District of Alaska 99-0643CV; Agency: Interior; Agency 
action related to the alleged taking: Taking of mining claims 
under Mining in the Parks Act.

Fiscal year and case names: Boise Cascade Corporation v. United 
States; Court name and case number: Court of Federal Claims 98-
634L; Agency: Interior; Agency action related to the alleged 
taking: District Court injunction against logging spotted owl 
habitat without an Endangered Species Act permit.

Fiscal year and case names: Ned Majors v. Dial Companies, Inc.; 
Court name and case number: Court of Federal Claims 98-0873; 
Agency: Corps of Engineers; Agency action related to the alleged 
taking: Decision on a wetlands permit under § 404 of the Clean 
Water Act.

Fiscal year and case names: David Clark, et al. v. United States; 
Court name and case number: U.S. District Court, District of 
Alaska F-99-0045CV; Agency: Interior; Agency action related to 
the alleged taking: (1) Legislative taking of mining claims under 
§ 120 of Pub. L. No. 105-83 or alternatively (2) taking under 
implementation of Mining in the Parks Act.

Fiscal year and case names: Shickrey Anton v. United States; 
Court name and case number: Court of Federal Claims 93-447; 
Agency: Corps of Engineers; Agency action related to the alleged 
taking: Decision on a wetlands permit under § 404 of the Clean 
Water Act.

Fiscal year and case names: Lloyd A. Good Jr. v. United States; 
Court name and case number: Court of Federal Claims 94-442L (39 
Fed. Cl. 81); aff'd, Court of Appeals, Federal Circuit 97-5138 (189 
F.3d 1355); cert. denied, U.S. Supreme Court 99-881 (529 U.S. 1053); 
Agency: Corps of Engineers; Agency action related to the alleged 
taking: Decision on permits under § 10 of the Rivers and Harbors 
Act and § 404 of the Clean Water Act.

Fiscal year and case names: Broadwater Farms Joint Venture v. 
United States; Court name and case number: Court of Federal 
Claims 94-1041L (45 Fed. Cl. 154); Agency: Corps of Engineers; 
Agency action related to the alleged taking: Decision on a 
wetlands permit under § 404 of the Clean Water Act.

Fiscal year and case names: Lakewood Associates v. United States; 
Court name and case number: Court of Federal Claims 97-303L (45 
Fed. Cl. 320); Agency: Corps of Engineers; Agency action related 
to the alleged taking: Decision on a wetlands permit under § 404 
of the Clean Water Act.

Fiscal year and case names: R & Y Inc. and Josef Ressel v. United 
States; Court name and case number: Court of Federal Claims 97-
484L; Agency: Corps of Engineers; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act.

Fiscal year and case names: Forest Properties, Inc. v. United 
States; Court name and case number: Court of Federal Claims 92-
851L; Agency: Corps of Engineers; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act.

Fiscal year and case names: William J. Smereka, et al. v. Lt. 
Colonel Thomas C. Haid; Court name and case number: U.S. District 
Court, Eastern District of Michigan 97-070151; Agency: Corps of 
Engineers; Agency action related to the alleged taking: Decision 
on a wetlands permit under § 404 of the Clean Water Act.

Fiscal year and case names: S&S Development, et al. v. Army Corps 
of Engineers; Court name and case number: U.S. District Court, 
District of Alaska 98-006; Agency: Corps of Engineers; Agency 
action related to the alleged taking: Decision on a wetlands 
permit under § 404 of the Clean Water Act.

2001: 

Fiscal year and case names: Kenneth Battley v. United States; 
Court name and case number: U.S. District Court, District of 
Alaska A-99-636CV; Agency: Interior; Agency action related to the 
alleged taking: (1) Legislative taking of mining claims under § 
120 of Pub. L. No. 105-83 or alternatively (2) taking under 
implementation of Mining in the Parks Act.

Fiscal year and case names: James C. Pendleton, et al. v. United 
States; Court name and case number: Court of Federal Claims 98-
161L (1 Fed. Cl. 480); Agency: Interior; Agency action related to 
the alleged taking: Action by the Office of Surface Mining, 
pursuant to the Surface Mining Control and Reclamation Act of 1977.

Fiscal year and case names: James S. Sette v. United States; 
Court name and case number: Court of Federal Claims 98-157C; 
Agency: Interior; Agency action related to the alleged taking: 
Year: Unspecified agency action caused taking of seven unpatented 
mining claims.

Fiscal year and case names: Ultimate Sportsbar, Inc. v. United 
States; Court name and case number: Court of Federal Claims 98-
0160L; Agency: EPA; Agency action related to the alleged taking: 
Year: EPA's action to clean up hazardous materials under Comprehensive 
Environmental Response, Compensation and Liability Act and Toxic 
Substances Control Act caused the plaintiff to lose its lease.

Fiscal year and case names: Barry Bradshaw, et al. v. United 
States; Court name and case number: Court of Federal Claims 98-
0708; Agency: Interior; Agency action related to the alleged 
taking: Cancellation and/or termination of Bureau of Land 
Management and Forest Service grazing permits.

Fiscal year and case names: M. Alfieri Co., Inc. v. United 
States; Court name and case number: Court of Federal Claims 99-
0759; Agency: EPA; Agency action related to the alleged taking: 
Year: State of New Jersey's denial of a permit under § 404 of the Clean 
Water Act pursuant to the delegation of regulatory authority by EPA to 
the state.

Fiscal year and case names: Michael F. Beirne, et al. v. United 
States; Court name and case number: Court of Federal Claims 00-
353; Agency: Corps of Engineers; Agency action related to the 
alleged taking: Decision on a wetlands permit under § 404 of the 
Clean Water Act.

Fiscal year and case names: Joseph M. Foley, et al. v. United 
States; Court name and case number: Court of Federal Claims 00-
553C; Agency: Interior; Agency action related to the alleged 
taking: Bureau of Land Management invalidated six unpatented 
mining claims.

Fiscal year and case names: Eldridge C. Daniel v. United States; 
Court name and case number: Court of Federal Claims 97-0397; 
Agency: Corps of Engineers; Agency action related to the alleged 
taking: Decision on a wetlands permit under § 404 of the Clean 
Water Act.

Fiscal year and case names: Karuk Tribe of California v. United 
States[A]; Court name and case number: Court of Federal Claims 
90-3993; (41 Fed. Cl. 468); aff'd, Court of Appeals, Federal Circuit 
(209 F.3d 1366); cert. denied, U.S. Supreme Court (532 U.S. 941); 
Agency: Interior; Agency action related to the alleged taking: 
Year: Legislation caused taking of reservation lands.

Fiscal year and case names: Gregory T. Banner, et al. v. United 
States; Court name and case number: Court of Federal Claims 96-
708L; aff'd, Court of Appeals, Federal Circuit 00-5006 (238 F.3d 1348); 
Agency: Interior ; Agency action related to the alleged taking: 
Year: Legislation, the Seneca Nation Land Claims Settlement Act, 25 
U.S.C. § 1774, prevented renewal of their lease and caused a taking.

2002: 

Fiscal year and case names: Larry D. Compton v. Bruce Babbitt; 
Court name and case number: U.S. District Court, District of 
Alaska A-99-637CV; Agency: Interior; Agency action related to the 
alleged taking: (1) Legislative taking of mining claims under § 
120 of Pub. L. No. 105-83 or alternatively (2) taking under 
implementation of Mining in the Parks Act.

Fiscal year and case names: Northwest Exploration, Inc. v. United 
States; Court name and case number: U.S. District Court, District 
of Alaska A-99-654CV; Agency: Interior; Agency action related to 
the alleged taking: Taking of mining claims by Mining in the 
Parks Act.

Fiscal year and case names: Pax Christi Memorial Gardens, et al. 
v. United States; Court name and case number: Court of Federal 
Claims 00-717; Agency: Corps of Engineers; Agency action related 
to the alleged taking: Decision on a wetlands permit under § 404 
of the Clean Water Act.

Fiscal year and case names: Last Chance Mining Co., Inc. v. 
United States; Court name and case number: Court of Federal 
Claims 94-402L; Agency: Interior; Agency action related to the 
alleged taking: Application of federal mining laws allegedly 
caused taking of 300 unpatented mining claims.

Fiscal year and case names: Kingman Reef Atoll Investments 
L.L.C., et al. v. United States; Court name and case number: 
Court of Federal Claims 02-140L; Agency: Interior; Agency action 
related to the alleged taking: The designation of Kingman Reef as 
a national wildlife refuge after transfer from the U.S. Navy.

Fiscal year and case names: Rith Energy, Inc. v. United States; 
Court name and case number: Court of Federal Claims 92-480L (44 
Fed. Cl. 108); aff'd, Court of Appeals, Federal Circuit (247 F.3d 
1355); cert. denied, U.S. Supreme Court (536 U.S. 958); Agency: 
Interior; Agency action related to the alleged taking: Suspension 
of mining permit and denial of a permit revision under the Surface 
Mining Control and Reclamation Act of 1977.

Fiscal year and case names: Eastern Minerals International Inc., 
et al. v. United States; Court name and case number: Court of 
Federal Claims 94-1098; rev'd, Court of Appeals, Federal Circuit (271 
F.3d 1090); cert. denied, U.S. Supreme Court (535 U.S. 1077); Agency: 
Year: Interior; Agency action related to the alleged taking: 2000: 
Delay in processing a coal mining permit application under the Surface 
Mining Control and Reclamation Act of 1977.

Source: GAO.

Note: GAO's presentation of data provided by the Department of 
Justice's Environment and Natural Resources Division, by counsel or 
solicitor staff at the agencies, and from court documents.

[A] In this case, litigation costs of $10,169 were awarded to the 
United States.

[End of table]

[End of section]

Appendix V: GAO Contacts and Staff Acknowledgments:

GAO Contacts:

Anu K. Mittal (202) 512-3841 James R. Jones, Jr. (202) 512-9839:

Acknowledgments:

In addition to the individuals named above, Doreen S. Feldman, James K. 
McDowell, Jonathan S. McMurray, John P. Scott, and Timothy W. Wexler 
made key contributions to this report. Kathleen A. Gilhooly and Lisa M. 
Wilson also made important contributions.

(360275):

FOOTNOTES

[1] 53 Fed. Reg. 8859 (Mar. 18, 1988).

[2] Lawsuits seeking just compensation of $10,000 or less may be 
brought in a U.S. District Court.

[3] The Department of Justice represents the U.S. government in 
litigation, unless otherwise authorized by law. 28 U.S.C. § 516.

[4] The Judgment Fund, administered by the Department of the Treasury, 
is a permanent, indefinite appropriation. The Fund is available for 
payment of final judgments, awards, or settlements related to 
litigation involving federal agencies, where payment is not otherwise 
provided for. 31 U.S.C. § 1304. Because agency appropriations generally 
are not available for payments of just compensation awards and 
settlements, these payments generally are made from the Judgment Fund.

[5] Regarding the small number of regulatory takings lawsuits filed 
relative to the many regulatory actions taken by agencies each year, 
the experience of the Corps of Engineers is illustrative. Specifically, 
this agency reported that it approved 99.98 percent of the 264,447 
permit applications submitted to it by landowners during fiscal years 
2000 through 2002. Of the 41 permits denied with prejudice (meaning the 
applicant could not resubmit) during these years, only a fraction 
resulted in regulatory takings lawsuits. In general, these permit 
applications were made under §10 of the Rivers and Harbors Act or §404 
of the Clean Water Act. The applications generally related to 
landowners' plans to develop or alter a wetland or engage in other 
activities that may affect the waters of the United States.

[6] We refer to these agencies as the "four agencies" in subsequent 
references.

[7] The use of "condemnation" in this case does not mean the property 
is unfit for use. Instead, it refers to the government's action to 
declare the property convertible to public use through the exercise of 
its power of eminent domain.

[8] In general, an inverse taking has the effect of an affirmative 
exercise of the power of eminent domain. An inverse taking is also 
referred to as inverse condemnation.

[9] Takings of property effected by government actions may occur in a 
number of ways. Examples of such actions include: (1) a government 
regulation restricting development, (2) a government requirement that a 
landowner provide the public access to private property (such as by 
providing public access to a private beachfront), and (3) an agency's 
denial of a mineral drilling permit.

[10] Attorney General's Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings, June 30, 1988. 

[11] 438 U.S. 104 (1978).

[12] Regulatory Takings And Proposals for Change, Congressional Budget 
Office, December 1998.

[13] A grazing permit provides official written permission to a farmer 
or rancher to graze a specific number, kind, and class of livestock for 
a specified time period on defined federal rangeland, such as 
rangelands managed by Agriculture's Forest Service. A special use 
permit is a written instrument that grants rights or privileges of 
occupancy and use subject to specified terms and conditions on National 
Forest land. These permits are granted for a variety of recreational 
and commercial purposes. Recreational purposes include hunting, 
fishing, rafting, lodging services, the use of lots for vacation 
houses, and a variety of special group events. Commercial purposes 
include ski area concessions, the use of mountaintops for radio and TV 
broadcasting, rights-of-way for pipelines and power lines, and 
industrial activities, such as timber processing or mineral 
exploration. 

[14] 505 U.S. 1003 (1992).

[15] See, e.g., Tahoe-Sierra Preservation Council, Inc. v. Tahoe 
Regional Planning Agency, 535 U.S. 302 (2002) and Palazzolo v. Rhode 
Island, 533 U.S. 606 (2001).

[16] Justice issued supplemental guidelines for the Corps of Engineers 
on January 23, 1989; for Interior on March 29, 1989; and for EPA on 
January 14, 1993. According to Justice and agency officials, these 
guidelines have not been updated since their original issuance. 

[17] An Agriculture official indicated that negotiations with Justice 
on a draft of their guidelines were never concluded after the change in 
administrations in 1993. 

[18] Justice and Agriculture officials also indicated that other issues 
may have been unresolved, but because of the passage of time (nearly 10 
years) and the purging of older files, they could not identify other 
possible reasons why Agriculture's guidelines were not completed. 

[19] See Hage v. United States, 51 Fed. Cl. 570 (2002). In Hage, ranch 
owners brought suit against the United States, alleging that the 
suspension and cancellation of their permits to graze livestock on 
federal land constituted a taking of their property interests, 
including grazing rights and water usage rights, without just 
compensation. The court held that the plaintiffs did not have property 
rights in the grazing permits, stating that grazing permits are 
licenses, rather than rights. However, the court also stated that, if 
by revoking the grazing permits, Interior's Bureau of Land Management 
and Agriculture's Forest Service prevented the plaintiffs from 
accessing and using their water rights, the agencies may have taken 
these rights. The court has not yet resolved the issue of whether the 
water rights were taken by the government. 

[20] Circular No. A-11: Preparation and Submission of Budget Estimates, 
issued by the Director, Office of Management and Budget, June 17, 1988. 
This circular, updated annually, provides executive branch agencies 
with guidance on the preparation of their budgets and related 
justifications.

[21] In general, the agencies had difficulty in documenting their 
submission of compilations reports for the period 1989 through 1993 
because of the passage of time. For example, Agriculture was able to 
provide its report for fiscal year 1990 only, and Interior was able to 
provide reports for fiscal years 1989, 1990, and 1992. EPA and the 
Corps of Engineers were not able to provide copies of any of their 
reports. EPA officials recalled submitting the reports for the first 
few years after the EO was implemented. Corps officials could not 
determine if reports had been done for years in which just compensation 
awards were made. In addition, OMB and Justice, the recipients of these 
reports, indicated that they had not retained copies. 

[22] At Agriculture and EPA, the designated official is the General 
Counsel. At the Corps of Engineers, this official is the Chief Counsel. 
At Interior, the designated official is the Solicitor. 

[23] Regulatory Decisionmaking Requirements, Departmental Regulation 
1512-1, U.S. Department of Agriculture, Mar. 14, 1997.

[24] Departmental Manual, Part 318, Federal Register Documents, U.S. 
Department of the Interior, May 14, 1998.

[25] EPA officials indicated that they did not have any written 
examples of takings implication assessments prepared by the agency 
largely because the agency's actions are generally excluded from the 
EO's requirements. Interior officials indicated that they probably 
could have provided more examples of written takings implication 
assessments, but finding them would have required a significant 
investment of their resources and time. For example, they said they 
would have had to search files in a number of headquarters and field 
offices. In addition, Corps officials emphasized that they prepare very 
few takings implication assessments because these assessments are only 
needed in cases where the agency plans to deny a permit application, 
and, in general, the Corps denies very few of these applications.

[26] Although takings implication assessments are typically considered 
internal documents, Interior has chosen to publish some of its written 
assessments in the Federal Register or make others publicly available. 
For example, its takings implication assessments of regulatory actions 
related to use of valid existing rights to conduct surface coal mining 
can be found in a proposed rule at 62 Fed. Reg. 4836 (Jan. 31, 1997) 
and a final rule at 64 Fed. Reg. 70765 (Dec. 17, 1999). In addition, 
instructions for obtaining the takings implication assessments related 
to designation of critical habitat can be found in proposed rules at 67 
Fed. Reg. 39206 (June 6, 2002) and 67 Fed. Reg. 55064 (Aug. 27, 2002).

[27] According to the Attorney General's guidelines, a significant 
takings implication exists when the decision maker concludes that the 
proposed action poses a "substantial risk" that a taking of private 
property may result or insufficient information is available to assess 
whether the action has significant takings consequences. In publishing 
a rule, the agency is to state the conclusions of its takings 
assessment if any significant implications are anticipated. 

[28] The data provided by Justice referred to these 44 cases as 
regulatory takings cases. According to information provided by 
Interior, at least 9 of the cases, including 4 with award or settlement 
payments, were alleged by the property owner to be "legislative" 
takings. In legislative takings cases, the potential taking results 
directly from an act of Congress. One of these 9 cases (Board of County 
Supervisors of Prince William County, Virginia v. United States) 
involved the government's taking title to property by exercising its 
power of eminent domain.

[29] In addition to the financial remuneration made to the plaintiff, 
the award and settlement payment totals may include compensation for 
attorney fees, interest, and other litigation costs. 

[30] Of the 54 pending cases, 30 involved Interior, 14 involved the 
Corps of Engineers, 7 involved Agriculture, and 3 involved EPA.

[31] Two of these three cases related to Interior's actions. In 
providing us written information on one of these cases, Interior 
initially indicated that the EO did not apply to the case (Devon Energy 
Corporation, et al. v. United States) because the agency did not 
"reasonably anticipate" that its action would result in takings. As a 
result, Interior did not perform a takings implication assessment. In 
commenting on a draft of this report, Interior stated that, in 
hindsight, it appears that the EO may have applied to this action. 
While a formal takings implication assessment was not prepared in this 
case, Interior stated there was a "good faith" discussion of its 
takings implications within the department. Accordingly, we have 
included this case among those subject to the EO's requirements. In the 
other case (W.A. Moncrief, Jr. et al. v. United States), although 
Interior initially said that the EO's requirements applied, it was 
unable to provide evidence that a takings implication assessment was 
done. However, Interior officials noted that the record of decision for 
the related environmental impact statement discussed the legislative 
requirements for negotiating takings compensation for the complete or 
partial cancellation of a federal mineral lease with the leaseholder. 
In addition, in commenting on a draft of this report, Interior stated 
that since Interior's current management did not make the decision on 
whether the action was subject to the EO, the agency was unable to 
unequivocally state that the EO applied. 

[32] We refer to these agencies as the "four agencies" in subsequent 
references.

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