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ROBERT H. THOMAS*
INTRODUCTION
* Robert H. Thomas practices with Damon Key Leong Kupchak Hastert in Honolulu,
Hawaii. He received his LL.M. from Columbia University and his J.D. from the University of
Hawaii. He writes about takings and property law at www.inversecondemnation.com. In the
fall of 2018, he was the inaugural Joseph T. Waldo Visiting Chair in Property Rights Law at
the William & Mary Law School. This Essay is a slightly modified version of the remarks he
delivered on “Other Emerging Issues in Constitutional Protection of Property,” at the Fifteenth
Annual Brigham-Kanner Property Rights Conference in Williamsburg, Virginia (Oct. 5, 2018).
1. This is an issue left unresolved by the U.S. Supreme Court in Stop the Beach Renourish-
ment v. Florida Department of Environmental Protection, 560 U.S. 702 (2010). There, only four
Justices acknowledged the fact that certain aspects of how property is defined can only be
altered with the payment of compensation.
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2. Fowler v. Guerin, 899 F.3d 1112, 1118 (9th Cir. 2018) (“We then held that there is ‘a
“core” notion of constitutionally protected property into which state regulation simply may not
intrude without prompting Takings Clause scrutiny.’ This ‘core’ is ‘defined by reference to tra-
ditional “background principles” of property law.’”) (citations omitted) (quoting Schneider v.
California Department of Corrections, 151 F.3d 1194 (9th Cir. 1998)).
3. PruneYard Shopping Center v. Robins, 447 U.S. 74, 93–94 (1980) (Marshall, J.,
concurring).
4. Murr v. Wisconsin, 137 S. Ct. 1933 (2017).
5. Id. at 1948.
6. Id. at 1953 (Roberts, C.J., dissenting).
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7. U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without
just compensation.”).
8. See id. amends. V, XIV.
9. In re Application of Maui Elec. Co., 408 P.3d 1, 12–13 (Haw. 2017).
10. Id. at 23. For more on the Hawaii case, see Robert H. Thomas, Back to the Future of
Land Use Regulation, 7 BRIGHAM-KANNER PROP. RTS. CONF. J. 109, 117–22 (2018).
11. Delaware Riverkeeper Network v. FERC, 895 F.3d 102, 109–10 (D.C. Cir. 2018).
12. Id. at 109 (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 673 (1999)).
13. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
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20. Timothy M. Mulvaney, Non-Enforcement Takings, 59 B.C. L. REV. 145 (2018) (arguing
that takings law should police the government’s decision to not enforce regulations on the
same grounds that it treats affirmative enforcement).
21. St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (2015), rev’d, 887 F.3d
1354 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 796 (2019).
22. St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (2015), rev’d, 887 F.3d
1354 (Fed. Cir. 2018).
23. St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (2015).
24. St. Bernard Parish Gov’t v. United States, 887 F.3d 1354, 1357 (Fed. Cir. 2018) (“We
conclude that the government cannot be liable on a takings theory for inaction and that the
government action in constructing and operating [the Mississippi River-Gulf Outlet] was not
shown to have been the cause of the flooding.”).
25. Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (holding that
government-induced flooding may give rise to a takings claim, even if the flooding is not
permanent).
26. Litz v. Md. Dep’t of Env’t, 131 A.3d 923, 931 (Md. 2016) (“Upon this review, it seems
appropriate (and, in this case, fair and equitable, at least at the pleading stage of litigation)
to recognize an inverse condemnation claim based on alleged ‘inaction’ when one or more of
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Two other burgeoning issues are ripe for clarification. The first
concerns just compensation. It has been more than thirty years since
the Supreme Court has given us a just compensation case, and it is
not because the law of just compensation is remarkably clear.29 Two
competing threads in compensation law still have yet to be resolved.
First, is the purpose of the Just Compensation Clause to make an
owner whole—to award the “the full and perfect equivalent for the
property taken”30—or is it simply to pay the owner the fair market
value of the land alone?31 We know what the answer should be (the
former), but the courts just don’t seem to want to address it. The
second burgeoning issue is business losses associated with a taking.
This issue also covers the fees and costs an owner might incur in
defense of her property rights, especially when the government has
lowballed the valuation.
the defendants has an affirmative duty to act under the circumstances. Therefore, we hold,
as a matter of Maryland law, that an inverse condemnation claim is pleaded adequately
where a plaintiff alleges a taking caused by a governmental entity’s or entities’ failure to act,
in the face of an affirmative duty to act.”).
27. See, e.g., San Diego Gas & Elec. v. Pub. Utilities Comm’n, No. D074417 (Cal. Ct. App.
Nov. 13, 2018).
28. See, e.g., Glyka Trans, LLC v. City of New York, 76 N.Y.S.3d 585 (N.Y. App. Div. 2018).
29. See United States v. 50 Acres of Land, 469 U.S. 24 (1984).
30. Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893).
31. United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668 (1896).
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CONCLUSION
32. See Transcript of Oral Argument, Knick v. Twp. of Scott, 138 S. Ct. 1262 ((Jan. 16,
2019) (No. 17-647), 2019 WL 260998.
33. See, e.g., Transcript of Oral Argument at 25, Knick v. Township of Scott, 138 S. Ct.
1262 (Oct. 3, 2018) (No. 17-647), 2018 WL 44776176 (“JUSTICE BREYER: Or we could go into
1331. But Williamson was decided 32 years ago. This is a very complicated area of law. Why
not let sleeping dogs lie? It’s called stare decisis.”).