Rogue Slayer Law Student Lawyer with Snark Movie Fan

A little public service announcement for anyone from my Property class who is still a little bewitched, bothered and bewildered by the federal takings case law, take a look at today's decision in Lingle v. Chevron.

Justice O'Connor wrote the opinion for the court (Justice Kennedy concurred separately) in this case involving the State of Hawaii having statutorily imposed a rent control system on oil companies who lease service stations to dealers in the state. The opinion, which reversed and remanded the Ninth Circuit decision, goes into great detail on the various means by which a plaintiff may argue an uncompensated taking of private property, and includes discussion of Lucas, Loretto, Penn Central, Euclid and Agins. The court then points out that the plaintiffs here instead argued a "substantially advances" theory, based on Agins in winning its motion for summary judgment in the lower courts. The court points out that this argument has been discussed before in decisions, but not as the basis for finding a taking, and holds that while it works for due process cases, it is not an appropriate sole basis for a Fifth Amendment takings argument.

O'Connor sums it up in closing:

Twenty-five years ago, the Court posited that a regulation of private property "effects a taking if [it] does not substantially advance [a] legitimate state interes[t]." Agins, supra, at 260. The lower courts in this case took that statement to its logical conclusion, and in so doing, revealed its imprecision. Today we correct course. We hold that the "substantially advances" formula is not a valid takings test, and indeed conclude that it has no proper place in our takings jurisprudence. In so doing, we reaffirm that a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed under one of the other theories discussed above - by alleging a "physical" taking, a Lucas-type "total regulatory taking," a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan. Because Chevron argued only a "substantially advances" theory in support of its takings claim, it was not entitled to summary judgment on that claim.

Justice Kennedy concurs separately to voice his opinion that "today's decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process."

It's a handy review of the various tests and rationales used in the area of federal takings. Wish they'd issued this opinion a few weeks ago.
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