What Lingle Missed: Short Circuit Covers Eminent Domain Pretext

by Robert Thomas, InverseCondemnation.com, Feb 10, 2025

We've long been fans of the Short Circuit podcast, a production of the Institute for Justice's Judicial Engagement project. If you are not subscribed, you should be. It's a great way to keep up on what is going on in the federal courts of appeals (ha, ha, now I get "short circuit"), with keen insight from the IJ team and others. Even us, from time-to-time.

The latest episode is no different. It covers a recent Fourth Circuit case we blogged about, in which the court rejected the property owner's state-law inverse claims but also left some tantalizing crumbs about how to raise a claim that a taking lacks a public use or purpose. We score a mention!

As we wrote:

Now, here's the useful dicta in the case. The court noted that it was not saying that these type of circumstances can never present a claim. It recognized that the pretext situation could be pressed in several ways. First, the owner might have administratively appealed the nuisance determination. Or "he could have brought at timely § 1983 due process claim for an unlawful taking." Slip op. at 16 (citations omitted).

Take that last one and keep it in your file for future deployment.

The SC hosts asked whether the Fourth Circuit was "too clever by half," because it held that either way the owner went he lost (nuisance or public purpose), and that a measure designed to help property owners (Virginia's post-Kelo tightening of the public use rules) was the reason the owner didn't have a remedy here.

And on the question of whether there must be a public use or purpose to support a claim for a regulatory taking or inverse (or, can an owner bring a takings claim if the government action was not for a public use or purpose), an issue the SC hosts noted we "didn't dig down" on.

True, we didn't include our thoughts on that topic in our blog post. But fear not! We do have thoughts on that issue. Way back in 2004, we submitted an amicus brief in Lingle v. Chevron, U.S.A., Inc., that argued that yes, an owner can challenge a government action that is alleged to be a taking even though that action lacks a public use or purpose. As we argued, the Public Use Clause is a limitation on all government power, and therefore serves as a check in both regulatory takings and affirmative takings. As we wrote:

Regulations that fail to “substantially advance legitimate state interests” violate the Public Use requirement of the Fifth Amendment.

This conclusion results from an examination of the text of the Takings Clause itself, which contains two substantive limitations: (1) the taking must be for public use and (2) just compensation must be provided. Dual remedies give effect to these limitations: if an action is not for public use it is void, and if just compensation has not been provided, a property owner may compel payment. Review of what uses are “public,” and what compensation is “just” is reserved for the courts.

The Fifth Amendment limits more than overt exercises of eminent domain. It is a settled element of this Court’s jurisprudence that a regulation – even one branded as “economic” – violates the Takings Clause if it (1) fails to substantially advance legitimate state interests, or (2) deprives an owner of beneficial use of property. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). This regulatory takings standard’s two-part foundation parallels the Takings Clause’s dual requirements of Public Use and Just Compensation.

The “substantially advance” standard is a test of public use.

This brief sets forth why the “substantially advance” test is a Takings Clause standard and why heightened scrutiny should continue to be utilized to review regulatory actions alleged to violate the Fifth Amendment. Regulatory takings jurisprudence has long recognized the intermediate scrutiny of the substantially advance test requires more than the minimum rationality of due process.

This case presents the Court with the opportunity to clarify that the Public Use Clause limits all government actions impacting private property. Amici urge the Court to reaffirm that unless the government shows that a regulation substantially advances legitimate state interests, it is invalid as an act beyond the limited scope of government’s power, in violation of the Takings Clause.

The Supreme Court as you know, laughed at our argument and held in Lingle that the "substantially advance" test was lodged in the Due Process Clause and not the Fifth Amendment's Takings Clause. But we keep thinking that time will vindicate us!

Check the SC podcast out, this episode and others. And please subscribe!

PDF: Brief Amicus Curiae of Charles W. Coupe, et al. in Support of Respondent, Lingle v. Chevron USA, Inc. , No....