In Florida Rock Industries, Inc. v. United States the Court of Appeals for the Federal Circuit held that the denial of a federal wetlands permit under section 1344 of the Clean Water Act may constitute a compensable taking of private property under the Fifth Amendment to the United States Constitution. The court remanded the case to the Federal Court of Claims to determine the value of the property remaining after the permit denial, while warning the trial court that the existing record did not support a finding of the loss of all economically viable use of the property. The Federal Circuit declared that the parcel's retention of economic value would not foreclose the finding of a compensable “partial taking.” Yet the court did not set a “bright line” standard to guide the lower court in determining whether the percentage of remaining value would be sufficient to rebut the takings challenge. Instead, the court ordered “a classic exercise of judicial balancing of competing values.” While the finding of a “partial taking” would be new to takings jurisprudence, the utilization of a balancing test is not new. The Supreme Court attempts to apply a categorical “all-or-nothing” rule in regulatory takings cases. For cases not falling within this rule, the Court purports to use a balancing test to determine whether compensation is due. The Court, however, has yet to apply the balancing test to a specific situation and find a compensable partial taking. The Court's reluctance to address directly the partial takings issue has caused property rights activists to lobby Congress and state legislatures for serious, albeit extreme, takings legislation. Likewise it has caused lower courts such as the Federal Circuit in Florida Rock to reformulate and expand takings doctrine. This Note discusses why the Federal Circuit embraced the concept of a partial taking. It contends that the Circuit's action was a reaction not only to the fervor created by conservative politicians, businesses, and property rights groups who advocate radical takings reform but also to the Supreme Court's approach to regulatory takings cases.
Susan E. Spokes University of Maine School of Law,
Florida Rock Industries, Inc. v. United States: Tipping the Scales in Favor of Private Property Rights at the Public's Expense,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol47/iss2/16