Regulatory Takings: Implementation of Executive Order on	 
Government Actions Affecting Private Property Use (19-SEP-03,	 
GAO-03-1015).							 
                                                                 
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.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-03-1015					        
    ACCNO:   A08535						        
  TITLE:     Regulatory Takings: Implementation of Executive Order on 
Government Actions Affecting Private Property Use		 
     DATE:   09/19/2003 
  SUBJECT:   Federal law					 
	     Federal regulations				 
	     Property						 
	     Compensation					 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-03-1015

United States General Accounting Office

GAO

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

                                       a

GAO-03-1015

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

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.

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 [email protected].

September 2003

REGULATORY TAKINGS

Implementation of Executive Order on Government Actions Affecting Private
Property Use

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.

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 1 4 6

9

14

20 23

Appendixes

Appendix I: Appendix II:

Appendix III: Appendix IV:

Appendix V: Objectives, Scope, and Methodology

Summary of Significant Supreme Court Regulatory Takings Cases

Cases Decided After 1988 Cases Decided Before 1988

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

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

GAO Contacts and Staff Acknowledgments

GAO Contacts Acknowledgments 25

28 28 32

36

37

42 42 42

Tables	Table 1: Table 2:

Table 3: Table 4: Table 5:

Number of Proposed and Final Rules Addressing the EO
for Four Agencies, Calendar Years 1989, 1997, and 2002 19
Awards of Just Compensation or Settlement Payments for
Concluded Regulatory Takings Cases for the Four
Agencies, Fiscal years 2000 through 2002 22
Proposed and Final Rules That Address the EO, for the
Four Agencies, Calendar Years 1989, 1997, and 2002 36
Regulatory Takings Cases Concluded with Payments, for
the Four Agencies, Fiscal Years 2000 through 2002 37
Regulatory Takings Cases Concluded Without Payments,
for the Four Agencies, Fiscal Years 2000 through 2002 39

Contents

Abbreviations

EO Executive Order 12630
EPA U.S. Environmental Protection Agency
GAO General Accounting Office
OMB Office of Management and Budget

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
work may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this material
separately.

A

United States General Accounting Office Washington, D.C. 20548

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),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

153 Fed. Reg. 8859 (Mar. 18, 1988).

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.2
Justice is generally responsible for litigating these cases on behalf of
the government.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.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.5

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

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

4The 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.
S: 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.

5Regarding 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
S:10 of the Rivers and Harbors Act or S: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.

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
Interior6-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

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

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.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.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.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

7The 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.

8In 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.

9Takings 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.

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.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.

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

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 York11 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

11438 U.S. 104 (1978).

agency whose action triggers a regulatory compensation claim be the source
of any compensation awarded.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

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

grazing and special use permits. 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

13A 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.

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 Council14 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

14505 U.S. 1003 (1992).

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.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.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.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

15See, 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).

16Justice 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.

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

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.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

18Justice 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.

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 permit19 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.

19See 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.

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 1988.20 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.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

20Circular 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.

21In 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.

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.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

22At 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.

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.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.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.

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

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

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.25 These
assessments varied in form and the level of detail included.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.27 Table 1 summarizes this information.
In addition, appendix III provides more detailed information on these
rules.

25EPA 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.

26Although 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).

27According 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.

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

Agriculture Corps EPA Interior Total

Rules that
reference the EO 8 3 92 272 375

Number of these
rules that specify
that a takings
implication
assessment was
prepared 1 0 0 49

Number of the
assessments that
found significant
takings
implications 0 0 0 10

Source: GAO.

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

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 2002.28 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.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

28The 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.

29In 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.

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

                     Number of    Number of          Just             
                     concluded   cases with compensation              
              Agency      cases    payments        awards Settlements   Total 
         Agriculture          1           1          $353          $0    $353 
               Corps         15           3             0      22,085  22,085 
                 EPA          2           0             0           0 
            Interior         26          10         3,851      10,216  14,067 
               Total         44          14         4,204     $32,301 $36,505 

Source: GAO.

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

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. 30 Only Three of the Takings Based on information provided by the
four agencies, only 3 of the 14 cases Cases Concluded with with payments
were subject to the EO's requirement to conduct a Awards of Just
regulatory takings implication assessment. For the other 11 cases, the

agency action involved either predated the EO's issuance or was
otherwiseCompensation or excluded from the EO's requirements.Settlement
Payments Were

Subject to the EO

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

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.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.

31Two 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.

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 [email protected]. Major contributors to this report are listed
in
appendix V.

Sincerely yours,

Anu K. Mittal
Acting Director, Natural Resources

and Environment

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
Interior1-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.

1We refer to these agencies as the "four agencies" in subsequent
references.

Appendix I
Objectives, Scope, and Methodology

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

Appendix I
Objectives, Scope, and Methodology

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.

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?

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

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

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

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?

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

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.

                                  Appendix II
                      Summary of Significant Supreme Court
                            Regulatory Takings Cases

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.

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

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

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

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

Appendix II
Summary of Significant Supreme Court
Regulatory Takings Cases

ownership, it benefits a narrow private interest rather than a broad
public one.

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 Year Rules that reference the EO

      Number of these rules that specify a takings implication assessment was
            prepared Number of the assessments that found significant takings
                                                                    potential

         Agriculture              1989               1               0        
                                  1997               5               1        
                                  2002               2               0        
           Subtotal                                  8               1        
            Corps                 1989               1               0        
                                  1997               2               0        
                                  2002               0               0        
           Subtotal                                  3               0        
             EPA                  1989               0               0        
                                  1997               0               0        
                                  2002               92              0        
           Subtotal                                  92              0        
           Interior               1989               15              0        
                                  1997               62              2        
                                  2002              195              47       
           Subtotal                                 272              49       

Total	1989 170 0 1997 693 1 2002 28947 9 Total 375 50 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.

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

                                                      Was the   Was a takings 
                                                       action    implication  
                                                     subject to assessment    
                                                     the        
    Fiscal  Court           Payment Agency action                             
year and name and        type    related          Executive     done by
     case                                                       
    names     case            and   to the alleged   Order                    
             number  Agency amounts taking           12630?        agency?

      James    Court of                      Decision on a                    
    Koconis &  Federal  Corps of  Settlement wetlands            Yes      Yes
       Ted                                                                
G. Koconis   Claims  Engineers  $880,000    permit under               
    v. United  94-517L                        S: 404 of the               
     States                                   Clean Water                 
                                                  Act                     
     Speerex                                                                  
    Ltd., et   Court of                      Anticipated                  
     al. v.    Federal  Interior  Settlement rejection of   No-plaintiff  No
     United     Claims                             drilling               
     States    97-351L             $110,000  permits on oil  made claim   
                                                        and               
                                               gas leases   before agency 
                                                               action     
    W.C. Bell  Court of                      Decision on a                    
    and Davis  Federal            Settlement wetlands       No-excluded   No
       O.               Corps of                                          
Heniford v.  Claims  Engineers  $205,000    permit under     under     
     United    97-857L                        S: 404 of the               
     States                                   Clean Water   supplemental  
                                                  Act                     
                                                             guidelines   

     Lake   Court of                           Denial of                      
Pleasant  Federal  Interior Settlement     plaintiff's      No-predated No
Group v.                                                                
    United   Claims             $100,000   preferred access to     EO      
    States   92-848L                                      lake             
            Court of                                                       
            Appeals,                                                       
             Federal                                                       
             Circuit                                                       
             95-5061                                                       

Del-Rio Drilling Court of Federal Interior Settlement Bureau of Indian
Affairs' No-predated No
Programs, Inc., et al. v. Claims 569-86L $300,000 failure to grant surface
EO
United States (37 Fed. Cl. 157) Litigation Costs use for oil and gas
leases

rev'd, Court of $591 on Indian lands due to the
Appeals, Federal tribe's lack of consent
Circuit 97-5055
(146 F.3d 1358)

Arnold E.   U.S.                        (1) Legislative    Either (1)      
    Howard,  District  Interior Settlement taking of          No,          No
      et                                                                   
    al. v.   Court,                          mining claims                 
    United   District            $838,000        under        legislative  
    States   of                                                            
              Alaska                        S: 120 of Pub. L.  taking not  
               F98-                                  No. 105-              
              0006CV                             83 or        covered by   
               (JKS)                       alternatively (2)  EO           
                                              taking under         or      
                                            implementation of (2) No,      
                                                       Mining plaintiff    
                                            in the Parks Act   made claim  
                                                              before final 
                                                              agency       
                                                              action       

                 Court of           Attorney     Denial of                    
Devon Energy  Federal  Interior  fees         applications     Yesa     No
                                                 to                        
Corporation,  Claims               $380,000      permit                 
     et al. v.   98-665L                           drilling                
United States                                                           
Florida Rock  Court of            Settlement  Decision on a             No 
                 Federal  Corps of               wetlands      No-predated 
    Industries,  Claims   Engineers $21,000,000   permit under     EO      
      Inc. v.    266-82L                         S: 404 of the             
                                                  Clean Water              
United States                                      Act                  

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

                         (Continued From Previous Page)

                                                      Was the   Was a takings 
                                                       action    implication  
                                                     subject to assessment    
                                                     the        
    Fiscal  Court           Payment Agency action                             
year and name and        type    related          Executive     done by
     case                                                       
    names     case            and   to the alleged   Order                    
             number  Agency amounts taking           12630?        agency?

     Shirl   Court of                               Temporary                 
Pettro v. Federal   Agriculture Court Order of   denial of    No-legal  No
    United                                                                 
    States   Claims                     Just      access to     action not 
             96-651L                              minerals from            
             (47 Fed.              Compensation     national    within the 
             Cl. 136)                             forest due to            
                                      $74,479     dispute over  scope of   
                                                    title to    the        
                                   Attorney fees     mineral        EO     
                                                     rights                
                                      $250,294                             
                                   Litigation                              
                                   costs                                   
                                      $28,217                              

    W.A. Moncrief,  Court of Interior Settlement Anticipated and       Yes No 
      Jr. et al.    Federal                      actual                    
v. United States  Claims           $3,000,000    denial of drilling     
                    97-565L                                    permits     
                                                      to protect           
                                                      Lechuguilla          
                                                         Cave              

Kantishna     U.S.                          (1)             Either (1)     
    Mining     District  Interior  Settlement  Legislative        No,      No
                                               taking of                   
  Company, et Court,                           mining claims               
    al. v.    District              $872,000   under S:       legislative  
              of                                                           
     Bruce                                     120 of Pub. L.              
  Babbitt, et   Alaska              Interest       No. 105-83  taking not  
      al.                                                                  
                                               or             covered by   
              98-00007CV            $528,000   alternatively  EO           
                                               (2) taking                  
                                               under                       
                (JKS)                          implementation      or      
                                               of                          
              Court of                         Mining in the  (2) No,      
              Appeals,                         Parks Act      plaintiff    
              Ninth                                                        
              Circuit,                                         made claim  
              01-                                                          
              35201,                                          before final 
              01-35248                                                     
                                                              agency       
                                                              action       
    John W.   Court of   Interior  Settlement     Delay in    No-excluded  No 
Taylor v.  Federal                            issuing an                
    United    Claims                $175,000     incidental      under     
    States    99-131L                           take permit                
                                               under S: 10 of              
                                                    the       supplemental 
                                               Endangered     guidelinesb  
                                               Species Act                 
Board of   Court of   Interior Court Order  Legislative    No-excluded  No 
    County    Federal                  of      taking of land              
  Supervisors Claims                  Just     under Pub. L.  for eminent  
of Prince  90-364L                          No. 100-                    
    William   (47 Fed.            Compensation 647 to add        domain    
    County,   Cl. 714)                         land to the                 
  Virginia v.   aff'd,             $1,153,578     Manassas                 
    United     Court of                           National                 
    States    Appeals,              Interest    Battlefield                
              Federal                               Park                   
              Circuit              $2,697,534                              
              (276 F.3d                                                    
                1359)                                                      

    Richard P.   Court of Interior Settlement    Legislative           No- No 
Cook, et al.  Federal                          taking of     
     v. United   Claims            $3,911,838    rights to a     legislative  
      States     94-344L                         patent for     
                                              mining claims      taking not   
                                              with the          
                                              establishment of  covered by EO 
                                                     the        
                                               Jemez National   
                                              Recreation Area   
                                              by 16             
                                              U.S.C. S: 460jjj  

                           Total 14 Cases $36,504,531

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.

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

aWhile 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.

bWhile 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.

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

Fiscal year and case names Court name and case number Agency Agency action
                         related to the alleged taking

Northwest Explorations Joint Venture v. Bruce Babbitt

U.S. District Court, District of Alaska 99-0643CV

Interior	Taking of mining claims under Mining in the Parks Act

                          Boise Cascade Corporation v.

Court of Federal Claims 98-634L Interior District Court injunction against
                              logging spotted owl

United States

                habitat without an Endangered Species Act permit

Ned Majors v. Dial Companies, Court of Federal Claims 98-0873 Corps of
Decision on a wetlands permit under S: 404 of the Inc. Engineers Clean
Water Act

    David Clark, et  U.S. District                  (1) Legislative taking of 
     al. v. United   Court, District of  Interior  mining claims under S: 120 
                                                                           of 
                                                   Pub. L. No. 105-83 or      
        States       Alaska F-99-0045CV            alternatively (2) taking   
                                                   under                      
                                                    implementation of Mining  
                                                        in the Parks Act      
Shickrey Anton v. Court of Federal              Decision on a wetlands     
        United       Claims 93-447       Corps of  permit under S: 404 of the 
        States                           Engineers      Clean Water Act       

Lloyd A. Good Jr. Court of Federal     Corps of  Decision on permits under 
       v. United     Claims 94-442L                   S: 10 of the Rivers and 
        States         (39 Fed. Cl. 81)   Engineers Harbors Act and S: 404 of 
                                                    the Clean Water Act       
                     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)                   

Broadwater Farms Joint Court of Federal Claims 94-1041L Corps of Decision
on a wetlands permit under S: 404 of the Venture v. United States (45 Fed.
Cl. 154) Engineers Clean Water Act

Lakewood Associates v. United Court of Federal Claims 97-303L Corps of
Decision on a wetlands permit under S: 404 of the States (45 Fed. Cl. 320)
Engineers Clean Water Act

R & Y Inc. and Josef Ressel v. Court of Federal Claims 97-484L Corps of
Decision on a wetlands permit under S: 404 of the United States Engineers
Clean Water Act

Forest Properties, Inc. v. Court of Federal Claims 92-851L Corps of
Decision on a wetlands permit under S: 404 of the United States Engineers
Clean Water Act

William J. Smereka, et al. v. Lt. U.S. District Court, Eastern Corps of
Decision on a wetlands permit under S: 404 of the Colonel Thomas C. Haid
District of Michigan 97-070151 Engineers Clean Water Act

S&S Development, et al. v. U.S. District Court, District of Corps of
Decision on a wetlands permit under S: 404 of the Army Corps of Engineers
Alaska 98-006 Engineers Clean Water Act

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

                         (Continued From Previous Page)

     Fiscal year and   Court name and      Agency  Agency action related to   
       case names      case number                 the alleged taking         
                                                    (1) Legislative taking of 
Kenneth Battley v.    U.S. District             mining claims under S: 120 
         United        Court, District of Interior                         of 
                                                        Pub. L. No. 105-83 or 
         States        Alaska A-99-636CV             alternatively (2) taking 
                                                                        under 
                                                    implementation of Mining  
                                                        in the Parks Act      
                       Court of Federal            Action by the Office of    
James C. Pendleton, Claims 98-161L     Interior Surface Mining, pursuant   
        et al. v.                                  to                         
      United States     (1 Fed. Cl. 480)           the Surface Mining Control 
                                                       and Reclamation Act of 
                                                              1977            
    James S. Sette v.  Court of Federal   Interior Unspecified agency action  
         United        Claims 98-157C              caused taking of seven     
         States                                     unpatented mining claims  

Ultimate Sportsbar, Court of Federal              EPA's action to clean up 
         Inc. v.       Claims 98-0160L EPA          hazardous materials under 
      United States                            Comprehensive Environmental    
                                                        Response,             
                                             Compensation and Liability Act   
                                                        and Toxic             
                                            Substances Control Act caused the 
                                                        plaintiff to lose its 
                                                          lease               

Barry Bradshaw, et al. v. United Court of Federal Claims 98-0708 Interior
 Cancellation and/or termination of Bureau of Land States Management and Forest
                            Service grazing permits

M. Alfieri Co., Inc. v. United Court of Federal Claims 99-0759 EPA State
of New Jersey's denial of a permit under S: 404

States	of the Clean Water Act pursuant to the delegation of regulatory
authority by EPA to the state

Michael F. Beirne, et al. v. Court of Federal Claims 00-353 Corps of
Decision on a wetlands permit under S: 404 of the United States Engineers
Clean Water Act

Joseph M. Foley, et al. v. Court of Federal Claims 00-553C Interior Bureau
of Land Management invalidated six United States unpatented mining claims

Eldridge C. Daniel v. United Court of Federal Claims 97-0397 Corps of
Decision on a wetlands permit under S: 404 of the States Engineers Clean
Water Act

Karuk Tribe of California v. Court of Federal Claims 90-3993 Interior
Legislation caused taking of reservation lands

United Statesa	(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)

Gregory T. Banner, et al. v. Court of Federal Claims 96-708L Interior
Legislation, the Seneca Nation Land Claims

United States	aff'd, Court of Appeals, Federal Settlement Act, 25 U.S.C.
S: 1774, prevented renewal Circuit 00-5006 (238 F.3d 1348) of their lease
and caused a taking

2002

Larry D. Compton v.    U.S. District             (1) Legislative taking of 
          Bruce          Court, District  Interior     mining claims under S: 
                               of                                      120 of 
                                                    Pub. L. No. 105-83 or     
         Babbitt        Alaska A-99-637CV           alternatively (2) taking  
                                                    under                     
                                                    implementation of Mining  
                                                        in the Parks Act      
                          U.S. District             Taking of mining claims   
        Northwest        Court, District  Interior  by Mining in the Parks    
Exploration, Inc. v.        of                   Act                       
      United States     Alaska A-99-654CV           
                        Court of Federal            Decision on a wetlands    
Pax Christi Memorial Claims 00-717               permit under S: 404 of    
         Gardens,                         Corps of  the                       
     et al. v. United                                    Clean Water Act      
          States                          Engineers 

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

                         (Continued From Previous Page)

Fiscal year and case names Court name and case number Agency Agency action
related to the alleged taking

Last Chance Mining Co., Inc. v. Court of Federal Claims 94-402L Interior
Application of federal mining laws allegedly caused United States taking
of 300 unpatented mining claims

Kingman Reef Atoll Court of Federal Claims 02-140L Interior The
designation of Kingman Reef as a national Investments L.L.C., et al. v.
wildlife refuge after transfer from the U.S. Navy United States

Rith Energy, Inc. v. United Court of Federal Claims 92-480L Interior
Suspension of mining permit and denial of a permit

States	(44 Fed. Cl. 108) revision under the Surface Mining Control and
aff'd, Court of Appeals, Federal Reclamation Act of 1977 Circuit (247 F.3d
1355) cert. denied, U.S. Supreme Court (536 U.S. 958)

Eastern Minerals International Court of Federal Claims 94-1098 Interior
Delay in processing a coal mining permit application

Inc., et al. v. United States	rev'd, Court of Appeals, Federal under the
Surface Mining Control and Reclamation Circuit (271 F.3d 1090) Act of 1977
cert. denied, U.S. Supreme Court (535 U.S. 1077)

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.

aIn this case, litigation costs of $10,169 were awarded to the United
States.

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.

GAO's Mission	The General Accounting Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting its
constitutional responsibilities and to help improve the performance and
accountability of the federal government for the American people. GAO
examines the use of public funds; evaluates federal programs and policies;
and provides analyses, recommendations, and other assistance to help
Congress make informed oversight, policy, and funding decisions. GAO's
commitment to good government is reflected in its core values of
accountability, integrity, and reliability.

Obtaining Copies of GAO Reports and Testimony

The fastest and easiest way to obtain copies of GAO documents at no cost
is through the Internet. GAO's Web site (www.gao.gov) contains abstracts
and full-text files of current reports and testimony and an expanding
archive of older products. The Web site features a search engine to help
you locate documents using key words and phrases. You can print these
documents in their entirety, including charts and other graphics.

Each day, GAO issues a list of newly released reports, testimony, and
correspondence. GAO posts this list, known as "Today's Reports," on its
Web site daily. The list contains links to the full-text document files.
To have GAO e-mail this list to you every afternoon, go to www.gao.gov and
select "Subscribe to e-mail alerts" under the "Order GAO Products"
heading.

Order by Mail or Phone	The first copy of each printed report is free.
Additional copies are $2 each. A check or money order should be made out
to the Superintendent of Documents. GAO also accepts VISA and Mastercard.
Orders for 100 or more copies mailed to a single address are discounted 25
percent. Orders should be sent to:

U.S. General Accounting Office 441 G Street NW, Room LM Washington, D.C.
20548

To order by Phone: 	Voice: (202) 512-6000 TDD: (202) 512-2537 Fax: (202)
512-6061

To Report Fraud, 	Contact: Web site: www.gao.gov/fraudnet/fraudnet.htm

Waste, and Abuse in E-mail: [email protected]

Federal Programs Automated answering system: (800) 424-5454 or (202)
512-7470

Public Affairs	Jeff Nelligan, Managing Director, [email protected] (202)
512-4800 U.S. General Accounting Office, 441 G Street NW, Room 7149
Washington, D.C. 20548

                               Presorted Standard
                              Postage & Fees Paid
                                      GAO
                                Permit No. GI00

United States
General Accounting Office
Washington, D.C. 20548-0001

Official Business
Penalty for Private Use $300

Address Service Requested
*** End of document. ***