FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE, APPELLANT V.
COUNTY OF LOS ANGELES, CALIFORNIA

   No. 85-1199

   In The Supreme Court Of The United States

   October Term, 1986

   On Appeal From The Court Of Appeal Of California, Second Appellate
District

   Brief For The United States As Amicus Curiae Supporting Appellee

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument:
      Appellants have failed to plead a claim for relief
      under federal law
      A. Jurisdiction
      B. Finality and ripeness
      C. The Fifth Amendment does not mandate a damage
         remedy against the government for regulatory action
         that is found to result in a taking
         1. The text of the Fifth Amendment
         2. Other indicia of the drafters' intent
         3. Judicial construction of the compensation
            requirement
      D. The application of the Takings Clause of the
         Fifth Amendment to the states through Section 1
         of the Fourteenth Amendment likewise does not give
         rise to a constitutionally compelled damage remedy
         against the government
      E. In 42 U.S.C. 1983, Congress has created a
         substantial remedy for regulatory takings, which
         appellant has not attempted to invoke in this case
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether this Court has either appellate or certiorari
jurisdiction of this case under 28 U.S.C. 1257(2) or (3).

   2. Whether appellant's claim that the County Ordinance prohibiting
the building of structures in a flood district results in a "taking"
of its property without just compensation is ripe for judicial
determination.

   3. Whether the Fifth and Fourteenth Amendments, of their own force
and without reliance on the statutory damages remedy in 42 U.S.C. 1983
enacted by Congress pursuant to Section 5 of the Fourteenth Amendment,
require a state court to enter a money judgment against a governmental
entity when the court concludes that a regulatory measure adopted by
that entity results in a "taking" of private property.

   4. Whether a local regulation prohibiting the building of
structures on land within a validly designated flood control district
results in a "taking" of property within the meaning of the Fifth
Amendment.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether the Fifth Amendment to the
United States Constitution, as made applicable to the States through
Section 1 of the Fourteenth Amendment, requires a court to enter a
money judgment against a local governmental entity if it finds that a
regulatory measure results in a taking of property without just
compensation.  The Federal Government administers a broad range of
regulatory programs that could give rise to similar claims for money
damages.  Moreover, several federal programs require or encourage
state and local restrictions on development in floodplain, wetlands,
and tidal areas.  See, e.g., the National Flood Insurance Act of 1968,
42 U.S.C. (& Supp. II) 4101 et seq.; the Coastal Zone Management Act
of 1972, 16 U.S.C. 1451(b) and (d), 1452(2)(a).  Accordingly, the
United States has a substantial interest in the development of stable
and balanced doctrine in the area of regulatory takings that can be
applied in a consistent manner, in order to ensure that federal, state
and local regulatory actions that protect the public health, safety,
and welfare may be undertaken free of interference from unmeritorious
takings challenges, while at the same time assuring constitional
protection of individual property rights affected by governmental
regulation.

                               STATEMENT

   1. a. Appellant owns a 21-acre parcel of land located at the bottom
of a canyon along the Middle Fork of Mill Creek in the Angeles
National Forest in California.  Appellant purchased the property in
1957 and maintained a camp, called "Lutherglen," on a 12-acre portion
adjacent to Mill Creek.  The 12 acres contained an outdoor chapel,
dining hall, caretaker's lodge, two bunkhouses, and a footbridge
across Mill Creek.  J.S. App. A2.  The camp was developed by appellant
for retreats and a summer camp for church members and as a
recreational area for handicapped children (R.T. 315, 333).

   In July of 1977, a forest fire denuded the hills upstream of
Lutherglen, destroying approximately 3,860 acres of the watershed area
and creating a serious flood hazard.  /1/ Subsequently, on February 9
and 10, 1978, a heavy storn dropped 11 inches of rain in the
watershed.  The runoff from the storm overflowed the banks of the
Middle Fork of Mill Creek.  Lutherglen was flooded and its buildings
destroyed, and 10 people elsewhere in the vicinity perished in the
flood.  J.S. App. A2-A3;  J.A. 39.

   b. On January 11, 1979, the County adopted Interim Ordinance 11855,
which provided that a person "shall not construct, reconstruct, place
or enlarge any building or structure" within the outer boundaries of
the "interim flood protection area located in Mill Creek Canyon" (J.S.
App. A31-A32).  The ordinance explained that the County was conducting
studies of Mill Creek and other locations as part of a comprehensive
flood plain management project;  that this evaluation had proceeded to
the point of permitting the designation of an "interim flood
protection area" along Mill Creek;  that development was occurring
that would "be incompatible with the anticipated uses to be permitted
within the permanent flood protection area";  and that the emergency
ordinance was necessary to prevent such development from becoming a
grandfathered use that would be insulated from future flood control
measures (id. at A32).

   c. On August 11, 1981, the temporary Ordinance was superseded when
the County added Mill Creek to the list of areas that are subject to
the County Code restrictions applicable to flood protection districts
generally (Section 22.44.220;  J.S. App. A32-A33).  The Code provides
that a person "shall not use, erect, construct, * * * modify, enlarge
or reconstruct any building or structure within the boundaries of a
flood protection district except as provided herein" (J.S. App. A32).
Exceptions then are provided, inter alia, for "(a)ccessory buildings
and structures that will not substantially impede the flow of water"
(id. at A32-A33).  The term "accessory building or structure" is
defined to mean "a detached subordinate building or structure, the use
of which is customarily incidental to that of the main building or to
the main use of the land" (Section 22.08.010;  Reply Br. to Mot. to
Dis. or Aff. 4).  /2/

   2. On February 21, 1979, appellant filed this action in the
Superior Court for Los Angeles County against appellee County of Los
Angeles and the County Flood Control District (J.A. 1).  Appellant
thereafter filed an "Amended Complaint for Inverse Condemnation" on
August 22, 1979 and a Second Amended Complaint on January 5, 1981
(J.A. 5-16, 41-53).

   As relevant here, appellant alleged that Lutherglen is within the
flood protection area created by Ordinance 11855 and that the
Ordinance "denies (appellant) all use of Lutherglen" (J.A. 11-12, 49).
 Although the complaint did not specifically so state, the California
Court of Appeal, while referring to decisions of this Court,
apparently construed this language to allege a violation of Article I,
Section 19 of the California Constitution (J.S. App. A3-A4).  /3/

   In a brief order dated November 15, 1979, the Superior Court
granted the County's motion to strike the first cause of action in
inverse condemnation insofar as it was based on Ordinance 11855.  The
court explained that "a careful reading of (the California Supreme
Court's decision in Agins v. City of Tiburon, 24 Cal.3d 266, 598 P.2d
25 (1979), 157 Cal. Rptr. 372, aff'd on other grounds, 447 U.S. 255
(1980)) persuades the court that when an ordinance, even a non-zoning
ordinance, deprives a person of the total use of his land, his
challenge to the ordinance is by way of declaratory relief or possibly
mandamus" (J.S. App. A26).  The court of appeal affirmed (id. at
A15-A16).  Although it acknowledge Justice Brennan's dissent in San
Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 636-661
(1981), the court of appeal concluded that "because the United States
Supreme Court has not yet ruled on the question of whether a state may
constitutionally limit the remedy for a taking to nonmonetary relief,"
it was obligated to follow the California Supreme Court's decision in
Agins (J.S. App. A16).  /4/ The California Supreme Court denied
appellant's petition for review (id. at A23).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   This case presents once again questions concerning the
circumstances under which regulations restricting the use of real
property may be held to violate the Constitution, and the remedies
mandated by the Constitution or by statute in the event a
constitutional violation is found.  In this case, there has been no
determination that the County's temporary or permanent flood district
ordinance unconstitutionally restricts appellant's use of its land,
and there is no occasion for the Court to resolve that question.
Moreover, a regulatory measure so intimately associated with the
protection of property and the public health and safety -- both on
appellant's own land and on adjacent tracts -- should not lightly be
found to exceed constitutional limits.

   The state courts held that the constitutional question could not be
litigated in this case because, under California law and the
California Supreme Court's interpretation of the United States
Constitution as announced by the California Supreme Court in Agins, a
landowner may not recover compensation for property that was allegedly
taken by the operation of land-use regulations.  Instead, the
landowner's sole remedy in state court is by way of a suit for
mandamus or declaratory relief, seeking prospective invalidation of
the regulatory restrictions.

   It is clear that restrictive land-use regulations can result in an
uncompensated taking of property prohibited under the Takings Clause
of the Fifth Amendment.  However, the language and history of the
Fifth Amendment indicate that the Takings Clause should be read as
prohibitory in nature, and that its mandate is served by an equitable
remedy barring continued application of the offending regulations.
Nor does the Fourteenth Amendment, through which the Clause is applied
to the States, require a state court to afford a monetary remedy
against the government where land-use regulations are found to exceed
constitutional limitations and thus amount to a taking.

   At the same time, Congress clearly has authority under Section 5 of
the Fourteenth Amendment to provide statutory damage remedies for
violations of constitutional protections.  By enacting 42 U.S.C. 1983,
Congress has provided such a damage remedy.  That remedy is available
against local governments for temporary and permanent takings
resulting from their regulations.  Such relief is available, we
believe, whenever a temporary deprivation is found to amount to a
taking, which in turn is determined by the same ad hoc factual
analysis which this Court has found appropriate in evaluating claims
of permanent takings.

                               ARGUMENT

   APPELLANTS HAVE FAILED TO PLEAD A CLAIM FOR RELIEF UNDER FEDERAL
   LAW

   A. Jurisdiction

   As explained by appellee in its supplemental Motion to Dismiss,
there may be a substantial question whether the Court has either
appellate or certiorari jurisdiction in this case under 28 U.S.C.
1257(2) or (3).  An appeal lies from the judgment of a state court
"where is drawn in question the validity of the statute of any state
on the ground of its being repugnant to the Constitution, treaties or
laws of the United States, and the decision is in favor of its
validity." 28 U.S.C. 1257(2).  The California Court of Appeal's
decision was not in favor of the County ordinance's validity;  the
court simply held that the validity of the regulation could not be
litigated in the context of an inverse condemnation action.  Further,
this case has been litigated entirely with reference to the now
inoperative provisions of temporary Ordinance 11855, and the permanent
County Code provisions have been largely ignored.  See p. 9, infra.
Accordingly, if appellate jurisdiction lies in this case at all, it
would only reach a challenge to that Ordinance, which has now been
superseded.

   Finally, and going to both the appellate and certiorari
jurisdiction of this Court, it is uncertain whether any claim under
federal law has been preserved for review.  In its complaint filed in
superior court, appellant alleged a violation of the California but
not the United States Constitution, and the court of appeal affirmed
the superior court's dismissal of the inverse condemnation action
alleged to arise under the California Constitution.  A federal
question may have been sufficiently imported into the case in the
court of appeal by virtue of appellant's reliance on the dissenting
opinion in San Diego Gas, which concerned the requirements of the
Federal Constitution. However, appellant's briefs also can be read to
cite that opinion and other federal authority only as precedent
relevant to the court of appeal's interpretation of state law (see
C.A. Appellant's Br. 42 & n.15), in which event no federal question
was preserved.  See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

   B. Finality and Ripeness

   1. A claim that regulatory action results in a taking of property
without just compensation cannot be considered by a court until there
has been a "final and authoritative determination" by the responsible
administrative agency with respect to "the type and intensity of
development legally permitted on the subject property." MacDonald,
Sommer & Frates v. County of Yolo, No. 84-2015 (June 25, 1986), slip
op. 7;  see generally id. at 7-12;  Williamson County Regional
Planning Commission v. Hamilton Bank, No. 84-4 (June 28, 1985), slip
op. 13-20, 26.

   In responding to appellant's superior court complaint, alleging
that Ordinance 11855 "denies all use of Lutherglen" (J.A. 11-12, 49),
appellee did not contend that appellant was required to submit a
concrete proposal to the responsible county agency in order to obtain
a final decision on the extent of development permitted (J.A. 21-22).
Cf. Weinberger v. Salfi, 422 U.S. 749, 762-767 (1975).  It thus
appears that the objections to review on ripeness grounds recognized
by this Court in MacDonald do not obtain here as to Ordinance 11855
(slip op. 4-6, 11-12).  See also Williamson County, slip op. 14-18.
/5/

   2. Although Ordinance 11855 was an interim measure that was
superseded in August 1981 by the inclusion of the Mill Creek Flood
Control District under County Code Section 22.44.220, appellant did
not amend its complaint to include allegations about the effect of
that Code provision on the use of its property.  /6/ The County
pointed out in its brief in the Court of Appeal that the Ordinance was
an interim measure (C.A. Appellees' Br. 12), and appellant did cite
County Code Section 22.44.220 in its reply brief, asserting that it
imposed "substantially the same use prohibition as that contained in
the interim ordinance" (C.A. Appellant's Reply Br. 26).  However, the
court of appeal did not mention Section 22.44.220 in its opinion (see
J.S. App. A13-A16).

   C. The Fifth Amendment Does Not Mandate A Damage Remedy Against The
Government For Regulatory Action That Is Found To Result In A Taking

   This case is far from a model of pleading practice and, as
indicated above, it may be doubted whether the claim of a federal
constitutional violation has even been preserved for review by this
Court.  Assuming that appellant adequately asserted a claim for
damages under the United States Constitution in the courts below,
there is a further question whether this is a claim that the Court
should address, where appellant declined to rely on 42 U.S.C. 1983,
the damage remedy provided by Congress under Section 5 of the
Fourteenth Amendment.  See pp. 30-34, infra.  The Court may well be
reluctant to resolve significant constitutional questions in a case
where the issues were not fully explored in the courts below.

   Notwithstanding the uninviting posture of this case in a number of
respects, it may nonetheless be viewed by the Court as raising the
question, several times approached but never decided by this Court,
whether the Constitution itself embodies a monetary remedy for
governmental takings of property without just compensation.  As the
action here challenged was committed by the subdivision of a state
government, it is the Fourteenth Amendment Due Process Clause which
bears most directly in restricting conduct and imposing remedies for
governmental acts.  Because of its clear relevance in helping to
define the limits set by the Fourteenth Amendment, however, we first
address the availability of a damage remedy under the Takings Clause
of the Fifth Amendment.

   We regard it as settled that the concept of a taking for purposes
of the Fifth Amendment is not limited to an actual physical
appropriation or invasion of private property.  In certain
circumstances, regulatory restrictions on the owner's use or
development of the property can also result in a taking of property
within the meaning of the Fifth Amendment, and such regulations
accordingly can be sustained only on the condition that just
compensation is made available to the owner.  This much, it seems to
us, is clear from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
 There the Court held that "the general rule at least is, that while
property may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking" (id. at 415).  The Court
reiterated this view only last Term, observing that "governmental
land-use regulation may under extreme circumstances amount to a
'taking' of the affected property." United States v. Riverside Bayview
Homes, No. 84-701 (Dec. 4, 1985), slip op. 4.  Accord Agins v.
Tiburon, 447 U.S. 255, 260 (1980);  Penn Central Transp. Co. v. New
York City, 438 U.S. 104, 130-131 (1978);  cf. Williamson County, slip
op. 12 (citing cases).

   It is also clear that the federal, state and local governments are
required by the Fifth and Fourteenth Amendments to pay compensation
not only as a condition to the permanent acquisition of fee title or
its functional equivalent, but also as a condition to the lawful
taking of a lesser interest or for a lesser duration.  See, e.g.,
United States v. General Motors Corp., 323 U.S. 373 (1945);  Kimball
Laundry Co. v. United States, 338 U.S. 1 (1949).  In this sense, a
temporary taking of property is clearly within the scope of the
constitutional proscription that private property shall not be taken
for public use without just compensation.  Because regulation of land
may constitute a taking within the contemplation of the Fifth and
Fourteenth Amendments, and because a temporary appropriation of land
likewise can constitute a taking, a regulatory restriction on the use
of land that is ultimately invalidated -- and, thus, is of only
temporary duration -- may also, in certain circumstances, constitute a
taking that implicates the just compensation requirement.

   Of course, where a court concludes that governmental action, such
as excessive regulation, would amount to a taking if given permanent
effect, the government retains the power to rescind its action and
thereby also terminate any taking that may be occurring.  Thus, the
government may abandon property that it has temporarily occupied
(United States v. Dow, 357 U.S. 17, 26 (1958);  United States v.
Causby, 328 U.S. 256, 267-268 (1946)) or cancel formal condemnation
proceedings before passage of title is effectuated (Kirby Forest
Industries, Inc. v. United States, 467 U.S. 1 (1984) ).

   The foregoing principles under the Takings Clause of the Fifth
Amendment do not address the distinct question presented in this case
concerning the remedy that is required where the government has
exceeded the substantive limitations imposed by that Clause.
Appellants claim, as they must in order to prevail in this Court given
the present state of the pleadings, that the Fourteenth Amendment
requires of its own force that a state or federal court provide a
monetary remedy against the government when it takes property.  Such a
claim is only plausible on the premise that the Fifth Amendment also
requires such a remedy of its own force.  This contention merits
serious consideration in light of suggestions in statements by this
Court and in light of the high place the Framers ascribed to property
in the pantheon of rights.  /7/

   James Madison, the draftsman of the Fifth Amendment's Taking
Clause, had available several models:  the Vermont Constitution of
1777, the Massachusetts Constitution of 1780, and the Northwest
Ordinance of 1787.  Each of these phrased the guarantee in the form of
an affirmative right to compensation once property has been taken.
/8/ Nor is there any direct evidence to indicate that the structure
that Madison selected for the Clause was intended to limit the remedy
available to the property owner.  In an essay that Madison published
after the enactment of the Bill of Rights, he stated:

         If there be a government then which prides itself in
      maintaining the inviolability of property;  which provides that
      none shall be taken directly even for public use without
      indemnification to the owner, and yet directly violates the
      property which individuals have in their opinions, their
      religion, their persons, and their faculties;  nay more, which
      indirectly violates their property, in their actual possessions,
      in the labor that acquires their daily subsistence, and in the
      hallowed remnant of time which ought to relieve their fatigues *
      * * such a government is not a pattern for the United States.

Property, Nat. Gazette, Mar. 27, 1792, reprinted in 14 J. Madison, The
Papers of James Madison 267-268 (University Press of VA. ed. 1983).

   Moreover, this Court has noted significant support for the view
that the Takings Clause was intended to be a recognition of a
landowner's right to indemnification for property taken by the
sovereign.  See, e.g., Davis v. Passman, 442 U.S. 228, 242-243 n.20
(1979) ("Jacobs v. United States, 290 U.S. 13 (1933), held that a
plaintiff who alleged that his property had been taken by the United
States for public use without just compensation could bring suit
directly under the Fifth Amendment.").  The Court has held that an
aggrieved landowner's "claim is founded upon the Constitution,"
without the necessity of recourse to "an implied contract" for the
United States to pay compensation.  United States v. Causby, 328 U.S.
256, 267 (1946).  In fact, the Court has in the past expressly
adverted to "'the self-executing character of the (clause) with
respect to compensation.'" United States v. Clarke, 445 U.S. 253, 257
(1980).  See also United States v. Testan, 424 U.S. 392, 401 (1976).

   The advent of the modern regulatory state, and the increased
incidence of taking property by regulation, has made more urgent the
claim for interim damages in the case of regulations which constitute
a taking.  With due regard to these concerns and this evidence, we
nonetheless conclude on the basis of the text of the Fifth Amendment
itself as well as of other indicia of the original understanding of
those who drafted and adopted the Amendment and of its earliest
interpretation, that the better argument is that the Constitution does
not, of its own force, furnish a basis for a court to award money
damages against the government.

                  1. The Text of the Fifth Amendment

   The text of the Fifth Amendment supports the conclusion that the
Takings Clause is strictly prohibitory and does not, without further
legislative action, mandate a monetary award against the government.

   a. The Takings Clause of the Fifth Amendment states:  "nor shall
private property be taken for a public use, without just
compensation." On its face, this language prohibits certain
governmental conduct (the taking of private property for a public use)
except when a certain condition is met (the payment of just
compensation for what is taken).  Thus, the Clause imposes a
limitation on the exercise of power by the government of the United
States.  It does not address the question of the appropriate remedy
when the government has exceeded that limitation, except, perhaps, by
implication that courts will not tolerate a continuing violation.

   b. This interpretation of the Takings Clause is confirmed by the
text of the Fifth Amendment as a whole, which provides (emphasis
added):

         No person shall be held to answer for a capital, or otherwise
      infamous crime, unless on a presentment or indictment of a Grand
      Jury, except in cases arising in the land or naval forces or in
      the Militia, when in actual service in time of war or public
      danger;  nor shall any person be subject for the same offense to
      be twice put in jeopardy of life or limb;  nor shall be
      compelled in any criminal case to be a witness against himself,
      nor be deprived of life, liberty, or property, without due
      process of law;  nor shall private property be taken for public
      use, without just compensation.

Neither the Takings Clause nor any of the preceding four Clauses by
its terms addresses the question of the appropriate remedy in the case
of a violation.  None of the others has been or should be read as
creating a self-effectuating constitutional damage remedy, and there
is no reason to accord such a construction uniquely to the Takings
Clause.

   Three of the Clauses prohibit acts except upon certain specified
conditions.  Thus, the Fifth Amendment does not prohibit the Federal
Government from holding a person to answer for an infamous crime;  it
merely establishes a condition precedent of indictment by Grand Jury.
The Fifth Amendment likewise does not prohibit the government from
depriving a person of life, liberty, or property;  it provides only
that such a deprivation must be accompanied by due process.  And,
finally, "(t)he Fifth Amendment does not proscribe the taking of
property" (Williamson County, slip op. 20);  it merely prescribes the
availability of just compensation as a condition that must be
satisfied in order to sustain the taking.  Contrary to the logic of
appellant's argument, these conditions do not also specify the
appropriate relief in the event that the conditions are not performed.
 Indictment is not a remedy for the government's holding of a person
to answer for an infamous crime, any more than due process is a remedy
for a deprivation of life, liberty, or property.  It is a reasonable
parallel construction of the Amendment to conclude that the
availability of just compensation, while an essential condition of a
constitutional taking, was not prescribed by the Fifth Amendment as
the judicial remedy for an unconstitutional one.  /9/

               2. Other Indicia of the Drafters' Intent

   Three important indicia of original intent point to the conclusion
that there is no self-effectuating damage remedy available under the
Fifth Amendment.  These indicia are particularly compelling when it is
recalled that the Fifth Amendment is directly applicable only against
the United States and that appellant's argument therefore implicitly
asserts that the Fifth Amendment mandates a monetary remedy against
the United States.

   a. The most obvious obstacle to such an interpretation of the Fifth
Amendment is the sovereign immunity of the United States to suit,
absent a waiver by Congress of that immunity.  /10/ That immunity was
well understood by the Framers of the Constitution.  As Alexander
Hamilton explained with respect to the sovereign immunity of the
States:

         It is inherent in the nature of sovereignty not to be
      amenable to the suit of an individual without its consent.  This
      is the general sense and the general practice of mankind;  and
      the exemption, as one of the attributes of sovereignty, is now
      enjoyed by the government of every State in the Union.

The Federalist No. 81, at 487 (C. Rossiter ed. 1961) (emphasis in
original).  Hamilton stressed that the Constitution did not work a
surrender of the immunity of the States (ibid.), and the Constitution
likewise did not withhold this essential "attribute() of sovereignty"
from the Government of the United States.  See, e.g., California v.
Arizona, 440 U.S. 59, 61-62, 65 (1979);  Kansas v. United States, 204
U.S. 331, 342 (1907).  Nor is there any indication that this immunity
was dispensed with by the Fifth Amendment, which was proposed to the
States for ratification only two years after the Constitution was
proposed.  This silence is fatal, because only an explicit waiver of
sovereign immunity will suffice.  See Library of Congress v. Shaw, No.
85-54 (July 1, 1986), slip op. 6.  /11/ In fact, this Court has made
clear that Congress may bar suits for monetary relief against the
United States even where it is alleged that a statute results in a
taking of property without just compensation (Lynch v. United States,
292 U.S. 571, 579, 580-582 (1934)), because "(t)he rule that the
United States may not be sued without its consent is all embracing"
(id. at 581).  See also Schillinger v. United States, 155 U.S. 163,
168 (1894);  cf. United States v. Lee, 106 U.S. 196, 205-206, 218
(1882);  Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
696-697 & nn.17-18 (1949);  id. at 717-718 & n.10 (Frankfurter, J.,
dissenting).

   b. Quite aside from the United States immunity to suit as a general
matter, the Constitution provides that "No Money shall be drawn from
the Treasury, but in consequence of Appropriations made by Law." Art.
I, Section 9, Cl. 7.  This provision independently bars a court from
ordering the payment of money out of the Federal Treasury unless
Congress has created a damage remedy.  See Reeside v. Walker, 52 U.S.
(11 How.) 272, 291 (1850).

   c. It also is instructive to consider the remedy that the
Constitution expressly contemplates for certain types of
constitutional violations -- those involving a deprivation of liberty
without due process.  Article I, Section 9, Cl. 2 provides:  "The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in cases of Rebellion or Invasion, the public Safety may require
it." Unlike the damage action appellant advocates, a habeas corpus
proceeding is instituted not against the sovereign itself, but against
the responsible governmental official on the basis that continued
imprisonment under present conditions is illegal.  See Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. at 690.  Moreover, the
consequence of the issuance of the writ is to require the officer
having custody of the petitioner to release him from custody, and
thereby restore his liberty to him.

   Such relief is directly analogous to an injunction or writ of
mandamus to prevent a government officer from enforcing a statute or
regulation that is found to deprive a person of his property without
due process or just compensation.  The latter relief, as provided in
California under the Agins rule, has the prospective effect of
restoring the owner's property to him.  See 337 U.S. at 690;  United
States v. Lee, 106 U.S. at 218-220.

       3. Judicial Construction of the Compensation Requirement

   a. The early interpretation of the compensation guarantee under the
Fifth Amendment, state constitutions, and the common law also
establishes that it was understood not as a basis for awarding money
damages against the government for uncompensated takings of private
property, but rather as a condition on the lawful exercise of the
power of eminent domain.  Of particular interest is the interpretation
of Article X of the Declaration of Rights in the Massachusetts
Constitution of 1780, which was one of the principal precursors of the
Takings Clause.  /12/ The Supreme Judicial Court explained the
operation of the provision in Callender v. Marsh, 18 Mass. 418,
430-431 (1823) (emphasis added):

      Thus if by virtue of any legislative act the land of any citizen
      should be occupied by the public for the erection of a fort or
      any public edifice upon it, without any means provided to
      indemnify the owner of the property, the title of the owner
      could not be devested thereby, and he might maintain his action
      for possession, or of trespass, against those who are
      instrumental in the act;  because such a statute would be
      directly contrary to the above cited provision;  and as no
      action can be maintained against the public for damages, the
      only way to secure the party in his constitutional rights would
      be to declare void the public appropriation.  /13/

   Other state court decisions were to the same effect.  See Bradshaw
v. Rodgers, 20 Johns, Rep. 103, 106 (N.Y. 1822) ("any law violating
that principle must be deemed a nullity");  Sinnickson v. Johnson, 17
N.J. L. 129, 151 (1839) ("the remedy can only be by contesting the
constitutionality of the law, or appealing to the justice and
magnaminity of the legislature");  Parham v. The Justices, 9 Ga. 341,
349 (1851) ("the Legislature must make provision for compensation.  If
it does not, the Courts may pronounce the law a nullity");  id. at 391
(just compensation requirement is a "limitation" on the exercise of
the power of eminent domain);  Ex parte Martin, 13 Ark. 198, 211-212
(1853), (no suit lies against the state, but its agents are liable in
trespass);  Picatagua Bridge v. New Hampshire Bridge, 7 N.H. 35, 66
(1834) ("limitation");  Petition of Mt. Washington Rd. Co., 35 N.H.
134, 142 (1857) ("a legislative act could not be legally enforced
which should undertake to appropriate private property to public use
without provision for compensation to the owner").  See also
Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 360 (Pa. 1788) (stating
in a suit seeking damages for a seizures of property by the government
that the "sovereign is not amenable in any Court unless by his own
consent");  T. Cooley, Constitutional Limitations 760 (7th ed. 1903)
("conditions precedent").

   b. Many of this Court's decisions have construed the compensation
requirement in a similar manner.  In no case has this Court ever
expressly held that the Fifth Amendment, standing alone and without
further congressional action, mandates a damage remedy against the
United States.

   In the landmark decision in Chicago, B. & Q. R.R. v. Chicago, 166
U.S. 226 (1897), which held that the condition of just compensation
applies to the States through Section 1 of the Fourteenth Amendment,
the Court noted that it previously had stated that "it was a condition
precedent to the exercise of the power of eminent domain that the
statute make provision for reasonable compensation to the owner." 166
U.S. at 238 (emphasis added), citing Searl v. School District, 133
U.S. 553, 562 (1890), and Sweet v. Rechel, 159 U.S. 380, 398-399
(1895).  Accord United States v. Jones, 109 U.S. 513, 518 (1883) (the
compensation requirement "is no part of the (eminent domain) power
itself, but a condition upon which the power may be exercised");
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833)
(Takings Clause is "a limitation of the exercise of power by the
government").

   Moreover, in cases arising under the Tucker Act, the government
waives its sovereign immunity so as to make available the just
compensation necessary to complete a constitutionally valid exercise
of the taking power.  In this connection, the Court in Schillinger v.
United States, 155 U.S. 163 (1894), was at pains to make clear that
the waiver of sovereign immunity in the Tucker Act did not lay the
government open to suit for money damages in respect to every wrongful
act by the government or its agents which injures an individual in his
property interests.  Id. at 168.  See also United States v. Lynch, 292
U.S. at 582.  Compare 28 U.S.C. 2680(a);  United States v. Varig
Airlines, 467 U.S. 797, 809-810, 814 (1984).

   This same view in fact is reflected in Pennsylvania Coal Co. v.
Mahon, the Court's seminal decision holding that land-use regulations
that are within the permissible scope of a State's police power may
nevertheless go "too far" and "be recognized as a taking." 260 U.S. at
415.  The Court stated that in most, if not all cases, in which the
diminution in value occasioned by regulation reaches a certain
magnitude, "there must be an exercise of eminent domain and
compensation to sustain the act." Id. at 413;  see also id. at 400,
416.  The Court thus again regarded the availability of compensation
as a condition to a constitutional taking, not as a damage remedy for
a completed, but as yet uncompensated taking, as appellant maintains.
Accord Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (the
Government "may not, without invoking its eminent domain power and
paying just compensation, require (the landowner) to allow free access
to the dredged pond");  Penn Central Transp. Co. v. New York City, 438
U.S. 104, 124 (1978) (referring to the question "whether a particular
restriction will be rendered invalid by the government's failure to
pay");  Williamson County, slip op. 25 (collecting cases).

   More generally, the interpretation of the Takings Clause urged by
appellants would effectively permit a court, at the behest of a
private person, to require the United States Government to exercise
the power of eminent domain and to direct the expenditure of funds out
of the Treasury to pay for the property so acquired -- and to do so in
the absence of any congressional authorization for either part of that
judicially mandated exchange.  We seriously doubt that the Framers
believed that a court has the authority to interfere in this manner
with the judgment of the political branches.  To the contrary, this
Court has made clear that whether to exercise the power of eminent
domain is "'for Congress and Congress alone to determine.'" Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984) (quoting Berman
v. Parker, 348 U.S. 26, 33 (1954)).  See also Mitchell v. United
States, 267 U.S. 341, 345 (1925);  n.11, supra.  /14/

   c. A number of decisions of this Court contain language which
might, in isolation, be taken to suggest the existence of a damage
remedy under the Takings Clause.  When read in full, however, we think
it plain that these decisions do not in fact recognize any such
constitutional remedy.

   In Jacobs v. United States, 290 U.S. 13 (1933), involving suits
brought under the Tucker Act in connection with the flooding of land,
the Court stated (id. at 16):

      The suits were based on the right to recover just compensation
      for property taken by the United States for public use in the
      exercise of its power of eminent domain.  That right was
      guaranteed by the Constitution.  The fact that condemnation
      proceedings were not instituted and that the right was asserted
      in suits by the owners did not change the essential nature of
      the claim.  The form of the remedy did not qualify the right.
      It rested upon the Fifth Amendment.  Statutory recognition was
      not necessary.  A promise to pay was not necessary.  Such a
      promise was implied because of the duty to pay imposed by the
      Amendment.

Because the plaintiffs' claims in Jacobs were made pursuant to the
Tucker Act, in which Congress has waived the United States' immunity
to suit, this passage cannot be read to suggest that a court could
order the payment of a money judgment out of the Federal Treasury even
where Congress has not waived that immunity.  Further, there was no
dispute in Jacobs that a taking of property giving rise to a right to
recover compensation under the Tucker Act had occurred.  To the
contrary, the Court observed that "(t)he Government contemplated the
flowage of the lands, that damage would result therefrom, and that
compensation would be payable" (290 U.S. at 16).  Indeed, in the very
passage quoted above, the Court stated that the Tucker Act suits were
based on the right to just compensation for property taken by the
United States "in the exercise of its power of eminent domain"
(ibid.).  /15/

   More recently, the Court's opinion in United States v. Clarke, 445
U.S. 253 (1980), contained a passage referring to the "'self-executing
character of the constitutional provision with respect to
compensation'" (id. at 257, quoting 6 P. Nichols, Eminent Domain
Section 25.41 (3d rev. ed. 1972)).  Clarke, however, presented a
question of statutory construction, not constitutional law.
Specifically, it concerned the interpretation of 25 U.S.C. 357, which
permits Indian lands to be "condemned" pursuant to state law.  The
Court held that this statute did not permit a city to acquire Indian
property through "inverse condemnation" -- i.e., by physically
occupying the property and remitting the Indian owner to a suit
against the state to recover compensation.  The Court's reference to
the "self-executing character" of the constitutional provision as
regards compensation was merely part of its description of the nature
of an inverse condemnation action.  Because such an action concededly
was available under state law (see 445 U.S. at 259), there was no
question raised concerning the availability of monetary relief if the
state legislature had not so provided.

   Moreover, the asserted premise of the availability of compensation
under state law in Clarke was that "Alaska law allows the 'exercise of
the power of eminent domain through inverse condemnation or a taking
in the nature of inverse condemnation'" (445 U.S. at 259 (quoting
Brief of Respondent Municipality of Anchorage at 16)).  Similarly, the
Court elsewhere in its opinion referred to "the choice of the
condemning authority to take property by physical invasion rather than
by formal condemnation proceedings" (445 U.S. at 258 (emphasis
added)).  Clarke therefore does not suggest that the Constitution
requires a damages remedy where the government has not waived its
sovereign immunity.  /16/

   In sum, the text, background, and judicial construction of the
Fifth Amendment all argue forcefully against appellant's contention
that the Takings Clause, of its own force, requires that monetary
relief be available against the government where a regulation is found
to result in an unconstitutional taking of property.

   D. The Application Of The Takings Clause Of The Fifth Amendment To
The States Through Section 1 Of The Fourteenth Amendment Likewise Does
Not Give Rise To A Constitutionally Compelled Damage Remedy Against
The Government

   The foregoing discussion of the Fifth Amendment demonstrates that
the Takings Clause's prohibition of uncompensated takings does not
imply a constitutionally-based compensation remedy where the
prohibition has been violated.  As this Court explained in Chicago B.
& Q. R.R. v. Chicago, 166 U.S. at 235-241, an uncompensated transfer
of private property to the government for public use, because of the
lack of compensation alone, violates the Fourteenth Amendment's
prohibition of deprivations of property without due process of law.
/17/ The Due Process Clause, like the Takings Clause, is a prohibition
on certain deprivations of property by the government.  /18/ If, as we
have demonstrated, the Takings Clause, which actually refers to just
compensation, does not imply a monetary remedy for its violation, than
a fortiori the Due Process Clause, a prohibition which does not refer
to compensation at all, does not give rise to a monetary remedy
either.

   Any doubt as to whether the prohibitions in Section 1 of the
Fourteenth Amendment imply a monetary remedy is dispelled by the
language and history of Section 5 of the Amendment, which explicitly
grants control over remedies to Congress.  Section 1 of the Fourteenth
Amendment provides that no State may deprive "any person of * * *
property, without due process of law." Section 5 vests Congress with
the "power to enforce, by appropriate legislation, the provisions of"
the Amendment.  As the structure of the Amendment would suggest, the
responsibility for fashioning affirmative remedies for violations of
Section 1 was reserved to Congress.  Given this explicit textual
commitment, Section 1 cannot be understood to have imposed directly on
states a self-effectuating monetary remedy.

   The origins and judicial interpretation of the Fourteenth Amendment
lend support to this conclusion.  For example, Senator Howard, who
introduced the proposed Amendment in the Senate, said of Section 5:

      It casts upon Congress the responsibility of seeing to it, for
      the future, that all the sections of the Amendments are carried
      out in good faith, and that no State infringes the rights of
      persons or property.  I look upon the clause as indispensable
      for the reason that it thus imposes upon Congress this power and
      duty.

Cong. Globe, 39th Cong., 1st Sess. 2768 (1866).  Similarly,
Congressman Stevens introduced the proposed Amendment in the House
with these words (id. at 2459):

      (T)he Constitution * * * is not a limitation on the States.
      This Amendment supplies that defect, and allows Congress to
      correct unjust legislation of the States * * *.

   This Court, too, has often acknowledged that the Fourteenth
Amendment contemplates that Congress will have primary authority to
direct the enforcement of its provisions.  /19/ In Ex parte Virginia,
100 U.S. 339 (1879), decided just 11 years after adoption of the
Amendment, the Court so described Section 5 (100 U.S. at 345-346
(emphasis added)):

      It is the power of Congress which has been enlarged.  Congress
      is authorized to enforce the prohibitions by appropriate
      legislation.  Some legislation is contemplated to make the
      amendments fully effective.  Whatever legislation is
      appropriate, that is, adapted to carry out the objects the
      amendments have in view, whatever tends to enforce submission,
      to the prohibitions they contain, and to secure to all persons
      the enjoyment of perfect equality of civil rights and the equal
      protection of the laws against State denial or invasion, if not
      prohibited, is brought within the domain of congressional power.
       /20/

And again in The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 81
(1872):

         If, however, the states did not conform their laws to its
      requirements, then by the Fifth section of the article of
      amendment Congress was authorized to enforce it by suitable
      legislation.  * * * But as it is a state that is to be dealt
      with, and not alone the validity of its laws, we may safely
      leave that matter until Congress shall have exercised its power,
      or some case of state oppression, by denial of equal justice in
      its courts, shall have claimed a decision at our hands.  /21/

   Consistent with the preeminent role of congressional enforcement
under Section 5, this Court has been reluctant to permit a cause of
action in federal court directly under the Fourteenth Amendment,
unaided by congressional legislation.  See e.g., Lake County Estates,
Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398-400 (1979);
Mt. Healthy City School District v. Doyle, 429 U.S. 274, 277-278
(1977);  Aldinger v. Howard, 427 U.S. 1, 4 n.3 (1976).  The Court
should be even more reluctant to compel a cause of action for money
damages against a local governmental entity in state court.
Inevitably, "(t)he manner of enforcement (of the Fourteenth Amendment)
involves discretion" (Oregon v. Mitchell, 400 U.S. 112, 143 (1970)
(Douglas, J., concurring and dissenting), because of the need to
assess on a nationwide scale the nature and extent of constitutional
violations, to weigh competing considerations of federal, state, and
local policy, and to revise the enforcement mechanisms if experience
warrants.  These are at bottom legislative determinations, and
therefore "discretion is largely entrusted to the Congress not the
courts" (ibid.).

   E. In 42 U.S.C. 1983, Congress Has Created A Substantial Remedy For
Regulatory Takings, Which Appellant Has Not Attempted To Invoke In
This Case

   Congress has exercised its authority under Section 5 of the
Fourteenth Amendment by enacting 42 U.S.C. 1983 to protect against
interference with constitutional rights under color of state law.  As
the Court observed in Monell v. Department of Social Services, 436
U.S. 658 (1978), Section 1983 was enacted with the problem of the
appropriation of private property without compensation specifically in
mind.  See 436 U.S. at 685-686 & n.45;  see Cong. Globe App., 42d
Cong., 1st Sess. 84-85 (1871) (remarks of Rep. Bingham).  Whatever
might have been the case if Congress had not entered the field,
Congress's enactment of 42 U.S.C. 1983 has eliminated any need for
this Court to explore implicit constitutional remedies to be applied
against governmental bodies acting in the area of local land-use
regulation.  Cf. Lake County Estates, 440 U.S. at 399-400;  Bush v.
Lucas, 462 U.S. 367, 379-380, 389-390 (1983).  That statutory remedy
is subject to amendment and refinement if experience warrants, and
reliance on that remedy will avoid the serious potential for harm in
an inflexible, constitutionally-based monetary remedy.  /22/

   In this case, appellant did not rely on 42 U.S.C. 1983 in the
California courts;  nor has it done so in this Court.  There
accordingly is no reason for the Court in this case to elaborate upon
the application of the statutory damage remedy in Section 1983 where
it is properly invoked.  It nevertheless may be useful to consider
that issue briefly here.

   There is no occasion to resort to a federal remedy under Section
1983 where the state has made provision for the payment of
compensation in an action for inverse condemnation in state court.
Williamson County, slip op. 20-23.  Under that system, the affected
property interest is transferred to the government when the
restriction becomes effective or a permit is finally denied.  Just
compensation is available beginning as of that date for the fair
market value of whatever property is taken, whether the taking be
permanent or terminated by recision of the agency's action after a
period of time.

   By contrast, the Section 1983 damage remedy may play a more
important role under the system of land-use regulation contemplated by
Agins.  To be sure, California is free under the Federal Constitution
to withhold from governmental officials the authority to commit public
money and thereby appropriate private property in a manner consistent
with the Fifth Amendment. /23/ Under such a regime, regulations that
do constitute a taking must be struck down as unconstitutional because
no compensation has been made available through an inverse
condemnation or similar action.  Relief lifting the offending
restrictions removes any claim of constitutional injury insofar as its
future effects are concerned.  See San Diego Gas, 450 U.S. at 658;
MacDonald, slip op. 10 n.4 (White, J., dissenting).  Yet, since
temporary invasions, like more permanent regulatory takings, may
violate the Fifth Amendment Takings Clause (see pp. 10-11, supra), the
Agins-type regime may leave a gap in the remedial fabric.  Prospective
invalidation of the regulation or permit denial of course will not
necessarily undo the effects of whatever limitations on the use or
development of the property were applicable on a temporary basis while
the validity of the restrictions was being litigated in the suit for
mandamus or declaratory relief.

   The availability of a Section 1983 damages remedy fully redresses
this defect, however.  /24/ When regulations by authorities in states
with the Agins-type regime are determined to constitute a taking,
Section 1983 provides a remedy in damages against the state, equal to
the amount of just compensation constitutionally required for the
taking.  This includes recompense for the partial or total loss of use
of the property between the moment when the taking is determined to
have occurred and the moment when the regulation is prospectively
invalidated.

   In considering whether an invalidated restriction caused a taking
while it was temporarily in effect, the factors to be taken into
account in a suit under 42 U.S.C. 1983, are, in our view, essentially
the same as those that the courts traditionally consider in
determining whether a taking has occurred.

   This Court has, in past cases, relied upon "ad hoc, factual
inquiries" (Kaiser Aetna, 444 U.S. at 175) into three specific factors
of "particular significance" to determine whether "'justice and
fairness' require that economic injuries caused by public action be
compensated by the government" (Penn Central, 438 U.S. at 124).  These
factors are:  (1) "the character of the governmental action" (ibid.);
(2) "(t)he economic impact of the regulation" on the property (ibid.);
 and (3) the reasonableness of the property owner's "distinct
investment-backed expectations" for the use of its property (id. at
124-125).  See also Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 426 (1982);  Kaiser Aetna, 444 U.S. at 175.  Although these
factors have been utilized in the past to determine whether the
permanent application of a regulation constitutes a taking, there is
no reason why they should not also be applied to ascertain the point
at which a temporary deprivation becomes a taking under the Fifth
Amendment.

                              CONCLUSION

   The judgment of the court of appeal should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ROGER J. MARZULLA

   THOMAS E. HOOKANO

   DOUGLAS W. KMIEC

      Deputy Assistant Attorneys General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   PETER R. STEENLAND, JR.

   RAYMOND B. LUDWISZEWSKI

      Attorneys

   NOVEMBER 1986

   /1/ Trees and other vegetation normally protect against flooding by
slowing the flow of water, which can then percolate into the soil or
be carried away by streams.  A fire encrusts the surface, which
prevents percolation of water into the soil.  In addition, the fire's
ash and debris significantly augment the bulk of the water flow,
thereby increasing erosion damage caused by the runoff.  J.S. App.
A2-3 n.1.

   /2/ Any accessory buildings or structures on a site that is subject
to flooding must be approved by the county engineer pursuant to
Section 308 of the Building Code, which provides that the placement
must assure that water or mud flow will not be a hazard to the
building or adjacent property.  Section 308 also requires the county
engineer to "enforce, at a minimum, the current Federal flood plain
management regulations." See Mot. To Dis. or Aff. AA1-AA2.  Other
exceptions to the flood protection district restrictions are provided
for "(a)utomobile parking facilities incidental to a lawfully
established use" and for flood control structures (Section 22.44.220;
J.S. App. 33A).

   /3/ Article 1, Section 19 of the California Constitution provides
in pertinent part:  "Private property may be taken or damaged for
public use only when just compensation, ascertained by a jury unless
waived, has first been paid to, or into the court for, the owner." The
Takings Clause of the Fifth Amendment to the United States
Constitution contains no comparable reference to property "damaged"
for a public use.

   /4/ Neither appellant's complaint nor the opinions of the superior
court and the court of appeal mentioned County Code Section 22.44.220,
which superseded the temporary Ordinance 11855 on August 11, 1981.

   /5/ On its face, Ordinance 11855 was absolute in its prohibition
against new construction (J.S. App. A31).  While the ordinance does
not appear to have actually prevented any use of Lutherglen (e.g.,
tent camping) that did not require construction of facilities, it was
fairly implicit in appellant's allegations that any such residual uses
were not "economically viable" as that term has been used in some of
this Court's decisions.  See, e.g., Penn Central Transp. Co. v. New
York City, 438 U.S. 104, 138 n.36 (1978);  Agins v. Tiburon, 447 U.S.
255, 260 (1980);  United States v. Riverside Bayview Homes, No. 84-701
(Dec. 4, 1985), slip op. 5 n.4.

   /6/ This case was still pending in superior court at the time
Ordinance 11855 was superseded.

   /7/ See generally The Federalist No. 10, at 78-79, 84 (J. Madison)
(C. Rossitor ed. 1961);  R. Epstein, Takings -- Private Property and
the Power of Eminent Domain 7-18 (1985).

   /8/ Chapter I, Article II of the Vermont Constitution of 1777
provided in pertinent part:

      whenever any person's property is taken for the use of the
      public, the owner ought to receive an equivalent in money.

   Article X of the Massachusetts Constitution of 1780 provided:

      And whenever the public exigencies require, that the property of
      any individual should be appropriated to public uses, he shall
      receive a reasonable compensation therefor.

   Article II of the Northwest Ordinance of July 13, 1787 (Ordinance
for the government of the territory of the United States northwest of
the river Ohio) provided in relevant part:

      should the public exigencies make it necessary, for the common
      preservation, to take any person's property, or to demand his
      particular services, full compensation shall be paid to the
      same.

   /9/ The validity of this interpretation is reinforced by the
identical language used in the Due Process and Just Compensation
Clauses, each of which introduces the condition to the lawful exercise
of governmental authority by the word "without." Compare Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 153 & n.19 (1982), where the
Court attached significance to the parallel structure of the Foreign
and Indian Commerce Clauses, both of which are introduced by the word
"with":  Congress is empowered "To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes."
U.S. Const. Art. I, Section 8, Cl. 3 (emphasis added).

   /10/ A suit is plainly one against the sovereign if the judgment
would expend itself on the public treasury.  Dugan v. Rank, 372 U.S.
609, 620 (1963).

   /11/ The importance attached to the doctrine of sovereign immunity
at the time the Fifth Amendment was adopted is confirmed by the fact
that the decision in Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793),
"'created such a shock of surprise that the Eleventh Amendment was at
once proposed and adopted.'" Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 97 (1984), quoting Monaco v. Mississippi, 292
U.S. U.S. 313, 325 (1934).

   The Takings Clause of the Fifth Amendment thus seems
distinguishable from the parallel provisions of state constitutions
which have been found to constitute waivers of state sovereign
immunity.  See, e.g., Wilson v. Beville, 47 Cal.2d 852, 860, 306 P.2d
789 (1957);  Trippe v. Port Authority, 35 Misc.2d 744, 231 N.Y.S.2d
818, 821-823 (1962);  Burns v. Board of Supervisors, 218 Va. 625, 238
S.E.2d 823, 825 (1977).  See also Developments in the Law -- Remedies
Against the United States and Its Officials, 70 Harv. L. Rev. 827,
876-881 (1957).

   /12/ See Note, The Origins and Original Significance of the Just
Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 701,
706-708 (1985).  Article X is quoted in relevant part at n.8, supra.

   /13/ Accord Perry v. Wilson, 7 Mass. 393, 395 (1811) ("But in this
statute, no compensation is provided, nor any means of ascertaining or
securing the payment of it declared.  If, then, the act was construed
to be an appropriation of the plaintiff's lot for the use of the
public, such appropriation would be unconstitutional and void.");
Baker v. City of Boston, 29 Mass. (1 Pick.) 184 (1831) ("But it is
true, undoubtedly, that the property of a private individual may be
appropriated to public use, in connection with measures of municipal
regulations;  and in such case compensation must be provided for, or
the appropriation will be unconstitutional and void.").

   /14/ The Property Clause provides that "(t)he Congress shall have
Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United
States." Art. IV, Section 3, Cl. 2.  This Clause vests Congress with
"complete power" over the property of the United States.  Kleppe v.
New Mexico, 426 U.S. 529, 540 (1976).

   /15/ The only question in Jacobs was whether interest was required
to be paid from the date of the taking, and in that context the Court
rejected the argument that interest could be withheld because there
was no promise to pay it.  Thus, Jacobs simply holds that where
Congress, attendant to the exercise of the eminent domain power, has
made just compensation available by authorizing an inverse
condemnation action under the Tucker Act, the measure of that
compensation is prescribed by the Constitution.

   /16/ In addition to Jacobs v. United States and United States v.
Clarke, Justice Brennan's dissenting opinion in San Diego Gas &
Electric Co. v. City of San Diego, 450 U.S. 621, 636-661 (1981), cited
several other decisions of this Court as supportive of a damage remedy
arising directly from the Takings Clause.  However, United States v.
Causeby, 328 U.S. 256 (1946) (see 450 U.S. at 655), like Jacobs, was a
suit under the Tucker Act, and it therefore likewise does not suggest
that a court may award a money judgment against the United States
where Congress has not consented to such a suit.  Moreover, there was
no dispute in Causby that compensation was available under the Tucker
Act in the circumstances of that case if a taking were found;  the
only dispute was whether the overflights amounted to a taking.  Cf.
328 U.S. at 261 ("the United States conceded on oral argument that if
the flights over respondents' property rendered it uninhabitable,
there would be a taking compensable under the Fifth Amendment").

   Likewise, United States v. Dickinson, 331 U.S. 745 (1947) (see 450
U.S. at 655 n.21), arose under the Tucker Act, and it presented only a
question of the application of the statute of limitations.  That
question is not involved here.  Similarly, Griggs v. Allegheny County,
369 U.S. 84 (1962) (see 450 U.S. at 665), arose under a parallel state
procedure that provided for the payment of compensation if the
governmental action involved were held to result in a taking.  See 369
U.S. at 85.

   Finally, Justice Brennan's dissenting opinion in San Diego Gas
quoted (450 U.S. at 652-653) the statement in Justice Stewart's
concurring opinion in Huges v. Washington, 389 U.S. 290, 298 (1937),
that "the Constitution measures a taking of property not by what a
State says, or what it intends, but by what it does." Hughes, however,
raised no question of the availability of a monetary remedy against
the sovereign;  it involved only prospective relief in a title
dispute.

   /17/ The Fifth Amendment does not directly apply to the States.
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833).

   /18/ The Privileges and Immunities Clause and the Equal Protection
Clause, which also are contained in Section 1 of the Fourteenth
Amendment, likewise are prohibitory in nature.

   /19/ See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 653-656 (1966);
 United States v. Guest, 383 U.S. 745, 783 n.7 (1966) (Brennan, J.,
concurring in part and dissenting in part) ("the primary purpose of
the Amendment was to augment the power of Congress, not the
judiciary").

   /20/ Justice Black took a similar view of the Amendment in his
dissent in Harper v. Virginia Board of Elections, 383 U.S. 663,
678-680 (1966):

      Moreover, the people, in Section 5 of the Fourteenth Amendment
      designated the government tribunal they wanted to provide
      additional rules to enforce the guarantees of that Amendment.
      The branch of Government they chose was not the Judicial Branch
      but the Legislative.

                      *     *     *     *     *

      Thus Section 5 of the Fourteenth Amendment in accordance with
      our constitutional structure of government authorized the
      Congress to pass definitive legislation to protect Fourteenth
      Amendment rights which it has done many times, e.g., 42 U.S.C.
      Section 1971(a).  For Congress to do this fits in precisely with
      the division of powers originally entrusted to the three
      branches of government -- Executive, Legislative and Judicial.

   /21/ Similarly, Professor Flack states in his comprehensive
analysis of the historical origins of the Amendment:

      The declarations and statements of newspapers, writers and
      speakers * * * show very clearly, * * * the general opinion held
      in the North.  That opinion, briefly stated, was that the
      Amendment embodied the Civil Rights Bill and gave Congress the
      power to define and secure the privileges of citizens of the
      United States.

H. Flack, The Adoption of the Fourteenth Amendment 153 (1908).  See
generally J. ten Broek, The Antislavery Origins of the Fourteenth
Amendment 187-215 (1951).

   /22/ In response to the holding in Monroe v. Pape, 365 U.S. 167,
180 (1961), that municipalities were not subject to suit under Section
1983, several courts of appeals initially implied rights of action
directly under the Fourteenth Amendment in federal court in order to
provide aggrieved plaintiffs with some remedy for civil rights
violations.  See, e.g., Turpin v. Mailet, 579 F.2d 152, 159 (2d Cir.)
(en banc), vacated sub nom. City of West Haven v. Turpin, 439 U.S. 974
(1978).  When Monroe was overruled in Monell v. Department of Social
Services, 436 U.S. 658 (1978), these courts were forced to reconsider
the propriety of an implied cause of action, in light of the
availability of the remedial legislation.  Those courts of appeals
uniformly concluded that "there is no place for a cause of action
against a municipality directly under the Fourteenth Amendment,
because the plaintiff may proceed against the city * * * under Section
1983." Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc),
cert. denied, 449 U.S. 1016 (1980).  Accord Owen v. City of
Independence, 589 F.2d 335, 337 (8th Cir. 1978) ("(b)y enacting
Section 1983, Congress has provided an appropriate and exclusive
remedy for constitutional violations committed by municipalities")
(emphasis added), rev'd on other grounds, 445 U.S. 622 (1980);  Rogin
v. Bensalem Township, 616 F.2d 680, 686 (3d Cir. 1980), cert. denied,
450 U.S. 1029 (1981);  Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980);
Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978);  Molina v.
Richardson, 578 F.2d 846 (9th Cir.), cert. denied, 439 U.S. 1048
(1978);  Morris v. Washington Metro. Area Transit Authority, 702 F.2d
1037, 1042 n.10 (D.C. Cir. 1983).  Even prior to Monell, several
courts denied the availability of such an implied remedy.  See, e.g.,
Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977).  See also Huemmer v.
Mayor of Ocean City, 474 F. Supp. 704, 712-718 & nn. 8-15 (D. Md.
1979) (collecting authorities), aff'd in part and rev'd in part, 632
F.2d 371 (4th Cir. 1980);  Mahone v. Waddle, 564 F.2d 1018 (3d Cir.
1977), cert. denied, 438 U.S. 904 (1978).

   /23/ In this regard, the Agins rule deprives state regulators of
the option of preserving permanently an excessive regulation by
electing to pay a landowner "just compensation" for the property
interest lost.  Cf. San Diego Gas, 450 U.S. at 653 n.19.  California
thus mandates that in every instance of overburdensome regulation, the
action must be invalidated.  Compare Regional Rail Reorganization Act
Cases, 419 U.S. 102, 134 (1974) (presuming the availability of
compensation under the Tucker Act to sustain federal legislation found
to result in a taking).  If a California regulatory agency wishes to
reinstate the regulation, it must secure legislative approval for a
formal eminent domain proceeding and cannot rely upon
judicially-ordered compensation to protect its regulatory program.

   This is not to say that excessive regulations do not constitute a
taking within the meaning of the Fifth Amendment merely because
compensation is not made available by the sovereign through a suit for
inverse condemnation.  Government cannot classify retrospectively the
character of its actions so as to frustrate constitutional rights.
See, e.g., Ruckelshaus v. Monsanto, 467 U.S. 986, 1012 (1984);  Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980).  The
essential point is that the absence of compensation renders any taking
that results unconstitutional.  That unconstitutional action in turn
gives rise to a cause of action for damages under 42 U.S.C. 1983.

   /24/ Of course, in order for a municipality to be liable under 42
U.S.C. 1983, the allegedly unconstitutional action must have been
taken pursuant to the official policy of the municipality.  Pembaur v.
City of Cincinnati, No. 84-1160 (Mar. 25, 1986). In addition,
principles of absolute or qualified immunity may shield an individual
defendant from liability for damages under 42 U.S.C. 1983.