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 

GAO-03-1015


a
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 mittala@gao.gov. 

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


Page i GAO-03-1015 Regulatory Takings 
Contents 

Abbreviations 

EO Executive Order 12630


EPA U.S. Environmental Protection Agency


GAO General Accounting Office


OMB Office of Management and Budget


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Page ii GAO-03-1015 Regulatory Takings 
Page 1 GAO-03-1015 Regulatory Takings 

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 

1

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

Page 1 GAO-03-1015 Regulatory Takings 
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 

2

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

Court. 

3

The Department of Justice represents the U.S. government in litigation, unless otherwise 

authorized by law. 28 U.S.C. § 516. 

4

The 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. § 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. 

5

Regarding 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 §10 of the Rivers and Harbors Act or §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. 

Page 2 GAO-03-1015 Regulatory Takings 
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 

6

We refer to these agencies as the “four agencies” in subsequent references. 

Page 3 GAO-03-1015 Regulatory Takings 
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, 

Page 4 GAO-03-1015 Regulatory Takings 
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. 

Page 5 GAO-03-1015 Regulatory Takings 
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 

7

The 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. 

8

In 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. 

9

Takings 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. 

Page 6 GAO-03-1015 Regulatory Takings 
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. 

Page 7 GAO-03-1015 Regulatory Takings 
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). 

Page 8 GAO-03-1015 Regulatory Takings 
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. 

Page 9 GAO-03-1015 Regulatory Takings 
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. 

Page 10 GAO-03-1015 Regulatory Takings 
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). 

Page 11 GAO-03-1015 Regulatory Takings 
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. 

Page 12 GAO-03-1015 Regulatory Takings 
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. 

Page 13 GAO-03-1015 Regulatory Takings 
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. 

Page 14 GAO-03-1015 Regulatory Takings 
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. 

Page 15 GAO-03-1015 Regulatory Takings 
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. 

Page 16 GAO-03-1015 Regulatory Takings 
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. 

Page 17 GAO-03-1015 Regulatory Takings 
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. 

Page 18 GAO-03-1015 Regulatory Takings 
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. 

Page 19 GAO-03-1015 Regulatory Takings 

50 

10 
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. 

Page 20 GAO-03-1015 Regulatory Takings 
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. 

Page 21 GAO-03-1015 Regulatory Takings 
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 otherwise Compensation 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. 

Page 22 GAO-03-1015 Regulatory Takings 

0 
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. 

Page 23 GAO-03-1015 Regulatory Takings 
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 mittala@gao.gov. Major contributors to this report are listed in


appendix V.


Sincerely yours,


Anu K. Mittal


Acting Director, Natural Resources


and Environment 

Page 24 GAO-03-1015 Regulatory Takings 
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. 

1

We refer to these agencies as the “four agencies” in subsequent references. 

Page 25 GAO-03-1015 Regulatory Takings 
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 

Page 26 GAO-03-1015 Regulatory Takings 
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. 

Page 27 GAO-03-1015 Regulatory Takings 
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? 

Page 28 GAO-03-1015 Regulatory Takings 
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 

Page 29 GAO-03-1015 Regulatory Takings 
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? 

Page 30 GAO-03-1015 Regulatory Takings 
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. 

Page 31 GAO-03-1015 Regulatory Takings 
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. 

Page 32 GAO-03-1015 Regulatory Takings 
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 

Page 33 GAO-03-1015 Regulatory Takings 
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 

Page 34 GAO-03-1015 Regulatory Takings 
Appendix II


Summary of Significant Supreme Court 


Regulatory Takings Cases


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

one. 

Page 35 GAO-03-1015 Regulatory Takings 
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 17 0 0 

1997 69 3 1 

2002 289 47 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. 

Page 36 GAO-03-1015 Regulatory Takings 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

9 

10 
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 the assessment 

Fiscal year and case Court name and Payment type Agency action related Executive done by 

names case number Agency and amounts to the alleged taking Order 12630? agency? 

James Koconis & Ted Court of Federal Corps of Settlement Decision on a wetlands Yes Yes 

G. Koconis v. United Claims 94-517L Engineers $880,000 permit under § 404 of the 

States Clean Water Act 

Speerex Ltd., et al. v. Court of Federal Interior Settlement Anticipated rejection of No—plaintiff No 

United States Claims 97-351L $110,000 drilling permits on oil and made claim 

gas leases before agency 

action 

W.C. Bell and Davis O. Court of Federal Corps of Settlement Decision on a wetlands No—excluded No 

Heniford v. United Claims 97-857L Engineers $205,000 permit under § 404 of the under 

States Clean Water Act supplemental 

guidelines 

Lake Pleasant Group v. Court of Federal Interior Settlement Denial of plaintiff's No—predated No 

United States Claims 92-848L $100,000 preferred access to lake EO 

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. Howard, et U.S. District Interior Settlement (1) Legislative taking of Either (1) No, No 

al. v. United States Court, District of $838,000 mining claims under legislative 

Alaska F98- § 120 of Pub. L. No. 105- taking not 

0006CV (JKS) 83 or alternatively (2) covered by EO 

taking under or 

implementation of Mining (2) No, plaintiff 

in the Parks Act made claim 

before final 

agency action 

Devon Energy Court of Federal Interior Attorney fees Denial of applications to Yesa No 

Corporation, et al. v. Claims 98-665L $380,000 permit drilling 

United States 

Florida Rock Court of Federal Corps of Settlement Decision on a wetlands No—predated No 

Industries, Inc. v. Claims 266-82L Engineers $21,000,000 permit under § 404 of the EO 

United States Clean Water Act 

Page 37 GAO-03-1015 Regulatory Takings 

2000 

2001 
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 the assessment 

Fiscal year and case Court name and Payment type Agency action related Executive done by 

names case number Agency and amounts to the alleged taking Order 12630? agency? 

Shirl Pettro v. United Court of Federal Agriculture Court Order of Temporary denial of No—legal No 

States Claims 96-651L Just access to minerals from action not 

(47 Fed. Cl. 136) Compensation national forest due to within the 

$74,479 dispute over title to scope of the 

Attorney fees mineral rights EO 

$250,294 

Litigation costs 

$28,217 

W.A. Moncrief, Jr. et al. Court of Federal Interior Settlement Anticipated and actual Yes No 

v. United States Claims 97-565L $3,000,000 denial of drilling permits 

to protect Lechuguilla 

Cave 

Kantishna Mining U.S. District Interior Settlement (1) Legislative taking of Either (1) No, No 

Company, et al. v. Court, District of $872,000 mining claims under § legislative 

Bruce Babbitt, et al. Alaska Interest 120 of Pub. L. No. 105-83 taking not 

98-00007CV $528,000 or alternatively (2) taking covered by EO 

(JKS) under implementation of or 

Court of Appeals, Mining in the Parks Act (2) No, plaintiff 

Ninth Circuit, 01- made claim 

35201, 01-35248 before final 

agency action 

John W. Taylor v. Court of Federal Interior Settlement Delay in issuing an No—excluded No 

United States Claims 99-131L $175,000 incidental take permit under 

under § 10 of the supplemental 

Endangered Species Act guidelinesb 

Board of County Court of Federal Interior Court Order of Legislative taking of land No—excluded No 

Supervisors of Prince Claims 90-364L Just under Pub. L. No. 100- for eminent 

William County, (47 Fed. Cl. 714) Compensation 647 to add land to the domain 

Virginia v. United aff’d, Court of $1,153,578 Manassas National 

States Appeals, Federal Interest Battlefield Park 

Circuit (276 F.3d $2,697,534 

1359) 

Richard P. Cook, et al. Court of Federal Interior Settlement Legislative taking of No— No 

v. United States Claims 94-344L $3,911,838 rights to a patent for legislative 

mining claims with the taking not 

establishment of the covered by EO 

Jemez National 

Recreation Area by 16 

U.S.C. § 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. 

Page 38 GAO-03-1015 Regulatory Takings 

2002 
Appendix IV


Regulatory Takings Cases Concluded during


Fiscal Years 2000 through 2002 Related to


Actions of the Four Agencies


a

While 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. 

b

While 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 § 404 of the 

Inc. Engineers Clean Water Act 

David Clark, et al. v. United U.S. District Court, District of Interior (1) Legislative taking of mining claims under § 120 of 

States Alaska F-99-0045CV Pub. L. No. 105-83 or alternatively (2) taking under 

implementation of Mining in the Parks Act 

Shickrey Anton v. United Court of Federal Claims 93-447 Corps of Decision on a wetlands permit under § 404 of the 

States Engineers Clean Water Act 

Lloyd A. Good Jr. v. United Court of Federal Claims 94-442L Corps of Decision on permits under § 10 of the Rivers and 

States (39 Fed. Cl. 81) Engineers Harbors Act and § 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 § 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 § 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 § 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 § 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 § 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 § 404 of the 

Army Corps of Engineers Alaska 98-006 Engineers Clean Water Act 

Page 39 GAO-03-1015 Regulatory Takings 

2000 
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 

Kenneth Battley v. United U.S. District Court, District of Interior (1) Legislative taking of mining claims under § 120 of 

States Alaska A-99-636CV Pub. L. No. 105-83 or alternatively (2) taking under 

implementation of Mining in the Parks Act 

James C. Pendleton, et al. v. Court of Federal Claims 98-161L Interior Action by the Office of Surface Mining, pursuant to 

United States (1 Fed. Cl. 480) the Surface Mining Control and Reclamation Act of 

1977 

James S. Sette v. United Court of Federal Claims 98-157C Interior Unspecified agency action caused taking of seven 

States unpatented mining claims 

Ultimate Sportsbar, Inc. v. Court of Federal Claims 98-0160L EPA EPA’s action to clean up 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 § 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 § 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 § 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. § 1774, prevented renewal 

Circuit 00-5006 (238 F.3d 1348) of their lease and caused a taking 

2002 

Larry D. Compton v. Bruce U.S. District Court, District of Interior (1) Legislative taking of mining claims under § 120 of 

Babbitt Alaska A-99-637CV Pub. L. No. 105-83 or alternatively (2) taking under 

implementation of Mining in the Parks Act 

Northwest Exploration, Inc. v. U.S. District Court, District of Interior Taking of mining claims by Mining in the Parks Act 

United States Alaska A-99-654CV 

Pax Christi Memorial Gardens, Court of Federal Claims 00-717 Corps of Decision on a wetlands permit under § 404 of the 

et al. v. United States Engineers Clean Water Act 

Page 40 GAO-03-1015 Regulatory Takings 

2001 
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. 

a

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

Page 41 GAO-03-1015 Regulatory Takings 
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. 

(360275) Page 42 GAO-03-1015 Regulatory Takings 
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