United States General Accounting Office 

GAO Testimony 

Before the Subcommittee on the 

Constitution, Committee on the Judiciary, 

House of Representatives 

For Release on Delivery 

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T REGULATORY TAKINGS

Agency Compliance with 

Executive Order on 

Government Actions 

Affecting Private Property 

Use 

Statement of Anu K. Mittal, Director, 

Natural Resources and Environment 

GAO-04-120T 

Highlights of GAO-04-120T, a testimony 

before the 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. 

This testimony is based on our 

recent report 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. (Regulatory 

Takings: Implementation of 

Executive Order on Government 

Actions Affecting Private Property 

Use, GAO-03-1015, Sept. 19, 2003). 

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. 

www.gao.gov/cgi-bin/getrpt?GAO-04-120T. 

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. 

October 16, 2003 

REGULATORY TAKINGS 

Agency Compliance with 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 significant changes have occurred and that it 

would be helpful if a case law summary in an appendix to the guidelines was 

updated. Justice issued supplemental guidelines for three agencies, but not 

for Agriculture because the two agencies were unable to resolve 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. The agencies provided us with a few examples of takings implications 

assessments stating that such assessments were 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 an assessment was done and few 

anticipated significant takings implications. 

According to Justice, property owners or others brought 44 regulatory 

takings lawsuits against the four agencies that 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, at the end of fiscal 

year 2002, 54 additional lawsuits involving the four agencies were pending 

resolution. 
Mr. Chairman and Members of the Subcommittee: 

We are pleased to be here today to discuss the measures taken by the 

Department of Justice (Justice) to implement certain provisions of 

Executive Order 12630 (EO) and the efforts of four agencies—the 

Department of Agriculture, the U.S. Army Corps of Engineers (Corps), the 

Environmental Protection Agency (EPA), and the Department of the 

Interior1—to comply with the EO’s requirements. Our testimony is based 

on work included in a report recently released by this subcommittee. 2 

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. 

Any landowner believing that a government regulatory action has resulted 

in a taking of his or her private property may file a lawsuit seeking just 

compensation under the Fifth Amendment to the U.S. Constitution. In 

general, these suits must be brought in the United States Court of Federal 

Claims; Justice is responsible for litigating these cases on behalf of the 

government. 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, such awards and settlements are paid from the Department of the 

Treasury’s Judgment Fund. 

In 1988 the President issued Executive Order 12630,3

 “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 

1

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

2

See U.S. General Accounting Office, Regulatory Takings: Implementation of Executive 

Order on Government Actions Affecting Private Property Use, GAO-03-1015 (Washington, 

D.C., Sept. 19, 2003). 

3

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

Page 1 GAO-04-120T Regulatory Takings 
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 Justice, specifically the U.S. Attorney 

General, to issue general guidelines to provide agencies with a uniform 

framework for implementing the EO and to issue supplemental guidelines 

for each agency, as appropriate, that reflect that agency’s unique 

responsibilities. In addition, the EO 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. 

Our testimony discusses 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 whether in these cases, the agencies had assessed the potential 

takings implications of their actions before implementing them. 

In summary, we found the following: 

• 	 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, the Corps and EPA expressed 

the general view that changes in takings case law related to Supreme 

Court decisions since 1988 had not been significant enough to warrant 

a revision of the guidelines. Justice officials also noted that the 

guidelines were intended to provide a general framework for agencies 

to follow in implementing the EO, and thus did not require frequent 

revision. However, Interior and Agriculture officials said that it would 

be helpful 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, 

representatives of property rights groups and law professors stated 

Page 2 GAO-04-120T Regulatory Takings 
that the guidelines should be updated, noting that the body of relevant 

case law has evolved significantly over the past 15 years. Justice has 

issued supplemental guidelines for all of the individual agencies except 

Agriculture. 

• 	 The four agencies’ implementation of some of the EO’s key provisions 

has changed over time in response to subsequent OMB guidance. The 

agencies have not prepared annual compilations of just compensation 

awards or accounted for these awards in their budget documents since 

OMB issued guidance in 1994 advising agencies that this information is 

no longer required. Regarding the EO requirement for designating an 

official responsible for ensuring the agency’s compliance with the EO, 

the four agencies have each designated such an official—typically the 

chief counsel, general counsel, or solicitor. Finally, the four agencies 

told us that they fully consider the potential takings implications of 

their planned regulatory actions, but 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 with the passage of time any assessments 

that were documented may no longer be on file with the agency. 

• 	 According to Justice data, property owners or other parties brought 44 

regulatory takings cases against the four agencies that 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. 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 the evidence made available to us, the 

relevant agency assessed the takings potential of its action in only one 

of the three cases subject to the EO’s requirements. As of the end of 

fiscal year 2002, Justice reported that 54 additional regulatory takings 

cases involving the four agencies were pending resolution. 

Background 	 The just compensation clause of the Fifth Amendment provides that the 

government may not take private property 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 allow 

Page 3 GAO-04-120T Regulatory Takings 
the court to determine the amount of just compensation due the property 

owner. 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 the taking. Supreme Court decisions later 

established that regulatory takings are also subject to the just 

compensation clause. 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, but rather effectively takes the property by denying or 

limiting the owner’s planned use of the property, referred to as an inverse 

taking.4

 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.5

 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. The President issued this EO 

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. 

4

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. 

5

Takings of property effected by government actions may occur in a number of ways, 

including: (1) a government regulation restricting development, (2) a government 

requirement that a landowner provide the public access to private property (such as by 

providing access to a private beachfront), and (3) an agency’s denial of a mineral drilling 

permit. 

Page 4 GAO-04-120T Regulatory Takings 
The EO also requires the U.S. Attorney General to issue general guidelines 

to help agencies evaluate the takings implications of their proposed 

actions, and, as necessary, update these guidelines to reflect fundamental 

changes in takings case law resulting from Supreme Court decisions. 

The guidelines provide that agencies should assess 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 include an appendix 

that provides detailed information regarding some of the case law 

surrounding considerations 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 

York6

 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. 

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 that the guidelines had not been 

updated since 1988 because there had been no fundamental changes in 

regulatory takings case law, which is the EO’s criterion for an update. 

They said that the guidelines, as written, are still sufficient to determine 

the risk of a regulatory taking and that subsequent Supreme Court 

decisions have not substantially changed this analysis. For example, 

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 

Justice Has Not 

Updated Its 1988 

Guidelines, but Has 

Issued Supplemental 

Guidelines for Three 

of Four Agencies 

6

438 U.S. 104 (1978). 

Page 5 GAO-04-120T Regulatory Takings 
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. 

The four agencies were divided on the need to update the guidelines. 

Corps and EPA officials supported Justice’s position that the guidelines do 

not need to be updated. Corps staff indicated that, based on their review of 

relevant Supreme Court decisions since 1988, no fundamental change in 

the criteria for assessing potential takings had occurred and thus no 

update to the Attorney General’s guidelines was necessary. Similarly, EPA 

staff said that some of the takings cases decided since 1988 gave the 

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 this case law over the past 15 years. 

Other legal experts said that the Attorney General’s guidelines should be 

updated, noting that regulatory takings case law had not remained static 

over the past 15 years. For example, legal experts concerned with the 

protection of private property rights said that there had been significant 

developments in regulatory takings case law since 1988. These experts 

said that the mere passage of time and the sheer number of regulatory 

takings cases concluded since 1988 argued for updating the guidelines. In 

another case, 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 that calls for updating 

these guidelines to reflect the many important changes in regulatory 

takings case law since 1988. 

The Attorney General has issued supplemental guidelines required by the 

EO for three of the four agencies—the Corps, EPA, and Interior.7

 The EO 

7

Justice issued supplemental guidelines for the Corps 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. 

Page 6 GAO-04-120T Regulatory Takings 
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 presented in the EO and the 

Attorney General’s guidelines, including the preparation of takings 

implication assessments. In general, the three agencies’ supplemental 

guidelines include specific categorical exclusions from the EO’s provisions 

for certain agency actions. 

The Attorney General has not issued supplemental guidelines for 

Agriculture because Justice and Agriculture could not agree 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.8

 Agriculture argued that such permit actions should be 

exempt from the EO’s requirements or, if not, that the agency should be 

allowed to do a generic takings implication assessment that would apply 

to multiple permits. Agriculture officials indicated that Justice officials did 

not agree with these suggestions, and the matter was never resolved. 

While lacking supplemental guidelines, Agriculture officials said that their 

implementation of the EO and the Attorney General’s guidelines has not 

been encumbered. Justice officials agreed with this assessment. 

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 in response to subsequent OMB guidance. For example, 

the agencies no longer prepare annual compilations of just compensation 

awards or account for these awards in their budget documents because 

OMB guidance issued in 1994 advised agencies that such information was 

no longer required.9

 According to OMB, this information is not needed 

because the number and amount of these awards are small and the awards 

were not paid from the agencies’ appropriations but are paid from the 

Department of the Treasury’s Judgment Fund. In addition, because the 

Implementation of 

Key Provisions by the 

Four Agencies Has 

Changed Over the Life 

of the Executive 

Order 

8

A grazing permit provides official written permission to a rancher to graze a specific 

number, kind, and class of livestock for a specified time period on defined federal 

rangeland. A special use permit is a written instrument that grants rights or privileges of 

occupancy and use, such as for recreational and commercial purposes, subject to specified 

terms and conditions. 

9

The agencies had difficulty documenting their submission of compilations reports for the 

period 1989 through 1993 because the passage of time made documents less accessible. 

Page 7 GAO-04-120T Regulatory Takings 
number and dollar amounts of just compensation awards and settlements 

paid by the federal government annually are relatively small, OMB officials 

said the overall budget implications for the government are small. Hence, 

in their view, information on just compensation awards in agency annual 

budget submissions was also unnecessary. 

OMB and Justice 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. 

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 executive orders are not the equivalent of 

statutory requirements, non-compliance 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. 

Other provisions of the EO have been implemented. For example, 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.10 

EPA’s and Interior’s supplemental guidelines specifically identify the 

designated official by title. Agency officials could not provide us with any 

documentary evidence of this designation for Agriculture and the Corps, 

but agency officials assured us that their senior legal official fulfilled this 

role. 

Officials at each of the four agencies said that they fully consider the 

potential takings implications of their planned regulatory actions, but 

again provided us with limited documentary evidence to support this 

claim. Agencies provided us a few written examples of takings implication 

assessments. Agency officials said that these assessments are not always 

documented in writing, and, with the passage of time, any 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. As a 

10At Agriculture and EPA, the designated official is the General Counsel. At the Corps, this 

official is the Chief Counsel. At Interior, the designated official is the Solicitor. 

Page 8 GAO-04-120T Regulatory Takings 
result, they said, the assessments are not typically retained in a central file 

for a rulemaking or other decision, and therefore difficult to locate. For 

example, the Corps internal guidance states that takings implication 

assessments should be removed from the related administrative file once 

the agency has concluded a decision on a permit. In addition, agency 

officials also noted that they do not maintain a master file of all takings 

implication assessments. In many cases, attorneys assigned to field offices 

conduct these assessments. In these cases, agency officials said that 

headquarters staff might not have copies. Nevertheless, with the exception 

of EPA, each agency provided us with some examples of written takings 

implication assessments.11 These assessments varied in form and the level 

of detail included. 

To determine if and how the four agencies documented their compliance 

with the EO when issuing regulatory actions, we reviewed information 

contained in Federal Register notices on takings implication assessments 

related to their proposed and final rulemakings, but had limited success. 

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. Given the limited amount of information available 

from the agencies or available in the Federal Register notices that we 

reviewed, we could not fully assess the extent to which agencies 

considered the EO’s requirements. 

11EPA 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. 

Page 9 GAO-04-120T Regulatory Takings 
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 against the four 

agencies were concluded during fiscal years 2000 through 2002.12 Fourteen 

of these 44 cases resulted in government payments. In 2 of these 14 cases, 

the U.S. Court of Federal Claims decided in favor of the plaintiff, 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.13 Of these combined 14 cases with awards or settlement 

payments, 10 related to actions of Interior, 3 to actions of the Corps , and 1 

to an action of Agriculture. 

In general, the settled cases 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 document usually stated that the parties had 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 of Land 

Management, the litigants negotiated a stipulated dismissal that provided 

that a payment of $3 million be made to the plaintiffs to cover all claims. 

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 two 

cases with award payments, the court concluded that a taking had 

occurred and thus it awarded just compensation. 

Of the 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, 

12The data provided by Justice referred to these 44 cases as regulatory takings cases. 

According to information provided by Interior, at least 9 of the 44 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 nine 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. 

13In 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 10 GAO-04-120T Regulatory Takings 
involving the denial of preferred access to a lake on land managed by the 

agency, the plaintiff received a settlement of $100,000. The Corps’ three 

cases generally related to a 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 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. (Appendix 

I provides further information on just compensation awards or settlement 

payments, by agency, for cases concluded during fiscal years 2000 through 

2002.) 

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. Of the 54 pending cases, 30 involved Interior, 14 involved the Corps, 

7 involved Agriculture, and 3 involved EPA. 

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 evidence made available to us, the relevant agency assessed the 

takings potential of its action in only one of the three cases subject to the 

EO’s requirements. In that case, the Corps 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 against 

the agency 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.14 

14James Koconis & Ted G. Koconis v. United States. 

Page 11 GAO-04-120T Regulatory Takings 
In the two other cases, based on information Interior provided to us, it 

appears that the EO would apply. Interior stated that, in hindsight, it 

appears that the EO may have applied in the first case involving a denial of 

applications to drill for oil and gas on federal land. Although 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. The case concluded with settlement of $380,000 to 

the plaintiff for attorney fees.15 In the second case, concerning anticipated 

and actual denial of oil and gas drilling permits for federal land, Interior 

was not certain whether the EO actually applied to the case in the first 

place, but believed that a takings assessment had been done and 

documented in a related environmental impact statement. However, 

Interior was unable to provide us a copy of this document. We believe that 

the EO applied and, lacking documentation, that no formal assessment 

was done. This case concluded with a settlement of $3 million for the 

plaintiff.16 

Mr. Chairman, this completes my prepared statement. I would be pleased 

to respond to any questions that you or other Members of the 

Subcommittee may have at this time. 

For further information about this testimony, please contact me at (202) 

512-3841. Doreen Feldman, Jim Jones, Ken McDowell, Jonathan 

McMurray, and John Scott, made key contributions to this statement. 

GAO Contacts and 


Staff 

Acknowledgment 

15Devon Energy Corporation, et al. v. United States. 

16W.A. Moncrief, Jr. et al. v. United States. 

Page 12 GAO-04-120T Regulatory Takings 
Appendix I: Awards of Just Compensation or 

Settlement Payments for Concluded 

Regulatory Takings Cases, for Four Agencies, 

Fiscal years 2000 through 2002 

(Dollars in thousands) 

Agency 

Number of 

Concluded 

Cases 

Number 

of Cases 

with 

Payments 

Just 

Compensation 

Awards Settlements Total 

Agriculture 1 $353 $0 $353 

Corps 3 0 22,085 22,085 

EPA 0 0 0 0 

Interior 10 3,851 10,216 14,067 

Total 14 4,204 $32,301 $36,505 

1 

15 

2 

26 

44 

Source: GAO. 

Note: GAO analysis of data provided by the Department of Justice’s Environment and Natural 

Resources Division 

(360403) Page 13 GAO-04-120T Regulatory Takings 
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