These bills clarify this requirement and clear up a mess of contradictory and confusing lower court rulings based on the same issue. Under these proposals, the plaintiff and government can avoid the endless negotiations and gamesmanship that is typically associated with property rights cases. Two other bills receiving bipartisan support come from Senator Orrin Hatch and Representative Lamar Smith. While district courts generally hold injunctive power, the power to declare regulations invalid lies with the Court of Federal Claims, which The Tucker Act of 1887 established specifically to adjudicate financial claims against the United States. For a victim of a regulatory taking, where government actions raise both injunctive and compensation questions, this split in jurisdiction has been a disaster.
Most plaintiffs struggle for years just to lock down a forum to hear their case.
Typically, the government argues one court against the other, claiming that the case requires compensatory adjudication before the district court, or, conversely, claiming that it requires injunctive adjudication before the Court of Federal Claims. In most cases, the government uses the split in jurisdiction to litigate by attrition, slowly exhausting the resources of the plaintiff on procedural battles. This practice has had a chilling effect on landowners who know that they cannot compete in a court system that is heavily tilted toward the biggest bidders. The Smith and Hatch bills make the field more fair by removing the competition between federal district courts and the Court of Federal Claims. In essence, the courts would no longer need to settle the question of jurisdiction before either invalidating a regulation or ordering just compensation to an owner for property taken.