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Services vi Mead Data Central, Ina
<br /> U_-�
<br /> 1991 E 11
<br /> '11.1-5. App, LEXIS 3[3233,, 24 "`
<br /> 1 a
<br /> r,
<br /> ,Takings problem, 62 U. Colo. ;L. Rev. 599 (1991 ) ; Michelman, Takings 1178 88
<br /> 88
<br /> (,Colum. L. Rev: 1600 (1988} ; kmeic, The original understandityq of the takng
<br /> r' (douse is " neither weals nor obtuse, 88 Colum. L. Rev. 1630 (1988) ; Radin �nhe i
<br /> ',:liberal conception of property: Cross currents in the jurisprudence of takings,
<br /> 38 Colpmii L. Rev:.. 1667, Ackermant Against ad-hpckery; A comment an Mictelman`, 88.
<br /> ,Colum. ;L. Rev. 1697 (1'9883;; Tideman, Takings, rural evolution, and justice, 88
<br /> Colum �: Rev. 1714 (1988) Sterk, N011an, Henry George, and exact prtsT 88
<br /> tr3um. L. Rev.:. 1731 (1988) ; Alexander, Takings, narratives, and :poser, 88 Colum.
<br /> L. Rev... 1752 (1988) ; Fisher, i7* significance of publicperceptions of the
<br /> takings doctrine, 88 Colum. l:. Rev, 1774 ('1988); Note, Just cr�mpensation or ;dust
<br /> I!
<br /> Damages: the measure of damages for temporary regulatory takings" fn Sheeler v..
<br /> City of Pleasant" Grove, 74 Iowa 'L. lev. 1 243 (1'9593 , [ z51
<br /> n9 Out s;ee Oilkivrs, The TAX:10 s Clause: A Modern plot for ars !Old fi
<br /> Cdhttitt UnnaD Tale, 64 K.D. 1,,, Rev. 1 , 18-19 (1989'} ; "Ander the Gaurt's�current
<br /> anal}�sis, .garernment requl.atl;or� wilt not exceed the strictures of the takings
<br /> clause �� whatever the Prac'tital" impact of the requlation upon the A ...P tty
<br /> rwner so. long at the property, owner retains the r3 ht to "
<br /> P P Y possess,.
<br /> "transport or "danete Or devise" an otherwise valueless Shed.
<br /> For our purposes derey the..,, important paint is that in 198 ► when the trial
<br /> -
<br /> iudge dismtssedthe case, there were two clear lines Of Sr�{aretlre Court authority
<br /> under which a takinq far which just compensation must be paid could oe held to
<br /> #lave occurred., the traditional physical occupation theory, and the
<br /> newly developed regulatory taking theory. And by that time, a series of 'crittical
<br /> rulings had been rude: the 1983 EPA Order alone was not a regulatory taking,
<br /> �lthougb the question of whether that Order plus the subsequent events alleged
<br /> could constitute a regulatory.: takingwas not foreclosed; them was not yet a
<br /> taking by physical: Occupation,,•-- the I *261 trial ,judge wanted to know mare
<br /> about the Government's Jana-range intentions; and the activities for which the
<br /> Piederal Government bore responsibility were only those it undertook directly
<br /> tle activities .of the Staterof California, although pursuant to the Order, were �
<br /> never(heless not attributable.1to the Government,. We examine each of these
<br /> rulings: and the impact the rulings had on the dismissal sanction._
<br /> c� Iv. DISCUSSION
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<br /> A.
<br /> The Question of a Requlatoi y Taking
<br /> The first issue before the°trial court in Hendler I was whether there was
<br /> evidence sufficient to establish a regulatory taking by the Government, The
<br /> ,7:udQe was of the view that there; was no regulatory taking as a result of }the EPA
<br /> ,der itself. That Order mandated that EPA offitc14$ and-Other authorized"
<br /> pe rsonnel, ' Includfng state Officials, were to have aces to plaintiffs '
<br /> I
<br /> property for the purposes of fnstallinq wells and related equipment such As
<br /> R,,ipe5, tanks, and Qthe:r storage faellities,, and to carry an various activities
<br /> SUCK as StQrinc 3t.d t.ran5por4nq, ground water, conducting tests, extracti0it
<br /> operations and so on. (The terms of the Order are set out in the footnote below,
<br /> " 00 Plaintiffs
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<br /> LEX1EXIS,N! EXIS NEI.=
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