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Servjc�es of Mead Data Centr�l, Inc.
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<br /> i 1991 O.S. App. LEXIS 30233 *29
<br /> 115427 15487 Z20 USPG 193, 1981 (Fed. Cir. 1981) (citing Schenck V. Nortron' Corp.
<br /> 113 F .2d 782, 718 USPQ 698 (Fed. Cir. 1983) ) .
<br /> it The notion of exclusive ownership as a property right is fundamental to our
<br /> theory of -socigl organization" In addition to its central role in protecting the
<br /> individual's right to be let Alone, the importance of exclusive ownershio -: the
<br /> 4bility to exclude freeriders.,.-- is now understood as essential to econcitic
<br /> development 'nd to the avoidance of the wasting of resources found under: common
<br /> Property systems. See Hardin,
<br /> The, Tragedy of the Commons, 162 Science 1243
<br /> (4 968) Rarzel,, Optimal Timing of Inventions,, 50 Rev. Econ. & Stat. 348 (1968) ;
<br /> 1. Lunn,, The Rolet of Property Rights an Market Power in Appropriatin
<br /> g Innovative
<br /> Obtput, 14 J. Legal Stud. 423,�-. (l
<br /> 4
<br /> The intruder who enters clothed in the robes of authority in [*301 1 broad
<br /> daylight commits no less an invasion of these rights than if he sneaks in In the
<br /> right wearing a burglar's mask.. In same ways, entry by the authorities i� more
<br /> to be feared, since the citizenls righ't to defend against the intrusion may sees
<br /> V.
<br /> less clear-. Courts should leave no :doubt as to whoseside the law stands
<br /> upon.
<br /> In the case;ioefore us, thelOrder issued by the EPA purported to authoNze
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<br /> Government agents, both federal and: state, to came on plaintiffs land and to
<br /> establish a Government presence there. That it was f I or a beneficent purpi
<br /> use-iF
<br /> f'_Dm the viewpoint of the general public at least, is not at issue; plairttiffs�
<br /> did not contest, nor do we think they could, that the Order qualifies under the
<br /> public purpose lanquacie of the Fifth Amendment,
<br /> The question addressed. by the. Claims Court in Hendlef :1 was whether, :t. at
<br /> Otder, standing alone, met the tests for a regulatory taking, The court
<br /> concluded no. On the facts then before the court,, and. in light of the absence b
<br /> .1 1 Y:
<br /> Aalnuffs of proof of facts addressed specifically to the -tests for a
<br /> regulatory- taking based on the Order alone,, we do not. Aisaqr that with t
<br /> We. note, however, that. that ruling says nothing 1bOUt, Wftthet C*311
<br /> subsequOnt-:events,, inlight, of, the character of the Government's action And.
<br /> pLain t i f f s I dis.tin.ctinvestmen'
<br /> 't backed expectations, might have had suffi'gient
<br /> . , -
<br /> economic impact on the plaintiffs to constitute a. regulatory taking. Given the
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<br /> f9 ct-specific findings required :for determining under current regulatory ,.takings
<br /> law When :Such a:. taking' occurs;j we understand the trial Judge to. .fia- ve refrainedfram deciding thi
<br /> s issue on ;summary Judqment. It remains a_nissue in the
<br /> 31T,
<br /> Takings Qunder the Traditional
<br /> Ph. I.I.Calz Occupation Th Ory
<br /> 1 .
<br /> The second I.:sAVe. before the' trial. court was whether th
<br /> _R Government's actions,
<br /> it placing 'Vilis: onplaintiffs' property, and erqqaginq In other actjvjtjesjonthe.
<br /> site was 9 tak-Inq -- an inverse` condemnation traditional physical
<br /> occupation, theory. With. regard to the wells., the trial judge felt moriovide-h1ce:
<br /> was needed to establish :"whether the devices are truly permanently aff.i:xe6. to
<br /> plain,tiffsk property...." Hendler'! I. at 97. But an the: facts before the 104
<br /> 0, that
<br /> ranclusion: aoarn. misperceives the, thrust of the protections afforded by the.
<br /> NEXS LEXIS S
<br /> LEXIS
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