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<br /> 1991 (1 �3. App. LEXIS 30233, *24
<br /> takings problem;: 62 U. Cola L f; Rev. 599 (1991 ) ; Michelman, Takings 1987, 88
<br /> Colum. L. Rev. 1.600 (1988); knelc, The original understanding of the taking
<br /> clause is neither weak nor obtuse, 88 Colum. L. Rev. 1630 (1988) ; Radon, The
<br /> liberal conception of property:, Cross currents In the jurisprudence of takings,
<br /> 86 , Colum. L. Rev. 1667; Ackerman, Against ad-hockery A comment on Michelman, 88
<br /> Colu(n, L. Rev. 1:697 (1988), 'sideman, Takings, moral evolution, and justice, 88
<br /> Colin, L. Rev, 1714 (1988) ; Sts.rk, Nollan,�Henry George, and exactions, 88
<br /> Colum. L.. Rev, 1731 (1989) ; Alexander, Takings, narratives,, and power, 88 Colum.
<br /> i.. Rev. 9752 (1988) • fisher, 'the significance of public perceptions of the.
<br /> takingA, doctrine, BA Rev. 1774 (1988) ; Mote, Just, compensation or first
<br /> damages: the measureof �damar for temporary regulatory. takings in Wheeler v:.
<br /> City f Peasant` Crove., 74 Iowal. L. Rey. 1243 (1989) . t*51
<br /> E:
<br /> f
<br /> 'n9 But: see: W:flkins, The Takings Clause: A Modern Plat for An (?ld
<br /> Con s ti to ti anal Tale, 64 N.D. L.I Rev. 9, 18-19 (19893 :1, .sunder the CourVs. C r rient
<br /> analysis, government requlati'ow will indt exceed the strictures of the takings
<br /> .clause -- Whatever the pra-eti=ca impact of the regulation upon the property
<br /> owner -- to long as the prt�gertyr owner retains the right to r'ptissess,"
<br /> "transport," Or "donate -:or devVs..e" :an ritherwlS£ valuele.5s hells r'
<br /> i.
<br /> EndFootnotes
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<br /> Fdr our purpatses here, the important point is that in 9989 when the trial
<br /> udgt disrisisse># the case, there: were two clear lines of Supreme Court authority
<br /> under Whigh a taking far which `�' st compensation must be paid. could be held to
<br /> have occurred the tradi,ti€�na physical occupation theory, and the
<br /> neWl#► de eloped requl.atoryr taking theory► And by that time., a series of critical:
<br /> ruiings had ber rf made: the 1983, EPA tlyder alone was not a tegulatury taking,
<br /> although the question of whether that Order plus the nt
<br /> subsequent eves alleged E
<br /> +could constitute a. requatary taking Was not foreclosed; there was not yet a.
<br /> taking dy physical: occupatran (fie t*261 trial judge wanted to knaW *are '
<br /> about the 0overninent's lonq-ran'e intentions, and the acti`Yities for which the
<br /> Federal Governssei�t bare responsibility were only those it undertook directl. -- P
<br /> the activities: of the State of California, although pursuant to the Mrd '. Were
<br /> nevertheless. not• attributable to the Government. We examine each; of these
<br /> rulings and the impact the rulings had on the dismissal sanction.
<br /> IV. DISCISSION
<br /> `r
<br /> 'tie Question of. a Requlatoryr Takinq
<br /> The first issue before the trial court in Hendler I Was Whether there ws
<br /> evidence sufficient to establish a regulatory taking by the Government. The
<br /> ,judge was of the view that them was no repul.atoryr taking as :a result of the EPA
<br /> Order itself. That Order mandated that ERA officials and other authorized ;.
<br /> personnel, including state officials, were to have access to plaintiffs '
<br /> property for the purposes of =in�tallinq wells and related equipment such as '
<br /> ,pipes, tanks,, and other storage facilities, and to carry an various activities �
<br /> such as staring and transpar6ng ground water, conductinq tests, extraction
<br /> operations and so on. (The terms of the Order are set out in the footnote below. is
<br /> 06 PlaintiffsNEXIS
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<br /> ONEXIS LE,
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