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Semces of Mead Data Central, Inm ;; 1
<br /> PAGE, 13
<br /> 1991 UA. App. LEXIS 30233, *29
<br /> 1542; 1548, 220 115PQ 193`-, 7198 (Fed. Cir. 1983) (citing Schenck Y. Nortron Corp;.,
<br /> 713 .F 2d '782 -238 t1SPQ 698 Uedl Cir, '1983) ) .
<br /> j Jhe nation of exclusive ownership as a property right is fundamental tQ<our
<br /> theory of social,' organization. In addition to its central rola in protecting the
<br />'
<br /> individual's right to be let alone, the importance of exclusive ownership -- the
<br /> f ability to exclude freeriders -'- is now understood as essential tct economic
<br /> development, and-ato the avoidance of the wasting of resources found under common
<br /> property systems. See Hardin,:, The Tragedy of thi 'Commons, 162 Science 1243e
<br /> (1968) i- Barzel, Optimal: Timing bf Inventions, 50 Rev. Econ. 8 Stat. 348 (1968),
<br /> Lunn; The? Roles of Property Riqhts and Market Power in Appropriating Innovative ,
<br /> Uu tput, 14 J. Legal Stud. 423 (i 9851:.
<br /> iTne intruder who enters clothed in the robes of authority in: 0301 broad.
<br /> daylight commits•) no less an invasion of these rigghts than if he sneaks in in the
<br /> night wearing a burglar'`s raask.1In some ways, entry by the authorities is more
<br /> to b, feared, since the citizen's ;right to defend against the intrusion may seem
<br /> less clear'. .Courts 'should leave no doubt as to whose side. the law stands upon.
<br /> : In the case before u`s,, the &der issued by the EPA,,purported to authorize
<br /> Government agents,: both Fede rall and state, to came on pla i n t i f f s Land and, to
<br /> establish a Government presence. there. That it was for a beneficent: purpose,
<br /> fr©m'"°the viewpoint of the general public at least, is trot at issue; plaintiffs
<br /> did not contest,; nor do. we think they could, that the Order qualifies under the
<br /> "public purpose." language of the* F i f ttt: Amendment.: c
<br /> Tde question addressed by the Claims. Court in Hendler I Baas Wheth r that
<br /> Orden standing alanex met the tests for a regulatory takinq. The :court. t
<br /> conc Uded no. On; the facts them before the court, and in llg tt of the absence by
<br /> plairitxff O ..rbdf" of facts addressed specifically, to the testa for a ,
<br /> reulatpry taking based. an the Order alone, we do notdisagrde with that ruling•.
<br /> :
<br /> We note, ht3aefer, that .that `i�ulinq says nothinq about whether
<br /> subsequent events in light of ithe character of the Government's ...action ano
<br /> pla htiff5' distinct fnv�stment"-oacked expectations, might have had sufficient
<br /> ecbrtomic impact ori the p3.aitttifs to constitute a regulatory taking. GiYenn the
<br /> fadt4specific 1ihdinp required; for determining under current requlatory takings
<br /> law when such a tak:irig reccurs, we 'Understand the trial ,loops to have refrained
<br /> fromidecidinq this issue on sumi►a'ry :,Iudgment. It remains an issue M the case.
<br /> is
<br /> F.
<br /> Takings: under the Trad;iti°onA
<br /> x
<br /> gPhVSi:dal Occupation Theory: ,.
<br /> The second issue before the rtral court was whethe the `Goyernment's actions,
<br /> in'' p .acini wells` dn; p�.aintifts'� property and engaging in other activities bn the
<br /> site,: was A takinq --- an inverse Condemnation - under traditional physical
<br /> occupation theory. With. regard !to the wells, the trial ,judge felt Mdre evidence
<br /> was needed to establish "whethe!r the devices are. truly permanently affixed, to
<br /> plaintiffs' proper�ty..0 Hendler 4 at 97. But on the facts before the J.U.0e,. that
<br /> Conclusio *n misperceives the thrust of the protettions afforded by the :
<br />
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