The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_453/91_453.zd3

Text File | 1992-06-28 | 5KB | 104 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 91-453
--------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
COASTAL COUNCIL
on writ of certiorari to the supreme court of south
carolina
[June 29, 1992]

  Statement of Justice Souter.
  I would dismiss the writ of certiorari in this case as
having been granted improvidently.  After briefing and
argument it is abundantly clear that an unreviewable
assumption on which this case comes to us is both question-
able as a conclusion of Fifth Amendment law and sufficient
to frustrate the Court's ability to render certain the legal
premises on which its holding rests.
  The petition for review was granted on the assumption
that the state by regulation had deprived the owner of his
entire economic interest in the subject property.  Such was
the state trial court's conclusion, which the state supreme
court did not review.  It is apparent now that in light of
our prior cases, see, e.g., Keystone Bituminous Coal Assn.
v. DeBenedictis, 480 U. S. 470, 493-502 (1987); Andrus v.
Allard, 444 U. S. 51, 65-66 (1979); Penn Central Transpor-
tation Corp. v. New York City, 438 U. S. 104, 130-131
(1978), the trial court's conclusion is highly questionable.
While the respondent now wishes to contest the point, see
Brief for Respondent 45-50, the Court is certainly right to
refuse to take up the issue, which is not fairly included
within the question presented, and has received only the
most superficial and one-sided treatment before us.
  Because the questionable conclusion of total deprivation
cannot be reviewed, the Court is precluded from attempting
to clarify the concept of total (and, in the Court's view,
categorically compensable) taking on which it rests, a
concept which the Court describes, see ante, at 11 n. 6, as
so uncertain under existing law as to have fostered incon-
sistent pronouncements by the Court itself.  Because that
concept is left uncertain, so is the significance of the excep-
tions to the compensation requirement that the Court
proceeds to recognize.  This alone is enough to show that
there is little utility in attempting to deal with this case on
the merits.
  The imprudence of proceeding to the merits in spite of
these unpromising circumstances is underscored by the fact
that, in doing so, the Court cannot help but assume
something about the scope of the uncertain concept of total
deprivation, even when it is barred from explicating total
deprivation directly.  Thus, when the Court concludes that
the application of nuisance law provides an exception to the
general rule that complete denial of economically beneficial
use of property amounts to a compensable taking, the Court
will be understood to suggest (if it does not assume) that
there are in fact circumstances in which state-law nuisance
abatement may amount to a denial of all beneficial land use
as that concept is to be employed in our takings jurispru-
dence under the Fifth and Fourteenth Amendments.  The
nature of nuisance law, however, indicates that application
of a regulation defensible on grounds of nuisance prevention
or abatement will quite probably not amount to a complete
deprivation in fact.  The nuisance enquiry focuses on
conduct, not on the character of the property on which that
conduct is performed, see 4 Restatement (Second) of Torts
821B (1979) (public nuisance); id., 822 (private nui-
sance), and the remedies for such conduct usually leave the
property owner with other reasonable uses of his property,
see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts 90 (5th ed. 1984) (public
nuisances usually remedied by criminal prosecution or
abatement), id., 89 (private nuisances usually remedied by
damages, injunction or abatement); see also, e.g., Mugler v.
Kansas, 123 U. S. 623, 668-669 (1887) (prohibition on use
of property to manufacture intoxicating beverages -does not
disturb the owner in the control or use of his property for
lawful purposes, nor restrict his right to dispose of it, but is
only a declaration by the State that its use . . . for certain
forbidden purposes, is prejudicial to the public interests-);
Hadacheck v. Sebastian, 239 U. S. 394, 412 (1915) (prohibi-
tion on operation of brickyard did not prohibit extraction of
clay from which bricks were produced).  Indeed, it is
difficult to imagine property that can be used only to create
a nuisance, such that its sole economic value must presup-
pose the right to occupy it for such seriously noxious
activity.
  The upshot is that the issue of what constitutes a total
deprivation is being addressed by indirection, and with
uncertain results, in the Court's treatment of defenses to
compensation claims.  While the issue of what constitutes
total deprivation deserves the Court's attention, as does the
relationship between nuisance abatement and such total
deprivation, the Court should confront these matters
directly.  Because it can neither do so in this case, nor skip
over those preliminary issues and deal independently with
defenses to the Court's categorical compensation rule, the
Court should dismiss the instant writ and await an oppor-
tunity to face the total deprivation question squarely.
Under these circumstances, I believe it proper for me to
vote to dismiss the writ, despite the Court's contrary
preference.  See, e.g., Welsh v. Wisconsin, 466 U. S. 740,
755 (1984) (Burger, C.J.); United States v. Shannon, 342
U. S. 288, 294 (1952) (Frankfurter, J.).