In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings.
Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land. Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)]. “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor. The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.” Id. at 5 n.6
(slip op. at 3865). In Martinek, the Ninth Circuit held that because the parties had stipulated that the taking had occurred before the declaration of taking by the federal government, the landowner was seeking just compensaton for an inverse condemnation, not a direct condemnation, and therefore had no statutory right of jury trial.
Judge Leavy dissented on this issue, asserting that there were two takings, not one: the first taking was an inverse condemnation claim that started when the government imposed restrictive regulations and ended when the government formally filed the declaration of taking. The second then began, and Judge Leavy asserted that the landowner had a right to jury trial on this second taking, which the landowner had not forfeited by bringing an inverse condemnation claim. Judge Leavy’s dissenting opinion also contains a good discussion of the nature of a regulatory takings claim, and the remedies available to property owners:
A regulatory taking may be temporary in nature and still trigger the Just Compensation Clause, imposing a duty on the government to make payment for the temporary taking. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 317-18 (1987). “The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations.” Id. at 317. Abandonment “results in al alteration of the property interest taken — from full ownership to one of temporary use and occupation. In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.” United States v. Dow, 357 U.S. 17, 26 (1958).
(slip op. 3873).