No, not that Sgt Pepper taught the band to play (that was 20 years ago).
On Tuesday, December 4, 1979, the U.S. Supreme Court issued its landmark decision in Kaiser Aetna v. United States, 444 U.S. 164 (1979). My Damon Key colleagues Charlie Bocken and Diane Hastert briefed and argued a challenge to over a century of seemingly adverse precedent, and with the result garnered one of the very first modern opinions finding a regulatory taking. Read the opinion here.
Hawaii residents know this as the case which kept Hawaii Kai Marina (aka Kuapa Pond) private, and lawyers who practice takings, property, or navigation law know this as the case in which the majority opinion, authored by Justice Rehnquist, held that the navigational servitude is not a blanket exception to the Takings Clause, and just because a waterway is subject to regulation does not mean it is open to public access.
The opinion enunciated or elaborated the basic tenets of regulatory takings jurisprudence.
Per se vs. ad hoc takings:
In light of its expansive authority under the Commerce Clause, there isno question but that Congress could assure the public a free right ofaccess to the Hawaii Kai Marina if it so chose. Whether a statute orregulation that went so far amounted to a “taking,” however, is anentirely separate question. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). As was recently pointed out in Penn Central Transportation Co. v. New York City,438 U.S. 104 (1978), this Court has generally “been unable to developany ‘set formula’ for determining when ‘justice and fairness’ requirethat economic injuries caused by public action be compensated by thegovernment, rather than remain disproportionately concentrated on a fewpersons.” Id., at 124. Rather, it has examined the “taking”question by engaging in essentially ad hoc, factual inquiries that haveidentified several factors — such as the economic impact of theregulation, its interference with reasonable investment backedexpectations, and the character of the governmental action — that haveparticular significance.
444 U.S. at 174-75 (footnote omitted).
What qualifies as “property” and the right to exclude:
While the consent of individual officials representing the United States cannot “estop” the United States, see Montana v. Kennedy, 366 U.S. 308, 314-315 (1961); INS v. Hibi, 414 U.S. 5 (1973), it can lead to the fruition of a number of expectancies embodied in the concept of “property” — expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner’s property. In this case, we hold that the “right to exclude,” so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.
444 U.S. at 177-80.
Shepardizing the case nets the following results: the opinion has been cited in 627 court opinions, followed in 42 cases, and distinguished in 24. It has been cited 1,041 times in law reviews, and 147 times in treatises, with a total of 2,383 total Shepard’s cites.
That counts as a landmark case, in our book.
The facts of the case were especially fascinating, starting with the creation of the pond in the “late Pleistocene Period, near the end of theice age, when the rising sea level caused the shoreline to retreat, andpartial erosion of the headlands adjacent to the bay formed sedimentthat accreted to form a barrier beach at the mouth of the pond,creating a lagoon.” The arguments turned, in part, on the treatment of Hawaiian fishponds under ancient custom and Kingdom law, and the condition of Kuapa pond at various points in its history.
Here are the merits briefs in the case:
Charlie argued the case on the first day of the Court’s 1979 Term. The Oyez Project has a transcript of the arguments here(note: this was before the Justices asking questions were identified individually,so the transcript lists “Unidentified Justice” as posing each question).
Finally, check out this site for some great photos of the pre-development Kuapa Pond, including the kuapa (sluice gates) mentioned in the Court’s opinion.