Lucas v. South Carolina Coast Council - Oral Argument

Argument of A. Camden Lewis

Chief Justice Rehnquist: We'll hear argument next in 91-453, David H. Lucas v. South Carolina Coastal Council.

Mr. Lewis.

Mr. Lewis: Mr. Chief Justice, and may it please the Court:

We are here because Mr. Lucas' land has been taken without just compensation being paid.

The guiding principle in a case like this seems to rest on a determination when justice and fairness require that the economic injuries caused by public action should be borne by the many rather than the few, or, as Justice Holmes said, when has a regulation gone too far?

Our position is simple.

When Mr. Lucas was denied all economically viable uses of his land, these basic principles demand that Mr. Lucas be paid just compensation for that taking.

Chief Justice Rehnquist: Mr. Lewis, is it perfectly clear from the opinion of the majority in the supreme court of South Carolina that they accepted the hypothesis that he was denied all economically viable use of his land?

Mr. Lewis: Yes, sir.

Justice White: So you feel it was completely worthless.

Mr. Lewis: Yes, sir.

Justice White: Would you be willing to give it to me?

Mr. Lewis: I don't own it, but with the taxes that are owed on it I would be willing to give it to you, yes, sir.

[Laughter]

Justice Souter: On the subject of concessions, do you, or did you concede that discouraging construction... and I'm referring, by the way, to the findings set out on page 16 of the red brief... that discouraging the construction near the beach dune area is necessary to prevent a great public harm?

Mr. Lewis: No, sir, we did not concede that.

We conceded that the regulation was a regulation that substantially advanced legitimate State interests.

That's all we did.

We did not challenge the regulation on the first prong of the Tiburon or Agins test, we just said that we were not going to challenge that, that we were going to say, and as we did prove, that all economically viable uses of the land were gone.

Justice Kennedy: Does that always require, in your view, the payment of compensation if all economically viable use of the land is gone, or is that not applicable if there's a nuisance?

Mr. Lewis: I think it is always applicable, and I don't think that--

Justice Kennedy: So even if this were a nuisance, compensation would be required if the restriction on the land took away all of its economic viability.

Mr. Lewis: --Yes, sir.

My question would then become is when you look at the uses that were available before and after, if the only use was something was so obnoxious and so bad as to be able to meet whatever definition you want to as a Lucas it wouldn't be worth very much money, so therefore when you apply the before and after value, or the before and after use, I think that takes care of that extreme case that I can't imagine that you've just mentioned.

Justice Kennedy: Is land different from--

--I guess the reason we can't imagine it and we haven't had a case on it is because the definition of nuisance would be so expansive.

Mr. Lewis: Yes, sir.

Nuisance is different to everybody, yes, sir.

Justice Scalia: Is land different from other property in that regard?

Mr. Lewis: Yes, sir.

You have said in the Tiburon case... and I think it's very different.

In the Tiburon case your... denies an owner economically viable use of the land.

You use the word land in that case.

Justice Scalia: Well, it happened to be land.

Mr. Lewis: Yes, sir.

[Laughter]

Justice Scalia: I mean, if it had been a cow, we would have said a cow, I assume.

[Laughter]

Mr. Lewis: Yes, sir.

Justice Scalia: That doesn't seem to be very remarkable.

That doesn't show that land is distinctive.

Suppose a State decides that it wants to prohibit the sale of alcoholic beverages and it enacts a statute to that effect and somebody has a factory that is useless for anything else except for manufacturing beer?

Mr. Lewis: Well, I think first of all--

Justice Scalia: It's totally useless.

Would there be recovery?

Mr. Lewis: --No, sir.

Justice Scalia: Because that's a building and not land.

Mr. Lewis: That is... the building and the land go together as a unit.

That's the case in Mugler, and that case I think you looked... in that case they haven't denied all economic uses of it, and to go back to your question on real versus personal property, there is a great distinction.

Real property throughout our jurisprudence has been found to be unique.

You can have a specific performance for real property.

There's also a big difference when you're dealing with real property and personal property between what's entitlement and what's a fundamental right.

It's a fundamental right to own property, to live on property.

How you go out and what you can sell and how you can do that, that's an entitlement--

Justice Scalia: It's not a fundamental right to own personal property.

Mr. Lewis: --Yes, sir, it's a fundamental right to own it.

It's not a fundamental right to go out and sell it if something's wrong with it or if it's diseased or something like that.

That's not a fundamental right, no, sir.

Chief Justice Rehnquist: What's your authority for the proposition that the ownership of property is a fundamental right?

Mr. Lewis: I think if you go back to the fact of the Fifth Amendment, when they say that you can't take property without paying just compensation, that's a right to own and use property.

Chief Justice Rehnquist: It's a right not to be deprived of property without being paid compensation.

Mr. Lewis: Yes, sir.

Chief Justice Rehnquist: But that's a much more careful statement of the proposition than the statement that ownership of property is a fundamental right.

Do you have any further authority for that?

Mr. Lewis: Oh, I'm sorry.

I'm saying that the right to use your property is the fundamental right.

Ownership, not everybody owns property.

Chief Justice Rehnquist: Well, why do you say it's a fundamental right?

Mr. Lewis: I say it's a fundamental right because if you have property and you go back and see that the uses of property are what makes up property.

If you have property, you have the right to use it.

You have said that in Tiburon, that when you take all the uses, it's gone.

You have said in the cases that you look at the uses that are remaining afterwards, so property is just made up of uses.

Chief Justice Rehnquist: Well, the fact that property is jus made up of uses does not necessarily prove that the ownership of it is a fundamental right.

It seems to me you can do all you need for your case by simply adhering to the language of the just compensation clause.

Mr. Lewis: Yes, sir.

Yes, sir.

Chief Justice Rehnquist: You don't have to expound on whether property is a fundamental right.

All you have to prove is that you were deprived of the use of property without being... by the Government.

Mr. Lewis: Yes, sir.

I agree, and that is what I meant to say, and if I didn't, I apologize.

Justice O'Connor: Mr. Lewis, could we change direction here a moment, and may I inquire, there was a law passed subsequently that... under which South Carolina provided that a property owner affected by this earlier regulation could apply for a permit to build nonetheless with certain conditions attached, right?

Mr. Lewis: That was two years between the first enactment--

Justice O'Connor: Yes.

Mr. Lewis: --And then this amendment in 1990, yes, ma'am.

Justice O'Connor: Did the petitioner ever apply for such a permit?

Mr. Lewis: No, he did not.

Justice O'Connor: Don't... to the extent that you are arguing there is a permanent taking here, regulatory taking, don't our cases indicate that perhaps it's not right unless and until the application for an exemption has been sought?

Mr. Lewis: Not in this case, no.

What happened in this case, you have two courts finding that all the viable uses are gone.

You have the lower court finding that it is a permanent taking.

You have a stipulation of the--

Justice O'Connor: But did that finding determine the effect of this new exemption permit?

Mr. Lewis: --What we have is, it's interesting in the stipulations in the court below.

You have a stipulation in the court below, number 11, which says that the current law will not allow any structures to be on this piece of property, and then we have a stipulation number 16 which says that any permit would be denied.

At that same period of time, this act that later came law was in the process and in the legislature, so those two things right there show that there was at least a contemplation when they said the current law says--

Justice O'Connor: Well, slow down a minute.

At the time the stipulation was filed the permit law had not yet been enacted.

Mr. Lewis: --It had not been enacted, but it was in the process... Senate Act Number 391.

It was in the process of being debated.

It was a hotly debated subject all over South Carolina because of the impact of this act on the beach property owners.

The Supreme Court was asked to include the 1990 amendment in this and they refused and found that the case went forward to be right.

If you look at that particular amendment--

Justice White: Well, that doesn't settle the rightness for us.

Mr. Lewis: --No, sir, it is just a consideration.

I think that they looked at it--

Justice White: But do you still have a right to apply for the exemption?

Mr. Lewis: --I do not think so.

I think with the finding of the South Carolina supreme court that this... the building of a house or a home on this property is detrimental to the health, safety, or welfare, that they are required under the amendment to turn my application down.

There's nothing in this record to show that they would have a change of heart.

Justice White: Well, you're asking us to decide that, but we don't really know if you applied for an exemption whether you'd get it or not.

Mr. Lewis: I think that under the... if you look at the findings of the Supreme Court and you look at the law and you compare the two, which is section 48.39 290(d)--

Justice Scalia: What if you looked at the dissenting opinion?

Didn't they think you had a right to apply, the dissenting judges below?

Mr. Lewis: --No, sir.

I think the dissenting judges said that... if I remember correctly, they said that either pay them the money or give them a permit.

Justice Stevens: They said I would remand to the Coastal Council its decision as to whether to issue the permits in view of the recent 1990 amendments.

Mr. Lewis: Or to pay the money.

Justice Stevens: Yes, but certainly one of the options was to consider it under the 1990 amendment.

That's what the dissenting judge says in so many words.

Mr. Lewis: I cannot say that one of the options in this case, because there has been--

Justice Stevens: I know you don't say that.

What I'm saying is the dissenting judges on the supreme court of the State said that was an option.

Mr. Lewis: --They also said that it wasn't detrimental to the health, welfare and safety, so once they take... there you have to look at their opinion, dissenting opinion as a whole.

They say it wasn't detrimental to the health, safety, and welfare, so you take that particular stamp on Mr. Lucas' property away, and he sure could apply, but the dissent didn't carry the day on that particular finding of fact.

Chief Justice Rehnquist: Well, there's no doubt, is there, Mr. Lewis, that there was a period from 1988 until 1990 when there was no permit for which you could have applied for?

Mr. Lewis: Absolutely.

Chief Justice Rehnquist: And you simply... the situation described by the supreme court of South Carolina did obtain.

Mr. Lewis: Absolutely.

There are 2 years where there's absolutely nothing Mr. Lucas could do with this property whatsoever.

Justice Blackmun: We're throwing around the term no economic viability of this property.

Mr. Lewis: Yes.

Justice Blackmun: Viable is a good medical term, it isn't a legal term, but the lawyers have taken it over and the judges too.

What do you mean by economic viability?

Mr. Lewis: What I'm saying by that, that this property is worth 0, $0.

That before and after the uses, the before and after value, before it was worth a $1 million and it was a nice home site, two nice home sites.

Afterwards it has no uses and no value.

Justice Blackmun: So it's a matter of valuation.

Mr. Lewis: Well, valuation is, of course, one of the keys in it.

It also goes to uses.

The uses determine the value in all pieces of property.

So I think when you go down and you take a piece of property from uses down to no uses and from $1 million down to $0, you have a taking under our Constitution regardless of what--

Justice Blackmun: That's hardly the medical definition of an old-time term of being viable.

Justice Stevens: Mr. Lewis, can I ask you a factual question that perhaps isn't in the record?

Is this property located right where that hurricane hit in Charleston?

Mr. Lewis: --No, sir.

Justice Stevens: This is on the Isle of Palms, is it?

Mr. Lewis: This is on the Isle of Palms, and, well it is--

Justice Stevens: I thought that whole island was virtually desolated by the hurricane.

Mr. Lewis: --Most of the homes, believe it or not, on that island made it.

What really caught most of it was when it came across Charleston and it came on inland and all the way to Charlotte.

But those homes that were on the Isle of Palms at the time of Hugo, most of those made it.

There was more damage to some of the condominium high-rise structures than it were to the low homes, with reference Hugo.

But it is just north of Charleston and it did get plenty of Hurricane Hugo, I can assure you of that.

Justice Kennedy: Counsel, suppose there's a residential subdivision and a person owns lots that are zoned for residential improvement, but they're vacant lots.

And an earthquake fault is discovered and the expert opinion is that it is very very dangerous to build and the county denies zoning permit for that reason.

And assume also that all economic viability of the land is gone.

Is that a taking?

Mr. Lewis: It is not taking for the following reason.

It was not the regulation that took the value of the land, it was the discovery of the fact that the land had no value in the first place.

So when you take the before and after test, the uses before and after, you find that it is the fact that it's on a fault and it's no good to build on anyway, if that's the case.

Justice Kennedy: Well, why, why can't the State say here that the finding was that this coastal zone, because of new and detailed studies with reference to erosion, is now a very dangerous place to build; dangerous for the owner, dangerous for the neighbors.

Mr. Lewis: Because if look... if you go out there and if you look at the land, and you go out there and see it, you have a big house on the left, you have a big house, a four story house in the middle, and on the other side you have a big house, and you have houses all around it.

I mean the facts of this case don't support such a conclusion, and Justice Toll--

Justice Kennedy: Well then it's just a factual matter we're arguing about.

We... your client stipulated the fact that this ordinance had, or this regulation had a valid public purpose.

Mr. Lewis: --Yes, sir.

We indeed say that.

Justice Kennedy: And it seems to me that there are instances in which all economic viability can be deprived because of an urgent safety reason, and that there's no taking.

Mr. Lewis: Well this is--

Justice Kennedy: And I don't think your answer has refuted that proposition.

Mr. Lewis: --Well, what I'm saying in that case, if there's an urgent safety reason, the urgency of that, whatever it is, if it's a fire coming down on you, if it's a fact that there's a bomb underneath of you, the exigencies of that situations are what demands that.

In this case there's no such thing.

Justice Toll took some findings in the legislature that said it was to protect the beaches from erosion and for tourism and so forth, and she made a quantum leap and said that therefore we have said that it is a great public harm to build a house on this property.

And that is not at all the case.

Justice Kennedy: But that wasn't challenged in this case.

All you... your whole theory is that if all economic viability is lost, that that's the end of the case.

Mr. Lewis: No, sir.

What I am saying is, is the findings that there was a great public harm was not a finding that ever came out until Justice Toll made that quantum leap in the South Carolina supreme court.

That was never a finding of any other court.

It just came--

Justice Kennedy: Well, I assume the legislature can make a finding, can't it?

Mr. Lewis: --They never said anything about it being a great public harm.

All they said was that, and if you can look at the factual findings of the legislature it talks about a... the erosion, it talks about tourism, it talks about making the beaches nice and making them pretty, it has a whole bunch of nice statements that all legislation has for the reason they passed such an act.

But to take that and to say, okay, I'm going to jump from that and say that these findings make it a great public harm, I don't think you can do that.

If you're going to do that, what happens is that we're going to have to... us lawyers out here in every regulatory taking case, we're going to have to attack the statute.

Because we're going to be in fear that some higher authority or judge is going to say we didn't attack the statute as it substantially advances legitimate State interests, and because you didn't do that, hey it's a nuisance and we can take your property.

So you're going to turn every regulatory taking case into an attack on the statute as to whether or not it can be interpreted as a nuisance or not.

And I don't think that's the way it should be.

And we have not conceded anything by saying that this is a laudable purpose, to try to protect the beaches.

We've not conceded our land, to put a house on our land, a home on our land, is a nuisance.

Justice Stevens: May I ask, Mr. Lewis, on that question, the South Carolina supreme court thought you'd conceded that, at least they said that in their opinion.

Did you in your cert petition ask us to review the accuracy of that concession?

Mr. Lewis: I don't--

Justice Stevens: It seems to me we took the case on the assumption that you had made such a concession.

Mr. Lewis: --Yes.

Justice Stevens: Now you're telling us you really didn't, and I'm not saying you did, obviously.

Mr. Lewis: We--

Justice Stevens: But were we on notice that that was going to be one of the things we'd have to decide?

Mr. Lewis: --Yes, sir.

In our petition we took the position that the mere labeling by the South Carolina supreme court that it was a great public harm was not something that could be used as a basis for denying just compensation.

Surely, we did that.

That is an integral part of our whole case.

Justice Souter: Mr. Lewis, may I ask you two factual questions.

I seem to recall that somewhere in the record there's an indication that at some point in the recallable past, maybe 10 or 15 years ago, your land was under water at one point.

Is that correct?

Mr. Lewis: There is something in the record, and I don't remember how long back, that there was a pond on one of our lots.

If you ever go out to the ocean you'll see, you'll sit on one side and you have to walk around some water that's out there to get to the beach on the other side.

There was that, that was there.

Justice Souter: And that has disappeared naturally in the meantime.

Mr. Lewis: Yes, sir.

And this whole island has been accreting for some 1,500 years, and you'll find that under the methodology used, that they had to choose a vegetation line for purposes of setting the setback lines on this piece of property because of the fact that it's been accreting and that they could not use that other formula with reference to the last, 40 times the erosion rate.

They could not use that on this property simply because it was accreting and had been accreting for some time.

Justice Souter: All right.

Let me ask you my second question.

You spoke of the... what I think you refer... you described as the finding of the South Carolina supreme court that the development of the land would be detrimental to public welfare, safety, health, and so on.

And you said that finding came out of the blue.

Was that finding possibly based on, and simply a kind of an interpretation of this record evidence that at one point some of your land, at least, was inundated?

Or in the alternative, was that so-called finding simply a statement in a shorthand kind of way that that's what the legislature had found, and there was at least a reasonable or non-reviewable basis for so finding?

Mr. Lewis: I think, well first of all if I used the word finding I want to withdraw that.

It's a labeling.

There was no finding whatsoever, it was a mere labeling of what the legislature had found, as you say.

Justice Souter: I may have used that, you may not have.

About the rest of my question, whether it's a finding or a labeling, A, was it referring back to the period of inundation?

And B, if it was not, is it fair to read it as, in effect, a restatement of the findings of the legislature with the assumption that those findings were reasonable or at least non-reviewable?

Mr. Lewis: It is a shorthand for the legislature and a labeling of the legislature and has no basis.

And then the court doesn't say so, that it has any basis in the record, or the facts of the record.

Justice White: Okay, counsel, I see that your opponent at one point says the issue of temporary taking was preserved at trial by stipulation, and hence that it too is not right.

Mr. Lewis: I don't believe the stipulation said that the argument on the temporary take is reserved.

In other words, there is no more facts for a temporary taking.

If they say, hey--

Justice White: Let's assume that... let's assume that we disagree with you that, that your overall claim is not right because of your right to apply for an exception.

And that the only issue that's left then, as far as we're concerned, is the temporary taking issue.

That issue hasn't been dealt with by any of the courts below, whether there was a temporary taking.

Mr. Lewis: --Yes, it's... we say the temporary taking would be the same standard so that all of the facts, everything is in this record with reference to temporary take.

The only difference is, is the quantum of the damages that would be available to you.

Justice White: Well, I don't know.

I suppose somebody, if you're arguing for a temporary taking, you would have to... there would be issues about, well when did you really intend to build.

Mr. Lewis: That's it.

The trial court found, in the record, that he was going to build a house and that he was going to hold the other piece of property for investment.

Justice White: Well I know he was going to build a house.

When?

Mr. Lewis: The plans are in the record, of the house that he's going to build.

Justice White: Well I know plans are in the record, but you never did apply for a building permit, I guess.

Was there evidence, I expected to build tomorrow, or next year, or what?

Mr. Lewis: There was evidence that he was going to build the house that's in the record, and there's a stipulation that they wouldn't let him.

Justice White: Well yes, but we still... you still haven't answered my question.

Was there evidence, specific evidence, as to when he was... wanted to build?

Mr. Lewis: Was there specific evidence--

Justice White: Was it?

Mr. Lewis: --as to the starting date, no sir.

Because you can't have a starting date until you have a permit, and they dismissed that and said I couldn't have a permit.

Justice White: Well I don't know, you could say I intended to build right away, I suppose--

Mr. Lewis: Oh, I think that is definitely within the record, that he intended to build right away.

Justice White: --If you were going to build two houses, one of them for speculation.

Mr. Lewis: No question.

I was going to hold one piece for investment.

Justice White: Well, then if you're building... if you're going to build a spec house, you don't always just build right away, you try to figure out what the market is.

Mr. Lewis: Oh, that is exactly right.

But I don't... that has nothing to do with whether or not there's been a temporary take or not.

Justice White: Well, I think it does.

Mr. Lewis: It only goes to the quantum of the damages.

Justice White: Well, I don't know.

I don't know whether there would be proof that you ever would have built during these 2 years.

Mr. Lewis: Oh, yes, sir, I think that is in the record already, as to at least one house.

Justice Scalia: Mr. Lewis, the Respondent's brief contends that the South Carolina supreme court understood you to be advancing a very narrow argument, to whit, that any use of the police power that takes away the total economic value of your land is a taking, no matter what nuisance or no nuisance, no matter what, the basis of the use of the police power.

Is that a fair characterization of your argument below?

Mr. Lewis: No, sir, my argument is that... and I think you will look at the order of Judge Patterson and you will find that what we said was that when we are denied, under the Tiburon test, we are denied an owner economically viable use of the land, we get paid for a taking.

That is what we are saying.

Justice White: No matter what the reason for the statute was?

Mr. Lewis: Yes, sir.

That is because--

Justice Scalia: So your answer is yes, that is a fair characterization?

Mr. Lewis: --Yes, sir.

We gave up the substantially advanced legitimate State interest.

We said that the statute did that, and we think that there is no... they want a per se rule.

They want to say there is some legitimate State interest type situation as to... and that you can forget about what you do to the value and the uses and you can take it.

They are asking for the per se rule--

Justice Scalia: You want the per se rule, and you argued it below.

If it takes away all the economic value, it is a taking that has to be compensated.

They are saying that is so sometimes but not all the time, that if there is a nuisance, if it is threatening the public safety, you can take it all away without paying and you deny that.

Mr. Lewis: --I deny that, yes, sir.

Justice Scalia: You denied it below and you continue to deny it here.

Mr. Lewis: That's right because if I take the Tiburon test, I have to read out the word "or" to make that test work because that is an "or" test in Tiburon and it says, substantially advanced legitimate State interest or denies an owner economically viable uses.

We do, in our reply brief, point out, if, and we say that, if, and that we don't agree that if you are going to go to some kind of exception that it be something that is an imminent danger of such a magnitude to justify denial of just compensation, and only when such action's purpose is to control that imminent danger.

Justice Scalia: But that is a fall-back position.

Mr. Lewis: Yes--

Justice Scalia: You don't think you should do it at all--

Mr. Lewis: --No, sir, absolutely not.

Justice Scalia: --You always have to pay even if it is to save the city, right?

Mr. Lewis: Well, to save the city, now then you are going to get into factual information as to what your before use was, your after use was--

Justice Scalia: No, you have to just pay, just pay.

You don't have to inquire in any fashion.

Your position is, if it takes... at least with real estate, if it takes away the total value--

Mr. Lewis: --Right.

Justice Scalia: --You pay, no matter what the reason.

Mr. Lewis: If it had value before--

Justice Scalia: Right.

Mr. Lewis: --And you took it away, you pay.

Justice O'Connor: But, Mr. Lewis, you do have a fall-back position, do you?

Mr. Lewis: Yes, ma'am.

Justice O'Connor: That if we don't agree with that and think there is a nuisance exception, that this doesn't fall within it, is that it?

Mr. Lewis: We call it a public necessity exception, if there is such one, and that is has to be imminent danger of such a magnitude to justify denial of just compensation and that the action's purpose is to control the imminent danger, not in this case... and that this case would not meet that test whatsoever, and I would reserve the rest for rebuttal.

Argument of C. C. Harness, III

Chief Justice Rehnquist: Very well, Mr. Lewis.

Mr. Harness, we will hear now from you.

Mr. Harness: Mr. Chief Justice, and may it please the Court:

South Carolina asks you to uphold the decision of our supreme court for what we believe to be two very compelling reasons.

First is that the restrictions of the South Carolina Beach Front Management Act are based upon a very real and considered truth, and that is building upon unstable land, unstable beaches, the fragile beach dune system creates great public risk of harm.

Secondly, the Petitioner never challenged that legislative determination, but instead claimed it was irrelevant to his takings claim.

His theory of the case is based upon the extreme proposition that economic impact alone, without any other consideration, is a determinant of taking.

The theory is wrong.

There is no constitutional right to harm others.

Secondly, the threat is well documented.

Building on an unstable and fragile beach dune system does create harm.

Chief Justice Rehnquist: Well, if you say there is no constitutional right to harm others and link it to your argument... what about Justice Holmes' opinion in Mann against Pennsylvania Coal Company, where there was no question that the sub-surface mining would very likely to cause the subsidence of some residences, and yet the Court said that the compensation had to be paid.

Mr. Harness: I think what Justice Holmes was looking at was the balance between the degree of harm.

There was very little public harm, in his way of thinking.

It was a private harm that he was discussing.

And in that instance, in that particular instance, the degree of diminution in value was very significant.

I think in looking at the harm, what the Court does is to look at the degree of the harm.

Chief Justice Rehnquist: Well, but don't you think then your proposition that there is no right to harm others in support of your idea of the nuisance exception is perhaps too broad, that sometimes there will be some actions of property owners that may cause some sort of harm to others and yet, perhaps they may not be totally proscribed without paying compensation?

Mr. Harness: I would concede that.

I think that this goes back to what has been termed the Mugler principle.

The community has authority to prevent serious public harm by denying uses without being required to pay compensation, but certainly it is a measure of the degree of harm that the State is seeking to prevent.

Justice Scalia: Well, it seems to me we have two extreme positions here.

Mr. Lewis takes the position, it doesn't matter how much harm, you have to pay.

And as I read the South Carolina supreme court, it seems to say, it doesn't matter how little harm, you don't have to pay.

Isn't that a fair description of what the South Carolina supreme court said?

Mr. Harness: I think what the... no--

Justice Scalia: Did they find that this was an enormous amount of harm, that it was something that rose to the level of a threat to life and limb or even a public nuisance?

Mr. Harness: --I think if I might answer, they did two things.

One is they first said that the Petitioner never raised the issue, that all he raised was the unique argument that diminution in value alone equaled to a taking.

But secondly, I think that the legislative findings and facts that are laid out in the act gave the court reason, and sufficient reason to believe that there were great public harms.

If you read the findings and purposes of the act, clearly they're directed at the highest type of police power activity, that is preventing threat to life and property.

Justice Scalia: Did it say highest type of police power activity?

Mr. Harness: No, sir, it does not say that, but I think that that has been the position taken by the solicitor general and by this Court, that if there is a great threat to life and property, that certainly would fit within the commonly called nuisance exception.

And in essence the nuisance exception, it seems to me to be a shorthand way of saying, the State has the permission or the authority to prevent great public harm without paying compensation depend upon that degree.

Justice Scalia: What was the great threat to life or property?

That over the next 50 years, some adjacent land might erode, is that the kind of immediate threat that you think--

Mr. Harness: I think that the threat is very real.

First of all, the act looked at the threat to life and property by building near the ocean.

It is well recognized that portions of homes, even homes themselves during times of great storm events will be blown or washed into houses behind them--

Secondly, that septic tanks and that sewer lines that lead to these houses are very near the ocean, break asunder and that those contaminants are put into public waters.

Thirdly, that water lines are broken and the water supply is contaminated, and fourthly--

Justice Scalia: --And that is enough to prevent all building entirely, not necessary precautions, just say you can't build?

Mr. Harness: --If I follow your question, I think that the answer is that there is clear evidence that the closer you build to the ocean and if you build upon the beach dune system, that you run--

Justice Scalia: This is behind the dunes, isn't it?

This is behind the dunes, that is what I understood, a good distance behind the dunes.

Mr. Harness: --Currently, the property is behind the dunes, but the evidence presented by the South Carolina Coastal Council said 20 percent of the time in the last 40 years, the shoreline has been landward of the road behind him, and 50 percent of the time this lot has either been on the active beach or under water.

It is certainly an unstable type of beach that typically the act was seeking to address.

Justice Scalia: Apparently not unstable enough and not often enough to stop people from building houses all up and down the same street.

Mr. Harness: People, before the passage of this act, built up to the highest up-rush of the waves on our coast with no consideration at all for what threat they would create for themselves and others.

This act was passed to prevent the experience that the council had been through and that a blue ribbon committee looked at for 6 months.

Justice Scalia: Is there any indication that this property was ever in front of the dunes?

That the dunes were ever eliminated entirely?

Mr. Harness: Completely.

It was under, it was in the ocean in 1963.

It was in the ocean 20 percent of the time since 1949.

That is what Exhibit No. 22, which is in your Appendix, shows.

It shows you the shoreline fluctuations which have been great and significant.

Erosion is a problem along this beach.

While it is generally accreting there are severe episodes of erosion.

Justice O'Connor: Well, Mr. Harness, with reference to the adjacent homes, the homes that have been built on adjacent property.

I guess under your theory South Carolina could require those homes to be removed because it still is the same threat to public safety that exists with respect to allowing new construction on these lots.

Isn't that right?

Wouldn't your theory take you that far?

Mr. Harness: My theory would not take me that far for two reasons, I think.

First of all... or three reasons.

First of all, it is typical of States to pass laws once they recognize there is a harm, to prevent new construction or new harm.

Justice O'Connor: No, I know that's typical.

I am saying, if I understand your theory, it would permit the State to require existing homes to be removed, and no compensation paid.

Mr. Harness: Again--

Justice O'Connor: Wouldn't your theory go that far?

Mr. Harness: --No, I don't think it would, for two reasons.

Justice O'Connor: Then what's the difference?

Mr. Harness: For two reasons.

I think that what you would have to look at, under those circumstances, would be the reasonable expectations of the property owners, and secondly--

Justice Scalia: Excuse me, I don't understand.

Before you go to secondly, didn't this person have the same expectation when he bought the land?

He didn't buy it look at the sand, he bought it to build a house.

Mr. Harness: --These people had already built--

Justice Scalia: And he had already bought the property.

Mr. Harness: --These people had already built--

Justice Scalia: He spent several million dollars, didn't he?

Over a million.

What was the total price?

Mr. Harness: --About a million dollars.

These people had already built under an older law.

Justice White: Yeah, and they probably didn't even spend a million dollars.

Mr. Harness: Probably not, yeah.

And the law changed--

Justice Scalia: When they built, there was nobody else who had houses.

I would think his case is even better.

He laid out a million dollars, looking at these houses all up and down the street, and you don't think he had any expectation that he could build a house?

Mr. Harness: --If we allow economics to be the sole determinant of takings, then you will in essence eliminate the nuisance exception.

Justice Scalia: Well, I am sorry, I interrupted you on reason one.

What's number two?

Reason one was economic expectations.

We need an answer to Justice O'Connor's question.

Mr. Harness: Excuse me.

The second one is the physical character of the land.

It seems to me that what we're trying to do here is to prevent an ongoing and continuing damage to the environment.

The houses that have already been built there will be removed over time, and I think it is a wise decision on the part of the State because it would disrupt entirely the existing uses of property, and I think it is... it could be... it is more fair to prevent new construction and then to remove these houses as they are destroyed and let--

Justice O'Connor: Well, it seems to me you're talking policy issues that could be addressed by a legislative body, but you're not addressing the limits of the Constitution at all, by that response.

And I think what we are interested in is what are the constitutional limits to State action, that is why we are here.

Mr. Harness: --I think that the answer to that question, first of all... let me get some clarification.

If you could ask the question again.

I am not certain that I have followed you completely.

Justice O'Connor: Well, I'm trying to have you describe for us what limitations there are under your view of what the Constitution requires with the takings clause.

It would... nothing you have said gives me any concept of where the line has to be drawn.

Would you like to try to spell that out?

Mr. Harness: At least as it relates to public health and safety, if there is a great threat to public health and safety, as there is at least from the legislators' point of view in this case, I think that there is insulation given to the activity of the State.

This Court has said it depends upon the facts of each case.

I am not certain that I can stand here and tell you today where the limit can be drawn, but I think certainly in this instance--

Justice O'Connor: Well, suppose the danger is to the property owner himself or herself as to construction on a particular site, either because it's too steep and the house will slide away with the next rain, or because it's on an earthquake faultline, or because it's on a shoreline, not concerned with the neighbors or other people, just with the safety of the people who would build on it.

Mr. Harness: --I think even in those circumstances, I think I would agree with the solicitor general that even in circumstances where there is construction upon unstable or very dangerous land, that even there, it is for protection of that house, and those people that the State could pass a law to prevent that such construction, even though it may not have the--

Justice O'Connor: You could prevent new construction.

Mr. Harness: --That is correct.

Justice O'Connor: Now, can you require the person living in an unsafe dwelling to totally remove it?

It's not safe because the next rain is going to come and your beautiful house, on which you have spent a million dollars, is going to slide down the mountain, so we tell you to take it down, now.

Compensation or no compensation?

Mr. Harness: No compensation.

It would be very similar to the tenement houses where the court has said you have to either remove these things or improve them.

It makes it impossible for the landowner to do so, because of the threat to the public.

And let's say, for example, in your instance, the people rented the house out, didn't live in it themselves.

Certainly under those circumstances, the people that are in there are threatened by the sheer construction, or the mere construction upon an unsafe, unstable place.

So I think the answer to that question is yes.

Justice Kennedy: How do you explain an alternative statement in the Agins case in which we do, it seems to me, indicate that there is a taking, if the owner is denied all economically viable use of his land.

That's the court's term, economically viable.

Mr. Harness: The court has never, to my knowledge, applied that test.

It has repeatedly said that diminution in value alone is not sufficient to equate to a taking, but I think it... from the way I have read it... it may be a shorthand for the fact that you have to look at two things, the diminution in value and also the reasonable investment-backed expectations.

I don't think it has been applied literally and I have had the same problem of determining what the word viable means.

I assume that you would have to look to the character of the land as well to be certain it is of the type that would warrant construction.

Justice Kennedy: There is no doubt that there was an investment expectation here.

Are you saying that it was unreasonable as a matter of law?

Mr. Harness: Well, yes, but the court below has never asked to reach that point because it was never an issue before them.

They never had to get to it.

But secondly, this, Mr. Lucas, the petitioner here, was owner, participated in wild use in the very beginning of the construction, knew of the erosion events that occurred, significant erosion events all the way through the 1980's, could or should have known the history of the property.

He was on notice about the character of the land.

Secondly, this beach front along South Carolina has been highly regulated for some years.

Justice White: But do you think... I didn't understand the South Carolina court to go on that basis, that he didn't have any valid expectation.

Mr. Harness: The supreme court did not discuss that because it did not have to reach it.

Justice White: Well, if it comes here, I think if the case comes here, I thought the California court... or your State court said that even if there is a valid investment expectation, even if the law deprives the landowner of all economic value, even if this law is valid, and no pay.

Mr. Harness: That is not the way I read it.

The way I understood the case was that, first of all, the petitioner raised a very extreme position, that diminution alone was sufficient to equate to a taking, and second, that he conceded the purposes and findings, and as a result the court did not have to go in and look at specifically the harms above what the legislature had dictated, because it was never questioned.

It was never raised.

And they were addressing the very narrow theory that he presented to the court, which is diminution alone was sufficient to equate to a taking.

Justice White: Am I right at least to this extent, that if... that your State court's opinion would bar also any claim of a temporary taking?

Mr. Harness: That's correct.

As the South Carolina Supreme Court opinion analogizes to wetlands regulation, and they say just as with respect to the '77 Coastal Zone Management Act, which prevented the uncontrolled use of coastal wetlands, and it says our analysis there did not contain a discussion of whether any economically viable use remained in the property, so also we don't have to have that discussion here, and I don't think wetlands regulation is something that I would call calling into question high concerns of public safety.

In Carter... the case they're referring to is Carter v. South Carolina Coastal Council.

The same type of questions that were raised here, that is diminution alone is sufficient for taking, was also raised in that case.

They did not have to look at reasonable investment-backed expectations, but it was... they did rely upon an old case, Just v. Marinette County, that talks about justified expectations in that there is no justified expectation on the part of any person to use property in a way that harms others and requires that you change the natural character of the area so as to make it economically... or, to make an economic use of it, so I think the court implicitly talked about it in Carter, the reasonable investment-backed expectations, although it was not raised.

Justice Scalia: I'm not talking about reasonable investment-backed expectations.

I'm saying that the court here said we will be overruling Carter if we acknowledged that a total taking would require compensation.

That's what they said, and I take that to mean... I take that to be the position that any valid regulation of the land... any valid regulation, regardless of whether it rises to the level of regulation in order to prevent a public nuisance, does not require compensation even if it requires... even if it results in a complete taking, a complete diminution of value.

Mr. Harness: That is--

Justice Scalia: Isn't that a fair characterization of the opinion?

Mr. Harness: --No, sir.

That has not been our position, it was not that position presented to the court, and I think their position is better characterized as not having to reach that issue because of the narrow way in which the case was postured to them.

They weren't required... they weren't... at no point in time were they asked to look at the harm.

The State was not required to defend on that position.

As a consequence, he made his bed and the court said you sleep in it.

You didn't challenge it and we don't have to get to it because you didn't ask us about it.

Justice Scalia: I agree that they didn't have to get to it, but I'm not sure I agree that they didn't get to it.

I do not see how the Carter case would have been overruled by acknowledgement that in at least... that a total taking requires compensation.

I did not think that Carter rested upon the importance of the... of public interest in the wetlands.

Mr. Harness: Carter rested upon the proposition... and the court talked about the difference between eminent domain and taking in that case... rested on the proposition that you do not have a right to use your property in a way that harms others, so they dealt with the issue of whether or not there was public harm.

Justice Scalia: Is that the position you're defending?

Any use of your property that harms others can be prohibited, even to the extent of depriving your land of all its value, without compensation?

Mr. Harness: No, my position is not that.

Our position is--

Justice Scalia: Well then again I don't understand why Carter would have been overruled by acknowledging the claim here.

Mr. Harness: --In Carter, there was no question raised about the degree of harm.

It simply said public harm.

Our position has been throughout the course of this trial and before this Court that there is a degree of public harm that warrants insulation.

I don't know exactly where that line is and certainly the court has had to do it on an ad hoc basis.

As it relates to the South Carolina supreme court, however, all they were faced with was not the degree of harm, it was the fact that they conceded that there was harm, and secondly they did not raise it in their very extreme position.

One of the other points that I would like to make is again back to the degree of harm and to talk a bit about the purpose of the act.

The purpose of the act was to prevent people from building on unstable or eroding beaches, and that was the purpose of the set-back scheme.

Justice Souter: But we can't assume that that purpose applies in this case, can we, because the... isn't the effect of the... what was it, the 1990 amendments, indicates that that purpose is in fact not going to be realized in every case, otherwise they wouldn't have made provision for exceptions, so we can't assume that that is necessarily a fact that applies to this case, can we?

Mr. Harness: I think that you can.

I don't think that the 1990 amendments detract from the fact that there is serious public harm created by building near the ocean.

I think what the legislature did was to bring it down to the council level to see if in some rare and unusual circumstances the purposes and the ends or the means could be considered and--

Justice Souter: Sure, but the rare and unusual circumstances would be circumstances in which building on a given lot would not pose a threat of harm to the public.

That's the circumstance, isn't it, and we have to assume that that is possible.

Mr. Harness: --That it is possible that--

Justice Souter: It may be possible on this lot.

Mr. Harness: --It may be possible from a cumulative sense.

I don't think that the legislature instructed the Coastal Council to go down and look at each individual lot but to consider the--

Justice Souter: Well, who issued... maybe I'm just playing with words here.

Who issues the permits in the cases where an exception is made under the amendments?

Mr. Harness: --It would be issued by a 14-member commission.

Justice Souter: Okay, so it's the 14-member commission that can go up and down the coast if there's a request for a permit and decide whether in a given case there would be harm to the public in building.

Mr. Harness: That is correct.

Justice Souter: And that hasn't been done here, so we can't assume what the result would be.

Mr. Harness: I don't think you can at all assume what a 14-member council will do.

Justice Scalia: Mr. Harness, and you say the claim is not right because application to that council hasn't been made.

I would agree with that if the South Carolina court had taken that position, but in... don't we go along with at least where in the area of prudential standard, where the State courts have allowed the suit to proceed, don't we take appeals from those State courts?

In tax cases, for example, the Federal rule is a taxpayer has no standing, but if a State wants to give a State taxpayer standing we will review that case and we won't apply our prudential rule, will we?

Mr. Harness: No, sir, but could I tell you why the South Carolina supreme court did what they did?

Shortly after arguing the case, or after arguing the case the legislation was passed allowing for what amounts to a variance.

The counsel for the South Carolina Coastal Council applied to the court seeking to see if the 1990 amendments would have any effect on their decision, and the South Carolina supreme court said it is too late to make that request.

We don't have any way under our current rules to allow you to argue after oral arguments have been made.

So as the dissent said, they would have preferred to send it back down to the Coastal Council to see what they had gotten.

Justice Scalia: Well, whatever the reason, they went ahead, and they did not consider it unright.

Rightness is a prudential doctrine.

I don't know why it is not prudent for us, having a decision by the South Carolina supreme court, in effect to say in this case we'll treat it the same way.

Why don't we just do the same thing that they did?

Mr. Harness: Let me say that... let me try to answer that question, and I'm not attempting to avoid it, but it seems to me that what we are asking for first of all is that you uphold the South Carolina Coastal Council decision because of the narrowness of its argument, but if you're going to remand it, if you consider remand I think the remand should go to whether or not they can rely upon the petition's concessions, and whether they incorrectly rely upon the findings--

Justice White: It seems to me that you've already conceded that the opinion of your State court bars any claim of a temporary taking, even if the rest of the case is not right, in which event, then the legal issue about the correctness of the judgment of the State court is before us and we have to... we can't say the temporary takings claim isn't right.

Mr. Harness: --Well, it seems to me that you can say that the temporary takings claim is not right because no evidence was presented below at all about--

Justice White: Well, I know, but that just assumes... but let's just assume that under the State court's opinion and judgment there could be no temporary takings claim for the same reason that it decided there couldn't be any claim at all.

I don't know how you can say we can just completely remand the whole case.

Mr. Harness: --Well, it seems to me that the appropriate remedy... and I agree with the Solicitor General.

I think the appropriate remedy is if you cannot uphold the South Carolina court that you would remand to get to the other parts of the test, since the only thing presented to the court below was the issue of whether the loss of economic value alone was sufficient to equate to a taking.

Thank you.

Unknown Speaker: Thank you, Mr. Harness.

Mr. Lewis, you have 2 minutes remaining.

Rebuttal of A. Camden Lewis

Mr. Lewis: I will entertain any questions of the Court.

Chief Justice Rehnquist: Apparently the Court has no questions.

The case is submitted.