When Disaster Strikes: Assessing the Takings Clause in the Context of Government-Caused Property Destruction

I.  Introduction

When faced with disaster, government officials must navigate the delicate balance between responding to immediate threats and protecting citizens’ constitutional rights. One such dilemma involves the government destroying the property of innocent homeowners to prevent further harm to a community.1 A prime example is when government officials demolish homes to stop the spread of fire.2 Although the law forgives the destruction of private property to protect the public good, courts have inadequately resolved how to compensate innocent property owners for their losses. In a case that was denied certiorari in November of 2024, an armed fugitive entered an innocent property owner’s home, holding a 15-year-old girl hostage.3 Police officers addressed the situation by employing “armored vehicles, explosives, and toxic-gas grenades.”4 The police ultimately apprehended the suspect, but inflicted around $50,000 in property damage.5 Both the City and the plaintiff’s insurance refused to cover the expenses or provide compensation.6 Even though the plaintiff bore no responsibility for the incident, courts declined to grant relief under the Takings Clause, leaving her empty handed.7 This case raises a fundamental question about the scope of constitutional protections when public necessity collides with private loss.

Circuits are split as to whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. The Tenth and Federal Circuits hold that no such compensation is owed when government agents destroy innocent homeowners’ property while exercising their police powers.8 On the other end of the spectrum, the Fourth Circuit rejects the logic that actions taken pursuant to police power are exempt from the Takings Clause.9 Rather, the Fourth Circuit employs an analysis that asks whether the destruction was the “intended or foreseeable” consequence of the government action.10 Recently, the Fifth Circuit chose a middle path, finding that compensation is not required if the destruction was “objectively necessary” to respond to an emergency.11 On appeal, the Supreme Court encountered the issue, but declined to take the case.12 Regarding the denial of certiorari, Justice Sotomayor, joined by Justice Gorsuch, emphasized the question’s importance, but decided the issue would be better addressed after further exploration in the lower courts.13

This Comment proceeds in four main parts. First, it provides a background of the history of takings in the context of emergency response. This Part offers an overview of the Takings Clause, details the privilege of necessity destruction, and identifies three key themes crucial to takings jurisprudence in this context. Second, it surveys the emerging circuit split and discusses the varying lines of analysis, concluding that the Fourth Circuit’s rationale is the most compelling. Thus, in the third Part, this Comment traces each line of reasoning to evaluate their viability. Lastly, it proposes a resolution to the circuit split by suggesting that courts should adopt a multi-factor test, using the Fourth Circuit’s analysis as a starting point. Consistent with the themes and practices of Takings jurisprudence, courts should weigh the foreseeability of the invasion, the severity of the interference, the nature of the land, and the owner’s investment-back expectations about the land’s use.

II.  Historical Background of the Takings Clause

A.  Overview of the Takings Clause

Under the Just Compensation Clause of the Fifth Amendment, commonly known as the Takings Clause, private property shall not “be taken for public use, without just compensation.”14 The Takings Clause was crafted to prevent “[g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”15 Courts have frequently noted that the Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.”16 The basic understanding of the Clause conveys “that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.”17 At its core, the Takings Clause ensures that individuals are not forced to bear the costs of actions taken for the public’s benefit. Although courts originally adopted a narrow interpretation of the Takings Clause according to the few early cases on the topic,18 current Supreme Court case law dramatically departs from such initial conceptions.

Under modern Supreme Court precedent, government action can constitute a taking either directly through eminent domain, or indirectly through a “regulatory taking.”19 First, under eminent domain, the government can take private landowners’ property and repurpose it to preferred uses. Such “paradigmatic taking” often includes “a direct government appropriation or physical invasion of private property.”20 One way to distinguish between eminent domain and the police or regulatory power is that the latter does not give the government a property right. Nevertheless, it affects private owners’ property interests.21      

The Supreme Court’s jurisprudence on regulatory takings has a more complex history than that of eminent domain.  The Supreme Court first tried to square regulatory takings in its landmark decision, Pennsylvania Coal Co. v. Mahon.22 There, Justice Holmes expounded the general rule that “property may be regulated to a certain extent, [but] if [the] regulation goes too far it will be recognized as a taking.”23 In the wake of Mahon, courts struggled to resolve when a “regulation goes too far.”24 Given such broad historical underpinnings, the Court recognizes both a permanent physical occupation25 and a deprivation of all economically viable use of property26 as takings. Besides those two categories, Penn Central Transportation Co. v. New York City27 sets forth the standard for regulatory takings.28 That is, Penn Central identifies a set of factors that weigh into the determination of whether a regulation constitutes a taking on a case-by-case basis.29 These factors include the regulation’s economic influence on the claimant, the degree of interference with the claimant’s distinct investment-backed expectations, as well as the character of the government action.30 However, the viability of Penn Central’s analysis is questionable, as courts rarely utilize these factors to conclude that a taking has occurred.31 The Supreme Court itself has never applied the Penn Central balancing test to find a taking of land.32 Ultimately, the three inquiries set forth by the Supreme Court’s precedent focus upon “the severity of the burden that government imposes upon private property rights,” and each intends to recognize regulatory actions that are the functional equivalent of a direct appropriation.33      

B.  The Privilege of Necessity Destruction as an Exception to a Taking

In critical times of disaster, the government may destroy bystanders’ property to protect the public interest.34 The privilege of “necessity destruction” provides a common law defense for such harm.35 Necessity destruction can broadly be understood to encompass “general public necessity, military necessity, and law enforcement necessity.”36 Such instances respectively involve natural disasters such as fires, floods, and epidemics, actions taken during times of war, and destruction as a result of law enforcement action, for example “burning down a home to capture a barricaded criminal.”37 Assuming the government will at times need to devastate the property of innocent people in cases of emergency response, this Comment aims to analyze who should bear the cost of destruction using the takings analysis. When the government must destroy innocent property in the interest of public necessity, that could be seen as public use amounting to a taking.38 For purposes of this Comment, innocent property is best understood as property where the owner does not bear fault for the emergency.     

The Supreme Court has recognized a necessity defense when property damage is inevitable.39 Historically, the privilege of necessity destruction began in the context of fires in English common law.40 The Supreme Court resolved the issue in 1879, in “[t]he last and most significant case to question necessity destruction takings.”41 In Bowditch v. Boston,42 the Court upheld the privilege, denying compensation when firemen destroyed Bowditch’s building to prevent a fire from spreading. The Court emphasized how “[a]t the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner [sic].”43 This indicates an early legal recognition that, in certain emergencies, protecting the public can override private property interests. Although Bowditch interpreted Massachusetts state law, many cases have applied its reasoning in the Fifth Amendment context.44 This line of cases factors into how the Fifth and Sixth Circuit consider takings in emergency contexts today.

In the context of military destruction, the historical theories stand in contrast to their modern applications. Scholars generally accept that military forces can cause the incidental loss of private property, and that such damage is reasonable because without the army’s protection, the private property would be lost entirely.45 According to natural law scholar Emer de Vattel, “[s]uch damages are to be made good to the individual, who should bear only his quota of the loss.”46 Vattel reasoned that in such instances, the innocent property owners should still be made whole with certain equitable remedies.47 However, in United States v. Caltex (Philippines), Inc.,48 the Supreme Court denied compensation for the destruction of oil companies’ terminal facilities during a military invasion.49 Similarly to Bowditch, the Court stressed the common law reasoning, which “had long recognized that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved.”50 As such, many losses in wartime “must be attributed solely to the fortunes of war, and not to the sovereign.”51 Importantly, the Court highlighted how rigid rules cannot distinguish compensable from non-compensable damages, and that each fact pattern must be assessed case-by-case.52

It is unclear if the inevitable-destruction logic should extend to this context, where the government destroys innocent property under emergency circumstances.53 Citing its decisions in Bowditch and Caltex, the Supreme Court recently considered the Fifth Circuit’s decision in Baker v. City of McKinney54 and implied the inevitable-destruction cases might allow for a necessity exception to the Takings Clause, but left the matter for lower courts to navigate.55  Furthermore, there is a circuit split over whether the Takings Clause requires compensating innocent property owners when the government destroys their property while responding to an emergency. The split considerably relies on the distinction between the eminent domain and the state’s police power when the government directly interferes with private property.56 Eminent domain acts as an avenue for the government to take private land and use it to the public’s advantage, whereas “[u]nder police power, rights of property are impaired not because they may become useful or necessary to the public . . . but because their free exercise is believed to be detrimental to public interests.”57  Police powers play an important role in the takings context, but courts struggle with determining the proper boundaries of this doctrine. Moreover, circuits take different approaches to addressing when the government owes compensation for property inadvertently destroyed by emergency responses.58

C.  Underlying Rationales of the Takings Clause: Three Emerging Themes

Many individuals have set out to provide clarity to the Takings Clause’s murky history. This section summarizes various scholarly and judicial approaches to frame such history and highlight useful patterns for analysis. According to Justice Harlan, the Takings Clause follows logically from traditional legal concepts, namely nuisance, appropriation of proprietary or property interests, and physical invasions establishing a prescriptive easement.59 Determining the constitutional grounds for regulatory takings proves even more complex, as such theories demand “a body of law for which constitutional text provides essentially no guidance, and history provides little more—except . . . to support the proposition that the Takings Clause in its original conception was unlikely to have applied to regulatory review.”60

Moreover, the Court’s takings jurisprudence reveals three key themes.61 First, the Court considers the fairness of the burdens borne by property owners.62 Second, the Court is concerned with the form of the burden.63 Lastly, the Court recognizes the realistic consequences of its decisions, narrowing its holdings to adhere to precedent and maintain functional government operations.64 This Comment will return to these themes to assess how courts can develop a just and functional resolution to the circuit split.

Within the first theme, the principle derived from the Supreme Court’s decision in Armstrong v. United States65 sets forth the fundamental justification of equal treatment and fairness, which “ensures protection for the politically powerless.”66 Armstrong remains commonly cited for the proposition that the government is barred from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”67 Joseph Sax, expanding on this reasoning in his landmark takings article, argued that “the real function of the compensation rule is to provide a bulwark against arbitrary, unfair, or tyrannical government.”68 Sax identified three main dangers the compensation provision serves to prevent: the risk of discrimination, the risk of excessive governmental zeal, and the scope of exposure to risk.69

Turning to the second theme, the manner of the damage matters. The Court has underscored that regulatory takings intend to account for when regulatory actions constitute the “functional equivalent” of traditional takings where the government actors oust homeowners from their private property or directly appropriate it.70 Furthermore, through precedent such as the Penn Central balancing test, the Supreme Court has emphasized the importance of the shape of the harm in evaluating the takings inquiry.71 When it comes to government destroying innocent property during emergency responses, the scope of destruction is often extreme. Thus, innocent property owners face a significant economic burden after such times of crisis.

Lastly, a third theme centers on the government’s ability to function effectively. In the early twentieth century, Justice Holmes proposed that the Takings Clause stems from a desire to address “the conflict between public need and private loss.”72 Courts have generally struggled to develop a workable standard that strikes this balance.

     It is important to mind these themes as this Comment evaluates how the Court can strike an equitable, consistent, and workable resolution to the circuit split. Such themes often contrast or compete, demonstrating the difficulty courts face when trying to navigate takings cases. There are also different justifications for explicit takings as compared to implicit or regulatory takings. That distinction is complicated enough to warrant abundant academic exploration.73 For example, Armstrong’s equality justification is among the most popular rationales, but some scholars believe this interest is better addressed by the Equal Protection Clause.74 Accordingly, this Comment applies these common themes to propose a resolution to the circuit split without engaging in the debate over the most compelling rationale.     

III.  Differing Applications of the Modern Takings Clause

A.  Status of Current Law

Several circuits have taken different approaches in addressing whether government damages to private property under its police power warrants compensation under the Takings Clause.75 To date, no circuit has granted compensation under the Takings Clause, creating multiple categories of exceptions from compensation. Some circuits have held that compensation is not owed when a state destroys innocent property as an exercise of its police powers.76 In rejecting compensation claims, lower courts have reasoned that “when the state acts to preserve the ‘safety of the public,’” it “cannot be[] burdened with the condition that the state must compensate [affected property owners].”77 Thus, a number of courts have established a fixed rule that “when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking.”78 A categorical exemption from compensation can be catastrophic for the property owners’ livelihoods, especially given that the damage “is almost never covered by standard homeowners’ insurance policies, which contain exclusions for destruction caused by order of governmental authority.”79

1.  The Seventh, Tenth, and Federal Circuits

In Lech v. Jackson,80 the Tenth Circuit expounded on the distinction between the police power and eminent domain. There, police officers responded to an alarm at the Lechs’ home triggered by a criminal suspect attempting to evade the police.81 The suspect fired a bullet towards the police, compelling the officers to resort to increasingly aggressive strategies to convince surrender.82 The police caused overwhelming damage to the property while capturing the assailant, ultimately making the home “uninhabitable” and leaving the Lechs to demolish their home.83 The Lechs sued for the destruction caused by the police, claiming that the defendants violated the Takings Clause by damaging their home without just compensation.84 The Tenth Circuit rejected their claim, holding that the actions did not constitute a taking, as the state had acted pursuant to its police power.85 The Court further ruled that “the distinction between the police power and the power of eminent domain [is] dispositive of the taking question, even when the interference at issue is physical, rather than regulatory, in nature.”86

The Federal Circuit adopted a similar approach to the Tenth Circuit, arriving at the same conclusion. In AmeriSource Corp. v. United States,87 a pharmaceutical company’s drugs were seized as evidence by a United States Attorney as part of criminal proceedings. The government retained the drugs throughout the trial, causing them to expire and lose all value.88 The pharmaceutical distributor sued for just compensation.89 However, the Federal Circuit found that the government had “seized the pharmaceuticals in order to enforce criminal laws, a government action clearly within the bounds of the police power.”90 The Federal Circuit thus denied AmeriSource’s Fifth Amendment claim, holding that “[p]roperty seized and retained pursuant to the police power is not taken for a ‘public use’ in the context of the Takings Clause.”91 This sweeping rationale means that the state does not have to compensate innocent property owners if the destruction occurs while using its police power. Such a decision is especially significant, seeing as the Federal Circuit has jurisdiction over the majority of takings claims against the federal government.92

Therefore, even with contextually distinct fact patterns, both the Tenth Circuit and the Federal Circuit clearly state that innocent property owners are not entitled to just compensation outside the realm of eminent domain. The Seventh Circuit followed suit, deciding that “the Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.”93 In Johnson, the police damaged the plaintiff’s rental property while executing a search warrant.94 The court expressed sympathy for the plaintiff, remarking how the result was “quite unfair.”95 Still, the Seventh Circuit viewed the property destruction as a use of police powers, exempt under the Fifth Amendment.96

2.  The Fourth Circuit

In sharp contrast, the Fourth Circuit splits from the rest by looking to whether the destruction was intentional or foreseeable. In Yawn v. Dorchester County,97 a government program responded to confirmed cases of the Zika virus by spraying pesticides in targeted areas. In order to treat wooded areas that could not be reached by spray trucks, the government employed an aerial spray method.98 Dorchester County advertised the spray plan, but news failed to reach Appellants, local beekeepers, beforehand.99 Although Appellants were typically on the list of individuals notified about upcoming sprays, they never received notice concerning this instance, so unlike past sprays, they did not take measures to protect their bees.100 After the aerial spray, Appellants found heaps of dead bees around their hives and sued the County for their loss under the Takings Clause.101

The Fourth Circuit rejected the government’s argument that the County did not owe the Appellants compensation.102 The court emphasized that “[g]overnment actions taken pursuant to the police power are not per se exempt from the Takings Clause.”103 Still, the court ultimately ruled against the beekeepers due to the specific facts at hand. The Fourth Circuit interpretation includes a foreseeability requirement, and since “the death of Appellants’ bees was neither intended nor foreseeable,” the court concluded that the Takings Clause did not require compensation.104

In arriving at its conclusion, the Fourth Circuit delineated between the power of eminent domain and the police power, stressing how the government’s actions were “plainly unintentional.”105 The court relied on Arkansas Game and Fish Commission v. United States,106 in which the Supreme Court pronounced how the takings inquiry depends upon “the degree to which the invasion is intended or is the foreseeable result of authorized government action.”107 As such, the court conducted a case-specific analysis to evaluate whether the death of Appellants’ bees was intentional or foreseeable.108 For example, the court seemed persuaded by the County’s mitigation measures to avoid harming bees, namely its press releases, phone calls, and specific maps intended for the pilot to stop spraying while flying over hives.109 The court was also unpersuaded by foreseeability arguments, seeing as it was unexpected that the press release would fail to notify Appellants, and as the bees had survived previous sprays.110

Although the Fourth Circuit chose not to order compensation for the beekeepers due to the specific facts of the case, the court’s logic significantly diverges from that of other circuits, carving a potential avenue for plaintiffs to establish a taking through its “intended or foreseeable” rationale.111

3.  The Sixth Circuit

The Sixth Circuit, the most recent court to rule on the issue, entirely avoided adopting an exception to the Takings Clause. In Slaybaugh v. Rutherford County,112 police damaged the plaintiffs’ property while arresting their son for homicide.113 Facing a nearly identical fact pattern to that of the Fifth Circuit, the Sixth Circuit rejected the Takings claim without applying potential exceptions.114 Specifically, the Sixth Circuit explicitly parted from the categorical “police power” exception.115 Citing Baker, the court expressed doubt as to whether such “approach comports with the text and history of the Takings Clause or with precedent interpreting it.”116 In addition, the court worried that “a categorical exception would run afoul of Supreme Court precedent recognizing that the government’s exercise of its police powers can, in some circumstances, amount to a taking.”117 The Sixth Circuit recognized the potential “necessity” defense developed in the inevitable-destruction cases,118 but rejected the plaintiffs’ claim “not because of that defense, but because they have failed to identify any history or precedent establishing that the police have ‘taken’ their ‘property’ within the meaning of the Fifth Amendment when the police damaged the property while conducting a lawful arrest.”119 Furthermore, the merits of such “necessity” defense deserve further examination.

B.  The Fifth Circuit and the “Objectively Necessary” Exception

In Baker, the Fifth Circuit took a novel approach, departing from other circuits by narrowing its line of reasoning to an “objectively necessary” exception.120 On July 25, 2020, Wesley Little, an armed fugitive, kidnapped a 15-year-old girl.121 Little dodged police in a car chase, and drove to petitioner Vicki Baker’s house, where he had previously worked as a handyman.122 Baker’s daughter answered the door, recognizing Little and the child from a Facebook post she had seen that morning which alerted that he was on the run with the girl.123 Frightened, Baker’s daughter allowed Little into the house and left to contact the police.124 Soon after, McKinney police arrived and surrounded the Baker home.125 Little eventually released the girl, who then informed police that he was hiding in the attic, that he was armed, and that he was high on methamphetamine.126 Little communicated to the police that he “had terminal cancer, wasn’t going back to prison, knew he was going to die, [and] was going to shoot it out with the police.”127 The police used a range of explosive devices to try to draw Little out of the Baker home, causing extensive damage to the property.128 Eventually, a drone spotted that Little had taken his own life.129

All parties agreed that the McKinney police acted appropriately that day to deescalate the situation and prevent harm to the public. However, their actions left irreparable and extensive harm, amounting to total damages of approximately $50,000.130 For example, the explosions left Baker’s dog permanently deaf and blind, destroyed practically all of her personal property , and released toxic gas that required a HAZMAT team.131 Baker’s insurance refused to cover the expenses.132 The city denied her claim for property damages in its entirety.133 Thus, Baker sued the city of McKinney for violating the Takings Clause, and the district court found the City liable.134 The City appealed, and the Fifth Circuit overturned the lower court’s decision.135

Notably, the Fifth Circuit explicitly declined to adopt the categorical rule adopted by the Seventh, Tenth, and Federal Circuits. Rather, the court held that “the Takings Clause does not require compensation . . . [because] it was objectively necessary for officers to damage or destroy [plaintiff’s] property in an active emergency to prevent imminent harm to persons.”136 Mentioning “history, tradition, and historical precedent,”137 the court thus carved a necessity exception, meaning that the government must show objective necessity to refuse compensation.138 Since “the parties agreed that the McKinney police’s actions were objectively necessary . . . Baker was not entitled to compensation.”139 The Fifth Circuit thus does not extend as broad of an exception as the Tenth Circuit’s police power exception, but shares the principle that the government can take property without compensation in times of need. Consequently, Baker leaves what constitutes necessity uncertain.

Baker petitioned for certiorari, asking the Supreme Court to reverse the Fifth Circuit.140 On November 25, 2024, the Court denied the petition, offering a statement by Justice Sotomayor, with whom Justice Gorsuch joined.141 Despite the rejection, these Justices signaled their willingness to revisit the issue in the future, upon further analysis in the lower courts.142 In fact, the Justices suggested that the Fifth Circuit’s necessity exception is in line with the historical applications of the Takings Clause: relying on two similar cases,143 the Court stressed that “precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable.”144 Still, such cases do not inform Baker’s case, since “the destruction of her property was necessary, but not inevitable.”145 The Court explicitly left open the question of whether the inevitable-destruction line of cases should extend to this context.146

In sum, the Fourth Circuit marks the side of the circuit split which finds that the Fifth Amendment requires compensation depending on a case-specific analysis. On the other hand, the Tenth and the Federal Circuits rule that compensation is not owed when government officials destroy innocent property in the process of exercising their police powers. Besides that of the Sixth Circuit, those decisions all “predate the Fifth Circuit’s determination that there is an ‘objectively necessary’ exception to the Takings Clause.”147 The Fifth Circuit employs a middling approach, finding that compensation is not owed when the destruction is objectively necessary over the course of response to an emergency. By leaving the issue to lower courts, the Supreme Court acknowledged that this question requires deeper examination and analysis.148

IV.  Courts Should Adopt a Multi-Factor Analysis by Reshaping the Fourth Circuit’s Approach

Circuit courts faced with this issue have qualified the same types of emergencies under different exceptions. Moreover, these cases seemingly pick up on different strands of Supreme Court Takings Clause case law, causing courts to classify comparable emergencies in unique ways. Given the scale of destruction and the financial consequences involved in these cases, resolving the circuit split is extremely pressing. This section evaluates the circuit courts’ analyses to determine which reasoning best aligns with Supreme Court precedent and the purpose of the Takings Clause, and ultimately offers three arguments. First, the “police powers” exception is inconsistent with historical interpretations and the underlying goals of takings jurisprudence. Next, the Fifth Circuit’s “objective necessity” exception is more suitable, but ultimately remains insufficient. Finally, courts should adopt a modified version of the Fourth Circuit’s strategy and conduct a multi-factor analysis.

A.  The “Police Powers” Exception Is Incompatible with Takings Jurisprudence

The Federal Circuit, Seventh Circuit, and Tenth Circuit adopt a categorical exclusion from Takings Clause compensation when the property is destroyed during the exercise of the state’s police power.149 These holdings seemingly violate the familiar Armstrong principle that the Takings Clause was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”150

Moreover, the “police powers” exception provokes criticism and is inconsistent with the purpose of the Takings Clause. In AmeriSource,151 the Federal Circuit first pointed to the “police powers” exception. The court recognized that based on “a literal reading of the text” of the Takings Clause, plaintiff’s “argument might have considerable force.”152 Citing Bennis v. Michigan,153 the Federal Circuit claimed that the case “suggests that so long as the government’s exercise of authority was pursuant to some power other than eminent domain, then the plaintiff has failed to state a claim for compensation under the Fifth Amendment.”154 However, this reasoning misinterprets Bennis, which merely explained that “[t]he government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”155 Bennisfocused on formal proceedings transferring property, not a broader exception drawn from police powers.156 Courts have highlighted how the distinction between eminent domain and police powers does not solve the takings inquiry.157 Rooting the answer in Bennis and a police powers exception misinterprets precedent.

Other circuits later embraced the Federal Circuit’s reasoning, despite its questionable basis. In Johnson, for example, the Seventh Circuit dismissed the Takings Clause claim in a brief paragraph, relying on just AmeriSource and Bennis.158 The Tenth Circuit followed suit in holding that “when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause.”159 Similarly to the Seventh Circuit, the Tenth Circuit heavily relied on AmeriSource.160  Accordingly, the “police powers” exception to this issue has gained traction, but it rests on a flawed and exaggerated rationale.

Beyond its problematic foundation, the police powers exception violates the case-by-case nature of the takings analysis. When evaluating takings claims, early theorists like Holmes supported “a pragmatic, case-by-case resolution of the policy-conflict which he perceived to lie at the heart of the problem—the conflict between public need and private loss.”161 Courts have long supported this application, reasoning that “[n]o rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case must be judged on its own facts.”162 Therefore, such a broad categorical exception to takings claims violates historical interpretations of the Takings Clause. The police powers exception contradicts the fairness rationale and fails to consider the form of the damage. While the police powers exception provides a practical workaround in a complex area of law, the other strategies can also create a functional system, making this an overly simplistic and flawed approach. As a counterargument in support of a police powers exception, concerns could arise that government officials might hesitate to act in times of need due to fears of creating liability. However, such worries are merely skeptical and are outweighed given the nature of government immunity and the demand for just compensation of innocent property.

B.  The “Objectively Necessary” Exception Is an Improvement but Faces Shortcomings

In its denial of certiorari in Baker, the Supreme Court may have subtly suggested that the “objectively necessary” exception could be a viable resolution to this issue.163 In outlining the current status of the law, Justice Sotomayor explicitly pointed out that besides the Sixth Circuit, those decisions “predate the Fifth Circuit’s determination that there is an ‘objectively necessary’ exception to the Takings Clause.”164 Even more clearly, she stressed that “[t]his Court’s precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable.”165 Therefore, the Supreme Court might be inclined to adopt the Fifth Circuit’s exception upon further traction in the lower courts.

However, the “objectively necessary” exception also faces scrutiny. Although the approach is less broad than the police powers exception, it is plagued by similar shortcomings. Namely, the necessity exception adopts a rule-like approach, contravening the Holmesian principles outlined above. The necessity of government action does not justify a blanket denial of compensation. Hence, the Fifth Circuit’s “novel exception, however, shares the same flawed logic as the Tenth Circuit’s police power exception: that when the government has a good reason for taking your property, it shouldn’t have to pay.”166 The approach thus fails to recognize the Armstrong principle of fairness, as private property owners will never see compensation when the government action was objectively necessary.

Furthermore, petitioners in Baker advanced this compelling criticism of the Fifth Circuit’s holding.167 That is, applying “the Fifth Circuit’s approach, the police could destroy the homes of two next-door neighbors, but if it were only ‘objectively necessary’ to destroy one of the homes, then one homeowner would be compensated, while the other would not.”168 However, “[i]t would make little sense to say that the second owner has suffered a taking while the first has not.”169 This unpredictable approach to high-stakes issues is at odds with the rationale for takings. Additionally, petitioners provide a compelling contention that the Fifth Circuit’s approach “makes the Takings Clause coterminous with the Due Process Clause.”170 Whereas “[t]he Due Process Clause protects against arbitrary and oppressive government . . . [t]he Takings Clause ensures that entirely valid governmental action does not place disproportionate burdens on particular individuals.”171 Throughout these cases, parties have agreed that government officials acted responsibly and dutifully despite times of crisis. Creating an exception for actions deemed necessary would thus fail to provide compensation in any of the above situations, leaving all property owners emptyhanded. Such a stark result is unnecessary and inconsistent with the scope of the Takings Clause.

Moreover, the Takings Clause is a constitutional doctrine that overrides certain common law nuances.172 Common law exceptions, such as the necessity defense, “do not trump the rights guaranteed under the text of the Constitution.”173 Turning to the text of the Takings Clause, the language is not restricted to government actors. Rather, the Clause merely establishes that no “private property be taken for public use.”174 The text “only requires that the taking be for public use, regardless of who takes the property, and the common law doctrine of public necessity provides a private actor with the ability to ‘take’ property for the public use.”175 The “objectively necessary” exception neglects this critical framework.

Therefore, although the Fifth Circuit’s interpretation is viable, the Fourth Circuit’s better fulfills the purpose of the doctrine. Justice Sotomayor recognized that there might be “a necessity exception to the Takings Clause when the destruction of property is inevitable.”176 However, she also noted that this precedent did not directly apply here, as the property destruction was necessary, but it was not inevitable.177 The Fourth Circuit’s rationale effectively incorporates the inevitability factor. Thus, the “objectively necessary” exception faces similar faults to the “police powers” exception, and instead, the “intended or foreseeable” rationale provides the most suitable line of reasoning.

C.  The Fourth Circuit’s “Intended or Foreseeable” Rationale Is the Most Compelling Resolution to the Circuit Split of the Existing Decisions

The Fourth Circuit’s strategy is most consistent with the text, history, and themes of the Takings Clause. Tracing the history of the Fourth Circuit’s logic reveals the importance of its “intended or foreseeable” rationale. The Supreme Court has long recognized that “[i]f the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution.”178 The court thus found it relevant to consider “the degree to which the invasion is intended or is the foreseeable result of authorized government action.”179 The Fourth Circuit confirmed that “[i]f the invasion is not intended or foreseeable, then it does not constitute a taking.”180 The “intentional or foreseeable” standard is thus complementary to the “inevitable” approach long rooted in Supreme Court jurisprudence.181

In shaping its “intended or foreseeable” rationale, the Fourth Circuit relied on Moden v. United States,182 which implicated inverse condemnation claims. Courts evaluate inverse condemnation claims “[w]hen the police power destroys or damages property for a valid public purpose.”183 In scenarios when condemnation proceedings have not been instituted, inverse condemnation can apply to help landowners gain compensation from taken property.184

In Moden, the Federal Circuit addressed a similar fact pattern, where landowners near an Air Force base alleged that the government’s environmental contamination of their property implicated the Takings Clause.185 The Moden court conducted the familiar two-part analysis for inverse condemnation claims.186 First, plaintiffs must demonstrate that “treatment under takings law, as opposed to tort law, is appropriate.”187 To do so, “it must show either that the government intended to invade a protected property interest or that the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the activity.”188 If the court finds it appropriate to treat the claim under takings law, the plaintiff must demonstrate that it had a protectable property interest in what the government has allegedly taken.189

The Yawn court thus favorably cited the notion that plaintiffs must demonstrate that the government intended to invade the property interest, or that such invasion was not incidental in order to amount to a taking.190 Although tort claims are distinct from takings claims, “there may still be crossover issues, particularly in cases where tort defenses, such as the doctrine of necessity, preclude compensation for a takings claim.”191 Therefore, Yawn’s application of inverse condemnation doctrine adheres to Harlan’s interpretation of the property right roots of takings.192

1.  Critical gaps in the Fourth Circuit’s approach

The Fourth Circuit’s analysis appears more promising for property owners than the other exceptions, but its application remains uncertain. Circuit courts have not applied the Fourth Circuit’s exception to compensate property owners, and it remains unclear how they would do so. However, using other fact patterns, the “intended or foreseeable” rationale might prove fruitful.193 For example, the Federal Circuit outcome would likely differ, given the foreseeability of the expiration of the pharmaceutical company’s drugs.194 Lech and Baker would also likely not hold muster under the “intended or foreseeable” rationale, though the case-specific intricacies invite potential uncertainty. In fact, the Baker petitioners asked the Supreme Court to follow the Fourth Circuit’s reasoning. Citing the Court’s decision in Arkansas Game & Fish, Baker petitioners argued that the Fourth Circuit’s case-specific analysis follows the Court’s takings precedents.195 This argument implies that plaintiffs generally might have a stronger case following the Fourth Circuit’s strategy.

The “intended or foreseeable” inquiry will still leave plaintiffs facing an uphill battle. The Yawn court explicitly denies takings recognition if the invasion is not intended or foreseeable,196  but the destruction ensuing from government action in times of disaster could often easily be categorized as inadvertent or unlikely. Such reasoning therefore excludes a vast category of plaintiffs still in need of compensation. Multiple courts, “including the United States Supreme Court, have dismissed takings claims based solely on a plaintiffs’ failure to show intent or foreseeability, regardless of other factors.”197 Still, this criterion is more generous than the “police powers” or the “necessity” exceptions, which makes it inherently more consistent with the Takings Clause’s text and purpose of providing just compensation for innocent property destruction.

Furthermore, there are additional reasons to scrutinize the Fourth Circuit’s logic. Tracing the logic of Yawn, the “intended or foreseeable” rationale seems somewhat extrapolated.198 Yawn’s analysis is concentrated on this exception, which it largely derives from Arkansas Game & Fish.199 However, the Arkansas Game & Fish Court sets forth a multi-factor test, of which “the degree to which the invasion is intended or is the foreseeable” is but one factor.200 Courts should also consider the duration of an invasion,201 the severity of the interference, and “the character of the land at issue and the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use.”202 These factors closely parallel the themes of takings, from justice concerns to the form of the burden. As such, there is a compelling argument that Yawn’s failure to weigh these other factors thwarted the final outcome. The Fourth Circuit also stretches Moden’s two-part inverse condemnation analysis to support its use of the intentionality standard.

2.  A proper resolution supplements the Fourth Circuit’s approach with a multi-factor test

Therefore, this discrepancy could potentially be resolved by advancing the Arkansas Game & Fish court’s multi-factor test in its entirety,203 and measuring the viability of this standard for addressing the broader issue of compensation. Even so, it is not obvious that a multi-factor inquiry would provide better guidance to courts or support plaintiffs’ chances, seeing the infrequency of takings findings when courts have applied the Penn Central balancing test.204 Nevertheless, the Fourth Circuit provides the only approach that conforms with the intended pragmatic, case-specific analysis. The Arkansas Game & Fish factors also echo the themes of takings and emphasize the important balancing between private loss and public protection.

In sum, the most compelling argument suggests resolving the circuit split by adopting Yawn’s reasoning, as well as a balancing test drawn from Arkansas Game & Fish. This strategy provides an opportunity to compensate innocent property owners whose property has been destroyed by the government in response to an emergency, without forcing a categorical rule which would cause frivolous or unwarranted claims for relief. The Fourth Circuit’s resolution adheres to precedent and better reflects the purpose of the Takings Clause than the “police powers” or “objectively necessary” exceptions. That is, it is widely established that the Takings Clause works to prevent individuals from bearing public burdens that should be shared by society at large.205 Yawn also expressly rejected the categorical exception from Lech that “when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking.”206 Categorical exceptions improperly draw lines where precedent requires a particularized analysis. Rather, these cases, “like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.”207

V.  Conclusion

Given the Takings Clause’s complicated and often inconsistent history, the current circuit split exposes a fundamental gap in constitutional doctrine, demanding clarity. Courts should adopt a version of the Fourth Circuit’s approach to the question of whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency.208 The Fourth Circuit provides the only line of reasoning that honors the Supreme Court’s Armstrong principle, while still establishing boundaries for compensation that balance the public interest. The “police powers” exception and the “objectively necessary” exception both force categorical rules in an area demanding pragmatic analyses. These exceptions also undermine the history and purpose of the Takings Clause. Innocent property owners harmed by government destruction of their property seem most likely to earn compensation through the court’s “intended or foreseeable” rationale.209 In light of the Supreme Court’s denial of certiorari to Baker, lower courts attempting to resolve this issue should adhere to the multi-factor inquiry outlined in Arkansas Game and Fish.

• 1See United States v. Russell, 80 U.S. (13 Wall.) 623, 629 (1871) (“Private rights, under such extreme and imperious circumstances, must give way for the time to the public good, but the government must make full restitution for the sacrifice.”).
• 2See John Locke, Two Treatises of Government and a Letter Concerning Toleration 172 (Ian Shapiro ed., Yale Univ. Press 2003) (1689).
• 3See Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023).
• 4Id. at 379.
• 5Id.
• 6See id. at 381.
• 7Id.
• 8See Lech v. Jackson, 791 F. App’x 711, 717 (10th Cir. 2019).
• 9See Yawn v. Dorchester County, 1 F.4th 191, 195 (4th Cir. 2021).
• 10See id.
• 11See Baker, 84 F.4th at 379.
• 12Baker v. City of McKinney, 145 S. Ct. 11 (2024), denying cert. to 84 F.4th 378 (5th Cir. 2023).
• 13Id. (Sotomayor, J., statement respecting the denial of certiorari).
• 14U.S. Const. amend. V, cl. 5.
• 15Armstrong v. United States, 364 U.S. 40, 49 (1960).
• 16First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314 (1987).
• 17Id. (emphasis in original).
• 18See William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 785 (1995).
• 19Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
• 20Id.
• 21Shelley Ross Saxer, Necessity Exceptions to Takings, 44 U. Haw. L. Rev. 60, 106 (2022) (citing William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 569–70 (1972)).
• 22260 U.S. 393 (1922).
• 23Id.
• 24Id.
• 25See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
• 26See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).
• 27438 U.S. 104 (1978).
• 28Id.
• 29Id. at 124.
• 30Id.
• 31David F. Coursen, The Takings Jurisprudence of the Court of Federal Claims and the Federal Circuit, 29 Env’t. L. 821, 823 n.12 (1999).
• 32Id.
• 33Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 528–29 (2005).
• 34SeeRestatement (Second) of Torts § 196 (Am. L. Inst. 1965) (“One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.”).
• 35See Derek T. Muller, Note, “As Much Upon Tradition as Upon Principle”: A Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre Dame L. Rev. 481, 485 (2006).
• 36Id. at 484.
• 37Id. at 485.
• 38See Muller, supra note 35, at 500; see also Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 38 (1985).
• 39For foundational cases supporting the principle of necessity destruction, see, for example, The Case of the King’s Prerogative in Saltpetre (1606) 77 Eng. Rep. 1294; Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357 (Pa. 1788); Mayor of New York v. Lord, 17 Wend. 285 (N.Y. Sup. Ct. 1837); and Parham v. Justices, 9 Ga. 341, 348–49 (1850).
• 40Muller, supra note 35, at 488.
• 41Id. at 495.
• 42101 U.S. 16 (1879).
• 43Id. at 18.
• 44Muller, supra note 35, at 495 (“The case is largely unremarkable in its defense of necessity, except that it was the first time the United States Supreme Court had clearly enunciated the doctrine.”).
• 45Muller, supra note 35, at 496.
• 46Monsieur de Vattel, The Law of Nations 402 (Joseph Chitty ed., 1854).
• 47See Muller, supra note 35, at 496.
• 48344 U.S. 149 (1952).
• 49Id.
• 50Id. at 154.
• 51Id. at 155–56.
• 52Id. at 156.
• 53See Baker v. City of McKinney, 145 S. Ct. 11, 13 (2024).
• 5484 F.4th 378 (5th Cir. 2023).
• 55Baker, 145 S. Ct. at 12–13 (Sotomayor, J., statement respecting the denial of certiorari).
• 56See Lech v. Jackson 791 F. App’x 711, 715 (10th Cir. 2019).
• 57Saxer, supra note 21, at 105 (citing Treanor, supra note 18, at 794).
• 58See infra Part III.
• 59Joseph Sax, Takings and the Police Power, 74 Yale L.J.36, 37 (1964).
• 60Nestor M. Davidson, The Problem of Equality in Takings, 102 Nw. U. L. Rev. 1, 6 (2008).
• 61Rebecca Hansen, Comment, Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure, 88 U. Chi. L. Rev. 1875, 1912 (2021) (identifying key themes in takings jurisprudence).
• 62SeeArmstrong v. United States, 364 U.S. 40, 49 (1960).
• 63Hansen, supra note 61, at 1912.
• 64Id.
• 65364 U.S. 40, 49 (1960).
• 66Andrew S. Flynn, Climate Change, Takings, and Armstrong, 46 Ecology L.Q. 671, 677 (2019).
• 67Armstrong, 364 U.S. at 49.
• 68Sax, supra note 59, at 64–65.
• 69Id.; see, e.g., 1 St. George Tucker, Blackstone’s Commentaries app. D, at 305–06 (1803) (“That [provision] which declares that private property shall not be taken for public use without just compensation, was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practiced during the revolutionary war, without any compensation whatever.”).
• 70Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
• 71See supra Section II.A.
• 72Sax, supra note 59, at 37 (This “approach originated with Justice Holmes in the first quarter of this century, when the expansion of governmental regulation yielded a proliferation of claims for compensation by aggrieved owners of private property.”).
• 73See, e.g., Epstein, supra note 38, at 37–38; Jed Rubenfeld, Usings, 102 Yale L.J. 1077 (1993); Treanor, supra note 18, at 783.
• 74Davidson, supra note 60, at 5.
• 75See Baker v. City of McKinney, 145 S. Ct. 11, 11 (2024) (Sotomayor, J., statement respecting the denial of certiorari).
• 76See e.g., Lech v. Jackson 791 F. App’x 711, 717 (10th Cir. 2019); AmeriSource Corp v. United States, 525 F.3d 1149 (Fed. Cir. 2008).
• 77Lech, 791 F. App’x at 717 (alterations added and in original) (quoting Mugler v. Kansas, 123 U.S. 623 (1887)).
• 78Id.
• 79Id.; Petition for Writ of Certiorari at 23, Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (No. 22-40644) (also noting that “[f]or many, the home is their most valuable asset, and there is simply nothing they can do to protect themselves from the devastating financial consequences of a SWAT raid”).
• 80791 F. App’x 711, 717 (10th Cir. 2019).
• 81See id. at 713.
• 82See id.
• 83Id.
• 84See id.
• 85Id. at 717.
• 86Lech, 791 F. App’x at 717.
• 87525 F.3d 1149 (Fed. Cir. 2008).
• 88Id. at 1151.
• 89Id.
• 90Id. at 1153–54.
• 91Id. at 1153.
• 92See 28 U.S.C. § 1491 (2018).
• 93Johnson v. Manitowoc County, 635 F.3d 331, 336 (7th Cir. 2011).
• 94See id. at 333.
• 95Id. at 336.
• 96Id. at 336.
• 971 F.4th 191 (4th Cir. 2021).
• 98Id. at 193.
• 99Id.
• 100Id.
• 101Id.
• 102See id. at 195.
• 103Yawn, 1 F.4th at 195.
• 104Id. at 196.
• 105Id. at 195.
• 106568 U.S. 23, 39 (2012).
• 107Id.
• 108See Yawn, 1 F.4th at 195.
• 109See id.
• 110See also Chicago, B. & Q. Ry. Co. v. Drainage Comm’rs, 200 U.S. 561, 593–94 (1906).
• 111Id. at 195.
• 112114 F.4th 593, 595 (6th Cir. 2024).
• 113Id.
• 114Compare id. at 597, 603 (stating that the court declines to apply the “police power” exception and that it “need not resolve [the] ‘necessity’ defense”), with Baker v. City of McKinney, 84 F.4th 378, 388 (5th Cir. 2023) (“In sum, history, tradition, and historical precedent reaching back to the Founding supports the existence of a necessity exception to the Takings Clause.”). For a complete description of the Baker facts, see infraSection II.C.
• 115Slaybaugh, 114 F.4th at 597.
• 116Id. (citing Baker, 84 F.4th at 384).
• 117Id. (citing Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922); Cedar Point Nursery v. Hassid, 594 U.S. 139, 149 (2021)).
• 118See supra Section II.B.
• 119Slaybaugh, 114 F.4th at 603.
• 120See Baker, 84 F.4th at 379.
• 121Id. at 379–80.
• 122See id. at 380.
• 123See id.
• 124See id.
• 125See id.
• 126Baker, 84 F.4th at 380.
• 127Id.
• 128Id.
• 129Id.
• 130See id. at 381.
• 131See id.
• 132Baker, 84 F.4th at 381.
• 133Id.
• 134Baker v. City of McKinney, 601 F. Supp. 3d 124 (E.D. Tex., 2022).
• 135Baker, 84 F.4th at 379.
• 136Id.
• 137Id. at 388.
• 138See id. at 385 (The court admitted, however, “that historically oriented legal scholarship has widely converged on the thesis that a ‘necessity’ or ‘emergency’ privilege has existed in Takings Clause jurisprudence since the Founding.”).
• 139Baker v. City of McKinney, 145 S. Ct. 11, 12 (2024) (Sotomayor, J., statement respecting the denial of certiorari).
• 140Petition for Writ of Certiorari, Baker, 84 F.4th 378 (No. 22-40644).
• 141Baker, 145 S. Ct. at 11 (Sotomayor, J., statement respecting the denial of certiorari).
• 142See id. at 13 (“Whether any such exception exists . . . is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.”).
• 143Id. at 12–13 (citing Bowditch v. Boston, 101 U.S. 16 (1879) and United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952)).
• 144Id. at 12.
• 145Id. at 13.
• 146Id.
• 147Baker, 145 S. Ct. at 13 (Sotomayor, J., statement respecting the denial of certiorari).
• 148Id.
• 149See Lech v. Jackson 791 F. App’x 711, 717 (10th Cir. 2019); AmeriSource Corp v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008).
• 150Armstrong v. United States, 364 U.S. 40, 49 (1960).
• 151Amerisource, 525 F.3d at 1153.
• 152Id.
• 153516 U.S. 442 (1996).
• 154AmeriSource, 525 F.3d at 1154.
• 155Bennis, 516 U.S. at 452; see also Petition for Writ of Certiorari at 23, Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (No. 22-40644) (“In other words, Bennis was talking about lawful, formal proceedings that transfer title, not a general police power exemption to [the] Takings Clause.”).
• 156Id.; see alsoJohn Corp. v. City of Houston, 214 F.3d 573, 578–79 (5th Cir. 2000) (“[S]imply because the City did not formally use its powers of eminent domain to destroy Appellants’ property does not mean that its actions could not amount to a taking requiring just compensation.”).
• 157See John Corp., 214 F.3d at 578 (“The Supreme Court’s entire ‘regulatory takings’ law is premised on the notion that a city’s exercise of its police powers can go too far, and if it does, there has been a taking.”).
• 158See Johnson v. Manitowoc County, 635 F.3d 331, 336 (7th Cir. 2011) (citing AmeriSource, 525 F.3d at 1154).
• 159Lech v. Jackson 791 F. App’x 711, 717 (10th Cir. 2019).
• 160Id. at 719 (citing AmeriSource, 525 F.3d at 1154–55) (“[W]e join the Federal Circuit in rejecting this argument as a matter of law.”).
• 161Sax, supra note 59, at 37.
• 162United States v. Caltex (Philippines), Inc., 344 U.S. 149, 156 (1952).
• 163See Baker v. City of McKinney, 145 S. Ct. 11, 12–13 (2024) (Sotomayor, J., statement respecting the denial of certiorari).
• 164Id. at 13.
• 165Id. at 12.
• 166Petition for Writ of Certiorari at 14, Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (No. 22-40644) (further analyzing how the Fifth Circuit’s holding is contrary to history and tradition).
• 167See id. at 15–18.
• 168Id. at 18.
• 169Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005).
• 170Petition for Writ of Certiorari at 22, Baker, 84 F.4th 378 (No. 22-40644).
• 171Id. at 23.
• 172SeeMuller, supra note 35.
• 173Id. at 500.
• 174U.S. Const. amend. V, cl. 4.
• 175See Muller, supra note 35, at 501.
• 176Baker v. City of McKinney, 145 S. Ct. 11, 12 (2024) (Sotomayor, J., statement respecting the denial of certiorari).
• 177Id. at 13.
• 178See Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 593–94 (1906).
• 179Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012) (citing John Horstmann Co. v. United States, 257 U.S. 138, 146 (1921) (finding no takings liability where the government’s damage was not foreseeable)).
• 180Yawn v. Dorchester County, 1 F.4th 191, 195 (4th Cir. 2021).
• 181See Bowditch v. Boston, 101 U.S. 16 (1879); seealso United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952).
• 182404 F.3d 1335 (Fed. Cir. 2005).
• 183Saxer, supra note 21, at 99.
• 184United States v. Clarke, 445 U.S. 253, 257 (1980) (quoting 6 P. Nichols, Eminent Domain§ 25.41 (3d rev. ed. 1972)).
• 185See Moden, 404 F.3d at 1335.
• 186Id. at 1342­­–46 (citing Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003)).
• 187Ridge Line, 346 F.3d at 1355.
• 188Moden, 404 F.3d at 1342.
• 189See id.
• 190See Yawn v. Dorchester County, 1 F.4th 191, 195 (4th Cir. 2021) (citing Moden, 404 F.3d at 1342).
• 191Shelley Ross Saxer, Paying for Disasters, 68 U. Kan. L. Rev. 413, 451 (2020).
• 192See Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain § 34.03[1] (3d ed. 1980 & Supp. 2002) (“Inverse condemnation law is tied to, and parallels, tort law.”); see also Hansen v. United States, 65 Fed. Cl. 76, 80 (2005) (“[T]he historical origin and application of the basic principles of takings jurisprudence reveal that there is no clear cut distinction between torts and takings. The best that can be said is that not all torts are takings, but that all takings by physical invasion have their origin in tort law and are types of governmental nuisances or, at times, trespasses.”).
• 193Yawn, 1 F.4th at 195.
• 194See AmeriSource Corp v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008) (finding damage predictable since the drugs were seized and retained as evidence despite knowledge of an impending expiration date).
• 195Petition for Writ of Certiorari at 13, Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (No. 22-40644) (“This is precisely the kind of case-specific analysis that this Court requires.”) (citing Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 32 (2012)).
• 196Yawn, 1 F.4th at 195.
• 197Kaltenberg v. County of Dane, 683 F. Supp. 3d 875, 883 (W.D. Wis. 2023) (citing John Horstmann Co. v. United States, 257 U.S. 138, 147 (1921) (finding the government destroyed the value of plaintiffs’ property when diverting water from a watershed caused flooding, but that this destruction was not a taking due to a lack of foreseeability); and Sanguinetti v. United States, 264 U.S. 146, 149–50 (1924) (finding flooding from overflowed government canal did not constitute a taking because government did not have reason to expect such destruction would ensue from the construction of the canal)).
• 198Yawn, 1 F.4th at 195.
• 199See id. (citing Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012)).
• 200Ark. Game & Fish, 568 U.S. at 39.
• 201Id. at 38 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982)).
• 202Ark. Game & Fish, 568 U.S. at 39 (citing Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)).
• 203See id. at 522.
• 204David Crump, Takings by Regulation: How Should Courts Weigh the Balancing Factors?, 52 Santa Clara L. Rev. 1, 2 (2012) (“The Court has done little to clarify its ad hoc, multifactor approach since Penn Central.”).
• 205Armstrong v. United States, 364 U.S. 40, 49 (1960).
• 206Lech v. Jackson, 791 F. App’x 711, 717 (10th Cir. 2019).
• 207Ark. Game & Fish, 568 U.S. at 37.
• 208See Yawn v. Dorchester County, 1 F.4th 191, 195 (4th Cir. 2021).
• 209Id.