1050
Blackmun, J., dissenting
The Court recognizes that "our prior opinions have suggested that 'harmful or noxious uses' of property may be proscribed by government regulation without the requirement of compensation," ante, at 1022, but seeks to reconcile them with its categorical rule by claiming that the Court never has upheld a regulation when the owner alleged the loss of all economic value. Even if the Court's factual premise were correct, its understanding of the Court's cases is distorted. In none of the cases did the Court suggest that the right of a State to prohibit certain activities without paying compensation turned on the availability of some residual valuable use.12 Instead, the cases depended on whether the
if total value has been taken. The Court has indicated that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial takings challenge. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 295-297 (1981). But the conclusion that a regulation is not on its face a taking because it allows the landowner some economic use of property is a far cry from the proposition that denial of such use is sufficient to establish a takings claim regardless of any other consideration. The Court never has accepted the latter proposition.
The Court relies today on dicta in Agins, Hodel, Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 (1987), for its new categorical rule. Ante, at 1015-1016. I prefer to rely on the directly contrary holdings in cases such as Mugler v. Kansas, 123 U. S. 623 (1887), and Hadacheck v. Sebastian, 239 U. S. 394 (1915), not to mention contrary statements in the very cases on which the Court relies. See Agins, 447 U. S., at 260-262; Keystone Bituminous Coal, 480 U. S., at 489, n. 18, 491-492.
12 Miller v. Schoene, 276 U. S. 272 (1928), is an example. In the course of demonstrating that apple trees are more valuable than red cedar trees, the Court noted that red cedar has "occasional use and value as lumber." Id., at 279. But the Court did not discuss whether the timber owned by the petitioner in that case was commercially salable, and nothing in the opinion suggests that the State's right to require uncompensated felling of the trees depended on any such salvage value. To the contrary, it is clear from its unanimous opinion that the Schoene Court would have sustained a law requiring the burning of cedar trees if that had been necessary to protect apple trees in which there was a public interest: The Court
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007