Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 47 (2002)

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348 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.

TAHOE REGIONAL PLANNING AGENCY Rehnquist, C. J., dissenting

takings, for which the Constitution clearly requires compensation." Id., at 318. Because of First English's rule that "temporary deprivations of use are compensable under the Takings Clause," the Court in Lucas found nothing problematic about the later developments that potentially made the ban on development temporary. 505 U. S., at 1011-1012 (citing First English, supra); see also 505 U. S., at 1033 (Kennedy, J., concurring in judgment) ("It is well established that temporary takings are as protected by the Constitution as are permanent ones" (citing First English, supra, at 318)).

More fundamentally, even if a practical distinction between temporary and permanent deprivations were plausible, to treat the two differently in terms of takings law would be at odds with the justification for the Lucas rule. The Lucas rule is derived from the fact that a "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation." 505 U. S., at 1017. The regulation in Lucas was the "practical equivalence" of a long-term physical appropriation, i. e., a condemnation, so the Fifth Amendment required compensation. The "practical equivalence," from the landowner's point of view, of a "temporary" ban on all economic use is a forced leasehold. For example, assume the following situation: Respondent is contemplating the creation of a National Park around Lake Tahoe to preserve its scenic beauty. Respondent decides to take a 6-year leasehold over petitioners' property, during which any human activity on the land would be prohibited, in order to prevent any further destruction to the area while it was deciding whether to request that the area be designated a National Park.

Surely that leasehold would require compensation. In a series of World War II-era cases in which the Government had condemned leasehold interests in order to support the war effort, the Government conceded that it was required

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