Cite as: 538 U. S. 216 (2003)
Opinion of the Court
of the interest taken, or nothing, depending on the circumstances, so determining the remedy requires a remand." Washington Legal Foundation v. Legal Foundation of Washington, 236 F. 3d 1097, 1115 (2001).
The Court of Appeals then reconsidered the case en banc. 271 F. 3d 835 (CA9 2001). The en banc majority affirmed the judgment of the District Court, reasoning that, under the ad hoc approach applied in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), there was no taking because petitioners had suffered neither an actual loss nor an interference with any investment-backed expectations, and that the regulation of the use of their property was permissible. Moreover, in the majority's view, even if there were a taking, the just compensation due was zero.
The three judges on the original panel, joined by Judge Kozinski, dissented. In their view, the majority's reliance on Penn Central was misplaced because this case involves a "per se" taking rather than a regulatory taking. 271 F. 3d, at 865-866. The dissenters adhered to the panel's view that a remand is necessary in order to decide whether any compensation is due.
In their petition for certiorari, Brown and Hayes asked us not only to resolve the disagreement between the majority and the dissenters in the Ninth Circuit about the taking issue, but also to answer a question that none of those judges reached, namely, whether injunctive relief is available because the small amounts to which they claim they are entitled render recovery through litigation impractical. We granted certiorari. 536 U. S. 903 (2002).
III
While it confirms the State's authority to confiscate private property, the text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking must be for a "public use" and "just compensation" must be paid
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