FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE, APPELLANT V. COUNTY OF LOS ANGELES, CALIFORNIA No. 85-1199 In The Supreme Court Of The United States October Term, 1986 On Appeal From The Court Of Appeal Of California, Second Appellate District Brief For The United States As Amicus Curiae Supporting Appellee TABLE OF CONTENTS Question Presented Interest of the United States Statement Introduction and summary of argument Argument: Appellants have failed to plead a claim for relief under federal law A. Jurisdiction B. Finality and ripeness C. The Fifth Amendment does not mandate a damage remedy against the government for regulatory action that is found to result in a taking 1. The text of the Fifth Amendment 2. Other indicia of the drafters' intent 3. Judicial construction of the compensation requirement D. The application of the Takings Clause of the Fifth Amendment to the states through Section 1 of the Fourteenth Amendment likewise does not give rise to a constitutionally compelled damage remedy against the government E. In 42 U.S.C. 1983, Congress has created a substantial remedy for regulatory takings, which appellant has not attempted to invoke in this case Conclusion QUESTIONS PRESENTED 1. Whether this Court has either appellate or certiorari jurisdiction of this case under 28 U.S.C. 1257(2) or (3). 2. Whether appellant's claim that the County Ordinance prohibiting the building of structures in a flood district results in a "taking" of its property without just compensation is ripe for judicial determination. 3. Whether the Fifth and Fourteenth Amendments, of their own force and without reliance on the statutory damages remedy in 42 U.S.C. 1983 enacted by Congress pursuant to Section 5 of the Fourteenth Amendment, require a state court to enter a money judgment against a governmental entity when the court concludes that a regulatory measure adopted by that entity results in a "taking" of private property. 4. Whether a local regulation prohibiting the building of structures on land within a validly designated flood control district results in a "taking" of property within the meaning of the Fifth Amendment. INTEREST OF THE UNITED STATES This case presents the question whether the Fifth Amendment to the United States Constitution, as made applicable to the States through Section 1 of the Fourteenth Amendment, requires a court to enter a money judgment against a local governmental entity if it finds that a regulatory measure results in a taking of property without just compensation. The Federal Government administers a broad range of regulatory programs that could give rise to similar claims for money damages. Moreover, several federal programs require or encourage state and local restrictions on development in floodplain, wetlands, and tidal areas. See, e.g., the National Flood Insurance Act of 1968, 42 U.S.C. (& Supp. II) 4101 et seq.; the Coastal Zone Management Act of 1972, 16 U.S.C. 1451(b) and (d), 1452(2)(a). Accordingly, the United States has a substantial interest in the development of stable and balanced doctrine in the area of regulatory takings that can be applied in a consistent manner, in order to ensure that federal, state and local regulatory actions that protect the public health, safety, and welfare may be undertaken free of interference from unmeritorious takings challenges, while at the same time assuring constitional protection of individual property rights affected by governmental regulation. STATEMENT 1. a. Appellant owns a 21-acre parcel of land located at the bottom of a canyon along the Middle Fork of Mill Creek in the Angeles National Forest in California. Appellant purchased the property in 1957 and maintained a camp, called "Lutherglen," on a 12-acre portion adjacent to Mill Creek. The 12 acres contained an outdoor chapel, dining hall, caretaker's lodge, two bunkhouses, and a footbridge across Mill Creek. J.S. App. A2. The camp was developed by appellant for retreats and a summer camp for church members and as a recreational area for handicapped children (R.T. 315, 333). In July of 1977, a forest fire denuded the hills upstream of Lutherglen, destroying approximately 3,860 acres of the watershed area and creating a serious flood hazard. /1/ Subsequently, on February 9 and 10, 1978, a heavy storn dropped 11 inches of rain in the watershed. The runoff from the storm overflowed the banks of the Middle Fork of Mill Creek. Lutherglen was flooded and its buildings destroyed, and 10 people elsewhere in the vicinity perished in the flood. J.S. App. A2-A3; J.A. 39. b. On January 11, 1979, the County adopted Interim Ordinance 11855, which provided that a person "shall not construct, reconstruct, place or enlarge any building or structure" within the outer boundaries of the "interim flood protection area located in Mill Creek Canyon" (J.S. App. A31-A32). The ordinance explained that the County was conducting studies of Mill Creek and other locations as part of a comprehensive flood plain management project; that this evaluation had proceeded to the point of permitting the designation of an "interim flood protection area" along Mill Creek; that development was occurring that would "be incompatible with the anticipated uses to be permitted within the permanent flood protection area"; and that the emergency ordinance was necessary to prevent such development from becoming a grandfathered use that would be insulated from future flood control measures (id. at A32). c. On August 11, 1981, the temporary Ordinance was superseded when the County added Mill Creek to the list of areas that are subject to the County Code restrictions applicable to flood protection districts generally (Section 22.44.220; J.S. App. A32-A33). The Code provides that a person "shall not use, erect, construct, * * * modify, enlarge or reconstruct any building or structure within the boundaries of a flood protection district except as provided herein" (J.S. App. A32). Exceptions then are provided, inter alia, for "(a)ccessory buildings and structures that will not substantially impede the flow of water" (id. at A32-A33). The term "accessory building or structure" is defined to mean "a detached subordinate building or structure, the use of which is customarily incidental to that of the main building or to the main use of the land" (Section 22.08.010; Reply Br. to Mot. to Dis. or Aff. 4). /2/ 2. On February 21, 1979, appellant filed this action in the Superior Court for Los Angeles County against appellee County of Los Angeles and the County Flood Control District (J.A. 1). Appellant thereafter filed an "Amended Complaint for Inverse Condemnation" on August 22, 1979 and a Second Amended Complaint on January 5, 1981 (J.A. 5-16, 41-53). As relevant here, appellant alleged that Lutherglen is within the flood protection area created by Ordinance 11855 and that the Ordinance "denies (appellant) all use of Lutherglen" (J.A. 11-12, 49). Although the complaint did not specifically so state, the California Court of Appeal, while referring to decisions of this Court, apparently construed this language to allege a violation of Article I, Section 19 of the California Constitution (J.S. App. A3-A4). /3/ In a brief order dated November 15, 1979, the Superior Court granted the County's motion to strike the first cause of action in inverse condemnation insofar as it was based on Ordinance 11855. The court explained that "a careful reading of (the California Supreme Court's decision in Agins v. City of Tiburon, 24 Cal.3d 266, 598 P.2d 25 (1979), 157 Cal. Rptr. 372, aff'd on other grounds, 447 U.S. 255 (1980)) persuades the court that when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his land, his challenge to the ordinance is by way of declaratory relief or possibly mandamus" (J.S. App. A26). The court of appeal affirmed (id. at A15-A16). Although it acknowledge Justice Brennan's dissent in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 636-661 (1981), the court of appeal concluded that "because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to nonmonetary relief," it was obligated to follow the California Supreme Court's decision in Agins (J.S. App. A16). /4/ The California Supreme Court denied appellant's petition for review (id. at A23). INTRODUCTION AND SUMMARY OF ARGUMENT This case presents once again questions concerning the circumstances under which regulations restricting the use of real property may be held to violate the Constitution, and the remedies mandated by the Constitution or by statute in the event a constitutional violation is found. In this case, there has been no determination that the County's temporary or permanent flood district ordinance unconstitutionally restricts appellant's use of its land, and there is no occasion for the Court to resolve that question. Moreover, a regulatory measure so intimately associated with the protection of property and the public health and safety -- both on appellant's own land and on adjacent tracts -- should not lightly be found to exceed constitutional limits. The state courts held that the constitutional question could not be litigated in this case because, under California law and the California Supreme Court's interpretation of the United States Constitution as announced by the California Supreme Court in Agins, a landowner may not recover compensation for property that was allegedly taken by the operation of land-use regulations. Instead, the landowner's sole remedy in state court is by way of a suit for mandamus or declaratory relief, seeking prospective invalidation of the regulatory restrictions. It is clear that restrictive land-use regulations can result in an uncompensated taking of property prohibited under the Takings Clause of the Fifth Amendment. However, the language and history of the Fifth Amendment indicate that the Takings Clause should be read as prohibitory in nature, and that its mandate is served by an equitable remedy barring continued application of the offending regulations. Nor does the Fourteenth Amendment, through which the Clause is applied to the States, require a state court to afford a monetary remedy against the government where land-use regulations are found to exceed constitutional limitations and thus amount to a taking. At the same time, Congress clearly has authority under Section 5 of the Fourteenth Amendment to provide statutory damage remedies for violations of constitutional protections. By enacting 42 U.S.C. 1983, Congress has provided such a damage remedy. That remedy is available against local governments for temporary and permanent takings resulting from their regulations. Such relief is available, we believe, whenever a temporary deprivation is found to amount to a taking, which in turn is determined by the same ad hoc factual analysis which this Court has found appropriate in evaluating claims of permanent takings. ARGUMENT APPELLANTS HAVE FAILED TO PLEAD A CLAIM FOR RELIEF UNDER FEDERAL LAW A. Jurisdiction As explained by appellee in its supplemental Motion to Dismiss, there may be a substantial question whether the Court has either appellate or certiorari jurisdiction in this case under 28 U.S.C. 1257(2) or (3). An appeal lies from the judgment of a state court "where is drawn in question the validity of the statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." 28 U.S.C. 1257(2). The California Court of Appeal's decision was not in favor of the County ordinance's validity; the court simply held that the validity of the regulation could not be litigated in the context of an inverse condemnation action. Further, this case has been litigated entirely with reference to the now inoperative provisions of temporary Ordinance 11855, and the permanent County Code provisions have been largely ignored. See p. 9, infra. Accordingly, if appellate jurisdiction lies in this case at all, it would only reach a challenge to that Ordinance, which has now been superseded. Finally, and going to both the appellate and certiorari jurisdiction of this Court, it is uncertain whether any claim under federal law has been preserved for review. In its complaint filed in superior court, appellant alleged a violation of the California but not the United States Constitution, and the court of appeal affirmed the superior court's dismissal of the inverse condemnation action alleged to arise under the California Constitution. A federal question may have been sufficiently imported into the case in the court of appeal by virtue of appellant's reliance on the dissenting opinion in San Diego Gas, which concerned the requirements of the Federal Constitution. However, appellant's briefs also can be read to cite that opinion and other federal authority only as precedent relevant to the court of appeal's interpretation of state law (see C.A. Appellant's Br. 42 & n.15), in which event no federal question was preserved. See Michigan v. Long, 463 U.S. 1032, 1041 (1983). B. Finality and Ripeness 1. A claim that regulatory action results in a taking of property without just compensation cannot be considered by a court until there has been a "final and authoritative determination" by the responsible administrative agency with respect to "the type and intensity of development legally permitted on the subject property." MacDonald, Sommer & Frates v. County of Yolo, No. 84-2015 (June 25, 1986), slip op. 7; see generally id. at 7-12; Williamson County Regional Planning Commission v. Hamilton Bank, No. 84-4 (June 28, 1985), slip op. 13-20, 26. In responding to appellant's superior court complaint, alleging that Ordinance 11855 "denies all use of Lutherglen" (J.A. 11-12, 49), appellee did not contend that appellant was required to submit a concrete proposal to the responsible county agency in order to obtain a final decision on the extent of development permitted (J.A. 21-22). Cf. Weinberger v. Salfi, 422 U.S. 749, 762-767 (1975). It thus appears that the objections to review on ripeness grounds recognized by this Court in MacDonald do not obtain here as to Ordinance 11855 (slip op. 4-6, 11-12). See also Williamson County, slip op. 14-18. /5/ 2. Although Ordinance 11855 was an interim measure that was superseded in August 1981 by the inclusion of the Mill Creek Flood Control District under County Code Section 22.44.220, appellant did not amend its complaint to include allegations about the effect of that Code provision on the use of its property. /6/ The County pointed out in its brief in the Court of Appeal that the Ordinance was an interim measure (C.A. Appellees' Br. 12), and appellant did cite County Code Section 22.44.220 in its reply brief, asserting that it imposed "substantially the same use prohibition as that contained in the interim ordinance" (C.A. Appellant's Reply Br. 26). However, the court of appeal did not mention Section 22.44.220 in its opinion (see J.S. App. A13-A16). C. The Fifth Amendment Does Not Mandate A Damage Remedy Against The Government For Regulatory Action That Is Found To Result In A Taking This case is far from a model of pleading practice and, as indicated above, it may be doubted whether the claim of a federal constitutional violation has even been preserved for review by this Court. Assuming that appellant adequately asserted a claim for damages under the United States Constitution in the courts below, there is a further question whether this is a claim that the Court should address, where appellant declined to rely on 42 U.S.C. 1983, the damage remedy provided by Congress under Section 5 of the Fourteenth Amendment. See pp. 30-34, infra. The Court may well be reluctant to resolve significant constitutional questions in a case where the issues were not fully explored in the courts below. Notwithstanding the uninviting posture of this case in a number of respects, it may nonetheless be viewed by the Court as raising the question, several times approached but never decided by this Court, whether the Constitution itself embodies a monetary remedy for governmental takings of property without just compensation. As the action here challenged was committed by the subdivision of a state government, it is the Fourteenth Amendment Due Process Clause which bears most directly in restricting conduct and imposing remedies for governmental acts. Because of its clear relevance in helping to define the limits set by the Fourteenth Amendment, however, we first address the availability of a damage remedy under the Takings Clause of the Fifth Amendment. We regard it as settled that the concept of a taking for purposes of the Fifth Amendment is not limited to an actual physical appropriation or invasion of private property. In certain circumstances, regulatory restrictions on the owner's use or development of the property can also result in a taking of property within the meaning of the Fifth Amendment, and such regulations accordingly can be sustained only on the condition that just compensation is made available to the owner. This much, it seems to us, is clear from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). There the Court held that "the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking" (id. at 415). The Court reiterated this view only last Term, observing that "governmental land-use regulation may under extreme circumstances amount to a 'taking' of the affected property." United States v. Riverside Bayview Homes, No. 84-701 (Dec. 4, 1985), slip op. 4. Accord Agins v. Tiburon, 447 U.S. 255, 260 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130-131 (1978); cf. Williamson County, slip op. 12 (citing cases). It is also clear that the federal, state and local governments are required by the Fifth and Fourteenth Amendments to pay compensation not only as a condition to the permanent acquisition of fee title or its functional equivalent, but also as a condition to the lawful taking of a lesser interest or for a lesser duration. See, e.g., United States v. General Motors Corp., 323 U.S. 373 (1945); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). In this sense, a temporary taking of property is clearly within the scope of the constitutional proscription that private property shall not be taken for public use without just compensation. Because regulation of land may constitute a taking within the contemplation of the Fifth and Fourteenth Amendments, and because a temporary appropriation of land likewise can constitute a taking, a regulatory restriction on the use of land that is ultimately invalidated -- and, thus, is of only temporary duration -- may also, in certain circumstances, constitute a taking that implicates the just compensation requirement. Of course, where a court concludes that governmental action, such as excessive regulation, would amount to a taking if given permanent effect, the government retains the power to rescind its action and thereby also terminate any taking that may be occurring. Thus, the government may abandon property that it has temporarily occupied (United States v. Dow, 357 U.S. 17, 26 (1958); United States v. Causby, 328 U.S. 256, 267-268 (1946)) or cancel formal condemnation proceedings before passage of title is effectuated (Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984) ). The foregoing principles under the Takings Clause of the Fifth Amendment do not address the distinct question presented in this case concerning the remedy that is required where the government has exceeded the substantive limitations imposed by that Clause. Appellants claim, as they must in order to prevail in this Court given the present state of the pleadings, that the Fourteenth Amendment requires of its own force that a state or federal court provide a monetary remedy against the government when it takes property. Such a claim is only plausible on the premise that the Fifth Amendment also requires such a remedy of its own force. This contention merits serious consideration in light of suggestions in statements by this Court and in light of the high place the Framers ascribed to property in the pantheon of rights. /7/ James Madison, the draftsman of the Fifth Amendment's Taking Clause, had available several models: the Vermont Constitution of 1777, the Massachusetts Constitution of 1780, and the Northwest Ordinance of 1787. Each of these phrased the guarantee in the form of an affirmative right to compensation once property has been taken. /8/ Nor is there any direct evidence to indicate that the structure that Madison selected for the Clause was intended to limit the remedy available to the property owner. In an essay that Madison published after the enactment of the Bill of Rights, he stated: If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues * * * such a government is not a pattern for the United States. Property, Nat. Gazette, Mar. 27, 1792, reprinted in 14 J. Madison, The Papers of James Madison 267-268 (University Press of VA. ed. 1983). Moreover, this Court has noted significant support for the view that the Takings Clause was intended to be a recognition of a landowner's right to indemnification for property taken by the sovereign. See, e.g., Davis v. Passman, 442 U.S. 228, 242-243 n.20 (1979) ("Jacobs v. United States, 290 U.S. 13 (1933), held that a plaintiff who alleged that his property had been taken by the United States for public use without just compensation could bring suit directly under the Fifth Amendment."). The Court has held that an aggrieved landowner's "claim is founded upon the Constitution," without the necessity of recourse to "an implied contract" for the United States to pay compensation. United States v. Causby, 328 U.S. 256, 267 (1946). In fact, the Court has in the past expressly adverted to "'the self-executing character of the (clause) with respect to compensation.'" United States v. Clarke, 445 U.S. 253, 257 (1980). See also United States v. Testan, 424 U.S. 392, 401 (1976). The advent of the modern regulatory state, and the increased incidence of taking property by regulation, has made more urgent the claim for interim damages in the case of regulations which constitute a taking. With due regard to these concerns and this evidence, we nonetheless conclude on the basis of the text of the Fifth Amendment itself as well as of other indicia of the original understanding of those who drafted and adopted the Amendment and of its earliest interpretation, that the better argument is that the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government. 1. The Text of the Fifth Amendment The text of the Fifth Amendment supports the conclusion that the Takings Clause is strictly prohibitory and does not, without further legislative action, mandate a monetary award against the government. a. The Takings Clause of the Fifth Amendment states: "nor shall private property be taken for a public use, without just compensation." On its face, this language prohibits certain governmental conduct (the taking of private property for a public use) except when a certain condition is met (the payment of just compensation for what is taken). Thus, the Clause imposes a limitation on the exercise of power by the government of the United States. It does not address the question of the appropriate remedy when the government has exceeded that limitation, except, perhaps, by implication that courts will not tolerate a continuing violation. b. This interpretation of the Takings Clause is confirmed by the text of the Fifth Amendment as a whole, which provides (emphasis added): No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Neither the Takings Clause nor any of the preceding four Clauses by its terms addresses the question of the appropriate remedy in the case of a violation. None of the others has been or should be read as creating a self-effectuating constitutional damage remedy, and there is no reason to accord such a construction uniquely to the Takings Clause. Three of the Clauses prohibit acts except upon certain specified conditions. Thus, the Fifth Amendment does not prohibit the Federal Government from holding a person to answer for an infamous crime; it merely establishes a condition precedent of indictment by Grand Jury. The Fifth Amendment likewise does not prohibit the government from depriving a person of life, liberty, or property; it provides only that such a deprivation must be accompanied by due process. And, finally, "(t)he Fifth Amendment does not proscribe the taking of property" (Williamson County, slip op. 20); it merely prescribes the availability of just compensation as a condition that must be satisfied in order to sustain the taking. Contrary to the logic of appellant's argument, these conditions do not also specify the appropriate relief in the event that the conditions are not performed. Indictment is not a remedy for the government's holding of a person to answer for an infamous crime, any more than due process is a remedy for a deprivation of life, liberty, or property. It is a reasonable parallel construction of the Amendment to conclude that the availability of just compensation, while an essential condition of a constitutional taking, was not prescribed by the Fifth Amendment as the judicial remedy for an unconstitutional one. /9/ 2. Other Indicia of the Drafters' Intent Three important indicia of original intent point to the conclusion that there is no self-effectuating damage remedy available under the Fifth Amendment. These indicia are particularly compelling when it is recalled that the Fifth Amendment is directly applicable only against the United States and that appellant's argument therefore implicitly asserts that the Fifth Amendment mandates a monetary remedy against the United States. a. The most obvious obstacle to such an interpretation of the Fifth Amendment is the sovereign immunity of the United States to suit, absent a waiver by Congress of that immunity. /10/ That immunity was well understood by the Framers of the Constitution. As Alexander Hamilton explained with respect to the sovereign immunity of the States: It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. The Federalist No. 81, at 487 (C. Rossiter ed. 1961) (emphasis in original). Hamilton stressed that the Constitution did not work a surrender of the immunity of the States (ibid.), and the Constitution likewise did not withhold this essential "attribute() of sovereignty" from the Government of the United States. See, e.g., California v. Arizona, 440 U.S. 59, 61-62, 65 (1979); Kansas v. United States, 204 U.S. 331, 342 (1907). Nor is there any indication that this immunity was dispensed with by the Fifth Amendment, which was proposed to the States for ratification only two years after the Constitution was proposed. This silence is fatal, because only an explicit waiver of sovereign immunity will suffice. See Library of Congress v. Shaw, No. 85-54 (July 1, 1986), slip op. 6. /11/ In fact, this Court has made clear that Congress may bar suits for monetary relief against the United States even where it is alleged that a statute results in a taking of property without just compensation (Lynch v. United States, 292 U.S. 571, 579, 580-582 (1934)), because "(t)he rule that the United States may not be sued without its consent is all embracing" (id. at 581). See also Schillinger v. United States, 155 U.S. 163, 168 (1894); cf. United States v. Lee, 106 U.S. 196, 205-206, 218 (1882); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 696-697 & nn.17-18 (1949); id. at 717-718 & n.10 (Frankfurter, J., dissenting). b. Quite aside from the United States immunity to suit as a general matter, the Constitution provides that "No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law." Art. I, Section 9, Cl. 7. This provision independently bars a court from ordering the payment of money out of the Federal Treasury unless Congress has created a damage remedy. See Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1850). c. It also is instructive to consider the remedy that the Constitution expressly contemplates for certain types of constitutional violations -- those involving a deprivation of liberty without due process. Article I, Section 9, Cl. 2 provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it." Unlike the damage action appellant advocates, a habeas corpus proceeding is instituted not against the sovereign itself, but against the responsible governmental official on the basis that continued imprisonment under present conditions is illegal. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. at 690. Moreover, the consequence of the issuance of the writ is to require the officer having custody of the petitioner to release him from custody, and thereby restore his liberty to him. Such relief is directly analogous to an injunction or writ of mandamus to prevent a government officer from enforcing a statute or regulation that is found to deprive a person of his property without due process or just compensation. The latter relief, as provided in California under the Agins rule, has the prospective effect of restoring the owner's property to him. See 337 U.S. at 690; United States v. Lee, 106 U.S. at 218-220. 3. Judicial Construction of the Compensation Requirement a. The early interpretation of the compensation guarantee under the Fifth Amendment, state constitutions, and the common law also establishes that it was understood not as a basis for awarding money damages against the government for uncompensated takings of private property, but rather as a condition on the lawful exercise of the power of eminent domain. Of particular interest is the interpretation of Article X of the Declaration of Rights in the Massachusetts Constitution of 1780, which was one of the principal precursors of the Takings Clause. /12/ The Supreme Judicial Court explained the operation of the provision in Callender v. Marsh, 18 Mass. 418, 430-431 (1823) (emphasis added): Thus if by virtue of any legislative act the land of any citizen should be occupied by the public for the erection of a fort or any public edifice upon it, without any means provided to indemnify the owner of the property, the title of the owner could not be devested thereby, and he might maintain his action for possession, or of trespass, against those who are instrumental in the act; because such a statute would be directly contrary to the above cited provision; and as no action can be maintained against the public for damages, the only way to secure the party in his constitutional rights would be to declare void the public appropriation. /13/ Other state court decisions were to the same effect. See Bradshaw v. Rodgers, 20 Johns, Rep. 103, 106 (N.Y. 1822) ("any law violating that principle must be deemed a nullity"); Sinnickson v. Johnson, 17 N.J. L. 129, 151 (1839) ("the remedy can only be by contesting the constitutionality of the law, or appealing to the justice and magnaminity of the legislature"); Parham v. The Justices, 9 Ga. 341, 349 (1851) ("the Legislature must make provision for compensation. If it does not, the Courts may pronounce the law a nullity"); id. at 391 (just compensation requirement is a "limitation" on the exercise of the power of eminent domain); Ex parte Martin, 13 Ark. 198, 211-212 (1853), (no suit lies against the state, but its agents are liable in trespass); Picatagua Bridge v. New Hampshire Bridge, 7 N.H. 35, 66 (1834) ("limitation"); Petition of Mt. Washington Rd. Co., 35 N.H. 134, 142 (1857) ("a legislative act could not be legally enforced which should undertake to appropriate private property to public use without provision for compensation to the owner"). See also Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 360 (Pa. 1788) (stating in a suit seeking damages for a seizures of property by the government that the "sovereign is not amenable in any Court unless by his own consent"); T. Cooley, Constitutional Limitations 760 (7th ed. 1903) ("conditions precedent"). b. Many of this Court's decisions have construed the compensation requirement in a similar manner. In no case has this Court ever expressly held that the Fifth Amendment, standing alone and without further congressional action, mandates a damage remedy against the United States. In the landmark decision in Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897), which held that the condition of just compensation applies to the States through Section 1 of the Fourteenth Amendment, the Court noted that it previously had stated that "it was a condition precedent to the exercise of the power of eminent domain that the statute make provision for reasonable compensation to the owner." 166 U.S. at 238 (emphasis added), citing Searl v. School District, 133 U.S. 553, 562 (1890), and Sweet v. Rechel, 159 U.S. 380, 398-399 (1895). Accord United States v. Jones, 109 U.S. 513, 518 (1883) (the compensation requirement "is no part of the (eminent domain) power itself, but a condition upon which the power may be exercised"); Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833) (Takings Clause is "a limitation of the exercise of power by the government"). Moreover, in cases arising under the Tucker Act, the government waives its sovereign immunity so as to make available the just compensation necessary to complete a constitutionally valid exercise of the taking power. In this connection, the Court in Schillinger v. United States, 155 U.S. 163 (1894), was at pains to make clear that the waiver of sovereign immunity in the Tucker Act did not lay the government open to suit for money damages in respect to every wrongful act by the government or its agents which injures an individual in his property interests. Id. at 168. See also United States v. Lynch, 292 U.S. at 582. Compare 28 U.S.C. 2680(a); United States v. Varig Airlines, 467 U.S. 797, 809-810, 814 (1984). This same view in fact is reflected in Pennsylvania Coal Co. v. Mahon, the Court's seminal decision holding that land-use regulations that are within the permissible scope of a State's police power may nevertheless go "too far" and "be recognized as a taking." 260 U.S. at 415. The Court stated that in most, if not all cases, in which the diminution in value occasioned by regulation reaches a certain magnitude, "there must be an exercise of eminent domain and compensation to sustain the act." Id. at 413; see also id. at 400, 416. The Court thus again regarded the availability of compensation as a condition to a constitutional taking, not as a damage remedy for a completed, but as yet uncompensated taking, as appellant maintains. Accord Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (the Government "may not, without invoking its eminent domain power and paying just compensation, require (the landowner) to allow free access to the dredged pond"); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (referring to the question "whether a particular restriction will be rendered invalid by the government's failure to pay"); Williamson County, slip op. 25 (collecting cases). More generally, the interpretation of the Takings Clause urged by appellants would effectively permit a court, at the behest of a private person, to require the United States Government to exercise the power of eminent domain and to direct the expenditure of funds out of the Treasury to pay for the property so acquired -- and to do so in the absence of any congressional authorization for either part of that judicially mandated exchange. We seriously doubt that the Framers believed that a court has the authority to interfere in this manner with the judgment of the political branches. To the contrary, this Court has made clear that whether to exercise the power of eminent domain is "'for Congress and Congress alone to determine.'" Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984) (quoting Berman v. Parker, 348 U.S. 26, 33 (1954)). See also Mitchell v. United States, 267 U.S. 341, 345 (1925); n.11, supra. /14/ c. A number of decisions of this Court contain language which might, in isolation, be taken to suggest the existence of a damage remedy under the Takings Clause. When read in full, however, we think it plain that these decisions do not in fact recognize any such constitutional remedy. In Jacobs v. United States, 290 U.S. 13 (1933), involving suits brought under the Tucker Act in connection with the flooding of land, the Court stated (id. at 16): The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. Because the plaintiffs' claims in Jacobs were made pursuant to the Tucker Act, in which Congress has waived the United States' immunity to suit, this passage cannot be read to suggest that a court could order the payment of a money judgment out of the Federal Treasury even where Congress has not waived that immunity. Further, there was no dispute in Jacobs that a taking of property giving rise to a right to recover compensation under the Tucker Act had occurred. To the contrary, the Court observed that "(t)he Government contemplated the flowage of the lands, that damage would result therefrom, and that compensation would be payable" (290 U.S. at 16). Indeed, in the very passage quoted above, the Court stated that the Tucker Act suits were based on the right to just compensation for property taken by the United States "in the exercise of its power of eminent domain" (ibid.). /15/ More recently, the Court's opinion in United States v. Clarke, 445 U.S. 253 (1980), contained a passage referring to the "'self-executing character of the constitutional provision with respect to compensation'" (id. at 257, quoting 6 P. Nichols, Eminent Domain Section 25.41 (3d rev. ed. 1972)). Clarke, however, presented a question of statutory construction, not constitutional law. Specifically, it concerned the interpretation of 25 U.S.C. 357, which permits Indian lands to be "condemned" pursuant to state law. The Court held that this statute did not permit a city to acquire Indian property through "inverse condemnation" -- i.e., by physically occupying the property and remitting the Indian owner to a suit against the state to recover compensation. The Court's reference to the "self-executing character" of the constitutional provision as regards compensation was merely part of its description of the nature of an inverse condemnation action. Because such an action concededly was available under state law (see 445 U.S. at 259), there was no question raised concerning the availability of monetary relief if the state legislature had not so provided. Moreover, the asserted premise of the availability of compensation under state law in Clarke was that "Alaska law allows the 'exercise of the power of eminent domain through inverse condemnation or a taking in the nature of inverse condemnation'" (445 U.S. at 259 (quoting Brief of Respondent Municipality of Anchorage at 16)). Similarly, the Court elsewhere in its opinion referred to "the choice of the condemning authority to take property by physical invasion rather than by formal condemnation proceedings" (445 U.S. at 258 (emphasis added)). Clarke therefore does not suggest that the Constitution requires a damages remedy where the government has not waived its sovereign immunity. /16/ In sum, the text, background, and judicial construction of the Fifth Amendment all argue forcefully against appellant's contention that the Takings Clause, of its own force, requires that monetary relief be available against the government where a regulation is found to result in an unconstitutional taking of property. D. The Application Of The Takings Clause Of The Fifth Amendment To The States Through Section 1 Of The Fourteenth Amendment Likewise Does Not Give Rise To A Constitutionally Compelled Damage Remedy Against The Government The foregoing discussion of the Fifth Amendment demonstrates that the Takings Clause's prohibition of uncompensated takings does not imply a constitutionally-based compensation remedy where the prohibition has been violated. As this Court explained in Chicago B. & Q. R.R. v. Chicago, 166 U.S. at 235-241, an uncompensated transfer of private property to the government for public use, because of the lack of compensation alone, violates the Fourteenth Amendment's prohibition of deprivations of property without due process of law. /17/ The Due Process Clause, like the Takings Clause, is a prohibition on certain deprivations of property by the government. /18/ If, as we have demonstrated, the Takings Clause, which actually refers to just compensation, does not imply a monetary remedy for its violation, than a fortiori the Due Process Clause, a prohibition which does not refer to compensation at all, does not give rise to a monetary remedy either. Any doubt as to whether the prohibitions in Section 1 of the Fourteenth Amendment imply a monetary remedy is dispelled by the language and history of Section 5 of the Amendment, which explicitly grants control over remedies to Congress. Section 1 of the Fourteenth Amendment provides that no State may deprive "any person of * * * property, without due process of law." Section 5 vests Congress with the "power to enforce, by appropriate legislation, the provisions of" the Amendment. As the structure of the Amendment would suggest, the responsibility for fashioning affirmative remedies for violations of Section 1 was reserved to Congress. Given this explicit textual commitment, Section 1 cannot be understood to have imposed directly on states a self-effectuating monetary remedy. The origins and judicial interpretation of the Fourteenth Amendment lend support to this conclusion. For example, Senator Howard, who introduced the proposed Amendment in the Senate, said of Section 5: It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the Amendments are carried out in good faith, and that no State infringes the rights of persons or property. I look upon the clause as indispensable for the reason that it thus imposes upon Congress this power and duty. Cong. Globe, 39th Cong., 1st Sess. 2768 (1866). Similarly, Congressman Stevens introduced the proposed Amendment in the House with these words (id. at 2459): (T)he Constitution * * * is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct unjust legislation of the States * * *. This Court, too, has often acknowledged that the Fourteenth Amendment contemplates that Congress will have primary authority to direct the enforcement of its provisions. /19/ In Ex parte Virginia, 100 U.S. 339 (1879), decided just 11 years after adoption of the Amendment, the Court so described Section 5 (100 U.S. at 345-346 (emphasis added)): It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission, to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. /20/ And again in The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 81 (1872): If, however, the states did not conform their laws to its requirements, then by the Fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. * * * But as it is a state that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of state oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. /21/ Consistent with the preeminent role of congressional enforcement under Section 5, this Court has been reluctant to permit a cause of action in federal court directly under the Fourteenth Amendment, unaided by congressional legislation. See e.g., Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398-400 (1979); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 277-278 (1977); Aldinger v. Howard, 427 U.S. 1, 4 n.3 (1976). The Court should be even more reluctant to compel a cause of action for money damages against a local governmental entity in state court. Inevitably, "(t)he manner of enforcement (of the Fourteenth Amendment) involves discretion" (Oregon v. Mitchell, 400 U.S. 112, 143 (1970) (Douglas, J., concurring and dissenting), because of the need to assess on a nationwide scale the nature and extent of constitutional violations, to weigh competing considerations of federal, state, and local policy, and to revise the enforcement mechanisms if experience warrants. These are at bottom legislative determinations, and therefore "discretion is largely entrusted to the Congress not the courts" (ibid.). E. In 42 U.S.C. 1983, Congress Has Created A Substantial Remedy For Regulatory Takings, Which Appellant Has Not Attempted To Invoke In This Case Congress has exercised its authority under Section 5 of the Fourteenth Amendment by enacting 42 U.S.C. 1983 to protect against interference with constitutional rights under color of state law. As the Court observed in Monell v. Department of Social Services, 436 U.S. 658 (1978), Section 1983 was enacted with the problem of the appropriation of private property without compensation specifically in mind. See 436 U.S. at 685-686 & n.45; see Cong. Globe App., 42d Cong., 1st Sess. 84-85 (1871) (remarks of Rep. Bingham). Whatever might have been the case if Congress had not entered the field, Congress's enactment of 42 U.S.C. 1983 has eliminated any need for this Court to explore implicit constitutional remedies to be applied against governmental bodies acting in the area of local land-use regulation. Cf. Lake County Estates, 440 U.S. at 399-400; Bush v. Lucas, 462 U.S. 367, 379-380, 389-390 (1983). That statutory remedy is subject to amendment and refinement if experience warrants, and reliance on that remedy will avoid the serious potential for harm in an inflexible, constitutionally-based monetary remedy. /22/ In this case, appellant did not rely on 42 U.S.C. 1983 in the California courts; nor has it done so in this Court. There accordingly is no reason for the Court in this case to elaborate upon the application of the statutory damage remedy in Section 1983 where it is properly invoked. It nevertheless may be useful to consider that issue briefly here. There is no occasion to resort to a federal remedy under Section 1983 where the state has made provision for the payment of compensation in an action for inverse condemnation in state court. Williamson County, slip op. 20-23. Under that system, the affected property interest is transferred to the government when the restriction becomes effective or a permit is finally denied. Just compensation is available beginning as of that date for the fair market value of whatever property is taken, whether the taking be permanent or terminated by recision of the agency's action after a period of time. By contrast, the Section 1983 damage remedy may play a more important role under the system of land-use regulation contemplated by Agins. To be sure, California is free under the Federal Constitution to withhold from governmental officials the authority to commit public money and thereby appropriate private property in a manner consistent with the Fifth Amendment. /23/ Under such a regime, regulations that do constitute a taking must be struck down as unconstitutional because no compensation has been made available through an inverse condemnation or similar action. Relief lifting the offending restrictions removes any claim of constitutional injury insofar as its future effects are concerned. See San Diego Gas, 450 U.S. at 658; MacDonald, slip op. 10 n.4 (White, J., dissenting). Yet, since temporary invasions, like more permanent regulatory takings, may violate the Fifth Amendment Takings Clause (see pp. 10-11, supra), the Agins-type regime may leave a gap in the remedial fabric. Prospective invalidation of the regulation or permit denial of course will not necessarily undo the effects of whatever limitations on the use or development of the property were applicable on a temporary basis while the validity of the restrictions was being litigated in the suit for mandamus or declaratory relief. The availability of a Section 1983 damages remedy fully redresses this defect, however. /24/ When regulations by authorities in states with the Agins-type regime are determined to constitute a taking, Section 1983 provides a remedy in damages against the state, equal to the amount of just compensation constitutionally required for the taking. This includes recompense for the partial or total loss of use of the property between the moment when the taking is determined to have occurred and the moment when the regulation is prospectively invalidated. In considering whether an invalidated restriction caused a taking while it was temporarily in effect, the factors to be taken into account in a suit under 42 U.S.C. 1983, are, in our view, essentially the same as those that the courts traditionally consider in determining whether a taking has occurred. This Court has, in past cases, relied upon "ad hoc, factual inquiries" (Kaiser Aetna, 444 U.S. at 175) into three specific factors of "particular significance" to determine whether "'justice and fairness' require that economic injuries caused by public action be compensated by the government" (Penn Central, 438 U.S. at 124). These factors are: (1) "the character of the governmental action" (ibid.); (2) "(t)he economic impact of the regulation" on the property (ibid.); and (3) the reasonableness of the property owner's "distinct investment-backed expectations" for the use of its property (id. at 124-125). See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Kaiser Aetna, 444 U.S. at 175. Although these factors have been utilized in the past to determine whether the permanent application of a regulation constitutes a taking, there is no reason why they should not also be applied to ascertain the point at which a temporary deprivation becomes a taking under the Fifth Amendment. CONCLUSION The judgment of the court of appeal should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER J. MARZULLA THOMAS E. HOOKANO DOUGLAS W. KMIEC Deputy Assistant Attorneys General EDWIN S. KNEEDLER Assistant to the Solicitor General PETER R. STEENLAND, JR. RAYMOND B. LUDWISZEWSKI Attorneys NOVEMBER 1986 /1/ Trees and other vegetation normally protect against flooding by slowing the flow of water, which can then percolate into the soil or be carried away by streams. A fire encrusts the surface, which prevents percolation of water into the soil. In addition, the fire's ash and debris significantly augment the bulk of the water flow, thereby increasing erosion damage caused by the runoff. J.S. App. A2-3 n.1. /2/ Any accessory buildings or structures on a site that is subject to flooding must be approved by the county engineer pursuant to Section 308 of the Building Code, which provides that the placement must assure that water or mud flow will not be a hazard to the building or adjacent property. Section 308 also requires the county engineer to "enforce, at a minimum, the current Federal flood plain management regulations." See Mot. To Dis. or Aff. AA1-AA2. Other exceptions to the flood protection district restrictions are provided for "(a)utomobile parking facilities incidental to a lawfully established use" and for flood control structures (Section 22.44.220; J.S. App. 33A). /3/ Article 1, Section 19 of the California Constitution provides in pertinent part: "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into the court for, the owner." The Takings Clause of the Fifth Amendment to the United States Constitution contains no comparable reference to property "damaged" for a public use. /4/ Neither appellant's complaint nor the opinions of the superior court and the court of appeal mentioned County Code Section 22.44.220, which superseded the temporary Ordinance 11855 on August 11, 1981. /5/ On its face, Ordinance 11855 was absolute in its prohibition against new construction (J.S. App. A31). While the ordinance does not appear to have actually prevented any use of Lutherglen (e.g., tent camping) that did not require construction of facilities, it was fairly implicit in appellant's allegations that any such residual uses were not "economically viable" as that term has been used in some of this Court's decisions. See, e.g., Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n.36 (1978); Agins v. Tiburon, 447 U.S. 255, 260 (1980); United States v. Riverside Bayview Homes, No. 84-701 (Dec. 4, 1985), slip op. 5 n.4. /6/ This case was still pending in superior court at the time Ordinance 11855 was superseded. /7/ See generally The Federalist No. 10, at 78-79, 84 (J. Madison) (C. Rossitor ed. 1961); R. Epstein, Takings -- Private Property and the Power of Eminent Domain 7-18 (1985). /8/ Chapter I, Article II of the Vermont Constitution of 1777 provided in pertinent part: whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money. Article X of the Massachusetts Constitution of 1780 provided: And whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. Article II of the Northwest Ordinance of July 13, 1787 (Ordinance for the government of the territory of the United States northwest of the river Ohio) provided in relevant part: should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be paid to the same. /9/ The validity of this interpretation is reinforced by the identical language used in the Due Process and Just Compensation Clauses, each of which introduces the condition to the lawful exercise of governmental authority by the word "without." Compare Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 153 & n.19 (1982), where the Court attached significance to the parallel structure of the Foreign and Indian Commerce Clauses, both of which are introduced by the word "with": Congress is empowered "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. Art. I, Section 8, Cl. 3 (emphasis added). /10/ A suit is plainly one against the sovereign if the judgment would expend itself on the public treasury. Dugan v. Rank, 372 U.S. 609, 620 (1963). /11/ The importance attached to the doctrine of sovereign immunity at the time the Fifth Amendment was adopted is confirmed by the fact that the decision in Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), "'created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.'" Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97 (1984), quoting Monaco v. Mississippi, 292 U.S. U.S. 313, 325 (1934). The Takings Clause of the Fifth Amendment thus seems distinguishable from the parallel provisions of state constitutions which have been found to constitute waivers of state sovereign immunity. See, e.g., Wilson v. Beville, 47 Cal.2d 852, 860, 306 P.2d 789 (1957); Trippe v. Port Authority, 35 Misc.2d 744, 231 N.Y.S.2d 818, 821-823 (1962); Burns v. Board of Supervisors, 218 Va. 625, 238 S.E.2d 823, 825 (1977). See also Developments in the Law -- Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876-881 (1957). /12/ See Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 701, 706-708 (1985). Article X is quoted in relevant part at n.8, supra. /13/ Accord Perry v. Wilson, 7 Mass. 393, 395 (1811) ("But in this statute, no compensation is provided, nor any means of ascertaining or securing the payment of it declared. If, then, the act was construed to be an appropriation of the plaintiff's lot for the use of the public, such appropriation would be unconstitutional and void."); Baker v. City of Boston, 29 Mass. (1 Pick.) 184 (1831) ("But it is true, undoubtedly, that the property of a private individual may be appropriated to public use, in connection with measures of municipal regulations; and in such case compensation must be provided for, or the appropriation will be unconstitutional and void."). /14/ The Property Clause provides that "(t)he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Art. IV, Section 3, Cl. 2. This Clause vests Congress with "complete power" over the property of the United States. Kleppe v. New Mexico, 426 U.S. 529, 540 (1976). /15/ The only question in Jacobs was whether interest was required to be paid from the date of the taking, and in that context the Court rejected the argument that interest could be withheld because there was no promise to pay it. Thus, Jacobs simply holds that where Congress, attendant to the exercise of the eminent domain power, has made just compensation available by authorizing an inverse condemnation action under the Tucker Act, the measure of that compensation is prescribed by the Constitution. /16/ In addition to Jacobs v. United States and United States v. Clarke, Justice Brennan's dissenting opinion in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 636-661 (1981), cited several other decisions of this Court as supportive of a damage remedy arising directly from the Takings Clause. However, United States v. Causeby, 328 U.S. 256 (1946) (see 450 U.S. at 655), like Jacobs, was a suit under the Tucker Act, and it therefore likewise does not suggest that a court may award a money judgment against the United States where Congress has not consented to such a suit. Moreover, there was no dispute in Causby that compensation was available under the Tucker Act in the circumstances of that case if a taking were found; the only dispute was whether the overflights amounted to a taking. Cf. 328 U.S. at 261 ("the United States conceded on oral argument that if the flights over respondents' property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment"). Likewise, United States v. Dickinson, 331 U.S. 745 (1947) (see 450 U.S. at 655 n.21), arose under the Tucker Act, and it presented only a question of the application of the statute of limitations. That question is not involved here. Similarly, Griggs v. Allegheny County, 369 U.S. 84 (1962) (see 450 U.S. at 665), arose under a parallel state procedure that provided for the payment of compensation if the governmental action involved were held to result in a taking. See 369 U.S. at 85. Finally, Justice Brennan's dissenting opinion in San Diego Gas quoted (450 U.S. at 652-653) the statement in Justice Stewart's concurring opinion in Huges v. Washington, 389 U.S. 290, 298 (1937), that "the Constitution measures a taking of property not by what a State says, or what it intends, but by what it does." Hughes, however, raised no question of the availability of a monetary remedy against the sovereign; it involved only prospective relief in a title dispute. /17/ The Fifth Amendment does not directly apply to the States. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). /18/ The Privileges and Immunities Clause and the Equal Protection Clause, which also are contained in Section 1 of the Fourteenth Amendment, likewise are prohibitory in nature. /19/ See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 653-656 (1966); United States v. Guest, 383 U.S. 745, 783 n.7 (1966) (Brennan, J., concurring in part and dissenting in part) ("the primary purpose of the Amendment was to augment the power of Congress, not the judiciary"). /20/ Justice Black took a similar view of the Amendment in his dissent in Harper v. Virginia Board of Elections, 383 U.S. 663, 678-680 (1966): Moreover, the people, in Section 5 of the Fourteenth Amendment designated the government tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative. * * * * * Thus Section 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorized the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, e.g., 42 U.S.C. Section 1971(a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government -- Executive, Legislative and Judicial. /21/ Similarly, Professor Flack states in his comprehensive analysis of the historical origins of the Amendment: The declarations and statements of newspapers, writers and speakers * * * show very clearly, * * * the general opinion held in the North. That opinion, briefly stated, was that the Amendment embodied the Civil Rights Bill and gave Congress the power to define and secure the privileges of citizens of the United States. H. Flack, The Adoption of the Fourteenth Amendment 153 (1908). See generally J. ten Broek, The Antislavery Origins of the Fourteenth Amendment 187-215 (1951). /22/ In response to the holding in Monroe v. Pape, 365 U.S. 167, 180 (1961), that municipalities were not subject to suit under Section 1983, several courts of appeals initially implied rights of action directly under the Fourteenth Amendment in federal court in order to provide aggrieved plaintiffs with some remedy for civil rights violations. See, e.g., Turpin v. Mailet, 579 F.2d 152, 159 (2d Cir.) (en banc), vacated sub nom. City of West Haven v. Turpin, 439 U.S. 974 (1978). When Monroe was overruled in Monell v. Department of Social Services, 436 U.S. 658 (1978), these courts were forced to reconsider the propriety of an implied cause of action, in light of the availability of the remedial legislation. Those courts of appeals uniformly concluded that "there is no place for a cause of action against a municipality directly under the Fourteenth Amendment, because the plaintiff may proceed against the city * * * under Section 1983." Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc), cert. denied, 449 U.S. 1016 (1980). Accord Owen v. City of Independence, 589 F.2d 335, 337 (8th Cir. 1978) ("(b)y enacting Section 1983, Congress has provided an appropriate and exclusive remedy for constitutional violations committed by municipalities") (emphasis added), rev'd on other grounds, 445 U.S. 622 (1980); Rogin v. Bensalem Township, 616 F.2d 680, 686 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981); Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980); Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978); Molina v. Richardson, 578 F.2d 846 (9th Cir.), cert. denied, 439 U.S. 1048 (1978); Morris v. Washington Metro. Area Transit Authority, 702 F.2d 1037, 1042 n.10 (D.C. Cir. 1983). Even prior to Monell, several courts denied the availability of such an implied remedy. See, e.g., Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). See also Huemmer v. Mayor of Ocean City, 474 F. Supp. 704, 712-718 & nn. 8-15 (D. Md. 1979) (collecting authorities), aff'd in part and rev'd in part, 632 F.2d 371 (4th Cir. 1980); Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert. denied, 438 U.S. 904 (1978). /23/ In this regard, the Agins rule deprives state regulators of the option of preserving permanently an excessive regulation by electing to pay a landowner "just compensation" for the property interest lost. Cf. San Diego Gas, 450 U.S. at 653 n.19. California thus mandates that in every instance of overburdensome regulation, the action must be invalidated. Compare Regional Rail Reorganization Act Cases, 419 U.S. 102, 134 (1974) (presuming the availability of compensation under the Tucker Act to sustain federal legislation found to result in a taking). If a California regulatory agency wishes to reinstate the regulation, it must secure legislative approval for a formal eminent domain proceeding and cannot rely upon judicially-ordered compensation to protect its regulatory program. This is not to say that excessive regulations do not constitute a taking within the meaning of the Fifth Amendment merely because compensation is not made available by the sovereign through a suit for inverse condemnation. Government cannot classify retrospectively the character of its actions so as to frustrate constitutional rights. See, e.g., Ruckelshaus v. Monsanto, 467 U.S. 986, 1012 (1984); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). The essential point is that the absence of compensation renders any taking that results unconstitutional. That unconstitutional action in turn gives rise to a cause of action for damages under 42 U.S.C. 1983. /24/ Of course, in order for a municipality to be liable under 42 U.S.C. 1983, the allegedly unconstitutional action must have been taken pursuant to the official policy of the municipality. Pembaur v. City of Cincinnati, No. 84-1160 (Mar. 25, 1986). In addition, principles of absolute or qualified immunity may shield an individual defendant from liability for damages under 42 U.S.C. 1983.