Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

              Syllabus

LUCAS v. SOUTH CAROLINA COASTAL COUNCIL
 certiorari to the supreme court of south carolina

No. 91-453.   Argued March 2, 1992"Decided June
              29, 1992

In 1986, petitioner Lucas bought two residential
lots on a South Carolina barrier island, intend-
ing to build single-family homes such as those
on the immediately adjacent parcels.  At that
time, Lucas's lots were not subject to the Sta-
te's coastal zone building permit requirements.
In 1988, however, the state legislature enacted
the Beachfront Management Act, which barred
Lucas from erecting any permanent habitable
structures on his parcels.  He filed suit
against respondent state agency, contending
that, even though the Act may have been a law-
ful exercise of the State's police power, the
ban on construction deprived him of all ``eco-
nomically viable use'' of his property and ther-
efore effected a ``taking'' under the Fifth and
Fourteenth Amendments that required the pay-
ment of just compensation.  See, e. g., Agins v.
Tiburon, 447 U.S. 255, 261.  The state trial
court agreed, finding that the ban rendered
Lucas's parcels ``valueless,'' and entered an
award exceeding $1.2 million.  In reversing, the
State Supreme Court held itself bound, in light
of Lucas's failure to attack the Act's validity,
to accept the legislature's ``uncontested . . .
findings'' that new construction in the coastal
zone threatened a valuable public resource.
The court ruled that, under the Mugler v. Kan-
sas, 123 U.S. 623, line of cases, when a regula-
tion is designed to prevent ``harmful or noxious
uses'' of property akin to public nuisances, no
compensation is owing under the Takings Clause
regardless of the regulation's effect on the
property's value.
Held:
1.Lucas's takings claim is not rendered unripe
by the fact that he may yet be able to secure a
special permit to build on his property under an
amendment to the Act passed after briefing and
argument before the State Supreme Court, but
prior to issuance of that court's opinion.  Be-
cause it declined to rest its judgment on ripe-
ness grounds, preferring to dispose of the case
on the merits, the latter court's decision pre-
cludes, both practically and legally, any takings
claim with respect to Lucas's preamendment
deprivation.  Lucas has properly alleged injury-
in-fact with respect to this preamendment de-
privation, and it would not accord with sound
process in these circumstances to insist that
he pursue the late-created procedure before
that component of his takings claim can be con-
sidered ripe.  Pp.5-8.
2.The State Supreme Court erred in applying
the ``harmful or noxious uses'' principle to de-
cide this case.  Pp.8-26.
(a)Regulations that deny the property owner
all ``economically viable use of his land'' consti-
tute one of the discrete categories of regula-
tory deprivations that require compensation
without the usual case-specific inquiry into
the public interest advanced in support of the
restraint.  Although the Court has never set
forth the justifica- tion  for  this  categorical
rule,  the practical"and economic" equivalence
of physically appropriating and eliminating all
beneficial use of land counsels its preserva-
tion.  Pp.8-13.
(b)A review of the relevant decisions demon-
strates that the ``harmful or noxious use'' prin-
ciple was merely this Court's early formulation
of the police power justification necessary to
sustain (without compensation) any regulatory
diminution in value; that the distinction betw-
een regulation that ``prevents harmful use'' and
that which ``confers benefits'' is difficult, if
not impossible, to discern on an objective,
value-free basis; and that, therefore, noxious-
use logic cannot be the basis for departing
from this Court's categorical rule that total
regulatory takings must be compensated.  Pp.1-
4-21.
(c)Rather, the question must turn, in accord
with this Court's ``takings'' jurisprudence, on
citizens' historic understandings regarding the
content of, and the State's power over, the
``bundle of rights'' that they acquire when they
take title to property.  Because it is not con-
sistent with the historical compact embodied in
the Takings Clause that title to real estate is
held subject to the State's subsequent decision
to eliminate all economically beneficial use, a
regulation having that effect cannot be newly
decreed, and sustained, without compensation's
being paid the owner.  However, no compensation
is owed"in this setting as with all takings
claims"if the State's affirmative decree simply
makes explicit what already inheres in the title
itself, in the restrictions that background
principles of the State's law of property and
nuisance already place upon land ownership.  Cf.
Scranton v. Wheeler, 179 U.S. 141, 163.  Pp.21-25.
   (d)Although it seems unlikely that common-
law principles would have prevented the erec-
tion of any habitable or productive improve-
ments on Lucas's land, this state-law question
must be dealt with on remand.  To win its case,
respondent cannot simply proffer the legislatu-
re's declaration that the uses Lucas desires
are inconsistent with the public interest, or
the conclusory assertion that they violate a
common-law maxim such as sic utere tuo ut alie-
num non laedas, but must identify background
principles of nuisance and property law that
prohibit the uses Lucas now intends in the pro-
perty's present circumstances.  P.26.
304 S.C. 376, 404 S.E.2d 895, reversed and
remanded.

Scalia, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and White, O'Connor, and
Thomas, JJ., joined.  Kennedy, J., filed an opinion
concurring in the judgment.  Blackmun, J., and
Stevens, J., filed dissenting opinions.  Souter,
J., filed a separate statement.
Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
             No. 91-453
              --------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
                COASTAL COUNCIL
on writ of certiorari to the supreme court of
                south carolina
                [June 29, 1992]

  Justice Scalia delivered the opinion of the
Court.
  In 1986, petitioner David H. Lucas paid $975,000
for two residential lots on the Isle of Palms in
Charleston County, South Carolina, on which he
intended to build single- family homes.  In 1988,
however, the South Carolina Legislature enacted
the Beachfront Management Act, S.C. Code 48-39-
-250 et seq. (Supp. 1990) (Act), which had the direct
effect of barring petitioner from erecting any
permanent habitable structures on his two par-
cels.  See 48-39- 290(A).  A state trial court
found that this prohibition rendered Lucas's
parcels  valueless.  App. to Pet. for Cert. 37.
This case requires us to decide whether the Act's
dramatic effect on the economic value of Lucas's
lots accomplished a taking of private property
under the Fifth and Fourteenth Amendments re-
quiring the payment of  just compensation.  U. S.
Const., Amdt. 5.
                       I
                       A
  South Carolina's expressed interest in inten-
sively managing development activities in the so-
called  coastal zone dates from 1977 when, in the
aftermath of Congress's passage of the federal
Coastal Zone Management Act of 1972, 86 Stat.
1280, as amended, 16 U. S. C. 1451 et seq.,
the legislature enacted a Coastal Zone Manage-
ment Act of its own.  See S. C. Code 48-39-10 et
seq. (1987).  In its original form, the South Caroli-
na Act required owners of coastal zone land that
qualified as a  critical area (defined in the
legislation to include beaches and immediately
adjacent sand dunes, 48-39-10(J)) to obtain a
permit from the newly created South Carolina
Coastal Council (respondent here) prior to commit-
ting the land to a  use other than the use the
critical area was devoted to on [September 28,
1977].  48-39-130(A).
  In the late 1970's, Lucas and others began
extensive residential development of the Isle of
Palms, a barrier island situated eastward of the
City of Charleston.  Toward the close of the
development cycle for one residential subdivision
known as  Beachwood East, Lucas in 1986 pur-
chased the two lots at issue in this litigation for
his own account.  No portion of the lots, which
were located approximately 300 feet from the
beach, qualified as a  critical area under the
1977 Act; accordingly, at the time Lucas acquired
these parcels, he was not legally obliged to
obtain a permit from the Council in advance of any
development activity.  His intention with respect
to the lots was to do what the owners of the
immediately adjacent parcels had already done:
erect single-family residences.  He commissioned
architectural drawings for this purpose.
  The Beachfront Management Act brought Lucas's
plans to an abrupt end.  Under that 1988 legisla-
tion, the Council was directed to establish a
 baseline connecting the landward-most
 point[s] of erosion . . . during the past forty
years in the region of the Isle of Palms that
includes Lucas's lots.  48-39-280(A)(2) (Supp.
1988).  In action not challenged here, the Council
fixed this baseline landward of Lucas's parcels.
That was significant, for under the Act construc-
tion of occupable improvements was flatly
prohibited seaward of a line drawn 20 feet land-
ward of, and parallel to, the baseline, 48-39-29-
0(A) (Supp. 1988).  The Act provided no exceptions.
                       B
  Lucas promptly filed suit in the South Carolina
Court of Common Pleas, contending that the Beach-
front Management Act's construction bar effected
a taking of his property without just compensa-
tion.  Lucas did not take issue with the validity of
the Act as a lawful exercise of South Carolina's
police power, but contended that the Act's com-
plete extinguishment of his property's value
entitled him to compensation regardless of wheth-
er the legislature had acted in furtherance of
legitimate police power objectives.  Following a
bench trial, the court agreed.  Among its factual
determinations was the finding that  at the time
Lucas purchased the two lots, both were zoned for
single-family residential construction and . . .
there were no restrictions imposed upon such use
of the property by either the State of South
Carolina, the County of Charleston, or the Town of
the Isle of Palms.  App. to Pet. for Cert. 36.  The
trial court further found that the Beachfront
Management Act decreed a permanent ban on con-
struction insofar as Lucas's lots were concerned,
and that this prohibition  deprive[d] Lucas of any
reasonable economic use of the lots, . . . eliminat-
ed the unrestricted right of use, and render[ed]
them valueless.  Id., at 37.  The court thus
concluded that Lucas's properties had been
 taken by operation of the Act, and it ordered
respondent to pay  just compensation in the
amount of $1,232,387.50.  Id., at 40.
  The Supreme Court of South Carolina reversed.
It found dispositive what it described as Lucas's
concession  that the Beachfront Management Act
[was] properly and validly designed to preserve
. . . South Carolina's beaches.  304 S. C. 376, 379,
404 S. E. 2d 895, 896 (1991).  Failing an attack on
the validity of the statute as such, the court
believed itself bound to accept the  uncontested
. . . findings of the South Carolina legislature
that new construction in the coastal zone"such as
petitioner intended"threatened this public
resource.  Id., at 383, 404 S. E. 2d, at 898.  The
Court ruled that when a regulation respecting the
use of property is designed  to prevent serious
public harm, id., at 383, 404 S. E. 2d, at 899
(citing, inter alia, Mugler v. Kansas, 123 U. S. 623
(1887)), no compensation is owing under the Takings
Clause regardless of the regulation's effect on
the property's value.
   Two justices dissented.  They acknowledged that
our Mugler line of cases recognizes governmental
power to prohibit  noxious uses of property"i.e.,
uses of property akin to  public nuisanc-
es"without having to pay compensation.  But they
would not have characterized the Beachfront
Management Act's  primary purpose [as] the pre-
vention of a nuisance.  304 S. C., at 395, 404 S. E.
2d, at 906 (Harwell, J., dissenting).  To the dis-
senters, the chief purposes of the legislation,
among them the promotion of tourism and the
creation of a  habitat for indigenous flora and
fauna, could not fairly be compared to nuisance
abatement.  Id., at 396, 404 S. E. 2d, at 906.  As a
consequence, they would have affirmed the trial
court's conclusion that the Act's obliteration of
the value of petitioner's lots accomplished a
taking.
  We granted certiorari.  502 U. S. ___ (1991).
                      II
  As a threshold matter, we must briefly address
the Council's suggestion that this case is inap-
propriate for plenary review.  After briefing and
argument before the South Carolina Supreme
Court, but prior to issuance of that court's
opinion, the Beachfront Management Act was
amended to authorize the Council, in certain
circumstances, to issue  special permits for the
construction or reconstruction of habitable
structures seaward of the baseline.  See S. C.
Code 48-39-290(D)(1) (Supp. 1991).  According to
the Council, this amendment renders Lucas's claim
of a permanent deprivation unripe, as Lucas may
yet be able to secure permission to build on his
property.   [The Court's] cases, we are reminded,
 uniformly reflect an insistence on knowing the
nature and extent of permitted development
before adjudicating the constitutionality of the
regulations that purport to limit it.  MacDonald,
Sommer & Frates v. County of Yolo, 477 U. S. 340,
351 (1986).  See also Agins v. Tiburon, 447 U. S. 255,
260 (1980).  Because petitioner  has not yet
obtained a final decision regarding how [he] will be
allowed to develop [his] property, Williamson
County Regional Planning Comm'n of Johnson City v.
Hamilton Bank, 473 U. S. 172, 190 (1985), the Council
argues that he is not yet entitled to definitive
adjudication of his takings claim in this Court.
  We think these considerations would preclude
review had the South Carolina Supreme Court
rested its judgment on ripeness grounds, as it
was (essentially) invited to do by the Council, see
Brief for Respondent 9, n. 3.  The South Carolina
Supreme Court shrugged off the possibility of
further administrative and trial proceedings,
however, preferring to dispose of Lucas's takings
claim on the merits.  Compare, e.g., San Diego Gas
& Electric Co., 450 U. S. 621, 631-632 (1981).  This
unusual disposition does not preclude Lucas from
applying for a permit under the 1990 amendment
for future construction, and challenging, on
takings grounds, any denial.  But it does preclude,
both practically and legally, any takings claim
with respect to Lucas's past deprivation, i. e., for
his having been denied construction rights during
the period before the 1990 amendment.  See gener-
ally First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U. S. 304
(1987) (holding that temporary deprivations of use
are compensable under the Takings Clause).
Without even so much as commenting upon the
consequences of the South Carolina Supreme
Court's judgment in this respect, the Council
insists that permitting Lucas to press his claim
of a past deprivation on this appeal would be
improper, since  the issues of whether and to
what extent [Lucas] has incurred a temporary
taking . . . have simply never been addressed.
Brief for Respondent 11.  Yet Lucas had no reason
to proceed on a  temporary taking theory at
trial, or even to seek remand for that purpose
prior to submission of the case to the South
Carolina Supreme Court, since as the Act then
read, the taking was unconditional and permanent.
Moreover, given the breadth of the South Carolina
Supreme Court's holding and judgment, Lucas would
plainly be unable (absent our intervention now) to
obtain further state-court adjudication with
respect to the 1988-1990 period.
  In these circumstances, we think it would not
accord with sound process to insist that Lucas
pursue the late-created  special permit proce-
dure before his takings claim can be considered
ripe.  Lucas has properly alleged Article III
injury-in-fact in this case, with respect to both
the pre-1990 and post-1990 constraints placed on
the use of his parcels by the Beachfront Manage-
ment Act.  That there is a discretionary  spe-
cial permit procedure by which he may regain"for
the future, at least"beneficial use of his land
goes only to the prudential  ripeness of Lucas's
challenge, and for the reasons discussed we do
not think it prudent to apply that prudential
requirement here.  See Esposito v. South Carolina
Coastal Council, 939 F. 2d 165, 168 (CA4 1991), cert.
pending, No. 91-941.  We leave for decision on
remand, of course, the questions left unaddressed
by the South Carolina Supreme Court as a conse-
quence of its categorical disposition.
                      III
                       A
  Prior to Justice Holmes' exposition in Pennsylva-
nia Coal Co. v. Mahon, 260 U. S. 393 (1922), it was
generally thought that the Takings Clause reached
only a  direct appropriation of property, Legal
Tender Cases, 12 Wall. 457, 551 (1871), or the func-
tional equivalent of a  practical ouster of [the
owner's] possession.  Transportation Co. v.
Chicago, 99 U. S. 635, 642 (1879).  See also Gibson
v. United States, 166 U. S. 269, 275-276 (1897).
Justice Holmes recognized in Mahon, however, that
if the protection against physical appropriations
of private property was to be meaningfully en-
forced, the government's power to redefine the
range of interests included in the ownership of
property was necessarily constrained by consti-
tutional limits.  260 U. S., at 414-415.  If, instead,
the uses of private property were subject to
unbridled, uncompensated qualification under the
police power,  the natural tendency of human
nature [would be] to extend the qualification more
and more until at last private property disap-
pear[ed].  Id., at 415.  These considerations gave
birth in that case to the oft-cited maxim that,
 while property may be regulated to a certain
extent, if regulation goes too far it will be
recognized as a taking.  Ibid.
  Nevertheless, our decision in Mahon offered
little insight into when, and under what circum-
stances, a given regulation would be seen as going
 too far for purposes of the Fifth Amendment.  In
70-odd years of succeeding  regulatory takings
jurisprudence, we have generally eschewed any
 `set formula' for determining how far is too
far, preferring to  engag[e] in . . . essentially ad
hoc, factual inquiries, Penn Central Transporta-
tion Co. v. New York City, 438 U. S. 104, 124 (1978)
(quoting Goldblatt v. Hempstead, 369 U. S. 590, 594
(1962)).  See Epstein, Takings: Descent and Resur-
rection, 1987 Sup. Ct. Rev. 1, 4.  We have, however,
described at least two discrete categories of
regulatory action as compensable without case-
specific inquiry into the public interest advanced
in support of the restraint.  The first encompass-
es regulations that compel the property owner to
suffer a physical  invasion of his property.  In
general (at least with regard to permanent inva-
sions), no matter how minute the intrusion, and no
matter how weighty the public purpose behind it,
we have required compensation.  For example, in
Loretto v. Teleprompter Manhattan CATV Corp., 458
U. S. 419 (1982), we determined that New York's law
requiring landlords to allow television cable
companies to emplace cable facilities in their
apartment buildings constituted a taking, id., at
435-440, even though the facilities occupied at
most only 1 1/2 cubic feet of the landlords' property,
see id., at 438, n. 16.  See also United States v.
Causby, 328 U. S. 256, 265, and n. 10 (1946) (physical
invasions of airspace); cf. Kaiser Aetna v. United
States, 444 U. S. 164 (1979) (imposition of naviga-
tional servitude upon private marina).
  The second situation in which we have found
categorical treatment appropriate is where
regulation denies all economically beneficial or
productive use of land.  See Agins, 447 U. S., at
260; see also Nollan v. California Coastal Comm'n,
483 U. S. 825, 834 (1987); Keystone Bituminous Coal
Assn. v. DeBenedictis, 480 U. S. 470, 495 (1987);
Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264, 295-296 (1981).  As we
have said on numerous occasions, the Fifth Amend-
ment is violated when land-use regulation  does
not substantially advance legitimate state
interests or denies an owner economically viable
use of his land.  Agins, supra, at 260 (citations
omitted) (emphasis added).
     We have never set forth the justification for
this rule.  Perhaps it is simply, as Justice Bren-
nan suggested, that total deprivation of benefi-
cial use is, from the landowner's point of view, the
equivalent of a physical appropriation.  See San
Diego Gas & Electric Co. v. San Diego, 450 U. S., at
652 (Brennan, J., dissenting).   [F]or what is the
land but the profits thereof[?]  1 E. Coke, Insti-
tutes ch. 1, 1 (1st Am. ed. 1812).  Surely, at least,
in the extraordinary circumstance when no produc-
tive or economically beneficial use of land is
permitted, it is less realistic to indulge our
usual assumption that the legislature is simply
 adjusting the benefits and burdens of economic
life, Penn Central Transportation Co., 438 U. S., at
124, in a manner that secures an  average reci-
procity of advantage to everyone concerned.
Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415.
And the functional basis for permitting the gov-
ernment, by regulation, to affect property values
without compensation"that  Government hardly
could go on if to some extent values incident to
property could not be diminished without paying
for every such change in the general law, id., at
413"does not apply to the relatively rare situa-
tions where the government has deprived a land-
owner of all economically beneficial uses.
  On the other side of the balance, affirmatively
supporting a compensation requirement, is the
fact that regulations that leave the owner of
land without economically beneficial or productive
options for its use"typically, as here, by requir-
ing land to be left substantially in its natural
state"carry with them a heightened risk that
private property is being pressed into some form
of public service under the guise of mitigating
serious public harm.  See, e.g., Annicelli v. South
Kingstown, 463 A. 2d 133, 140-141 (R.I. 1983) (prohi-
bition on construction adjacent to beach justified
on twin grounds of safety and  conservation of
open space); Morris County Land Improvement Co. v.
Parsippany-Troy Hills Township, 40 N. J. 539,
552-553, 193 A. 2d 232, 240 (1963) (prohibition on
filling marshlands imposed in order to preserve
region as water detention basin and create
wildlife refuge).  As Justice Brennan explained:
 From the government's point of view, the benefits
flowing to the public from preservation of open
space through regulation may be equally great as
from creating a wildlife refuge through formal
condemnation or increasing electricity production
through a dam project that floods private proper-
ty.  San Diego Gas & Elec. Co., supra, at 652
(Brennan, J., dissenting).  The many statutes on
the books, both state and federal, that provide
for the use of eminent domain to impose servitu-
des on private scenic lands preventing develop-
mental uses, or to acquire such lands altogether,
suggest the practical equivalence in this setting
of negative regulation and appropriation.  See,
e.g., 16 U. S. C. 410ff-1(a) (authorizing acquisi-
tion of  lands, waters, or interests [within
Channel Islands National Park] (including but not
limited to scenic easements)); 460aa-2(a)
(authorizing acquisition of  any lands, or lesser
interests therein, including mineral interests and
scenic easements within Sawtooth National
Recreation Area);  3921-3923 (authorizing
acquisition of wetlands); N. C. Gen. Stat. 113A-38
(1990) (authorizing acquisition of, inter alia,
 `scenic easements' within the North Carolina
natural and scenic rivers system); Tenn. Code Ann.
11- 15-101 " 11-15-108 (1987) (authorizing acqui-
sition of  protective easements and other
rights in real property adjacent to State's
historic, architectural, archaeological, or cul-
tural resources).
  We think, in short, that there are good reasons
for our frequently expressed belief that when the
owner of real property has been called upon to
sacrifice all economically beneficial uses in the
name of the common good, that is, to leave his
property economically idle, he has suffered a
taking.
                    B
  The trial court found Lucas's two beachfront
lots to have been rendered valueless by respond-
ent's enforcement of the coastal-zone construc-
tion ban.  Under Lucas's theory of the case,
which rested upon our  no economically viable
use statements, that finding entitled him to
compensation.  Lucas believed it unnecessary to
take issue with either the purposes behind the
Beachfront Management Act, or the means chosen
by the South Carolina Legislature to effectuate
those purposes.  The South Carolina Supreme
Court, however, thought otherwise.  In its view,
the Beachfront Management Act was no ordinary
enactment, but involved an exercise of South
Carolina's  police powers to mitigate the harm to
the public interest that petitioner's use of his
land might occasion.  304 S. C., at 384, 404 S. E. 2d,
at 899.  By neglecting to dispute the findings
enumerated in the Act or otherwise to chal-
lenge the legislature's purposes, petitioner
 concede[d] that the beach/dune area of South
Carolina's shores is an extremely valuable public
resource; that the erection of new construction,
inter alia, contributes to the erosion and de-
struction of this public resource; and that dis-
couraging new construction in close proximity to
the beach/dune area is necessary to prevent a
great public harm.  Id., at 382-383, 404 S. E. 2d,
at 898.  In the court's view, these concessions
brought petitioner's challenge within a long line
of this Court's cases sustaining against Due
Process and Takings Clause challenges the State's
use of its  police powers to enjoin a property
owner from activities akin to public nuisances.
See Mugler v. Kansas, 123 U. S. 623 (1887) (law
prohibiting manufacture of alcoholic beverages);
Hadacheck v. Sebastian, 239 U. S. 394 (1915) (law
barring operation of brick mill in residential
area); Miller v. Schoene, 276 U. S. 272 (1928) (order
to destroy diseased cedar trees to prevent
infection of nearby orchards); Goldblatt v. Hempst-
ead, 369 U. S. 590 (1962) (law effectively prevent-
ing continued operation of quarry in residential
area).
    It is correct that many of our prior opinions
have suggested that  harmful or noxious uses of
property may be proscribed by government regula-
tion without the requirement of compensation.
For a number of reasons, however, we think the
South Carolina Supreme Court was too quick to
conclude that that principle decides the present
case.  The  harmful or noxious uses principle was
the Court's early attempt to describe in theoret-
ical terms why government may, consistent with
the Takings Clause, affect property values by
regulation without incurring an obligation to
compensate"a reality we nowadays acknowledge
explicitly with respect to the full scope of the
State's police power.  See, e.g., Penn Central
Transportation Co., 438 U. S., at 125 (where State
 reasonably conclude[s] that `the health, safety,
morals, or general welfare' would be promoted by
prohibiting particular contemplated uses of land,
compensation need not accompany prohibition); see
also Nollan v. California Coastal Commission, 483
U. S., at 834-835 ( Our cases have not elaborated
on the standards for determining what consti-
tutes a `legitimate state interest[,]' [but] [t]hey
have made clear . . . that a broad range of govern-
mental purposes and regulations satisfy these
requirements).  We made this very point in Penn
Central Transportation Co., where, in the course of
sustaining New York City's landmarks preservation
program against a takings challenge, we rejected
the petitioner's suggestion that Mugler and the
cases following it were premised on, and thus limited
by, some objective conception of  noxiousness:
 [T]he uses in issue in Hadacheck, Miller, and
Goldblatt were perfectly lawful in themselves.
They involved no `blameworthiness, . . . moral
wrongdoing or conscious act of dangerous
risk-taking which induce[d society] to shift
the cost to a pa[rt]icular individual.'  Sax,
Takings and the Police Power, 74 Yale L. J. 36,
50 (1964).  These cases are better understood
as resting not on any supposed `noxious'
quality of the prohibited uses but rather on
the ground that the restrictions were reason-
ably related to the implementation of a poli-
cy"not unlike historic preservation"expected
to produce a widespread public benefit and
applicable to all similarly situated property.
438 U. S., at 133-134, n. 30.
``Harmful or noxious use analysis was, in other
words, simply the progenitor of our more contem-
porary statements that  land-use regulation
does not effect a taking if it `substantially
advance[s] legitimate state interests' . . . .
Nollan, supra, at 834 (quoting Agins v. Tiburon, 447
U. S.,  at 260); see also Penn Central Transportation
Co., supra, at 127; Euclid v. Ambler Realty Co., 272
U. S. 365, 387-388 (1926).
  The transition from our early focus on control
of  noxious uses to our contemporary under-
standing of the broad realm within which govern-
ment may regulate without compensation was an
easy one, since the distinction between  harm-
preventing and  benefit-conferring regulation
is often in the eye of the beholder.  It is quite
possible, for example, to describe in either fash-
ion the ecological, economic, and aesthetic con-
cerns that inspired the South Carolina legisla-
ture in the present case.  One could say that
imposing a servitude on Lucas's land is necessary
in order to prevent his use of it from  harming
South Carolina's ecological resources; or, in-
stead, in order to achieve the  benefits of an
ecological preserve.  Compare, e.g., Claridge v.
New Hampshire Wetlands Board, 125 N.H. 745, 752,
485 A.2d 287, 292 (1984) (owner may, without
compensation, be barred from filling wetlands
because landfilling would deprive adjacent coast-
al habitats and marine fisheries of ecological
support), with, e.g., Bartlett v. Zoning Comm'n of
Old Lyme, 161 Conn. 24, 30, 282 A. 2d 907, 910 (1971)
(owner barred from filling tidal marshland must be
compensated, despite municipality's  laudable
goal of  preserv[ing] marshlands from encroach-
ment or destruction).  Whether one or the other
of the competing characterizations will come to
one's lips in a particular case depends primarily
upon one's evaluation of the worth of competing
uses of real estate.  See Restatement (Second) of
Torts 822, Comment g, p. 112 (1979) ( [p]ractically
all human activities unless carried on in a wilder-
ness interfere to some extent with others or
involve some risk of interference).  A given
restraint will be seen as mitigating  harm to the
adjacent parcels or securing a  benefit for
them, depending upon the observer's evaluation of
the relative importance of the use that the
restraint favors.  See Sax, Takings and the Police
Power, 74 Yale L. J. 36, 49 (1964) ( [T]he problem
[in this area] is not one of noxiousness or harm-
creating activity at all; rather it is a problem of
inconsistency between perfectly innocent and
independently desirable uses).  Whether Lucas's
construction of single-family residences on his
parcels should be described as bringing  harm to
South Carolina's adjacent ecological resources
thus depends principally upon whether the de-
scriber believes that the State's use interest in
nurturing those resources is so important that
any competing adjacent use must yield.
  When it is understood that  prevention of
harmful use was merely our early formulation of
the police power justification necessary to
sustain (without compensation) any regulatory
diminution in value; and that the distinction
between regulation that  prevents harmful use
and that which  confers benefits is difficult, if
not impossible, to discern on an objective, value-
free basis; it becomes self-evident that noxious-
use logic cannot serve as a touchstone to distin-
guish regulatory  takings"which require compen-
sation"from regulatory deprivations that do not
require compensation.  A fortiori the legislatur-
e's recitation of a noxious-use justification
cannot be the basis for departing from our cate-
gorical rule that total regulatory takings must be
compensated.  If it were, departure would virtual-
ly always be allowed.  The South Carolina Supreme
Court's approach would essentially nullify Mahon's
affirmation of limits to the noncompensable
exercise of the police power.  Our cases provide
no support for this: None of them that employed
the logic of  harmful use prevention to sustain
a regulation involved an allegation that the
regulation wholly eliminated the value of the
claimant's land.  See Keystone Bituminous Coal
Assn., 480 U. S., at 513-514 (Rehnquist, C.J., dis-
senting).
  Where the State seeks to sustain regulation
that deprives land of all economically beneficial
use, we think it may resist compensation only if
the logically antecedent inquiry into the nature
of the owner's estate shows that the proscribed
use interests were not part of his title to begin
with.  This accords, we think, with our  tak-
ings jurisprudence, which has traditionally been
guided by the understandings of our citizens
regarding the content of, and the State's power
over, the  bundle of rights that they acquire
when they obtain title to property.  It seems to
us that the property owner necessarily expects
the uses of his property to be restricted, from
time to time, by various measures newly enacted
by the State in legitimate exercise of its police
powers;  [a]s long recognized, some values are
enjoyed under an implied limitation and must yield
to the police power.  Pennsylvania Coal Co. v.
Mahon, 260 U. S., at 413.  And in the case of person-
al property, by reason of the State's tradition-
ally high degree of control over commercial
dealings, he ought to be aware of the possibility
that new regulation might even render his proper-
ty economically worthless (at least if the proper-
ty's only economically productive use is sale or
manufacture for sale), see Andrus v. Allard, 444
U. S. 51, 66-67 (1979) (prohibition on sale of eagle
feathers).  In the case of land, however, we think
the notion pressed by the Council that title is
somehow held subject to the  implied limitation
that the State may subsequently eliminate all
economically valuable use is inconsistent with the
historical compact recorded in the Takings Clause
that has become part of our constitutional culture.
  Where  permanent physical occupation of land
is concerned, we have refused to allow the gov-
ernment to decree it anew (without compensation),
no matter how weighty the asserted  public
interests involved, Loretto v. Teleprompter
Manhattan CATV Corp., 458 U. S., at 426"though we
assuredly would permit the government to assert
a permanent easement that was a pre-existing
limitation upon the landowner's title.  Compare
Scranton v. Wheeler, 179 U. S. 141, 163 (1900) (inter-
ests of  riparian owner in the submerged lands . . .
bordering on a public navigable water held
subject to Government's navigational servitude),
with Kaiser Aetna v. United States, 444 U. S., at
178-180 (imposition of navigational servitude on
marina created and rendered navigable at private
expense held to constitute a taking).  We believe
similar treatment must be accorded confiscatory
regulations, i. e., regulations that prohibit all
economically beneficial use of land: Any limitation
so severe cannot be newly legislated or decreed
(without compensation), but must inhere in the
title itself, in the restrictions that background
principles of the State's law of property and
nuisance already place upon land ownership.  A law
or decree with such an effect must, in other
words, do no more than duplicate the result that
could have been achieved in the courts"by adja-
cent landowners (or other uniquely affected
persons) under the State's law of private nui-
sance, or by the State under its complementary
power to abate nuisances that affect the public
generally, or otherwise.
   On this analysis, the owner of a lake bed, for
example, would not be entitled to compensation
when he is denied the requisite permit to engage
in a landfilling operation that would have the
effect of flooding others' land.  Nor the corporate
owner of a nuclear generating plant, when it is
directed to remove all improvements from its land
upon discovery that the plant sits astride an
earthquake fault.  Such regulatory action may well
have the effect of eliminating the land's only
economically productive use, but it does not pro-
scribe a productive use that was previously
permissible under relevant property and nuisance
principles.  The use of these properties for what
are now expressly prohibited purposes was always
unlawful, and (subject to other constitutional
limitations) it was open to the State at any point
to make the implication of those background
principles of nuisance and property law explicit.
See Michelman, Property, Utility, and Fairness,
Comments on the Ethical Foundations of  Just
Compensation Law, 80 Harv. L. Rev. 1165, 1239-1241
(1967).  In light of our traditional resort to
 existing rules or understandings that stem from
an independent source such as state law to
define the range of interests that qualify for
protection as  property under the Fifth (and
Fourteenth) amendments, Board of Regents of State
Colleges v. Roth, 408 U. S. 564, 577 (1972); see,
e.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986,
1011-1012 (1984); Hughes v. Washington, 389 U. S. 290,
295 (1967) (Stewart, J., concurring), this recogni-
tion that the Takings Clause does not require
compensation when an owner is barred from putting
land to a use that is proscribed by those  exist-
ing rules or understandings is surely unexcep-
tional.  When, however, a regulation that declares
 off-limits all economically productive or
beneficial uses of land goes beyond what the
relevant background principles would dictate,
compensation must be paid to sustain it.
  The  total taking inquiry we require today will
ordinarily entail (as the application of state
nuisance law ordinarily entails) analysis of, among
other things, the degree of harm to public lands
and resources, or adjacent private property,
posed by the claimant's proposed activities, see,
e.g., Restatement (Second) of Torts 826, 827,
the social value of the claimant's activities and
their suitability to the locality in question, see,
e.g., id., 828(a) and (b), 831, and the relative
ease with which the alleged harm can be avoided
through measures taken by the claimant and the
government (or adjacent private landowners) alike,
see, e.g., id., 827(e), 828(c), 830.  The fact
that a particular use has long been engaged in by
similarly situated owners ordinarily imports a
lack of any common-law prohibition (though changed
circumstances or new knowledge may make what was
previously permissible no longer so, see Restate-
ment (Second) of Torts, supra, 827, comment g.  So
also does the fact that other landowners, simi-
larly situated, are permitted to continue the use
denied to the claimant.
     It seems unlikely that common-law principles
would have prevented the erection of any habit-
able or productive improvements on petitioner's
land; they rarely support prohibition of the
 essential use of land, Curtin v. Benson, 222 U. S.
78, 86 (1911).  The question, however, is one of
state law to be dealt with on remand.  We empha-
size that to win its case South Carolina must do
more than proffer the legislature's declaration
that the uses Lucas desires are inconsistent with
the public interest, or the conclusory assertion
that they violate a common-law maxim such as sic
utere tuo ut alienum non laedas.  As we have said, a
 State, by ipse dixit, may not transform private
property into public property without compensa-
tion . . . .  Webb's Fabulous Pharmacies, Inc. v.
Beckwith, 449 U. S. 155, 164 (1980).  Instead, as it
would be required to do if it sought to restrain
Lucas in a common-law action for public nuisance,
South Carolina must identify background princi-
ples of nuisance and property law that prohibit
the uses he now intends in the circumstances in
which the property is presently found.  Only on
this showing can the State fairly claim that, in
proscribing all such beneficial uses, the Beachfr-
ont Management Act is taking nothing.
                 *   *   *
  The judgment is reversed and the cause remand-
ed for proceedings not inconsistent with this
opinion.
                                   So ordered.
Concur
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-453
              --------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
                COASTAL COUNCIL
 on writ of certiorari to the supreme court of
                south carolina
                [June 29, 1992]

  Justice Kennedy, concurring in the judgment.
  The case comes to the Court in an unusual
posture, as all my colleagues observe.  Ante, at 5;
post, at 6 (Blackmun, J., dissenting); post, at 2
(Stevens, J., dissenting); post, at 1-2 (Statement
of Souter, J.).  After the suit was initiated but
before it reached us, South Carolina amended its
Beachfront Management Act to authorize the
issuance of special permits at variance with the
Act's general limitations.  See S. C. Code 48-39--
290(D)(1) (Supp. 1991).  Petitioner has not applied
for a special permit but may still do so.  The
availability of this alternative, if it can be
invoked, may dispose of petitioner's claim of a
permanent taking.  As I read the Court's opinion, it
does not decide the permanent taking claim, but
neither does it foreclose the Supreme Court of
South Carolina from considering the claim or
requiring petitioner to pursue an administrative
alternative not previously available.
  The potential for future relief does not control
our disposition, because whatever may occur in
the future cannot undo what has occurred in the
past.  The Beachfront Management Act was enacted
in 1988.  S. C. Code 48-39-250 et seq. (Supp. 1990).
It may have deprived petitioner of the use of his
land in an interim period.  48-39-290(A).  If this
deprivation amounts to a taking, its limited
duration will not bar constitutional relief.  It is
wellestablished that temporary takings are as pro-
tected by the Constitution as are permanent ones.
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles,  482 U. S. 304,
318 (1987).
  The issues presented in the case are ready for
our decision.  The Supreme Court of South Caroli-
na decided the case on constitutional grounds,
and its rulings are now before us.  There exists no
jurisdictional bar to our disposition, and pruden-
tial considerations ought not to militate against
it.  The State cannot complain of the manner in
which the issues arose.  Any uncertainty in this
regard is attributable to the State, as a conse-
quence of its amendment to the Beachfront Man-
agement Act.  If the Takings Clause is to protect
against temporary deprivations as well as perma-
nent ones, its enforcement must not be frustrated
by a shifting background of state law.
  Although we establish a framework for remand,
moreover, we do not decide the ultimate question
of whether a temporary taking has occurred in
this case.  The facts necessary to the determina-
tion have not been developed in the record.  Among
the matters to be considered on remand must be
whether petitioner had the intent and capacity to
develop the property and failed to do so in the
interim period because the State prevented him.
Any failure by petitioner to comply with relevant
administrative requirements will be part of that
analysis.
  The South Carolina Court of Common Pleas found
that petitioner's real property has been rendered
valueless by the State's regulation.  App. to Pet.
for Cert. 37.  The finding appears to presume that
the property has no significant market value or
resale potential.  This is a curious finding, and I
share the reservations of some of my colleagues
about a finding that a beach front lot loses all
value because of a development restriction.  Post,
at 9-10 (Blackmun, J., dissenting); post, at 5, n. 3
(Stevens, J., dissenting); post, at 1 (Statement of
Souter, J.).  While the Supreme Court of South
Carolina on remand need not consider the case
subject to this constraint, we must accept the
finding as entered below.  See Oklahoma City v.
Tuttle, 471 U. S. 808, 816 (1985).  Accepting the
finding as entered, it follows that petitioner is
entitled to invoke the line of cases discussing
regulations that deprive real property of all
economic value.  See Agins v. Tiburon, 447 U. S.
255, 260 (1980).
  The finding of no value must be considered under
the Takings Clause by reference to the owner's
reasonable, investment-backed expectations.
Kaiser Aetna v. United States, 444 U. S. 164, 175
(1979); Penn Central Transportation Co. v. New York
City, 438 U. S. 104, 124 (1978); see also W. B. Wort-
hen Co. v. Kavanaugh, 295 U. S. 56 (1935).  The
Takings Clause, while conferring substantial
protection on property owners, does not eliminate
the police power of the State to enact limitations
on the use of their property.  Mugler v. Kansas, 123
U. S. 623, 669 (1887).  The rights conferred by the
Takings Clause and the police power of the State
may coexist without conflict.  Property is bought
and sold, investments are made, subject to the
State's power to regulate.  Where a taking is
alleged from regulations which deprive the prop-
erty of all value, the test must be whether the
deprivation is contrary to reasonable, invest-
ment-backed expectations.
  There is an inherent tendency towards circular-
ity in this synthesis, of course; for if the owner's
reasonable expectations are shaped by what
courts allow as a proper exercise of governmental
authority, property tends to become what courts
say it is.  Some circularity must be tolerated in
these matters, however, as it is in other spheres.
E.g., Katz v. United States, 389 U. S. 347 (1967)
(Fourth Amendment protections defined by reason-
able expectations of privacy).  The definition,
moreover, is not circular in its entirety.  The
expectations protected by the Constitution are
based on objective rules and customs that can be
understood as reasonable by all parties involved.
  In my view, reasonable expectations must be
understood in light of the whole of our legal
tradition.  The common law of nuisance is too
narrow a confine for the exercise of regulatory
power in a complex and interdependent society.
Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962).
The State should not be prevented from enacting
new regulatory initiatives in response to chang-
ing conditions, and courts must consider all
reasonable expectations whatever their source.
The Takings Clause does not require a static body
of state property law; it protects private expec-
tations to ensure private investment.  I agree
with the Court that nuisance prevention accords
with the most common expectations of property
owners who face regulation, but I do not believe
this can be the sole source of state authority to
impose severe restrictions.  Coastal property
may present such unique concerns for a fragile
land system that the State can go further in
regulating its development and use than the
common law of nuisance might otherwise permit.
  The Supreme Court of South Carolina erred, in
my view, by reciting the general purposes for
which the state regulations were enacted without
a determination that they were in accord with the
owner's reasonable expectations and therefore
sufficient to support a severe restriction on
specific parcels of property.  See 304 S. C. 376,
383, 404 S. E. 2d 895, 899 (1991).  The promotion of
tourism, for instance, ought not to suffice to
deprive specific property of all value without a
corresponding duty to compensate.  Furthermore,
the means as well as the ends of regulation must
accord with the owner's reasonable expectations.
Here, the State did not act until after the prop-
erty had been zoned for individual lot development
and most other parcels had been improved, throw-
ing the whole burden of the regulation on the
remaining lots.  This too must be measured in the
balance.  See Pennsylvania Coal Co. v. Mahon, 260
U. S. 393, 416 (1922).
  With these observations, I concur in the judg-
ment of the Court.
Dissent 1
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-453
              --------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
                COASTAL COUNCIL
 on writ of certiorari to the supreme court of
                south carolina
                [June 29, 1992]

  Justice Blackmun, dissenting.
  Today the Court launches a missile to kill a
mouse.
  The State of South Carolina prohibited petition-
er Lucas from building a permanent structure on
his property from 1988 to 1990.  Relying on an
unreviewed (and implausible) state trial court
finding that this restriction left Lucas' property
valueless, this Court granted review to determine
whether compensation must be paid in cases where
the State prohibits all economic use of real
estate.  According to the Court, such an occasion
never has arisen in any of our prior cases, and
the Court imagines that it will arise  relatively
rarely or only in  extraordinary circumstances.
Almost certainly it did not happen in this case.
  Nonetheless, the Court presses on to decide the
issue, and as it does, it ignores its jurisdictional
limits, remakes its traditional rules of review,
and creates simultaneously a new categorical rule
and an exception (neither of which is rooted in our
prior case law, common law, or common sense).  I
protest not only the Court's decision, but each
step taken to reach it.  More fundamentally, I
question the Court's wisdom in issuing sweeping
new rules to decide such a narrow case.  Surely,
as Justice Kennedy demonstrates, the Court could
have reached the result it wanted without inflict-
ing this damage upon our Taking Clause jurispru-
dence.
  My fear is that the Court's new policies will
spread beyond the narrow confines of the present
case.  For that reason, I, like the Court, will give
far greater attention to this case than its
narrow scope suggests"not because I can inter-
cept the Court's missile, or save the targeted
mouse, but because I hope perhaps to limit the
collateral damage.
                       I
                       A
  In 1972 Congress passed the Coastal Zone Man-
agement Act.  16 U. S. C. 1451 et seq.  The Act was
designed to provide States with money and incen-
tives to carry out Congress' goal of protecting
the public from shoreline erosion and coastal
hazards. In the 1980 Amendments to the Act,
Congress directed States to enhance their coast-
al programs by  [p]reventing or significantly
reducing threats to life and the destruction of
property by eliminating development and redevel-
opment in high-hazard areas.  16 U. S. C. 1456-
b(a)(2) (1988 ed., Supp. II).
  South Carolina began implementing the congres-
sional directive by enacting the South Carolina
Coastal Zone Management Act of 1977.  Under the
1977 Act, any construction activity in what was
designated the  critical area required a permit
from the Council, and the construction of any
habitable structure was prohibited.  The 1977
critical area was relatively narrow.
  This effort did not stop the loss of shoreline.
In October 1986, the Council appointed a  Blue
Ribbon Committee on Beachfront Management to
investigate beach erosion and propose possible
solutions.  In March 1987, the Committee found
that South Carolina's beaches were  critically
eroding, and proposed land-use restrictions.
Report of the South Carolina Blue Ribbon Commit-
tee on Beachfront Management i, 6-10 (March 1987).
In response, South Carolina enacted the Beachfr-
ont Management Act on July 1, 1988.  S.C. Code
48-39-250 et seq. (Supp. 1990).  The 1988 Act did
not change the uses permitted within the desig-
nated critical areas.  Rather, it enlarged those
areas to encompass the distance from the mean
high watermark to a setback line established on
the basis of  the best scientific and historical
data available.  S.C. Code 48-39-280 (Supp.
1991).
                       B
  Petitioner Lucas is a contractor, manager, and
part owner of the Wild Dune development on the
Isle of Palms.  He has lived there since 1978.  In
December 1986, he purchased two of the last four
pieces of vacant property in the development.
The area is notoriously unstable.  In roughly half
of the last 40 years, all or part of petitioner's
property was part of the beach or flooded twice
daily by the ebb and flow of the tide.  Tr. 84.
Between 1957 and 1963, petitioner's property was
under water.  Id., at 79, 81-82.  Between 1963 and
1973 the shoreline was 100 to 150 feet onto
petitioner's property.  Ibid.  In 1973 the first line
of stable vegetation was about halfway through
the property.  Id., at 80.  Between 1981 and 1983,
the Isle of Palms issued 12 emergency orders for
sandbagging to protect property in the Wild Dune
development.  Id., at 99.  Determining that local
habitable structures were in imminent danger of
collapse, the Council issued permits for two rock
revetments to protect condominium developments
near petitioner's property from erosion; one of
the revetments extends more than halfway onto
one of his lots.  Id., at 102.
                       C
  The South Carolina Supreme Court found that the
Beach Management Act did not take petitioner's
property without compensation.  The decision
rested on two premises that until today were
unassailable"that the State has the power to
prevent any use of property it finds to be harmful
to its citizens, and that a state statute is
entitled to a presumption of constitutionality.
  The Beachfront Management Act includes a
finding by the South Carolina General Assembly
that the beach/dune system serves the purpose of
 protect[ing] life and property by serving as a
storm barrier which dissipates wave energy and
contributes to shoreline stability in an economi-
cal and effective manner.  48-39-250(1)(a).  The
General Assembly also found that  development
unwisely has been sited too close to the
[beach/dune] system.  This type of development
has jeopardized the stability of the beach/dune
system, accelerated erosion, and endangered
adjacent property.  48-39-250(4); see also
48-39-250(6) (discussing the need to  afford the
beach/dune system space to accrete and erode).
  If the state legislature is correct that the
prohibition on building in front of the setback line
prevents serious harm, then, under this Court's
prior cases, the Act is constitutional.   Long ago
it was recognized that all property in this coun-
try is held under the implied obligation that the
owner's use of it shall not be injurious to the
community, and the Takings Clause did not trans-
form that principle to one that requires compen-
sation whenever the State asserts its power to
enforce it.  Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 491-492 (1987) (inter-
nal quotations omitted); see also id., at 488-489,
and n. 18.  The Court consistently has upheld
regulations imposed to arrest a significant
threat to the common welfare, whatever their
economic effect on the owner.  See e.g., Goldblatt
v. Hempstead, 369 U. S. 590, 592-593 (1962); Euclid
v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v.
Fox, 274 U. S. 603, 608 (1927); Mugler v. Kansas, 123
U. S. 623 (1887).
  Petitioner never challenged the legislature's
findings that a building ban was necessary to
protect property and life.  Nor did he contend
that the threatened harm was not sufficiently
serious to make building a house in a particular
location a  harmful use, that the legislature had
not made sufficient findings, or that the legisla-
ture was motivated by anything other than a
desire to minimize damage to coastal areas.
Indeed, petitioner objected at trial that evidence
as to the purposes of the setback requirement
was irrelevant.  Tr. 68.  The South Carolina Su-
preme Court accordingly understood petitioner
not to contest the State's position that  dis-
couraging new construction in close proximity to
the beach/dune area is necessary to prevent a
great public harm, 304 S.C. 376, ___, 404 S.E. 2d
895, 898 (1991), and  to prevent serious injury to
the community.  Id., at ___, 404 S.E. 2d, at 901.
The court considered itself  bound by these
uncontested legislative findings . . . [in the
absence of] any attack whatsoever on the statu-
tory scheme.  Id., at ___, 404 S.E.2d, at 898.
  Nothing in the record undermines the General
Assembly's assessment that prohibitions on
building in front of the setback line are neces-
sary to protect people and property from storms,
high tides, and beach erosion.  Because that
legislative determination cannot be disregarded
in the absence of such evidence, see, e.g., Euclid,
272 U. S., at 388; O'Gorman & Young v. Hartford Fire
Ins. Co, 282 U. S. 251, 257-258 (1931) (Brandeis, J.),
and because its determination of harm to life and
property from building is sufficient to prohibit
that use under this Court's cases, the South
Carolina Supreme Court correctly found no taking.
                      II
  My disagreement with the Court begins with its
decision to  review this case.  This Court has held
consistently that a land-use challenge is not ripe
for review until there is a final decision about
what uses of the property will be permitted.  The
ripeness requirement is not simply a gesture of
good-will to land-use planners.  In the absence of
 a final and authoritative determination of the
type and intensity of development legally permit-
ted on the subject property, MacDonald, Sommer &
Frates v. Yolo County, 477 U. S. 340, 348 (1986), and
the utilization of state procedures for just
compensation, there is no final judgment, and in
the absence of a final judgment there is no juris-
diction.  See San Diego Gas & Electric Co. v. San
Diego, 450 U. S. 621, 633 (1981); Agins v. Tiburon,
447 U. S. 255, 260 (1980).
  This rule is  compelled by the very nature of
the inquiry required by the Just Compensation
Clause, because the factors applied in deciding
a takings claim  simply cannot be evaluated until
the administrative agency has arrived at a final,
definitive position regarding how it will apply the
regulations at issue to the particular land in
question.  Williamson County Regional Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U. S.
172, 190, 191 (1985).  See also MacDonald, Sommer &
Frates, 477 U. S., at 348 ( A court cannot deter-
mine whether a regulation has gone `too far'
unless it knows how far the regulation goes)
(citation omitted).
  The Court admits that the 1990 amendments to
the Beachfront Management Act allowing special
permits preclude Lucas from asserting that his
property has been permanently taken.  See ante, at
5-6.  The Court agrees that such a claim would not
be ripe because there has been no final decision
by respondent on what uses will be permitted.  The
Court, however, will not be denied: it determines
that petitioner's  temporary takings claim for
the period from July 1, 1988, to June 25, 1990, is
ripe.  But this claim also is not justiciable.
  From the very beginning of this litigation,
respondent has argued that the courts:
 lac[k] jurisdiction in this matter because the
Plaintiff has sought no authorization from
Council for use of his property, has not
challenged the location of the baseline or
setback line as alleged in the Complaint and
because no final agency decision has been
rendered concerning use of his property or
location of said baseline or setback line.

Tr. 10 (answer, as amended).  Although the Council's
plea has been ignored by every court, it is un-
doubtedly correct.
  Under the Beachfront Management Act, petition-
er was entitled to challenge the setback line or
the baseline or erosion rate applied to his prop-
erty in formal administrative, followed by judi-
cial, proceedings.  S.C. Code 48-39-280(E) (Supp
1991).  Because Lucas failed to pursue this admin-
istrative remedy, the Council never finally decid-
ed whether Lucas' particular piece of property
was correctly categorized as a critical area in
which building would not be permitted.  This is all
the more crucial because Lucas argued strenu-
ously in the trial court that his land was per-
fectly safe to build on, and that his company had
studies to prove it.  Tr. 20, 25, 36.  If he was
correct, the Council's final decision would have
been to alter the setback line, eliminating the
construction ban on Lucas' property.
  That petitioner's property fell within the
critical area as initially interpreted by the
Council does not excuse petitioner's failure to
challenge the Act's application to his property in
the administrative process.  The claim is not ripe
until petitioner seeks a variance from that
status.   [W]e have made it quite clear that the
mere assertion of regulatory jurisdiction by a
governmental body does not constitute a regula-
tory taking.  United States v. Riverside Bayview
Homes, Inc., 474 U. S. 121, 126 (1985).  See also Wil-
liamson County, 473 U. S., at 188 (claim not ripe
because respondent did not seek variances that
would have allowed it to develop the property,
notwithstanding the Commission's finding that the
plan did not comply with the zoning ordinance and
subdivision regulations).
  Even if I agreed with the Court that there were
no jurisdictional barriers to deciding this case,
I still would not try to decide it.  The Court
creates its new taking jurisprudence based on the
trial court's finding that the property had lost
all economic value.  This finding is almost
certainly erroneous.  Petitioner still can enjoy
other attributes of ownership, such as the right
to exclude others,  one of the most essential
sticks in the bundle of rights that are commonly
characterized as property.  Kaiser Aetna v.
United States, 444 U. S. 164, 176 (1979).  Petitioner
can picnic, swim, camp in a tent, or live on the
property in a movable trailer.  State courts
frequently have recognized that land has economic
value where the only residual economic uses are
recreation or camping.  See, e.g., Turnpike Realty
Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972);
Turner v. County of Del Norte, 24 Cal App. 3d 311, 101
Cal. Rptr. 93 (1972), cert. denied, 409 U. S. 1108
(1973); Hall v. Board of Environmental Protection,
528 A.2d 453 (Me. 1987).  Petitioner also retains
the right to alienate the land, which would have
value for neighbors and for those prepared to
enjoy proximity to the ocean without a house.
  Yet the trial court, apparently believing that
 less value and  valueless could be used
interchangeably, found the property  valueless.
The court accepted no evidence from the State on
the property's value without a home, and petition-
er's appraiser testified that he never had consid-
ered what the value would be absent a residence.
Tr. 54-55.  The appraiser's value was based on the
fact that the  highest and best use of these lots
. . . [is] luxury single family detached dwellings.
Id., at 48.  The trial court appeared to believe
that the property could be considered  value-
less if it was not available for its most profit-
able use.  Absent that erroneous assumption, see
Goldblatt, 369 U. S., at 592, I find no evidence in
the record supporting the trial court's conclusion
that the damage to the lots by virtue of the
restrictions was  total.  Record 128 (findings of
fact).  I agree with the Court, ante, at 14, n. 9,
that it has the power to decide a case that turns
on an erroneous finding, but I question the wisdom
of deciding an issue based on a factual premise
that does not exist in this case, and in the judg-
ment of the Court will exist in the future only in
 extraordinary circumstance[s].  Ante, at 12.
  Clearly, the Court was eager to decide this
case.  But eagerness, in the absence of
proper jurisdiction, must"and in this case should
have been"met with restraint.
                      III
    The Court's willingness to dispense with prece-
dent in its haste to reach a result is not limited
to its initial jurisdictional decision.  The Court
also alters the long-settled rules of review.
  The South Carolina Supreme Court's decision to
defer to legislative judgments in the absence of
a challenge from petitioner comports with one of
this Court's oldest maxims:  the existence of
facts supporting the legislative judgment is to be
presumed.  United States v. Carolene Products Co.,
304 U. S. 144, 152 (1938).  Indeed, we have said the
legislature's judgment is  well-nigh conclusive.
Berman v. Parker, 348 U. S. 26, 32 (1954).  See also
Sweet v. Rechel, 159 U. S. 380, 392 (1895); Euclid,
272 U. S., at 388 ( If the validity of the legisla-
tive classification for zoning purposes be fairly
debatable, the legislative judgment must be
allowed to control).
  Accordingly, this Court always has required
plaintiffs challenging the constitutionality of an
ordinance to provide  some factual foundation of
record that contravenes the legislative find-
ings.  O'Gorman & Young, 282 U. S., at 258.  In the
absence of such proof,  the presumption of
constitutionality must prevail.  Id., at 257.  We
only recently have reaffirmed that claimants have
the burden of showing a state law constitutes a
taking.  See Keystone Bituminous Coal, 480 U. S., at
485.  See also Goldblatt, 369 U. S., at 594 (citing
 the usual presumption of constitutionality that
applies to statutes attacked as takings).
  Rather than invoking these traditional rules,
the Court decides the State has the burden to
convince the courts that its legislative judg-
ments are correct.  Despite Lucas' complete
failure to contest the legislature's findings of
serious harm to life and property if a permanent
structure is built, the Court decides that the
legislative findings are not sufficient to justify
the use prohibition.  Instead, the Court  empha-
size[s] the State must do more than merely
proffer its legislative judgments to avoid invali-
dating its law.  Ante, at 26.  In this case, appar-
ently, the State now has the burden of showing the
regulation is not a taking.  The Court offers no
justification for its sudden hostility toward
state legislators, and I doubt that it could.
                      IV
  The Court does not reject the South Carolina
Supreme Court's decision simply on the basis of
its disbelief and distrust of the legislature's
findings.  It also takes the opportunity to create
a new scheme for regulations that eliminate all
economic value.  From now on, there is a categori-
cal rule finding these regulations to be a taking
unless the use they prohibit is a background
common-law nuisance or property principle.  See
ante, at 23-26.
                       A
  I first question the Court's rationale in creat-
ing a category that obviates a  case-specific
inquiry into the public interest advanced, ante,
at 9, if all economic value has been lost.  If one
fact about the Court's taking jurisprudence can
be stated without contradiction, it is that  the
particular circumstances of each case determine
whether a specific restriction will be rendered
invalid by the government's failure to pay compen-
sation.  United States v. Central Eureka Mining Co.,
357 U. S. 155, 168 (1958).  This is so because al-
though we have articulated certain factors to be
considered, including the economic impact on the
property owner, the ultimate conclusion  neces-
sarily requires a weighing of private and public
interests.  Agins, 447 U. S., at 261.  When the
government regulation prevents the owner from
any economically valuable use of his property, the
private interest is unquestionably substantial,
but we have never before held that no public
interest can outweigh it.  Instead the Court's
prior decisions  uniformly reject the proposition
that diminution in property value, standing alone,
can establish a `taking.'  Penn Central Transp. Co.
v. New York City, 438 U. S. 104, 131 (1978).
  This Court repeatedly has recognized the ability
of government, in certain circumstances, to
regulate property without compensation no matter
how adverse the financial effect on the owner may
be.  More than a century ago, the Court explicitly
upheld the right of States to prohibit uses of
property injurious to public health, safety, or
welfare without paying compensation:  A prohibi-
tion simply upon the use of property for purposes
that are declared, by valid legislation, to be
injurious to the health, morals, or safety of the
community, cannot, in any just sense, be deemed a
taking or an appropriation of property.  Mugler v.
Kansas, 123 U. S. 623, 668-669 (1887).  On this
basis, the Court upheld an ordinance effectively
prohibiting operation of a previously lawful
brewery, although the  establishments will become
of no value as property.  Id., at 664; see also
id., at 668.
  Mugler was only the beginning in a long line of
cases.  In Powell v. Pennsylvania, 127 U. S. 678
(1888), the Court upheld legislation prohibiting
the manufacture of oleomargarine, despite the
owner's allegation that  if prevented from contin-
uing it, the value of his property employed there-
in would be entirely lost and he be deprived of the
means of livelihood.  Id., at 682.  In Hadacheck v.
Sebastian, 239 U. S. 394 (1915), the Court upheld an
ordinance prohibiting a brickyard, although the
owner had made excavations on the land that
prevented it from being utilized for any purpose
but a brickyard.  Id., at 405.  In Miller v. Schoene,
276 U. S. 272 (1928), the Court held that the Fifth
Amendment did not require Virginia to pay compen-
sation to the owner of cedar trees ordered
destroyed to prevent a disease from spreading to
nearby apple orchards.  The  preferment of [the
public interest] over the property interest of
the individual, to the extent even of its destruc-
tion, is one of the distinguishing characteristics
of every exercise of the police power which
affects property.  Id., at 280.  Again, in Omnia
Commercial Co. v. United States, 261 U. S. 502 (1923),
the Court stated that  destruction of, or injury
to, property is frequently accomplished without a
`taking' in the constitutional sense.  Id., at 508.
  More recently, in Goldblatt, the Court upheld a
town regulation that barred continued operation
of an existing sand and gravel operation in order
to protect public safety.  369 U. S., at 596.
 Although a comparison of values before and after
is relevant, the Court stated,  it is by no means
conclusive.  Id., at 594.  In 1978, the Court
declared that  in instances in which a state
tribunal reasonably concluded that `the health,
safety, morals, or general welfare' would be
promoted by prohibiting particular contemplated
uses of land, this Court has upheld land-use
regulation that destroyed . . . recognized real
property interests.  Penn Central Transp. Co., 438
U. S., at 125.  In First Lutheran Church v. Los Angel-
es County, 482 U. S. 304 (1987), the owner alleged
that a floodplain ordinance had deprived it of  all
use of the property.  Id., at 312.  The Court
remanded the case for consideration whether,
even if the ordinance denied the owner all use, it
could be justified as a safety measure.  Id.,
at 313.  And in Keystone Bituminous Coal, the Court
summarized over 100 years of precedent:  the
Court has repeatedly upheld regulations that
destroy or adversely affect real property inter-
ests. 480 U. S., at 489, n. 18.
   The Court recognizes that  our prior opinions
have suggested that `harmful or noxious uses' of
property may be proscribed by government regula-
tion without the requirement of compensation,
ante, at 17, 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 Cour-
t's factual premise were correct, its understand-
ing 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.  Instead, the
cases depended on whether the government inter-
est was sufficient to prohibit the activity, given
the significant private cost.
        These cases rest on the principle that the
State has full power to prohibit an owner's use of
property if it is harmful to the public.   [S]ince
no individual has a right to use his property so as
to create a nuisance or otherwise harm others,
the State has not `taken' anything when it asserts
its power to enjoin the nuisance-like activity.
Keystone Bituminous Coal, 480 U. S., at 491, n. 20.
It would make no sense under this theory to
suggest that an owner has a constitutionally
protected right to harm others, if only he makes
the proper showing of economic loss.  See
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 418
(1922) (Brandeis, J., dissenting) ( Restriction upon
[harmful] use does not become inappropriate as a
means, merely because it deprives the owner of
the only use to which the property can then be
profitably put).
                       B
  Ultimately even the Court cannot embrace the
full implications of its per se rule: it eventually
agrees that there cannot be a categorical rule
for a taking based on economic value that wholly
disregards the public need asserted.  Instead, the
Court decides that it will permit a State to
regulate all economic value only if the State
prohibits uses that would not be permitted under
 background principles of nuisance and property
law.  Ante, at 26.
  Until today, the Court explicitly had rejected
the contention that the government's power to act
without paying compensation turns on whether the
prohibited activity is a common-law nuisance.
The brewery closed in Mugler itself was not a
common-law nuisance, and the Court specifically
stated that it was the role of the legislature to
determine what measures would be appropriate for
the protection of public health and safety.  See
123 U. S., at 661.  In upholding the state action in
Miller, the Court found it unnecessary to  weigh
with nicety the question whether the infected
cedars constitute a nuisance according to common
law; or whether they may be so declared by stat-
ute.  276 U. S., at 280.  See also Goldblatt, 369
U. S., at 593; Hadacheck, 239 U. S., at 411.  Instead
the Court has relied in the past, as the South
Carolina Court has done here, on legislative
judgments of what constitutes a harm.
     The Court rejects the notion that the State
always can prohibit uses it deems a harm to the
public without granting compensation because
 the distinction between `harm-preventing' and
`benefit-conferring' regulation is often in the eye
of the beholder.  Ante, at 18.  Since the charac-
terization will depend  primarily upon one's
evaluation of the worth of competing uses of real
estate, ante, at 19, the Court decides a legisla-
tive judgment of this kind no longer can provide
the desired  objective, value-free basis for
upholding a regulation.  Ante, at 20.  The Court,
however, fails to explain how its proposed common
law alternative escapes the same trap.
  The threshold inquiry for imposition of the
Court's new rule,  deprivation of all economically
valuable use, itself cannot be determined objec-
tively.  As the Court admits, whether the owner
has been deprived of all economic value of his
property will depend on how  property is defined.
The  composition of the denominator in our `depri-
vation' fraction, ante, at 11, n. 7, is the disposi-
tive inquiry.  Yet there is no  objective way to
define what that denominator should be.   We have
long understood that any land-use regulation can
be characterized as the `total' deprivation of an
aptly defined entitlement. . . .  Alternatively, the
same regulation can always be characterized as a
mere `partial' withdrawal from full, unencumbered
ownership of the landholding affected by the
regulation. . . .  Michelman, Takings, 1987, 88
Colum. L. Rev. 1600, 1614 (1988).
   The Court's decision in Keystone Bituminous Coal
illustrates this principle perfectly.  In Keystone,
the Court determined that the  support estate
was  merely a part of the entire bundle of rights
possessed by the owner.  480 U. S., at 501.  Thus,
the Court concluded that the support estate's
destruction merely eliminated one segment of the
total property.  Ibid.  The dissent, however,
characterized the support estate as a distinct
property interest that was wholly destroyed.  Id.,
at 519.  The Court could agree on no  value-free
basis to resolve this dispute.
  Even more perplexing, however, is the Court's
reliance on common-law principles of nuisance in
its quest for a value-free taking jurisprudence.
In determining what is a nuisance at common law,
state courts make exactly the decision that the
Court finds so troubling when made by the South
Carolina General Assembly today: they determine
whether the use is harmful.  Common-law public and
private nuisance law is simply a determination
whether a particular use causes harm.  See Pross-
er, Private Action for Public Nuisance, 52 Va. L.
Rev. 997, 997 (1966) ( Nuisance is a French word
which means nothing more than harm).  There is
nothing magical in the reasoning of judges long
dead.  They determined a harm in the same way as
state judges and legislatures do today.  If judges
in the 18th and 19th centuries can distinguish a
harm from a benefit, why not judges in the 20th
century, and if judges can, why not legislators?
There simply is no reason to believe that new
interpretations of the hoary common law nuisance
doctrine will be particularly  objective or
 value-free.  Once one abandons the level of
generality of sic utere tuo ut alienum non laedas,
ante, at 26, one searches in vain, I think, for
anything resembling a principle in the common law
of nuisance.
                       C
  Finally, the Court justifies its new rule that
the legislature may not deprive a property owner
of the only economically valuable use of his land,
even if the legislature finds it to be a harmful
use, because such action is not part of the  long
recognized  understandings of our citizens.
Ante, at 22.  These  understandings permit such
regulation only if the use is a nuisance under the
common law.  Any other course is  inconsistent
with the historical compact recorded in the
Takings Clause.  Ante, at 22.  It is not clear from
the Court's opinion where our  historical com-
pact or  citizens' understanding comes from,
but it does not appear to be history.
  The principle that the State should compensate
individuals for property taken for public use was
not widely established in America at the time of
the Revolution.
 The colonists . . . inherited . . . a concept of
property which permitted extensive regulation
of the use of that property for the public
benefit"regulation that could even go so far
as to deny all productive use of the property
to the owner if, as Coke himself stated, the
regulation `extends to the public benefit . . .
for this is for the public, and every one hath
benefit by it.'

F. Bosselman, D. Callies & J. Banta, The Taking
Issue 80-81 (1973), quoting The Case of the King's
Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606)
(hereinafter Bosselman).  See also Treanor, The
Origins and Original Significance of the Just
Compensation Clause of the Fifth Amendment, 94
Yale L.J. 694, 697, n. 9 (1985).
  Even into the 19th century, state governments
often felt free to take property for roads and
other public projects without paying compensation
to the owners.  See M. Horwitz, The Transforma-
tion of American Law, 1780-1860, pp. 63-64 (1977)
(hereinafter Horwitz); Treanor, 94 Yale L. J., at
695.  As one court declared in 1802, citizens  were
bound to contribute as much of [land], as by the
laws of the country, were deemed necessary for
the public convenience. M'Clenachan v. Curwin, 3
Yeates 362, 373 (Pa. 1802).  There was an obvious
movement toward establishing the just compensa-
tion principle during the 19th century, but  there
continued to be a strong current in American legal
thought that regarded compensation simply as a
`bounty given . . . by the State' out of `kindness'
and not out of justice.  Horwitz 65 (quoting
Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa.
1830)).  See also State v. Dawson, 3 Hill 100, 103
(S.C. 1836)).
  Although, prior to the adoption of the Bill of
Rights, America was replete with land use regula-
tions describing which activities were considered
noxious and forbidden, see Bender, The Takings
Clause: Principles or Politics?, 34 Buffalo L. Rev.
735, 751 (1985); L. Friedman, A History of American
Law 66-68 (1973), the Fifth Amendment's Taking
Clause originally did not extend to regulations of
property, whatever the effect.  See ante, at 8.
Most state courts agreed with this narrow inter-
pretation of a taking.   Until the end of the
nineteenth century . . . jurists held that the
constitution protected possession only, and not
value.  Siegel, Understanding the Nineteenth
Century Contract Clause: The Role of the Proper-
ty-Privilege Distinction and  Takings Clause
Jurisprudence, 60 S. Cal. L. Rev. 1, 76 (1986);
Bosselman 106.  Even indirect and consequential
injuries to property resulting from regulations
were excluded from the definition of a taking.  See
Bosselman 106; Callender v. Marsh, 1 Pick. 418, 430
(Mass. 1823).
  Even when courts began to consider that regula-
tion in some situations could constitute a taking,
they continued to uphold bans on particular uses
without paying compensation, notwithstanding the
economic impact, under the rationale that no one
can obtain a vested right to injure or endanger
the public.  In the Coates cases, for example,
the Supreme Court of New York found no taking in
New York's ban on the interment of the dead within
the city, although  no other use can be made of
these lands.  Coates v. City of New York, 7 Cow.
585, 592 (N.Y. 1827).  See also Brick Presbyterian
Church v. City of New York, 5 Cow. 538 (N.Y. 1826);
Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass.
1851); St. Louis Gunning Advertisement Co. v. St.
Louis, 235 Mo. 99, ___, 137 S.W. 929, 942 (1911),
appeal dism'd, 231 U. S. 761 (1913).  More recent
cases reach the same result.  See Consolidated
Rock Products Co. v. Los Angeles, 57 Cal.2d 515, 370
P.2d 342, appeal dism'd, 371 U. S. 36 (1962); Nassr v.
Commonwealth, 394 Mass. 767, 477 N.E.2d 987 (1985);
Eno v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965);
Turner v. County of Del Norte, 24 Cal. App. 3d 311,
101 Cal. Rptr. 93 (1972).
  In addition, state courts historically have been
less likely to find that a government action
constitutes a taking when the affected land is
undeveloped.  According to the South Carolina
court, the power of the legislature to take unim-
proved land without providing compensation was
sanctioned by  ancient rights and principles.
Lindsay v. Commissioners, 2 S.C.L. 38, 57 (1796).
 Except for Massachusetts, no colony appears to
have paid compensation when it built a state-
owned road across unimproved land.  Legislatures
provided compensation only for enclosed or
improved land.  Treanor, 94 Yale L.J., at 695
(footnotes omitted).  This rule was followed by
some States into the 1800s.  See Horwitz 63-65.
  With similar result, the common agrarian concep-
tion of property limited owners to  natural uses
of their land prior to and during much of the 18th
century.  See id., at 32.  Thus, for example, the
owner could build nothing on his land that would
alter the natural flow of water.  See id., at 44;
see also, e.g., Merritt v. Parker, 1 Coxe 460, 463
(N.J. 1795).  Some more recent state courts still
follow this reasoning.  See, e.g., Just v. Marinette
County, 56 Wis.2d 7, 201 N.W.2d 761, 768 (1972).
  Nor does history indicate any common-law limit
on the State's power to regulate harmful uses
even to the point of destroying all economic
value.  Nothing in the discussions in Congress
concerning the Taking Clause indicates that the
Clause was limited by the common-law nuisance
doctrine.  Common law courts themselves rejected
such an understanding.  They regularly recognized
that it is  for the legislature to interpose, and
by positive enactment to prohibit a use of prop-
erty which would be injurious to the public.
Tewksbury, 11 Metc., at 57.  Chief Justice Shaw
explained in upholding a regulation prohibiting
construction of wharves, the existence of a
taking did not depend on  whether a certain
erection in tide water is a nuisance at common law
or not.  Alger, 7 Cush., at 104; see also State v.
Paul, 5 R.I. 185, 193 (1858); Commonwealth v. Parks,
155 Mass. 531, 532, 30 N.E. 174 (1892) (Holmes, J.)
( [T]he legislature may change the common law as
to nuisances, and may move the line either way, so
as to make things nuisances which were not so, or
to make things lawful which were nuisances).
  In short, I find no clear and accepted  histori-
cal compact or  understanding of our citizens
justifying the Court's new taking doctrine.
Instead, the Court seems to treat history as a
grab-bag of principles, to be adopted where they
support the Court's theory, and ignored where
they do not.  If the Court decided that the early
common law provides the background principles for
interpreting the Taking Clause, then regulation,
as opposed to physical confiscation, would not be
compensable.  If the Court decided that the law of
a later period provides the background principles,
then regulation might be compensable, but the
Court would have to confront the fact that legis-
latures regularly determined which uses were
prohibited, independent of the common law, and
independent of whether the uses were lawful when
the owner purchased.  What makes the Court's
analysis unworkable is its attempt to package the
law of two incompatible eras and peddle it as
historical fact.
                       V
  The Court makes sweeping and, in my view, mis-
guided and unsupported changes in our taking
doctrine.  While it limits these changes to the
most narrow subset of government regula-
tion"those that eliminate all economic value from
land"these changes go far beyond what is neces-
sary to secure petitioner Lucas' private benefit.
One hopes they do not go beyond the narrow
confines the Court assigns them to today.
  I dissent.
Dissent 2
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-453
              --------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
                COASTAL COUNCIL
 on writ of certiorari to the supreme court of
                south carolina
                [June 29, 1992]

  Justice Stevens, dissenting.
      Today the Court restricts one judge-made rule
and expands another.  In my opinion it errs on both
counts.  Proper application of the doctrine of
judicial restraint would avoid the premature
adjudication of an important constitutional
question.  Proper respect for our precedents
would avoid an illogical expansion of the concept
of  regulatory takings.
                       I
  As the Court notes, ante, at 5, South Carolina's
Beachfront Management Act has been amended to
permit some construction of residences seaward
of the line that frustrated petitioner's proposed
use of his property.  Until he exhausts his right
to apply for a special permit under that amend-
ment, petitioner is not entitled to an adjudication
by this Court of the merits of his permanent
takings claim.  MacDonald, Sommer & Frates v. County
of Yolo, 477 U. S. 340, 351 (1986).
  It is also not clear that he has a viable  tempo-
rary takings claim.  If we assume that petitioner
is now able to build on the lot, the only injury
that he may have suffered is the delay caused by
the temporary existence of the absolute statuto-
ry ban on construction.  We cannot be sure, howev-
er, that that delay caused petitioner any harm
because the record does not tell us whether his
building plans were even temporarily frustrated
by the enactment of the statute.  Thus, on
the present record it is entirely possible that
petitioner has suffered no injury-in-fact even if
the state statute was unconstitutional when he
filed this lawsuit.
  It is true, as the Court notes, that the argu-
ment against deciding the constitutional issue in
this case rests on prudential considerations
rather than a want of jurisdiction.  I think it
equally clear, however, that a Court less eager to
decide the merits would follow the wise counsel of
Justice Brandeis in his deservedly famous concur-
ring opinion in Ashwander v. Tennessee Valley
Authority, 297 U. S. 288, 341 (1936).  As he ex-
plained, the Court has developed  for its own
governance in the cases confessedly within its
jurisdiction, a series of rules under which it has
avoided passing upon a large part of all the
constitutional questions pressed upon it for
decision.  Id. at 346.  The second of those rules
applies directly to this case.
 2.  The Court will not `anticipate a question
of constitutional law in advance of the neces-
sity of deciding it.' Liverpool, N.Y. & P.S.S. Co.
v. Emigration Commissioners, 113 U. S. 33, 39;
[citing five additional cases].  `It is not the
habit of the Court to decide questions of a
constitutional nature unless absolutely
necessary to a decision of the case.'  Burton v.
United States, 196 U. S. 283, 295.  Id., at
346-347.
Cavalierly dismissing the doctrine of judicial
restraint, the Court today tersely announces
that  we do not think it prudent to apply that
prudential requirement here.  Ante, at 7.  I
respectfully disagree and would save consider-
ation of the merits for another day.  Since,
however, the Court has reached the merits, I shall
do so as well.
                      II
  In its analysis of the merits, the Court starts
from the premise that this Court has adopted a
 categorical rule that total regulatory takings
must be compensated, ante, at 21, and then sets
itself to the task of identifying the exceptional
cases in which a State may be relieved of this
categorical obligation.  Ante, at 21-22.  The test
the Court announces is that the regulation must
do no more than duplicate the result that could
have been achieved under a State's nuisance law.
Ante, at 24.  Under this test the categorical rule
will apply unless the regulation merely makes
explicit what was otherwise an implicit limitation
on the owner's property rights.
  In my opinion, the Court is doubly in error.  The
categorical rule the Court establishes is an
unsound and unwise addition to the law and the
Court's formulation of the exception to that rule
is too rigid and too narrow.

The Categorical Rule
  As the Court recognizes, ante, at 9, Pennsylvania
Coal Co. v. Mahon, 260 U. S. 393 (1922), provides no
support for its"or, indeed, any"categorical rule.
To the contrary, Justice Holmes recognized that
such absolute rules ill fit the inquiry into  regu-
latory takings.  Thus, in the paragraph that
contains his famous observation that a regulation
may go  too far and thereby constitute a taking,
the Justice wrote:  As we already have said, this
is a question of degree"and therefore cannot be
disposed of by general propositions.  Id. at 416.
What he had  already. . .said made perfectly clear
that Justice Holmes regarded economic injury to
be merely one factor to be weighed:   One fact for
consideration in determining such limits is the
extent of the diminution [of value.]  So the ques-
tion depends upon the particular facts.  Id. at 413.
  Nor does the Court's new categorical rule find
support in decisions following Mahon.  Although in
dicta we have sometimes recited that a law  ef-
fects a taking if [it] . . . denies an owner economi-
cally viable use of his land, Agins v. Tiburon, 447
U. S. 255, 260 (1980), our rulings have rejected
such an absolute position.  We have frequently"
and recently"held that, in some circumstances, a
law that renders property valueless may nonethe-
less not constitute a taking.  See, e.g., First
English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U. S. 304, 313 (1987);
Goldblatt v. Hempstead, 369 U. S. 590, 596 (1962);
United States v. Caltex, 344 U. S. 149, 155 (1952);
Miller v. Schoene, 276 U. S. 272 (1928); Hadachek v.
Sebastian, 239 U. S. 394, 405 (1915); Mugler v.
Kansas, 123 U. S. 623, 657 (1887); cf. Ruckelshaus v.
Monsanto Co., 467 U. S. 986, 1011 (1984); Connolly v.
Pension Benefit Guaranty Corporation, 475 U. S. 211,
225 (1986).  In short, as we stated in Keystone
Bituminous Coal Assn. v. DeBenedictis, 480 U. S.
470, 490 (1987),  `Although a comparison of values
before and after' a regulatory action `is rele-
vant, . . . it is by no means conclusive.'
  In addition to lacking support in past decisions,
the Court's new rule is wholly arbitrary.  A land-
owner whose property is diminished in value 95%
recovers nothing, while an owner whose property
is diminished 100% recovers the land's full value.
The case at hand illustrates this arbitrariness
well.  The Beachfront Management Act not only
prohibited the building of new dwellings in certain
areas, it also prohibited the rebuilding of houses
that were  destroyed beyond repair by natural
causes or by fire.  1988 S. C. Acts 634, 3; see
also Esposito v. South Carolina Coastal Council,
939 F. 2d 165, 167 (CA4 1991).  Thus, if the
homes adjacent to Lucas' lot were destroyed by a
hurricane one day after the Act took effect, the
owners would not be able to rebuild, nor would
they be assured recovery.  Under the Court's
categorical approach, Lucas (who has lost the
opportunity to build) recovers, while his neigh-
bors (who have lost both the opportunity to build
and their homes) do not recover.  The arbitrari-
ness of such a rule is palpable.
  Moreover, because of the elastic nature of
property rights, the Court's new rule will also
prove unsound in practice.  In response to the
rule, courts may define  property broadly and
only rarely find regulations to effect total
takings.  This is the approach the Court itself
adopts in its revisionist reading of venerable
precedents.  We are told that"notwithstanding the
Court's findings to the contrary in each case"the
brewery in Mugler, the brickyard in Hadacheck, and
the gravel pit in Goldblatt all could be put to
 other uses and that, therefore, those cases did
not involve total regulatory takings.  Ante,
at 21, n. 13.
  On the other hand, developers and investors may
market specialized estates to take advantage of
the Court's new rule.  The smaller the estate, the
more likely that a regulatory change will effect a
total taking.  Thus, an investor may, for example,
purchase the right to build a multi-family home on
a specific lot, with the result that a zoning
regulation that allows only single-family homes
would render the investor's property interest
 valueless. In short, the categorical rule
will likely have one of two effects: Either courts
will alter the definition of the  denominator in
the takings  fraction, rendering the Court's
categorical rule meaningless, or investors will
manipulate the relevant property interests,
giving the Court's rule sweeping effect.  To my
mind, neither of these results is desirable or
appropriate, and both are distortions of our
takings jurisprudence.
  Finally, the Court's justification for its new
categorical rule is remarkably thin.  The Court
mentions in passing three arguments in support of
its rule; none is convincing.  First, the Court
suggests that  total deprivation of feasible use
is, from the landowner's point of view, the equiva-
lent of a physical appropriation.  Ante, at 12.
This argument proves too much.  From the  landow-
ner's point of view, a regulation that diminishes
a lot's value by 50% is as well  the equivalent of
the condemnation of half of the lot.  Yet, it is well
established that a 50% diminution in value does
not by itself constitute a taking.  See Euclid v.
Ambler Realty Co., 272 U. S. 365, 384 (1926) (75%
diminution in value).  Thus, the landowner's per-
ception of the regulation cannot justify the
Court's new rule.
  Second, the Court emphasizes that because total
takings are  relatively rare its new rule will not
adversely affect the government's ability to  go
on.  Ante, at 12.  This argument proves too little.
Certainly it is true that defining a small class of
regulations that are per se takings will not
greatly hinder important governmental func-
tions"but this is true of any small class of
regulations.  The Court's suggestion only begs the
question of why regulations of this particular
class should always be found to effect takings.
  Finally, the Court suggests that  regulations
that leave the owner . . . without economically
beneficial . . . use . . . carry with them a height-
ened risk that private property is being pressed
into some form of public service.  Ibid.  As dis-
cussed more fully below, see infra, Part III, I
agree that the risks of such singling out are of
central concern in takings law.  However, such
risks do not justify a per se rule for total regu-
latory takings.  There is no necessary correlation
between  singling out and total takings: a regu-
lation may single out a property owner without
depriving him of all of his property, see e.g.,
Nollan v. California Coastal Comm'n, 483 U. S. 825,
837 (1987); J.E.D. Associates, Inc. v. Atkinson, 121
N. H. 581, 432 A.2d 12 (1981); and it may deprive him
of all of his property without singling him out,
see e.g., Mugler v. Kansas, 123 U. S. 623 (1887);
Hadachek v. Sebastian, 329 U. S. 394 (1915).  What
matters in such cases is not the degree of diminu-
tion of value, but rather the specificity of the
expropriating act.  For this reason, the Court's
third justification for its new rule also fails.
  In short, the Court's new rule is unsupported by
prior decisions, arbitrary and unsound in prac-
tice, and theoretically unjustified.  In my opinion,
a categorical rule as important as the one estab-
lished by the Court today should be supported by
more history or more reason than has yet been
provided.

The Nuisance Exception
  Like many bright-line rules, the categorical rule
established in this case is only  categorical for
a page or two in the U. S. Reports.  No sooner does
the Court state that  total regulatory takings
must be compensated, ante, at 21, than it quickly
establishes an exception to that rule.
  The exception provides that a regulation that
renders property valueless is not a taking if it
prohibits uses of property that were not  previ-
ously permissible under relevant property and
nuisance principles.  Ante, at 24.  The Court thus
rejects the basic holding in Mugler v. Kansas, 123
U. S. 623 (1887).  There we held that a state-wide
statute that prohibited the owner of a brewery
from making alcoholic beverages did not effect a
taking, even though the use of the property had
been perfectly lawful and caused no public harm
before the statute was enacted.  We squarely
rejected the rule the Court adopts today:
 It is true, that, when the defendants . . .
erected their breweries, the laws of the State
did not forbid the manufacture of intoxicating
liquors.  But the State did not thereby give
any assurance, or come under an obligation,
that its legislation upon that subject would
remain unchanged.  [T]he supervision of the
public health and the public morals is a gov-
ernmental power, `continuing in its nature,' and
`to be dealt with as the special exigencies of
the moment may require;' . . . `for this purpose,
the largest legislative discretion is allowed,
and the discretion cannot be parted with any
more than the power itself.'  Id., at 669.
Under our reasoning in Mugler, a state's decision
to prohibit or to regulate certain uses of prop-
erty is not a compensable taking just because the
particular uses were previously lawful.  Under the
Court's opinion today, however, if a state should
decide to prohibit the manufacture of asbestos,
cigarettes, or concealable firearms, for example,
it must be prepared to pay for the adverse eco-
nomic consequences of its decision.  One must
wonder if Government will be able to  go on
effectively if it must risk compensation  for
every such change in the general law.  Mahon, 260
U. S., at 413.
  The Court's holding today effectively freezes
the State's common law, denying the legislature
much of its traditional power to revise the law
governing the rights and uses of property.  Until
today, I had thought that we had long abandoned
this approach to constitutional law.  More than a
century ago we recognized that  the great office
of statutes is to remedy defects in the common
law as they are developed, and to adapt it to the
changes of time and circumstances.  Munn v.
Illinois, 94 U. S. 113, 134 (1877).  As Justice Mar-
shall observed about a position similar to that
adopted by the Court today:
 If accepted, that claim would represent a
return to the era of Lochner v. New York, 198
U. S. 45 (1905), when common-law rights were
also found immune from revision by State or
Federal Government.  Such an approach would
freeze the common law as it has been con-
structed by the courts, perhaps at its 19th-
century state of development.  It would allow
no room for change in response to changes in
circumstance.  The Due Process Clause does
not require such a result.  PruneYard Shop-
ping Center v. Robins, 447 U. S. 74, 93 (1980)
(concurring opinion).
Arresting the development of the common law is
not only a departure from our prior decisions; it
is also profoundly unwise.  The human condition is
one of constant learning and evolution"both moral
and practical.  Legislatures implement that new
learning; in doing so they must often revise the
definition of property and the rights of property
owners.  Thus, when the Nation came to understand
that slavery was morally wrong and mandated the
emancipation of all slaves, it, in effect, redefined
 property.  On a lesser scale, our ongoing self-
education produces similar changes in the rights
of property owners: New appreciation of the
significance of endangered species, see, e.g.,
Andrus v. Allard, 444 U. S. 51 (1979); the importance
of wetlands, see, e.g., 16 U. S. C. 3801 et seq.; and
the vulnerability of coastal lands, see, e.g., 16
U. S. C. 1451 et seq., shapes our evolving under-
standings of property rights.
  Of course, some legislative redefinitions of
property will effect a taking and must be compen-
sated"but it certainly cannot be the case that
every movement away from common law does so.
There is no reason, and less sense, in such an
absolute rule.  We live in a world in which changes
in the economy and the environment occur with
increasing frequency and importance.  If it was
wise a century ago to allow Government  `the
largest legislative discretion' to deal with
 `the special exigencies of the moment,' Mugler,
123 U. S., at 669, it is imperative to do so today.
The rule that should govern a decision in a case
of this kind should focus on the future, not the
past.

                      ***
   The Court's categorical approach rule will, I
fear, greatly hamper the efforts of local offi-
cials and planners who must deal with increasingly
complex problems in land-use and environmental
regulation.  As this case"in which the claims of an
individual property owner exceed $1 million"well
demonstrates, these officials face both substan-
tial uncertainty because of the ad hoc nature of
takings law and unacceptable penalties if they
guess incorrectly about that law.
  Viewed more broadly, the Court's new rule and
exception conflict with the very character of our
takings jurisprudence.  We have frequently and
consistently recognized that the definition of a
taking cannot be reduced to a  set formula and
that determining whether a regulation is a taking
is  essentially [an] ad hoc, factual inquir[y].
Penn Central Transportation Co. v. New York City,
438 U. S. 104, 124 (1978) (quoting Goldblatt v.
Hempstead, 369 U. S. 590, 594 (1962)).  This is
unavoidable, for the determination whether a law
effects a taking is ultimately a matter of  fair-
ness and justice, Armstrong v. United States, 364
U. S. 40, 49 (1960), and  necessarily requires a
weighing of private and public interests.  Agins,
447 U. S., at 261.  The rigid rules fixed by the
Court today clash with this enterprise:  fairness
and justice are often disserved by categorical
rules.
                      III
  It is well established that a takings case
 entails inquiry into [several factors:] the
character of the governmental action, its econom-
ic impact, and its interference with reasonable
investment-backed expectations.  PruneYard, 447
U. S., at 83.  The Court's analysis today focuses
on the last two of these three factors: the
categorical rule addresses a regulation's  eco-
nomic impact, while the nuisance exception
recognizes that ownership brings with it only
certain  expectations.  Neglected by the Court
today is the first, and in some ways, the most
important factor in takings analysis: the charac-
ter of the regulatory action.
  The Just Compensation 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.
Armstrong, 364 U. S., at 49.  Accordingly, one of the
central concerns of our takings jurisprudence is
 prevent[ing] the public from loading upon one
individual more than his just share of the burdens
of government.  Monongahela Navigation Co. v.
United States, 148 U. S. 312, 325 (1893).  We have,
therefore, in our takings law frequently looked to
the generality of a regulation of property.
    For example, in the case of so-called  develop-
mental exactions, we have paid special attention
to the risk that particular landowners might  b[e]
singled out to bear the burden of a broader
problem not of his own making.  Nollan, 483 U. S., at
835, n. 4; see also Pennell v. San Jose, 485 U. S. 1,
23 (1988).  Similarly, in distinguishing between the
Kohler Act (at issue in Mahon) and the Subsidence
Act (at issue in Keystone), we found significant
that the regulatory function of the latter was
substantially broader.  Unlike the Kohler Act,
which simply transferred back to the surface
owners certain rights that they had earlier sold
to the coal companies, the Subsidence Act affect-
ed all surface owners"including the coal compa-
nies"equally.  See Keystone, 480 U. S., at 486.
Perhaps the most familiar application of this
principle of generality arises in zoning cases.  A
diminution in value caused by a zoning regulation
is far less likely to constitute a taking if it is
part of a general and comprehensive land-use
plan, see Euclid v. Amber Realty Co., 272 U. S. 365
(1926); conversely,  spot zoning is far more
likely to constitute a taking, see Penn Central,
438 U. S., at 132, and n. 28.
  The presumption that a permanent physical
occupation, no matter how slight, effects a taking
is wholly consistent with this principle.  A physi-
cal taking entails a certain amount of  singling
out.  Consistent with this principle, physi-
cal occupations by third parties are more likely
to effect takings than other physical occupa-
tions.  Thus, a regulation requiring the installa-
tion of a junction box owned by a third party,
Loretto v. Teleprompter Manhattan CATV Corp., 458
U. S. 419 (1982), is more troubling than a regulation
requiring the installation of sprinklers or smoke
detectors; just as an order granting third parties
access to a marina, Kaiser Aetna v. United States,
444 U. S. 164 (1979), is more troubling than an
order requiring the placement of safety buoys in
the marina.
  In analyzing takings claims, courts have long
recognized the difference between a regulation
that targets one or two parcels of land and a
regulation that enforces a state-wide policy.
See, e.g., A.A. Profiles, Inc. v. Ft. Lauderdale, 850
F. 2d 1483, 1488 (CA11 1988); Wheeler v. Pleasant
Grove, 664 F. 2d 99, 100 (CA5 1981); Trustees Under
Will of Pomeroy v. Westlake, 357 So. 2d 1299, 1304
(La. App. 1978); see also Burrows v. Keene, 121 N. H.
590, 432 A. 2d 15, 21 (1981); Herman Glick Realty Co.
v. St. Louis County, 545 S. W. 2d 320, 324-325 (Mo.
App. 1976); Huttig v. Richmond Heights, 372 S. W. 2d
833, 842-843 (Mo. 1963).  As one early court stated
with regard to a waterfront regulation,  If such
restraint were in fact imposed upon the estate of
one proprietor only, out of several estates on
the same line of shore, the objection would be
much more formidable.  Commonwealth v. Alger, 61
Mass. 53, 102 (1851).
  In considering Lucas' claim, the generality of
the Beachfront Management Act is significant.  The
Act does not target particular landowners, but
rather regulates the use of the coastline of the
entire State.  See S. C. Code 48-39-10 (Supp.
1990).  Indeed, South Carolina's Act is best under-
stood as part of a national effort to protect the
coastline, one initiated by the Federal Coastal
Zone Management Act of 1972.  Pub. L. 92-583, 86
Stat. 1280, codified as amended at 16 U. S. C. 1451
et seq.  Pursuant to the Federal Act, every
coastal State has implemented coastline regula-
tions.  Moreover, the Act did not single out
owners of undeveloped land.  The Act also prohib-
ited owners of developed land from rebuilding if
their structures were destroyed, see 1988 S. C.
Acts 634 3, and what is equally significant,
from repairing erosion control devices, such as
seawalls, see S. C. Code 48-39-290(B)(2) (Supp.
1990).  In addition, in some situations, owners of
developed land were required to  renouris[h] the
beach . . . on a yearly basis with an amount . . . of
sand . . . not . . . less than one and one-half times
the yearly volume of sand lost due to erosion.
1988 S. C. Acts 634 3, p. 5140.  In short, the
South Carolina Act imposed substantial burdens on
owners of developed and undeveloped land
alike.  This generality indicates that the Act
is not an effort to expropriate owners of unde-
veloped land.
  Admittedly, the economic impact of this regula-
tion is dramatic and petitioner's investment-
backed expectations are substantial.  Yet, if
anything, the costs to and expectations of the
owners of developed land are even greater: I
doubt, however, that the cost to owners of devel-
oped land of renourishing the beach and allowing
their seawalls to deteriorate effects a taking.
The costs imposed on the owners of undeveloped
land, such as petitioner, differ from these costs
only in degree, not in kind.
  The impact of the ban on developmental uses
must also be viewed in light of the purposes of
the Act.  The legislature stated the purposes of
the Act as  protect[ing], preserv[ing], restor[ing]
and enhanc[ing] the beach/dune system of the
State not only for recreational and ecological
purposes, but also to  protec[t] life and proper-
ty.  S. C. Code 48-39-260(1)(a) (Supp. 1990).  The
State, with much science on its side, believes
that the  beach/dune system [acts] as a buffer
from high tides, storm surge, [and] hurricanes.
Ibid.  This is a traditional and important exercise
of the State's police power, as demonstrated by
Hurricane Hugo, which in 1989, caused 29 deaths
and more than $6 billion in property damage in
South Carolina alone.
  In view of all of these factors, even assuming
that petitioner's property was rendered value-
less, the risk inherent in investments of the sort
made by petitioner, the generality of the Act, and
the compelling purpose motivating the South
Carolina Legislature persuade me that the Act did
not effect a taking of petitioner's property.
  Accordingly, I respectfully dissent.

Dissent 3
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-453
              --------
DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
                COASTAL COUNCIL
 on writ of certiorari to the supreme court of
                south carolina
                [June 29, 1992]

  Statement of Justice Souter.
  I would dismiss the writ of certiorari in this
case as having been granted improvidently.  After
briefing and argument it is abundantly clear that
an unreviewable assumption on which this case
comes to us is both questionable as a conclusion
of Fifth Amendment law and sufficient to frus-
trate the Court's ability to render certain the
legal premises on which its holding rests.
  The petition for review was granted on the
assumption that the state by regulation had
deprived the owner of his entire economic inter-
est in the subject property.  Such was the state
trial court's conclusion, which the state supreme
court did not review.  It is apparent now that in
light ofour prior cases, see, e.g., Keystone Bituminous
Coal Assn.v. DeBenedictis, 480 U. S. 470, 493-502 (1987);
Andrus v. Allard, 444 U. S. 51, 65-66 (1979); Penn
Central Transportation Corp. v. New York City, 438
U. S. 104, 130-131 (1978), the trial court's conclu-
sion is highly questionable.  While the respondent
now wishes to contest the point, see Brief for
Respondent 45-50, the Court is certainly right to
refuse to take up the issue, which is not fairly
included within the question presented, and has
received only the most superficial and one-sided
treatment before us.
  Because the questionable conclusion of total
deprivation cannot be reviewed, the Court is
precluded from attempting to clarify the concept
of total (and, in the Court's view, categorically
compensable) taking on which it rests, a concept
which the Court describes, see ante, at 11 n. 6, as
so uncertain under existing law as to have fos-
tered inconsistent pronouncements by the Court
itself.  Because that concept is left uncertain, so
is the significance of the exceptions to the
compensation requirement that the Court pro-
ceeds to recognize.  This alone is enough to show
that there is little utility in attempting to deal
with this case on the merits.
  The imprudence of proceeding to the merits in
spite of these unpromising circumstances is
underscored by the fact that, in doing so, the
Court cannot help but assume something about the
scope of the uncertain concept of total depriva-
tion, even when it is barred from explicating total
deprivation directly.  Thus, when the Court con-
cludes that the application of nuisance law pro-
vides an exception to the general rule that
complete denial of economically beneficial use of
property amounts to a compensable taking, the
Court will be understood to suggest (if it does
not assume) that there are in fact circumstances
in which state-law nuisance abatement may amount
to a denial of all beneficial land use as that
concept is to be employed in our takings jurispru-
dence under the Fifth and Fourteenth Amendments.
The nature of nuisance law, however, indicates
that application of a regulation defensible on
grounds of nuisance prevention or abatement will
quite probably not amount to a complete depriva-
tion in fact.  The nuisance enquiry focuses on
conduct, not on the character of the property on
which that conduct is performed, see 4 Restate-
ment (Second) of Torts 821B (1979) (public nui-
sance); id., 822 (private nuisance), and the
remedies for such conduct usually leave the
property owner with other reasonable uses of his
property, see W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts 90 (5th
ed. 1984) (public nuisances usually remedied by
criminal prosecution or abatement), id., 89
(private nuisances usually remedied by damages,
injunction or abatement); see also, e.g., Mugler v.
Kansas, 123 U. S. 623, 668-669 (1887) (prohibition
on use of property to manufacture intoxicating
beverages  does not disturb the owner in the
control or use of his property for lawful purpos-
es, nor restrict his right to dispose of it, but is
only a declaration by the State that its use . . .
for certain forbidden purposes, is prejudicial to
the public interests); Hadacheck v. Sebastian, 239
U. S. 394, 412 (1915) (prohibition on operation of
brickyard did not prohibit extraction of clay from
which bricks were produced).  Indeed, it is diffi-
cult to imagine property that can be used only to
create a nuisance, such that its sole economic
value must presuppose the right to occupy it for
such seriously noxious activity.
  The upshot is that the issue of what consti-
tutes a total deprivation is being addressed by
indirection, and with uncertain results, in the
Court's treatment of defenses to compensation
claims.  While the issue of what constitutes total
deprivation deserves the Court's attention, as
does the relationship between nuisance abatement
and such total deprivation, the Court should
confront these matters directly.  Because it can
neither do so in this case, nor skip over those
preliminary issues and deal independently with
defenses to the Court's categorical compensation
rule, the Court should dismiss the instant writ
and await an opportunity to face the total depri-
vation question squarely.  Under these circum-
stances, I believe it proper for me to vote to
dismiss the writ, despite the Court's contrary
preference.  See, e.g., Welsh v. Wisconsin, 466 U. S.
740,755 (1984) (Burger, C.J.); United States v. Shannon,
342 U. S. 288, 294 (1952) (Frankfurter, J.).
