Bridge Aina Le’a, LLC v. Hawaii Land Use Commission

1 Cite as: 592 U. S. ____ (2021)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
BRIDGE AINA LE’A, LLC v. HAWAII LAND USE
COMMISSION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 20–54. Decided February 22, 2021
The petition for a writ of certiorari is denied.
J
USTICE THOMAS, dissenting from the denial of certiorari.
I recently explained that “it would be desirable for us to
take a fresh look at our regulatory takings jurisprudence,
to see whether it can be grounded in the original public
meaning of the Takings Clause of the Fifth Amendment or
the Privileges or Immunities Clause of the Fourteenth
Amendment.” Murr v. Wisconsin, 582 U. S. ___, ___ (2017)
(dissenting opinion) (slip op., at 1).
Our current regulatory takings jurisprudence leaves
much to be desired. A regulation effects a taking, we have
said, whenever it “goes too far.” Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 415 (1922). This occurs categorically
whenever a regulation requires a physical intrusion,
Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S.
419 (1982), or leaves land “without economically beneficial
or productive options for its use,” Lucas v. South Carolina
Coastal Council, 505 U. S. 1003, 1018 (1992). But such
cases are exceedingly rare. See, e.g., Brown & Merriam, On
the Twenty-Fifth Anniversary of Lucas: Making or Break-
ing the Takings Claim, 102 Iowa L. Rev. 1847, 1849–1850
(2017) (noting that in more than 1,700 cases over a 25-year
period, there were only 27 successful takings claims under
Lucas—a success rate of just 1.6%). For all other regulatory
takings claims, the Court has “generally eschewed any set
formula for determining how far is too far,” requiring lower

2 BRIDGE AINA LE’A, LLC v. HAWAII LAND USE COMM’N
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HOMAS, J., dissenting
courts instead “to engage in essentially ad hoc, factual in-
quiries.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U. S. 302, 326 (2002) (inter-
nal quotation marks omitted). Factors might include (1)
“[t]he economic impact of the regulation on the claimant,”
(2) “the extent to which the regulation has interfered with
distinct investment-backed expectations,” and (3) “the char-
acter of the governmental action.” Penn Central Transp.
Co. v. New York City, 438 U. S. 104, 124 (1978); see also
Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538–539
(2005). But courts must also “‘weig[h] . . . all the relevant
circumstances.’” Tahoe-Sierra Pres. Council, 535 U. S., at
322. As one might imagine, nobody—not States, not prop-
erty owners, not courts, nor juries—has any idea how to ap-
ply this standardless standard.
This case illustrates the point. After an 8-day trial and
with the benefit of jury instructions endorsed by both par-
ties, the jury found a taking. The District Court, in turn,
concluded that there was an adequate factual basis for this
verdict. But the Ninth Circuit on appeal reweighed and
reevaluated the same facts under the same legal tests to
conclude that no reasonable jury could have found a taking.
These starkly different outcomes based on the application
of the same law indicate that we have still not provided
courts with a “workable standard.” Pomeroy, Penn Central
After 35 Years: A Three Part Balancing Test or One Strike
Rule? 22 Fed. Cir. B. J. 677, 678 (2013). The current doc-
trine is “so vague and indeterminate that it invites unprin-
cipled, subjective decision making” dependent upon the de-
cisionmaker. Echeverria, Is the Penn Central Three-Factor
Test Ready for History’s Dustbin? 52 Land Use L. & Zon.
Dig. 3, 7 (2000); see also Eagle, The Four-Factor Penn Cen-
tral Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 602
(2014) (“[T]he doctrine has become a compilation of moving
parts that are neither individually coherent nor collectively
compatible”). A know-it-when-you-see-it test is no good if

3 Cite as: 592 U. S. ____ (2021)
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HOMAS, J., dissenting
one court sees it and another does not.
Next year will mark a “century since Mahon,” during
which this “Court for the most part has refrained from”
providing “definitive rules.” Murr, 582 U. S., at ___ (slip
op., at 7). It is time to give more than just “some, but not
too specific, guidance.” Palazzolo v. Rhode Island, 533 U. S.
606, 617 (2001). If there is no such thing as a regulatory
taking, we should say so. And if there is, we should make
clear when one occurs.
I respectfully dissent.