Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2912 112 SUPREME COURT REPORTER 505 U.S. 1050 turned on the availability of some residual valuable use.lZ Instead, the cases depended on whether thti!gs1government interest was sufficient to prohibit the activity, given the significant private cost.13 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 other- wise harm others, the State has not 'taken' anything when it asserts its power to enjoin the nuisance-like activity." KeysWne Bitu- mi7WU8 Coal, 480 U.s., at 491, n. 20, 107 S.Ct., at 1245, 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 100S.14 See Pennsylvania Coal Co. 1J. Mahon, 260 U.S. 393, 418, 43 S.Ct. 158, 161, 67 L.Ed. 322 (1922) (Brandeis, J., dis- 12. Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 t.Ed. 568 (1928), is an example. In the course of demonstrating that apple trees are more valuable than red cedar trees, the Court noted that red cedar has "occasional use and value as lumber." ld., at 279, 48 S.Ct., at 247. But the Court did not discuss whether the timber owned by the petitioner in that case was com- mercially salable, and nothing in the opinion suggests that the State's right to require uncom. pensated felling of the trees depended on any such salvage value. To the contrary, it is clear from its unanimous opinion that the Schoene Court would have sustained a law requiring the burning of cedar trees if that had been necessary to protect apple trees in which there was a public interest: The Court spoke of preferment of the public interest over the property interest of the individual, "to the extent even of its destruction." ld., at 280, 48 S.Ct., at 247. 13. The Court seeks to disavow the holdings and reasoning of Mugler and subsequent cases by explaining that they were the Court's early efforts to define .the scope of the police power. There is language in the earliest takings cases suggesting that the police power was considered to be the power simply to prevent harms. Subsequently, the Court expanded its understanding of what were government's legitimate interests. But it does not follow that the holding of those early cases-that harmful and noxious uses of property can be forbidden whatever the harm to the prop- erty owner and without the payment of compen- senting) ("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"). . ..l1goaB Ultimately even the. Court cannot embrace the full implications of its per 86 rule: It eventually agrees' that there cannot be a categorical rule for a taking based on eco- nomic 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 prop- erty law." 16 Ante, at 2901. Until today, the Court explicitly had re- jected the contention that the g.overnment's power to act without paying compensation sation-was repudiated. To the contrary, as the Court consciously expanded the scope of the police power beyond preventing harm, it clari- fied that there was a core of public interests that overrode any private interest. See Keystone Bi- tuminous Coal, 480 U.S., at 491, n. 20,107 S.Ct., at 1245, n. 20. 14. "Indeed, it would be extraordinary to con- strue the Constitution to require a government to compensate private landowners because it de- nied them 'the right' to use property which can- not be used without risking injury and death." First Lutheran Church, 210 Cal.App.3d, at 1366, 258 CaI.Rptr., at 901-902. 15. Although it refers to state nuisance and prop- erty law, the Court apparently does not mean just any state nuisance and property law. Public nuisance was first a common-law creation, see Newark, The Boundaries of Nuisance, 65 L.Q.Rev. 480, 482 (1949) (attributing develop. ment of nuisance to 1535), but by the 1800's in both the United States and England, legislatures had the power to define what is a public nui- sance, and particular uses often have been selec- tively targeted. See Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997. 999-1000 (1966); J. Stephen, A General View of the Crimi- nal Law of England 1OS-107 (2d ed. 1890). The Court's references to "common-law" background principles, however, indicate that legislative de- terminations do not constitute "state nuisance and property law" for the Court.