Footnotes

Id. at 584. In a regulatory inverse taking case, the Supreme Court recently rejected the contention that the effects of general regulatory activity—such as higher consumer demand due to government enforcement of quality standards and promotional activities—can offset the total just compensation due for a specific physical taking. Horne , 135 S. Ct. at 2432. The Court expressly clarified that this ruling, concerning certain regulatory benefits, does not affect the deduction of special benefits from the amount of compensation paid in partial takings. Id. (discussing concerns raised in dissent); see id. at 2435-36 (Breyer, J., concurring in part and dissenting in part) (“it is unclear to me what distinguishes this case from . . . other types of partial takings”).

See, e.g. , Davenport , 436 F.2d at 400-01 (valuation by appraiser who was correctly “instructed to appraise the ‘after’ value of the subject property considering the reservoir enhancement,” as a direct and special benefit of the government’s acquisition, was “the only [opinion] which has probative value and discloses the proper compensation”); see also Hendler , 175 F.3d 1374.

Id.

Agencies may need to instruct the appraiser to allocate the result of a before and after valuation between the value of the property being acquired, and damages (and/or benefits) to the remainder – for example, for negotiating purposes and/or to comply with agency obligations under the Uniform Act. See 42 U.S.C. § 4561(3). Such an allocation should be reported in a separate, supplemental report, rather than in

United States v. 901.89 Acres of Land (Davenport ), 436 F.2d 395, 396 (6th Cir. 1970).

Id.

Bauman , 167 U.S. at 581-82 (quoting Justice Brewer’s analysis in Pottawatomie Cty. Comm’rs v. O’Sullivan , 17 Kan. 58, 59-60 (1876) (emphasis added)).

See Bauman , 167 U.S. at 574-75, 587-88 (discussed in sidebar); cf. Trout , 386 F.2d at 220 (same amount before and after taking attributed to general benefits of increased property values over county resulting from contemplated government project).

Id. (quoting United States v. Miller , 317 U.S. 369, 374, 375 (1943); see also United States v. 320 Acres of Land , 605 F.2d 762, 781-89 (5th Cir. 1979) (exploring history and underlying principles of scope of the project rule and treatment of benefits due to government project).

United States v. Fuller , 409 U.S. 488, 492 (1973).