Kafka v. Montana Department of Fish, Wildlife & Parks

2008 MT 460, 201 P.3d 8, 348 Mont. 80, 2008 Mont. LEXIS 697

• Court: Montana Supreme Court
• Decided: December 31, 2008
• Docket: No. 05-146
• Status: Published

Opinions

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 Appellants Kim and Cindy Kafka, Jack and Myra Bridgewater, and Jim and Barbara Bouma appeal an order of the Twelfth Judicial District Court denying their takings claims against the state of Montana and the Department of Fish, Wildlife and Parks (FWP), an agency of the state of Montana. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Appellants in this case are all owners and operators of alternative livestock game farms (Game Farms) within the state of Montana. To operate a Game Farm, the owner/operator must have a valid alternative Game Farm license (License) issued by FWP. The requirements for the Licenses are found in Title 87, chapter 4, part 4 of the Montana Code Annotated and are fairly demanding due to the threat posed by chronic wasting disease (CWD).¹ The appellants in this case all obtained their Licenses at varying times throughout the 1990’s and have complied with the requirements of part 4 since that time.

¶3 Kim and Cindy Kafka (Kafkas) are members of Diamond K Ranch Enterprises, LLC, located in Hill County. In 1996, the Kafkas applied for a License with FWP and entered into a lease for a tract of land on which to operate an alternative livestock breeding operation. After receiving their License, they began operating in March 1997. In 1998, after obtaining a second License, the Kafkas expanded their operations to focus on the fee-shooting of alternative livestock as their primary revenue source. This operation was conducted on an 1100-acre parcel of land roughly twenty miles from the site of the original breeding operation. The Kafkas purchased this land through a series of three transactions, beginning in 1993 and ending with the finalization of a deed in 2003. In addition to purchasing land and going through the License application process, the Kafkas invested several hundred thousand dollars in other start-up costs, including fencing and the acquisition of stock. According to the record, these costs totaled roughly $463,000. In 1999, the Kafkas reported $11,000 in income from their Game Farm operations on their federal tax returns, with that figure rising significantly during the year 2000.

¶4 Jim and Barbara Bouma (Boumas) operate a Game Farm in Teton County. The Boumas began their Game Farm operations in May 1997, by operating a breeder facility which would allow them to market large shooter bulls to other Game Farms which allowed fee-shooting. Like the Kafkas, the Boumas hold Licenses issued by FWP. The Boumas’ breeder operation spans three parcels of land, two of which they acquired in 1996 at a price of $55,000 and a third totaling 126.777 acres, which was acquired as part of a larger purchase of 258.067 acres in December 1999 for approximately $325,000. In March 2000, the Boumas sought to expand their operations onto the remaining 129 acres of their parcel. Like the Kafkas, the Boumas made other investments necessary to institute their breeder operation, such as acquiring stock, License-related application costs, and fencing. According to the record, the Boumas never sold significant numbers of alternative livestock and their operation never generated a taxable profit.

¶5 Jack and Myra Bridgewater (Bridgewaters) are the owners of the Phantom Bull Elk Ranch, LLC, located in Broadwater County. The Bridgewaters entered into the Game Farm business in 1992, and focused primarily on fee-shooting as the primary source of income, although they had also harvested and marketed antlers from their alternative livestock for the velvet market. They purchased the property on which their Game Farm operated in 1990 for approximately $415,000. Like the other appellants, the Bridgewaters invested in the infrastructure necessary to operate a Game Farm. Between 1993 and 2000, their Game Farm generated cash flow in excess of $1.1 million dollars, although the Bridgewaters never reported any profit on their tax returns.

¶6 As is common among regulatory schemes, the requirements for maintaining a License under part 4 have changed somewhat throughout the years. However, on November 7,2000, part 4 underwent a radical change as a result of the passage of Initiative Measure No. 143 (1-143) by the citizens of Montana. 1-143 amended two very significant subsections of part 4. First, it resulted in the deletion of the existing language in § 87-4-412(2), MCA (1999),² which permitted a License holder to transfer his License, and substituted the following: “An alternative livestock ranch license for a specific facility is not transferable.” Section 87-4-412(2), MCA (2001). More significant was I-143’s effect on § 87-4-414(2), MCA (1999), as indicated below. The pre-I-143 version of the statute is in normal type face, and the 1-143 addition to the statute is in bold.

(2) The licensee may acquire, breed, grow, keep, pursue, handle, harvest, use, sell, or dispose of the alternative livestock and their progeny in any quantity and at any time of year as long as the licensee complies with the requirements of this part, except that the licensee may not allow the shooting of game animals or alternative livestock, as defined in 87-2-101 or 87-4-406, or of any exotic hig game species for a fee or other remuneration on an alternative livestock facility.

Section 87-4-414(2), MCA (2001) (emphasis added).

¶7 Notably, the initiative did not revoke appellants’ Licenses, nor did it result in the confiscation of their alternative livestock. Instead, 1-143 prohibited Game Farm operators from charging a fee to shoot alternative livestock. This was a significant departure from the previous scheme because some individuals were willing to expend significant amounts of money to shoot alternative livestock within the confines of a Game Farm. By prohibiting fee-shooting, 1-143 eliminated the most profitable use of the alternative livestock, and thus the profitability of Game Farms in Montana. At the same time, it did not eliminate all uses of the alternative livestock, as part 4 still permitted Game Farm owners to maintain their herds, harvest the animals for their meat or antlers, or sell them in out-of-state markets where fee-shooting was still legal.

¶8 Aside from these small but extremely significant changes, the remainder of part 4 was unaltered by I-143’s passage. All parties concede that the Game Farm industry was, and still is, a highly regulated industry. Both before and after the passage of 1-143, part 4 conditioned the ability of the licensee to breed, harvest, sell, or dispose of alternative livestock upon “compli[ance] with the requirement of this part ....” Section 87-4-414(2), MCA. Part 4 also states that FWP reserves the right to revoke a License if the owner/operator “fail[s] to operate an alternative livestock ranch according to the provisions of this part, rules adopted under this part, or stipulations of the alternative livestock ranch license....” Section 87-4-427(l)(a), MCA. Part 4 outlines in detail the reporting, testing, and recording duties incumbent upon a Game Farm operator, details the steps the operator must take to receive a License, and gives FWP broad authority to inspect and quarantine alternative livestock if necessary. Part 4 also requires environmental assessments (EA) of any proposed operations. It places conditions upon the use and disposition of alternative livestock, and further provides that alternative livestock are the private property of the License holder “for which the licensee is responsible as provided by law.” Section 87-4-414(1), MCA. Moreover, there are numerous implementing regulations governing the Game Farms which control virtually every aspect of the Game Farm industry. See Admin R. M. §§ 32.4.101-1320 (2008).

¶9 Because 1-143 eliminated the in-state market for fee-shooting and impaired the profitability of their Game Farm operations, the Kafkas challenged the validity of 1-143 in District Court. On April 5, 2002, the Kafkas filed suit against the State and FWP, challenging the lawfulness and constitutionality of 1-143 on a variety of grounds. On May 8, 2002, appellees-intervenors Sportsmen for 1-143 and Montana Wildlife Federation were permitted to intervene, opposing the Kafkas. On October 21, 2002, the District Court dismissed six of the seven counts alleged in the original complaint, none of which are on appeal before this Court. The remaining claim concerned whether the passage and implementation of 1-143 resulted in a taking of various property interests held by the Kafkas under Article II, Section 29 of the Montana Constitution and the Fifth Amendment to the U.S. Constitution. The property interests allegedly taken by 1-143 included the Kafkas’ animals, Licenses, real property, improvements, business, goodwill and livelihoods.

¶10 As litigation before the District Court proceeded, the Bridgewaters and Boumas were granted leave to intervene and join the Kafkas in challenging I-143’s constitutionality. On February 25,2003, the District Court bifurcated the legal proceedings and decided the takings claims would be determined separately. If the District Court found a taking had occurred, it would then submit the determination of damages to a jury.

¶11 On May 19 and 20, 2004, the District Court held a bench trial on appellants’ takings claims under the Montana and U.S. Constitutions. In the course of this trial, the District Court received voluminous testimony and evidence. On February 8,2005, the District Court issued a detailed and comprehensive order containing seventy-three findings of fact and fifty-one conclusions of law and ultimately denied appellants’ takings claims. The District Court held that the enactment and enforcement of 1-143 did not amount to a compensable taking of appellants’ private property under the Montana or U.S. Constitutions. Judgment was rendered against appellants and they have timely appealed to this Court.

¶12 Appellants challenge the District Court’s order in several respects. We describe the rationale underlying the order in broad terms to convey a sense of the District Court’s reasoning and analysis. First, we turn to the relevant portions of the District Court’s findings of fact. The District Court found that all parties knew the Game Farm industry was highly regulated, existing only by virtue of legislative permission, and that the legislature reserved the ability to change the regulations governing Game Farms at all times. The District Court pointed to specific portions of the EA prepared for the Kafkas’ operations in which FWP warned them of public unrest regarding Game Farms due to the threat posed by CWD and their negative impact on Montana’s fair chase hunting tradition. For instance, in the EA prepared in 1996, FWP specifically noted that “[t]here are many people who would like to see game farming prohibited in Montana. Some of these people belong to organizations that will probably continue their efforts to have legislation passed to eliminate game farming.” In the EA for the Kafkas’ second License, FWP noted much public concern on the negative effect that Game Farms have on Montana’s hunting heritage and the sport of hunting in Montana. However, FWP also noted that game farms were legitimate, regulated activities, approved by the legislature, and that it had “no authority to regulate game farms based solely on public sentiment.” Although there was no evidence that the Boumas or Bridgewaters received these same warnings, the District Court found that they knew, or should have known, about the tentative status of Game Farms in Montana.

¶13 The District Court also issued findings concerning the economic effect of 1-143 with respect to appellants’ property interests. On the one hand, the District Court found appellants’ real estate retained significant value in spite of 1-143 and that some of appellants’ lands had appreciated in value since initially purchased. With respect to the Kafkas, the District Court found that the “highest and best use” of the land associated with their original breeder operation was as “a small tract of range land, with a possible conversion to a rural home site with adjoining pasture.” Its value for this use as of November 7, 2000, was $34,720. The second property’s “highest and best use” was found to be as “rangeland with recreational influences, used for the production of livestock and a potential homesite,” and its value as of November 7, 2000, was $336,000. Although the Kafkas argued that covenants in the title documents prevented such a use, the District Court was not persuaded by their evidence on this point. The District Court also took notice of the fact that the covenants in question had already been lifted by agreement entered into between the Kafkas and Hill County on March 29, 2004. Further, the District Court rejected expert testimony presented by the Kafkas that the “highest and best use” of their lands was as Game Farms, finding that their expert testimony failed to conform to the standards established under the uniform standards for professional appraisal practice.

¶14 With respect to the Bridgewaters’ property, the District Court similarly found that its “highest and best use” was as a “recreational ranch,” and that the value of the land, improvements, and fixtures was $945,000 as of November 7, 2000. This was an approximately 100% appreciation in the value of the land since initially purchased in 1990. The District Court observed that the Bridgewaters did not provide expert testimony regarding the value of the land and its fixtures, or its highest and best use, and that their expert specifically denied having appraised any of the Bridgewaters’ tangible real or personal property.

¶15 The District Court found the “highest and best use” of the Boumas’ property to be for “agricultural production with the potential for future development for industrial or rural use.” Its valuation for these uses as of November 7, 2000, was $258,000. This represented the value of the two original lots, now worth $87,000, and the third lot worth $171,000. These figures also represented a notable appreciation in the value of the Boumas’ lands. Further, the District Court observed that the Boumas, like the Bridgewaters, provided no testimony as to the value of the land, its fixtures, its highest and best use, nor did they provide an expert appraisal of their tangible real or personal property.

¶16 The District Court did, however, find that appellants’ alternative livestock suffered a substantial loss in value as a result of 1-143. As the District Court noted, before 1-143, the Kafkas could fetch $5,000 to $6,000 per head of alternative livestock by virtue of fee-shooting. After 1-143, each head of livestock was worth only between $1,700 and $1,800 in out-of-state markets. Although there was testimony of even greater devaluations of the livestock of the Boumas and Bridgewaters, the District Court did not refer to these in its order. See ¶ 84.

¶17 The District Court then issued findings suggesting that this particular economic impact could be mitigated. The District Court noted that there still remained out-of-state markets for alternative livestock, and that appellants could harvest the alternative livestock for their meat and antlers. For instance, the Bridgewaters had been able to sell a herd of 160 of their alternative livestock to an out-of-state concern for approximately $80,000. The District Court also noted that none of the appellants had indicated any taxable profit on their tax returns, thus implying that their businesses were not profitable to begin with.

¶18 Ultimately, the District Court’s findings suggest that the Kafkas suffered the greatest economic impact, the Bridgewaters somewhat less, while the Boumas suffered no direct economic impact at all. The District Court tempered these conclusions by observing that all appellants either knew, or should have known, that Game Farms were highly controversial in Montana and that they were obliged to comply with any changes in the governing laws. Further, the District Court found that 1-143 served a legitimate state interest, insofar as it promoted Montana’s hunting heritage, protected wild game populations from the spread of disease and hybridization, and thus generally protected the sport of hunting in Montana.

¶19 In its conclusions of law, the District Court examined each of appellants’ property interests separately to determine if they had been taken by 1-143. The District Court began by considering whether appellants’ Licenses and intangible business assets (i.e., good will and going-concern value) were compensable property interests³ under the Fifth Amendment and Article II, Section 29. After reviewing the pertinent authorities, the District Court concluded that the Licenses were not compensable property interests and therefore could not be “taken.” With respect to appellants’ intangible business assets, the District Court concluded they were not taken because such interests are not compensable in the regulatory taking context.

¶20 The District Court acknowledged that the land, alternative livestock, and other physical assets were compensable property interests, but ultimately found that none of these compensable property interests were taken by I-143. The District Court rejected the argument that appellants had suffered a “categorical taking” under Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886 (1992), because these items continued to retain economic value, even if greatly diminished; thus, the conditions necessary for applying the Lucas analysis were not satisfied.

¶21 The District Court then went on to consider whether there was a taking under the factors-based analysis from Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646 (1978).⁴ On the one hand, the District Court failed to see any evidence of an economic impact on appellants’ land and fixtures as a result of 1-143. In this regard, the District Court noted that appellants failed to provide any expert appraisals to demonstrate the impact of 1-143 on their real estate interests. However, the District Court did recognize a significant impact on appellants’ alternative livestock. Overall, however, the District Court concluded that any reasonable investment-backed expectations appellants may have had regarding their Game Farms had to be tempered against the reality that they were operating in a highly regulated, controversial field, where the State was free to change the regulatory environment. In short, appellants should have reasonably anticipated that something like 1-143 was on the horizon. Additionally, the District Court found that the character of the governmental action embodied in 1-143 was a valid exercise of the police power of the State and substantially advanced a number of legitimate state interests. Accordingly, the State had no constitutional duty to compensate appellants for the effects of 1-143, no matter how greatly it impaired the profitability of appellants’ businesses.

¶22 Appellants argue on appeal that several of the District Court’s findings were clearly erroneous. The Kafkas, for instance, argue that the District Court improperly relied on tax return information to conclude that their businesses suffered no significant economic impact as a result of 1-143. Additionally, they argue that the evidence before the District Court showed that there was no viable out-of-state market for their alternative livestock or their by-products, and that after 1-143 they could only sell these animals at a loss. They also argue the District Court improperly relied upon on the various “highest and best use” appraisals for their parcels of land provided by the State’s experts. They further dispute the finding that they should have known that the Montana voters might approve and pass a measure like 1-143. The Boumas and Bridgewaters join in these arguments, adding further criticisms of the appraisal methods upon with the District Court based its findings.

¶23 In addition to challenging some of the District Court’s factual findings, appellants fault the District Court for concluding that their Licenses and intangible business assets were not compensable property interests. Appellants maintain that the District Court should have concluded these interests were compensable and then analyzed them under the appropriate takings analysis. Additionally, appellants argue that the District Court erred in its takings analysis of its interests in the land and alternative livestock with respect to each of the Penn Central factors. They argue that the District Court failed to appreciate the economic impact 1-143 had on their businesses and property, relying too much on the fact that appellants failed to report a taxable profit on their tax returns. They also assert that their investment-backed expectations were reasonable, in spite of the fact that they were participating in a highly regulated field of business. Further, they fault the District Court for placing too much emphasis on whether 1-143 was a legitimate exercise of the State’s police power, and overlooking the fact that 1-143 unfairly forces appellants to bear the economic burden associated with the elimination of Game Farms in Montana.

¶24 Appellants urge us to conclude that the District Court erred, and that 1-143 effected an unconstitutional taking of their Licenses and tangible and intangible business assets. The State and intervenors maintain the District Court’s order was correct in its particulars and urge us to affirm.

ISSUES

¶25 We restate the issues on appeal as follows:

¶26 Issue One: Did the District Court err in concluding that the enactment and enforcement of 1-143 did not amount to a taking of appellants’ Licenses and the goodwill and going-concern value of their businesses under the Fifth Amendment and Article II, Section 29 of the Montana Constitution?

¶27 Issue Two: Did the District Court err in concluding that the enactment and enforcement of 1-143 did not amount to a taking of appellants’ real and tangible personal property under the Fifth Amendment and Article II, Section 29 of the Montana Constitution?

STANDARD OF REVIEW

¶28 We review a district court’s conclusions of law to determine whether they are correct. State v. Fyant, 2004 MT 298, ¶ 7, 323 Mont. 408, ¶ 7, 104 P.3d 434, ¶ 7. We review findings of fact under the clearly erroneous standard pursuant to M. R. Civ. P. 52(a). We use a three-part test to determine if a finding is clearly erroneous. Interstate Prod. Credit Assn. v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). First, we examine the record to determine if the findings are supported by substantial evidence. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. Second, we consider whether the trial court has misapprehended the effect of the evidence. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. Third, if both of these tests are satisfied, we may still conclude that “[a] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” DeSaye, 250 Mont. at 323, 820 P.2d at 1287 (quotation omitted).

DISCUSSION

¶29 Issue One: Did the District Court err in concluding that the enactment and enforcement of 1-143 did not amount to a taking of appellants’ Licenses and the goodwill and going-concern value of their businesses under the Fifth Amendment and Article II, Section 29 of the Montana Constitution?

¶30 The Takings Clause of the United States Constitution provides in pertinent part that private property shall not “be taken for public use without just compensation.” U.S. Const. amend. V. Article II, Section 29 of the Montana Constitution states that “[p]rivate property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner.” Although the plain language of these provisions differ insofar as Section 29 refers to both “taking” and “damaging” as a basis for just compensation, we have generally looked to federal case law for guidance when considering a takings claim brought under Article II, Section 29. Western Energy Co. v. Genie Land Co., 227 Mont. 74, 77-78, 737 P.2d 478, 480-83 (1987); Germann v. Stephens, 2006 MT 130, ¶¶ 27-28, 332 Mont. 303, ¶¶ 27-28, 137 P.3d 545, ¶¶ 27-28. This approach is consistent with that of other jurisdictions which have similar or identical language in their state constitutions.⁵ E.g., San Remo Hotel L.P. v. City and Co. of San Francisco, 41 P.3d 87, 100-101 (Cal. 2002) (citations and quotations omitted, alterations in original) (“By virtue of including ‘damageff to property as well as its ‘tak[ing],’ the California clause protects a somewhat broader range of property values than does the corresponding federal provision. But aside from that difference ... we appear to have construed the clauses congruently.”).

¶31 In its order, the District Court concluded that appellants had waived any argument they may have had that Article II, Section 29 provides greater protection in the regulatory taking context than the Fifth Amendment. In conclusion of law No. 3, the District Court held that “Plaintiffs have conceded that analysis under the Montana Constitution does not differ from that under the Fifth Amendment....” In their briefing before this Court, appellants have not mounted a challenge to this conclusion. Moreover, appellants rely almost exclusively on federal case law to challenge the District Court’s application of the Penn Central factors. Because the parties and the District Court have adhered to our previous approach of looking towards federal jurisprudence when considering takings claims under Montana law, we will continue to follow that approach here.

¶32 “A takings claim requires a two-step analysis in which a court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged taking. The question of whether plaintiffs owned a compensable property interest presents a question of law based on factual underpinnings.” Mohlen v. United States, 74 Fed. Cl. 656, 660 (Fed. Cl. 2006) (quotation omitted). After a compensable property interest has been established “the court decides if the governmental action at issue constituted a taking of that property.” Mohlen, 74 Fed. Cl. at 661. As we have stated in a similar context, “[u]nder Montana law, the threshold question of whether one has a protected property interest must... be answered in the affirmative before the question of whether one was deprived of that interest may be submitted to the trier of fact.” Seven Up Pete Venture v. State, 2005 MT 146, ¶ 26, 327 Mont. 306, ¶ 26, 114 P.3d 1009, ¶ 26 (quotation and alterations omitted, ellipsis in original); accord Maritrans, Inc. v. United States, 342 F.3d 1344, 1351 (Fed. Cir. 2003).

¶33 Property interests themselves are not defined by the Takings Clause, or for that matter by Article II, Section 29; “[rjather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S. Ct. 2862, 2872 (1984) (quotation omitted); accord Germann, ¶ 27. “These ‘background principles’ and ‘rules and understandings’ focus on the nature of the citizen’s relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property.” Members of the Peanut Quota Holders Assn. Inc. v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005), cert. denied 126 S. Ct. 2967 (2006).

¶34 The District Court found that the Licenses were not compensable property interests. The gist of the District Court’s reasoning was that the Licenses are more akin to privileges, and not vested property interests which could be subject to a taking. The District Court noted that this view was generally consistent with prevailing authority. Moreover, the District Court found no case law for the proposition that a taking of a license occurs when a new regulatory requirement, or in this case a regulatory prohibition, “ma[kes] the licensed business less profitable than it had been prior to the new regulations.” Further, the District Court observed that “[w]hen state law creates the privilege of holding a license to engage in a heavily regulated business like game farming is in Montana, it need not pay compensation when it changes the conditions under which that privilege may be exercised.” Simply put, appellants possess no common law property right to the Licenses, and the State retained the power at all times to revoke or changes those Licenses if it chose to do so.

¶35 Similarly, the District Court found that appellants’ intangible business assets (i.e., the goodwill and going-concern value oftheir Game Farms) were not compensable property interests in the regulatory takings context. The District Court, citing to Andrus v. Allard, 44 U.S. 51, 100 S. Ct. 318 (1979), among others, noted precedent weighed heavily against the notion that loss of future profits, without more, provided a basis for a takings claim. The District Court concluded that appellants cited no case law “for the proposition that loss of future business opportunity is a compensable property interest under the Fifth Amendment.” Moreover, the District Court noted that the ability to operate a Game Farm was not a common law right, and that because this ability was wholly dependent upon legislative permission, the State was not required to pay compensation for any business loss resulting from 1-143.

¶36 Appellants’ challenge these conclusions. Generally speaking, appellants argue that Licenses, goodwill, and going-concern value are property interests recognized under Montana law. As such, they argue it was incorrect for the District Court to simply conclude that they could not be taken as a result of the regulatory change occasioned by 1-143. Appellants urge us to reverse the District Court on this point, find these interests were compensable, and then correctly apply the Penn Central or Lucas takings analysis.

¶37 In cases where there is a “mix” of property interests, it is appropriate, if warranted under the circumstances, to consider those interests separately in a takings analysis. See Conti v. United States, 291 F.3d 1334, 1340-43 (Fed. Cir. 2002), cert. denied 537 U.S. 1112 (2003); Maritrans, 342 F.3d at 1352-53. That was the approach applied by the District Court and we will follow it here. Moreover, it is critical to bear in mind throughout our discussion that appellants bear the burden of proving a taking has occurred. Mohlen, 74 Fed. Cl. at 660.

A. Licenses as Compensable Property Interests

¶38 Generally speaking, a license is simply a right or privilege granted by a sovereign authority to engage in certain activity. 53 C. J.S. Licenses § 2, 441-42 (West 2005); Members, 421 F.3d at 1333 (stating that a fishing license “is merely a representation by the government that it will not interfere with the licensee’s efforts to catch fish.”). “A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v. City of Atlanta, 86 S.E.2d 672, 676 (Ga. App. 1955). In a similar context, we have stated that “[a] license is a grant by a government authority or agency of the right to engage in conduct that would be improper without such a grant. The conferment of a license... is merely a privilege...” Wallace v. Mont. Dept. of Fish, Wildlife and Parks, 269 Mont. 364, 368, 889 P.2d 817, 820 (1995) (quotation omitted, ellipsis in original).

¶39 At the same time, courts have recognized that some licenses may contain property interests that go beyond their status as a “mere privilege.” “[A] license may implicate property interests. A license holder, for example, may acquire a property right protected by the Constitution’s Due Process Clause. A professional license may be property for the purposes of equitable distribution. A license may be transferrable and may be worth a substantial sum to its holder.” United States v. Berg, 710 F. Supp. 434, 437 (E.D.N.Y. 1988) (citations and footnote omitted). In State v. Pyette, 2007 MT 119, 337 Mont. 265, 159 P.3d 232, for instance, we observed that a state-issued driver’s license constitutes a property interest for purposes of due process. Pyette, ¶ 13. Similarly, in United States v. Dicter, 198 F.3d 1284 (11th Cir. 1999), the Eleventh Circuit Court of Appeals found that a medical license was considered “property” for the purposes of a federal drug forfeiture statute, 21 U.S.C. § 853, in reliance upon Georgia case law to the effect that a state-issued license to practice medicine constituted a valuable property right. Dicter, 198 F.3d at 1290; See also Goldberg v. Kelly, 397 U.S. 254, 262 n. 8, 90 S. Ct. 1011, 1017 n. 8 (1970) (discussing increasing tendency in modern society to recognize property rights in government-conferred entitlements and licenses).

¶40 However, as the District Court recognized, appellants’ arguments generally fail to appreciate the critical distinction between what might be considered property for purposes of due process, and what types of interests are considered compensable under the Fifth Amendment or Article II, Section 29. Appellants have cited cases such as Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976) and Wedges / Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56 (9th Cir. 1994) which demonstrate that licenses can be property for purposes of due process. But none of these cases are helpful or relevant in this context. “Care ... must be exercised not to analogize what is ‘property’ for purposes of the Takings Clause and what might be viewed as a ‘property interest’ under the Due Process Clause, as the two concepts are dissimilar.” Arctic King Fisheries, Inc. v. United States, 59 Fed. Cl. 360, 372 n. 27 (Fed. Cl. 2004). Without belaboring the point, suffice it to say that reliance on due process cases to prove a particular property interest is compensable for purposes of a takings analysis is simply misplaced. See Kizas v. Webster, 707 F.2d 524, 534-40 (D.C. Cir. 1983) (demonstrating that property interests for purposes of due process are not equivalent to compensable interests under the Takings Clause).

¶41 Courts which have directly considered the question at bar have taken a dim view of the notion that government-issued licenses are compensable property interests. See United States v. Fuller, 409 U.S. 488, 93 S. Ct. 801 (1973) (grazing permit not a compensable property interest); accord Stevens Co. v. United States Dept. of Interior, 507 F. Supp. 2d 1127 (E.D. Wash. 2007); Conti, 291 F.3d at 1342 (no compensable property interest in a government-issued fishing license); accord Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1374 (Fed. Cir. 2004), cert. denied 545 U.S. 1139 (2005); accord Arctic King, 59 Fed. Cl. at 371; Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430, 439-40 (8th Cir. 2007) (no compensable property interest in a state-issued license to operate lottery machines). As noted by the District Court, appellants presented no authority under takings jurisprudence to counter this view.

¶42 Nevertheless, compensable property interests can exist in government-issued licenses or permits if they are free from “express statutory language precluding the formation of a property right in combination with the presence of the right to transfer and the right to exclude.” Members, 421 F.3d at 1331. In Members, the Federal Circuit Court of Appeals considered a takings claim brought by members of the Peanut Quota Holders Association, Inc. (Members). The Members had been long-time participants in a government-established program entitling them to receive quotas to grow specific quantities of peanuts. Under the program, the Members were able to lease or sell their quotas to other farmers. One of the significant benefits the Members enjoyed as a result of this arrangement was the ability to secure favorable loan rates.

¶43 The Members were initially peanut farmers, but over time they ceased to grow peanuts while retaining their right to sell and lease their peanut quotas. In 2002, Congress changed the peanut quota program, allowing only individuals who actually farmed peanuts to participate. Because the Members lost their ability to receive quotas, they lost the favorable loan rates they had formerly secured. The Members argued that the change in the program, which prevented them from participating in it, constituted a taking of these favorable loan rates. Members, 421 F.3d at 1325.

¶44 The primary issue before the Court of Appeals was whether the quotas were compensable property interests under the Fifth Amendment. To address this question, the Court of Appeals turned to the seminal cases in this area for guidance, including Fuller, Conti, Am. Pelagic, and. Mitchell Arms, Inc. v. United States, 7 F.3d 212 (Fed. Cir. 1993), cert. denied 511 U.S. 1106 (1994).⁶ First, the Court noted that “[t]he right to transfer is a traditional hallmark of property” and that the quotas were indeed transferable. Members, 421 F.3d at 1332. Then the Court considered whether the quotas gave the Members the “right to exclude,” observing that “[t]he Supreme Court has recently recognized that the right to exclude is ‘perhaps the most fundamental of all property interests.’ ” Members, 421 F.3d at 1333 (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539, 125 S. Ct. 2074, 2082 (2005)). The Court observed a critical distinction between licenses generally and the quotas before it. The quotas were “considerably more concrete” than, for instance, a license to fish because such a license “is merely a representation by the government that it will not interfere with the licensee’s efforts to catch fish.” Members, 421 F.3d at 1333. In other words,

[s]o long as the government retains the discretion to determine the total number of licenses issued, the number of market entrants is indeterminate. Such a license is by its very nature not exclusive. Neither the fisherman nor the firearms salesman can exclude later licensees from entering the market, increasing competition, and thereby diminishing the value of his license.

Members, 421 F.3d at 1334.

¶45 The peanut quotas conferred the “right to exclude” because the quotas themselves “represented a right to plant and produce a certain amount of peanuts at a certain price in specific crop years.” Members, 421 F.3d at 1334. In other words, the quota program conferred upon “the peanut quota holders... an excludable interest, because the peanut quota program isolated their particular interest from competition.” Members, 421 F.3d at 1334. Ultimately, in spite of the fact that the quotas were compensable property interests, the Court of Appeals found that the government was under no constitutional duty to compensate the Members because neither the statute, nor the surrounding circumstances, indicated that the quotas were irrevocable, and the government always maintained “its right to withdraw those benefits or qualify them as it chooses.” Members, 421 F.3d at 1335.

¶46 As stated in Members, to qualify as compensable property interests, the Licenses must be transferable, exclusive, and free of any “express statutory language precluding the formation of a property right ....” Members, 421 F.3d at 1331. We address each of these requirements in turn, as they apply to the Licenses before us.

¶47 With respect to whether the Licenses were transferrable, we note that § 87-4-412(2), MCA (1999), gave the licensee the right to transfer the Licenses subject to FWP approval. According to the statute, FWP did not have broad discretion to deny the transfer assuming the transferee complied with the statutory requirements of part 4. Section 87-4-412(2), MCA (1999). Before the passage of 1-143, the Licenses were transferable.

¶48 It is arguably a closer question as to whether the Licenses were free of any express statutory language that would prohibit the formation of a compensable property interest in the License itself. Neither part 4 nor the Licenses themselves contain the type of express “disclaimer” language discussed in cases like Fuller, Conti, or Am. Pelagic. See Fuller, 409 U.S. at 489, 93 S. Ct. at 803 (quoting 43 U.S.C. § 315b); Conti, 291 F.3d at 1341-42 (citing 16 U.S.C. § 1853(d)(3)(D), (d)(2)(A)); Am. Pelagic, 379 F.3d at 1374 (citing 15 C.F.R. § 904.301(a)). In all of those cases, there was language in the enabling regulations or statutes which expressly disclaimed that the licenses or permits themselves created any compensable property interests.

¶49 However, part 4 does put the holder on notice that continued compliance with applicable laws and regulations is required for maintenance of the License. See ¶ 8. Both versions of part 4 state that the licensee may breed, harvest, sell, or dispose of alternative livestock, so long as she “complies with the requirement of this part.” Both versions of part 4 specifically state that FWP may revoke the Licenses if the operator fails “to operate an alternative livestock ranch according to the provisions of this part, rules adopted under this part, or stipulations of the alternative livestock ranch license.” Section 87-4-427(l)(a), MCA. Thus, nothing in part 4 limits the ability or discretion of FWP or the State to make changes to the statute. Additionally, the Licenses issued to all appellants stated that they were subject to the “general requirements of the game farm statutes and rules for Montana Fish, Wildlife, & Parks and the Montana Department of Livestock....” ¶50 More importantly, nothing in the Licenses or part 4 expressly revokes the ability of the State to alter those Licenses via duly enacted statutory amendments or changes. In this regard, we note the operation of§ 1-2-110, MCA, entitled “All statutes subject to repeal,” which states: “Any statute may be repealed at any time except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal.” Section 1-2-110, MCA. As the District Court correctly held, the ability to operate a Game Farm is not a common law right incident to the ownership of real property, and is legal only by virtue of legislative enactment. “That the ownership of wild animals is in the state, held by it in its sovereign capacity for the use and benefit of the people generally, and that neither such animals nor parts thereof are subject to private ownership except in so far as the state may choose to make them so, are principles now too firmly established to be open to controversy.” Rosenfeld v. Jakways, 67 Mont. 558, 562, 216 P. 776, 777 (1923). Assuming any statutory amendment is lawful, there is no legal authority which would restrict the State from making amendments to part 4 in the interests of further regulating the Game Farm industry. As the Federal Circuit Court of Appeals stated in Members,

[t]he government is free to create programs that convey benefits in the form of property, but, unless the statute itself or surrounding circumstances indicate that such conveyances are intended to be irrevocable, the government does not forfeit its right to withdraw those benefits or qualify them as it chooses.

Members, 421 F.3d at 1335.

¶51 However, even assuming arguendo it is a closer question as to whether part 4 and the Licenses are actually free of express language prohibiting the formation of a compensable property interest, we do not need to resolve that question to conclude the Licenses are not compensable property interests, because they undoubtedly lack the most significant of all the indicia discussed in Members: the right to exclude. “In the bundle of rights we call property, one of the most valued is the right to sole and exclusive possession-the right to exclude strangers, or for that matter friends, but especially the Government.” Hendler v. United States, 952 F.2d 1364, 1374 (Fed. Cir. 1991).

¶52 Nothing in the language of the Licenses or either version of part 4 gives the License holders the right to exclude others from the Game Farm industry. There was no limit to the number of Licenses which could be issued by FWP, and so the appellants were never given the “right to exclude” by virtue of their Licenses. The License holders in this case received a representation by the State that it would not interfere with their efforts to operate Game Farms, so long as they complied with the requirements of part 4. However, none were assured of freedom from competition, and none of the Licenses conferred upon appellants a discrete segment of the Game Farm industry in Montana.

¶53 Moreover, as is conceded by all parties in this case, the Game Farm industry was highly regulated due to concerns over the damaging impact of CWD. See ¶¶ 2, 8. As the Federal Circuit noted in Members, “when a citizen voluntarily enters into a market subject to pervasive government control, he cannot be said to possess the right to exclude.” Members, 421 F.3d at 1331. While the appellants certainly had the right to exclude others from fee-shooting on their property, that right was not due to the Licenses, but due to their inherent rights in the real property on which those operations were conducted. See Presley v. City of Charlottesville, 464 F.3d 480, 492 n. 2 (4th Cir. 2006) (stating that “perhaps the most important aspect of real property ownership [is] the right to exclude others from one’s property.”) (citing Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S. Ct. 383, 62 L.Ed.2d 332 (1979)).

¶54 Accordingly, because the Licenses did not meet the three required criteria for compensability under Members, we conclude the District Court did not err when it held the Licenses were not compensable property interests under the Fifth Amendment of the U.S. Constitution, or Article II, Section 29 of the Montana Constitution.

B. Appellants’ Intangible Business Assets

¶55 We turn now to the District Court’s conclusion that 1-143 did not take appellants’ intangible business assets. We start with the proposition that intangible assets are statutorily recognized forms of property in Montana, and possess the indicia of property which the Licenses do not. See Section 70-1-104(4), MCA; In re Marriage of Hull, 219 Mont. 480, 484-85, 712 P.2d 1317, 1320-21 (1986). However, this does not necessarily mean that such intangibles can be “taken” in the regulatory context. In its order, the District Court stated that “[a]n intangible interest in a business has never been held to be a proper subject of a regulatory taking claim.” This is true. While goodwill and going-concern value can be taken as a result of government condemnation, appellants point to no cases where a taking of going-concern or goodwill has been found in the regulatory takings context.

¶56 In Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S. Ct. 1434 (1949), the Supreme Court established that, under limited circumstances, intangible assets like going-concern value can be taken in a manner requiring just compensation be paid to the owner. There, the Supreme Court held that when the government temporarily condemned a laundry plant, it was required to compensate plaintiffs for the going-concern value of trade routes. Kimball, 338 U.S. at 11-16, 69 S. Ct. at 1440-43. However, since Kimball was decided, courts have found these types of takings only in those rare circumstances where the government actually intends to take over the claimant’s business and thereby appropriate the goodwill and going-concern value for its own use. Thus, the federal district court for the Eastern District of Michigan held no compensation was due for loss of going-concern value to a claimant’s trucking business as a result of a government condemnation of land, because the claimant did not demonstrate that the government condemned the land with the intent of operating a similar business. United States v. Five Parcels, 1.11195 Acres of Land, More or Less, Situated in the City of Detroit, Wayne County, State of Michigan, 765 F. Supp. 1283, 1286 (E.D. Mich. 1991). The federal district court for the Western District of Michigan stated the general approach to these questions as follows:

The Court concludes that where, as in this case, 1) the government intends to construct facilities in substitution for an existing business; 2) the new business is operated under the government’s pervasive regulation; 3) the government creates a monopoly situation and realizes a pecuniary interest by doing so, the government’s activity is tantamount to the operation of the ongoing concern which, in turn, comprises a business taking.

United States v. 0.88 Acres of Land, 670 F. Supp 210, 213 (W.D. Mich. 1987).

¶57 As the jurisprudence in this area makes plain, taking of goodwill or going-concern value differs markedly from other types of taking. This is likely because what the claimant alleges has been “taken” is an expectation of future profitability.⁷ As the United States Supreme Court stated in Andrus, a “loss of future profits-unaccompanied by any physical property restriction-provides a slender reed upon which to rest a takings claim. Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform.” Andrus, 444 U.S. at 66, 100 S. Ct. at 327. In cases such as Kimball, where there is an actual physical occupation of land by the government, fundamental property rights are implicated; thus, if the going-concern value is based upon a right or ability to exclusive use of the property which the government is occupying, it makes sense to provide compensation for the value lost. Turning to this case, it is important to note that appellants cite no authority for the proposition that compensation of the loss of their intangible assets should be paid under their regulatory takings claims. Any citation to Kimball is unavailing for the simple reason that Kimball involved actual physical occupation of land-a critical fact which is absent in this case.

¶58 An expectation of profitability in a highly regulated field of business, where a license or permit is required for participation, is virtually never, in and of itself, considered a compensable property interest. In Mitchell Arms, for instance, the Federal Circuit Court of Appeals found that an arms dealer had no cognizable property interest in an expectation of selling assault rifles in domestic commerce, because that right was totally dependent upon the government’s granting him a license to sell those weapons. Mitchell Arms, 7 F.3d at 217. Thus, when the government withdrew the permit, the arms dealer had no basis upon which to assert a takings claim because all the government “ ‘took’ ... [was] the ability to realize an expectation in the ultimate market disposition of the rifles. This ‘collateral interest’ incident to [the] ownership of the rifles is not property protected by the Fifth Amendment.” Mitchell Arms, 7 F.3d at 217; See United States v. Gen. Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 357, 360 (1945) (“[T]he Fifth Amendment concerns itself solely with the ‘property,’ i.e., with the owner’s relation as such to the physical thing and not with other collateral interests which may be incident to his ownership.”).

¶59 Similarly, in Allied-General Nuclear Servs. v. United States, 839 F.2d 1572 (Fed. Cir. 1988), the Federal Circuit Court of Appeals found that a private company which had been induced by the federal government to invest $200 million dollars into the development of a nuclear power plant, had no takings claim when the government suddenly changed its mind and decided that the construction of the plant would represent a danger to national security. Allied-General, 839 F.2d at 1576-78. The Court of Appeals noted that the licensing power of the government when “use[d] for purposes within the object of the power reserved will be valid even if detrimental to the owner’s full utilization of the property.” Allied-General, 839 F.2d at 1577 (citing Nollan v. California Coastal Commn., 483 U.S. 825, 832-35, 107 S. Ct. 3141, 3146-47 (1987)). The appeals court rejected the notion that excessive inducement from the government to enter into this area and expend significant amounts of money should alter its conclusion, finding that in the absence of a direct contract between the government and the private corporation, the expectation of profiting in such a highly regulated and risky field could not by itself be considered a compensable property interest. Allied-General, 839 F.2d at 1577-78. More recently, in Hawkeye Commodity, the Eighth Circuit found that a company had no property interest in a right to continued operation in the state-regulated lottery business. Hawkeye Commodity, 486 F.3d at 439-40. Thus, when the state of Iowa enacted legislation which prohibited a particular type of lottery game, the company, which had been previously engaged in that type of business, had no basis for a takings claim. Hawkeye Commodity, 486 F.3d at 440.

¶60 Similarly, in Huntleigh USA Corp. v. United States, 75 Fed. Cl. 642 (Fed. Cl. 2007), the Federal Claims Court found no compensable property interest when the government federalized airport screening in 2001 under the Aviation and Transportation Security Act (ATSA), and allegedly “took” the company’s entire screening business, including its “contracts, goodwill and going concern value.” Huntleigh, 75 Fed. Cl. at 645. The Claims Court concluded it was immaterial whether the private company could have anticipated the regulatory changes, because the federal government retained the ability at all times to make those regulatory changes. Huntleigh, 75 Fed. Cl. at 646. In Huntleigh USA Corp. v. United States, 525 F.3d 1370 (Fed. Cir. 2008) (Huntleigh II)-a case cited, but not discussed or analyzed by the Dissent at ¶¶ 167,168, 201-the Federal Court of Appeals affirmed the claims court decision in Huntleigh. In affirming the lower court, the court noted that Huntleigh’s argument was not whether the government actually “took” its screening contracts-because there was no physical condemnation or occupation by the ATSA-but rather whether the regulatory change embodied in the federalization of airport screening under the ATSA “rendered the contracts and the going concern value and goodwill associated with Huntleigh’s security screening business worthless.” Huntleigh II, 525 F.3d at 1379. When Congress federalized airport screening under the ATSA “it effectively eliminated the market for [Huntleigh’s services], given that it concentrated all screening functions in the federal government. Thus ... Huntleigh and the other airlines with which it had contracts treated their contracts as terminated upon the government’s full assumption of screening functions at airports, resulting in considerable loss of business to Huntleigh.” Huntleigh II, 525 F.3d at 1375.

¶61 However, while the ATSA frustrated Huntleigh’s business expectations, it did not take any of Huntleigh’s property within the meaning of the Fifth Amendment. Huntleigh II, 525 F.3d at 1380-82. Accordingly, the Federal Court of Appeals distinguished the application of Kimball as follows:

Our reasoning applies to all property interests possessed by Huntleigh, including its contracts and any going concern value or goodwill associated with its security screening business. Thus, the authority of Kimball Laundry does not alter our holding. Though going concern value and goodwill are indeed compensable property interests, Kimball Laundry, 338 U.S. at 11, 69 S.Ct. 1434, those property interests, like Huntleigh’s contracts, were merely “frustrated” by the government’s enactment of ATSA. They were not taken. Moreover, going concern value is a property interest that has been held to be compensable in the context of a temporary, but not a permanent, taking.

Huntleigh II, 525 F.3d at 1382 n. 3.

¶62 Huntleigh’s unsuccessful argument is nearly identical to that advanced by the appellants. It is indisputable that in the enactment and enforcement of 1-143, the State has not “appropriated for its own use any property owned by [the appellants].” Huntleigh II, 525 F.3d at 1381. Thus, 1-143 did not physically appropriate or “take” any of the appellants’ property, although it did eliminate the in-state market for fee-shooting and had a significant impact upon the value of their businesses.

¶63 In this case, appellants have alleged a taking of their intangible business assets because 1-143 eliminated the in-state market for fee-shooting. In other words, 1-143 has “taken” appellants’ ability to profit from fee-shooting. Yet, as is clear from the foregoing authorities, these interests are not compensable in this case under the Fifth Amendment or Article II, § 29 of the Montana Constitution because there has been no physical condemnation or occupation of appellants’ property by the State. We disagree with appellants’ assertions that the District Court was splitting hairs by not considering the economic impact on the intangible aspects of their businesses and licenses. The District Court correctly recognized that takings claims for goodwill and going-concern value have never been recognized in the regulatory taking context. The unique circumstances required to assert a taking of these intangible assets, namely a physical condemnation of some sort by the State, are not present in this case.

¶64 Accordingly, the District Court did not err when it found that appellants were not entitled to compensation for damage to the goodwill and going-concern value of their businesses as a result of 1-143.

¶65 Issue Two: Did the District Court err in concluding that the enactment and enforcement of 1-143 did not amount to a taking of appellants’ real and tangible personal property under the Fifth Amendment and Article II, Section 29 of the Montana Constitution ? ¶66 We now address appellants’ contention that 1-143 effected a regulatory taking of their real and personal property-i.e., their land and attached fixtures, and their livestock. There is no question that a person has a compensable property interest arising out of the ownership of such real and personal property.

¶67 Once a claimant establishes a compensable property interest, “the court must then determine whether a part or a whole of that interest has been appropriated by the government for the benefit of the public.” Members, 421 F.3d at 1330. Initially, courts assumed that “the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of [the owner’s] possession.” Lucas, 505 U.S. at 1014, 112 S. Ct. at 2892 (citations and quotations omitted, alterations in original). In the modern world, it is well-established that state action or regulation may go “too far,” and constitute a taking, in the absence of physical invasion or outright appropriation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414-15, 43 S. Ct. 158, 159-60 (1922).⁸ These so-called “regulatory takings” fall into one of two categories.

First, where government requires an owner to suffer a permanent physical invasion of her property-however minor-it must provide just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking). A second categorical rule applies to regulations that completely deprive an owner of “all economically beneficial us[e]” of her property. Lucas, 505 U.S., at 1019, 112 S.Ct. 2886 (emphasis in original).

Lingle, 544 U.S. at 538, 125 S. Ct. at 2081.

¶68 In other words, aside from an outright physical invasion, a “categorical taking” is deemed to have occurred when a regulation or state action forces an owner “ ‘to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle ....’ ” Seven Up Pete, ¶ 21 (quoting Lucas, 505 U.S. at 1019, 112 S. Ct. at 2895). Thus, when land or other interests retain economic value, no categorical taking has occurred. Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 330-32, 122 S. Ct. 1465, 1483-84 (2002).

¶69 However, even when a compensable property interest still retains economic value, just compensation may be required if “ ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central, 438 U.S. at 124,98 S. Ct. at 2659. Determining when such compensation is required is essentially an “ad hoc, factual inquiry” based on the circumstances of each case. In Penn Central, the Supreme Court suggested that courts examine the following factors in the course of making this determination: (1) the character of the governmental action; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the economic impact of the regulation on the claimant. Penn Central, 438 U.S. at 124, 98 S. Ct. at 2659. While courts may consider all three factors, in some cases one or more are dispositive. E.g., Ruckleshaus, 467 U.S. at 1005-06, 104 S. Ct. at 2874 (finding the reasonable investment-backed expectation prong dispositive under Penn Central analysis).

¶70 In jurisprudence under Penn Central, courts have fleshed out the practical meaning of each of these factors. In analysis of the first factor, the “character of the governmental action,” the inquiry focuses primarily on “whether the [governmental action] amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good ....’ ” Lingle, 544 U.S. at 539, 125 S. Ct. at 2082 (quoting Penn Central, 438 U.S. at 124). In Lingle, the United States Supreme Court clarified that under the “character of the governmental action” prong of the Penn Central regulatory takings analysis, whether a challenged regulation “substantially advances” a legitimate state interest “is not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation.” Lingle, 544 U.S. at 545, 125 S. Ct. at 2085. While the Supreme Court did not state with perfect clarity how the character of the governmental action is to be measured, it did state that

[T]he “substantially advances” inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners. In consequence, this test does not help to identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property; it is tethered neither to the text of the Takings Clause nor to the basic justification for allowing regulatory actions to be challenged under the Clause.

Lingle, 544 U.S. at 542, 125 S. Ct. at 2084.

¶71 The rejection of the “substantially advances” formula with respect to the character of the governmental action prong was simply meant to ensure that courts correctly quantify the effect of the regulation in terms of actual property rights and the magnitude of the infringement on those rights. Physical occupations, however slight, automatically require some form of compensation “because of the unique burden they impose: A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner’s right to exclude others from entering and using her property-perhaps the most fundamental of all property interests.” Lingle, 544 U.S. at 539, 125 S. Ct. at 2082. Similarly, the “complete elimination of a property’s value” may give rise to a “categorical” or total regulatory takings. Lingle, 544 U.S. at 539-40, 125 S. Ct. at 2082. Regulatory takings, by contrast, turn more on the magnitude of the economic impact and “the degree to which it interferes with legitimate property interests.” Lingle, 544 U.S. at 540, 125 S. Ct. at 2082. Thus, under the “character of the governmental action” prong courts should inquire concerning the magnitude or character of the burden imposed by the regulation, and determine whether it is functionally comparable to government appropriation or invasion of private property.

¶72 Under the “reasonable investment-backed expectations” factor, the claimant’s expectation must be “reasonable ... [and] must be more than a unilateral expectation or an abstract need "Ruckleshaus, 467 U.S. at 1005-06, 104 S. Ct. at 2874 (quotation omitted). This factor limits takings claims to those who can “demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime.” Rose Acre Farms, Inc. v. United States, 373 F.3d 1177, 1190 (Fed. Cir. 2004) (quotation omitted). “This factor also incorporates an objective test-to support a claim for a regulatory taking, an investment-backed expectation must be ‘reasonable.’ ” Cienega Gardens v. United States, 331 F.3d 1319, 1346 (Fed. Cir. 2003). Under the third criteria, “economic impact,” the court measures the impact of the regulatory change by considering “the change in the fair market value of the subject property caused by the regulatory imposition-in other words, the court must ‘compare the value that has been taken from the property with the value that remains in the property.’ ” Arctic King, 59 Fed. Cl. at 374 (quoting Keystone, 480 U.S. at 497, 107 S. Ct. at 1248). In assessing this factor, the court will look at the magnitude of the impact on the “parcel as a whole.” Rose Acre Farms, 373 F.3d at 1185 (citing Penn Central, 438 U.S. at 130-31, 98 S. Ct. at 2662).

¶73 With respect to the land, the District Court found there was no categorical taking under Lucas because the evidence showed those lands still retained substantial economic value; indeed, some of those lands even appreciated. The District Court also rejected appellants’ arguments that they were entitled to just compensation for these interests under the Penn Central analysis. Under the “economic impact” factor, the District Court concluded that appellants did not show that their real estate interests suffered any significant economic impact as a result of 1-143, and further that they failed to demonstrate any change in the fair market value of their land as a result of 1-143. See ¶¶ 13-15.

¶74 The District Court did recognize a substantial economic impact on appellants’ alternative livestock; however, it concluded that the economic impact was not severe, in part because none of the appellants reported taxable profit on their tax returns for the years their Game Farms were in operation. Under the “reasonable investment-backed expectations” factor, the District Court acknowledged that appellants’ had significant expectations, but noted “their subjective expectation of profit must be legally tempered by the objective reality that they were engaged in a highly regulated and speculative new industry.” The District Court concluded all appellants knew the Game Farm industry was highly regulated, that they were allowed to participate in the business because the privilege was extended by the State, and that they knew the regulations could change.

¶75 With respect to the “character of the governmental action,” the District Court concluded that 1-143 was a valid exercise of the State’s police power. The District Court cited to ample authority demonstrating that when a state exercise of police power is valid, “its actions may injure investment-backed expectations with respect to commerce in the goods at issue without having to pay compensation.” One line of authority on which the District Court placed particular reliance was a series of prohibition-era cases showing that state action could put an industry completely out of business without having to pay just compensation so long as the state action was a valid exercise of police power. E.g., Mugler v. Kan., 123 U.S. 623, 8 S. Ct. 273 (1887); James Everard’s Breweries v. Day, 265 U.S. 545, 44 S. Ct. 628 (1924). Further, the District Court found that 1-143 prohibited only one use of the alternative livestock — i.e., charging a fee to shoot them — and that otherwise appellants maintained all their rights and property interests in the alternative livestock. As a result, 1-143 left appellants “free to make other economically viable use of their property, removing only one potential use that has been validly deemed to be injurious to public health, safety, and welfare.”

¶76 Appellants challenge the District Court’s application of each of the Penn Central factors. With respect to the economic impact of 1-143, appellants assert that the District' Court improperly relied on the lack of a taxable profit in their tax returns, and failed to appreciate the impact 1-143 had on their alternative livestock and real estate interests.

¶77 Under the “reasonable investment-backed expectations” factor, appellants assert the District Court was wrong to conclude that their expectations were not reasonable, in spite of the fact that the Game Farm industry was highly regulated. They assert that 1-143 was not in fact a regulation of the Game Farm industry, but instead a prohibition against Game Farms which destroyed their property. Appellants maintain that they reasonably expected some changes in the regulations governing the Game Farm industry, but that it is not reasonable to expect them to anticipate a regulatory change, based on the whims of Montana voters, which would wipe out the in-state market for fee-shooting. Appellants cite to Cienega Gardens and NRG Co. v. United States., 24 Fed. Cl. 51 (Cl. Ct. 1991) in support of their argument under this factor.

¶78 With respect to the “character of the governmental action” factor, appellants criticize the District Court for focusing too much on whether 1-143 was a valid exercise of the State’s police power, and too little on the actual purpose behind takings jurisprudence: to prevent the government from forcing a few individuals to bear an economic burden which should be borne by society as a whole. In light of Lingle, appellants’ argue it is legally inappropriate to conduct a “means-ends” analysis to determine whether 1-143 substantially advances legitimate state interests. Instead, they argue, the proper focus should be on the nature of the interference with appellants’ property interests and whether 1-143 requires appellants to unfairly shoulder the economic burden of eliminating the in-state market for fee-shooting.

¶79 With these arguments in mind, we will examine the appellants’ remaining compensable property interests under the Penn Central factors.

C. Appellants’ Real Estate Interests and Fixtures

¶80 The District Court correctly determined that 1-143 did not effect a taking of appellants’ real estate interests, including appellants’ land and the fixtures constructed for the purpose of operating Game Farms. In this regard, we find the “economic impact” factor dispositive because Appellants presented no evidence to support their claims that 1-143 had a measurable economic impact on their lands and fixtures.

¶81 The State presented expert testimony and evidence at trial which showed that the “highest and best use” of appellants’ lands were for uses other than Game Farms, and that they all retained significant value in spite of 1-143; indeed, most of those lands even appreciated. Other than simply disagreeing with this view, appellants offered no evidence-such as appraisals of their own-to support the contention that these findings were clearly erroneous. Indeed, appellants’ experts admitted at trial that they had conducted no appraisals of the real property or fixtures themselves. Instead, appellants presented expert testimony to the effect that 1-143 constituted a categorical taking of their businesses and the Licenses themselves. But the District Court was correct to give no weight to this expert testimony, because those interests are not compensable under the circumstances at bar. Moreover, a review of the expert opinions presented by appellants shows that these experts did not understand how the Penn Central takings analysis is actually applied by the courts.

¶82 There was testimony from Mr. Bridgewater that his property was less marketable without an operating Game Farm, but at any rate it is equally true that the Bridgewaters’ land had appreciated 100% since its date of purchase. Additionally, while the Kafkas contended that certain restrictive covenants in their title documents precluded the alternative uses which the State’s appraisal deemed appropriate, the District Court adequately addressed this issue by taking notice of the fact that these covenants had been removed by the Kafkas and Hill County, and did not impair the marketability of their lands for uses other than Game Farms.

¶83 Applying the “parcel as a whole” standard to appellants’ real estate interests, including their land and fixtures, we find that the “economic impact” factor weighs overwhelmingly against finding a compensable taking. Appellants have not shown that 1-143 had any economic impact on their lands, and have not presented evidence to counter the weight of the State’s evidence. In short, they provide no basis to assert a taking of their real estate interests, regardless of the weight of the remaining two factors. Accordingly, the District Court did not err in concluding 1-143 did not constitute a regulatory taking of appellants’ compensable property interests in their lands.

D. Alternative Livestock

¶84 Next we turn to appellants’ claim that their alternative livestock was “taken” by 1-143. Returning to the Penn Central analysis, we will first examine the economic impact of 1-143. In this connection, we agree with appellants that the District Court underestimated the economic impact that 1-143 had on their alternative livestock. Unlike their real estate interests, appellants’ have demonstrated that their alternative livestock suffered a significant devaluation as a result of 1-143. Prior to 1-143, the Kafkas received approximately $5,000 to $6,000 per head of alternative livestock; after 1-143 that figure was reduced to $1,700 to $1,800. This represented a devaluation of roughly 70%. The District Court had evidence before it suggesting similar or greater devaluations for both the Bridgewaters and the Boumas, although it did not cite to this evidence in its order. According to the record, the Bridgewaters once had received approximately $8,000 to $9,000 for each head, while after 1-143 they sold 160 head to an out-of-state interest for approximately $80,000, representing a price of around $500 per head, or a roughly 95% devaluation. The Boumas had sold their animals for roughly $5,000 a head before 1-143, while after its passage they received $500 per head. These figures show a devaluation in the neighborhood of 90%.

¶85 Moreover, the facts in the record support the view that this diminished value was insufficient to even cover the cost of raising and maintaining those livestock. While there do exist some markets for their alternative livestock either for meat or antlers, or for resale to out-of-state markets, the return from such activities is less than the actual cost of maintaining the alternative livestock. In other words, after I-143, appellants could only sell the alternative livestock at a loss. This factor weighs in favor of finding a compensable taking of appellants’ alternative livestock.

¶86 We turn next to the second Penn Central factor, the “character of the governmental action.” We start with the proposition that 1-143 places the economic burden of eliminating Game Farms in Montana squarely on the shoulders of individuals, like the appellants, who have entered into this industry in reliance on the continued legality of fee-shooting. As such, it seems to run afoul of one of the primary policy concerns animating takings jurisprudence, namely the notion that the Takings Clause “bar[s] 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 v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569 (1960). Whatever the rationale for preventing fee-shooting, it is clear that individuals like appellants, and not the public as a whole, are being asked to bear the burden.

¶87 However, the type of intrusion upon the alternative livestock embodied by 1-143 is minimal. The animals have not been seized by virtue of I-143-they still belong to the appellants. Moreover, Appellants may still sell their animals to out-of-state markets for any usage, and may even allow others to shoot them in Montana, so long as no fee is charged. It is well-established that regulations which impair or significantly decrease the profitable use of property do not amount to a taking. In Andrus, for instance, the Supreme Court held that an act of Congress which banned the sale and transfer of eagle feathers, did not amount to a taking of the eagle feathers because the property holders still maintained the rest of the bundle of rights, and could still make some minimal use of the eagle feathers. Andrus, 444 U.S. at 65-66, 100 S. Ct. at 327. The Supreme Court acknowledged that the act deprived claimants of the ability to make profitable use of the eagle feathers, but declined to find a taking in large measure because they did not have a right, under the Takings Clause to make profitable use of the eagle feathers. “[T]he denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.” Andrus, 444 U.S. at 65-66, 100 S. Ct. at 327.

¶88 Thus, the “character of the governmental action” with respect to the animals is minimally intrusive. If the nature of the intrusion was greater and 1-143 affected other segments of appellants’ bundle of rights in the alternative livestock, such as their right to sell the live animals or slaughter them for market, then this factor might lean more in their favor because appellants, and not the general public, are shouldering this burden. As it stands, however, the intrusion is so slight that this factor must weigh against finding a compensable taking.

¶89 Thus we turn to the final Penn Central factor, “reasonable investment-backed expectations.” With respect to the alternative livestock, appellants’ investment-backed expectations were that they could charge a fee to shoot them. Indeed, that is why they expended significant financial resources on their respective operations to begin with. The District Court acknowledged these expectations but concluded that they “must be legally tempered by the objective reality that they were engaged in a highly regulated and speculative new industry.” While one can maintain reasonable investment-backed expectations in highly-regulated industries, e.g., Ruckleshaus, 467 U.S. at 1010-11, 104 S. Ct. at 2877 (finding reasonable investment-backed expectations in the pesticide industry), United Nuclear Corp. v. United States., 912 F.2d 1432, 1436-37 (Fed. Cir 1990) (finding distinct investment-backed expectations in the mining industry), we agree with the view, as articulated by the District Court, that the regulated and speculative nature of a particular industry should be considered in determining whether investment-backed expectations are reasonable. In this case, then, the question becomes whether it was reasonable for appellants to maintain an investment-backed expectation that they would always be able to charge a fee to shoot alternative livestock in Montana, and that the State could or would not interfere with this expectation. We find that such an expectation is not reasonable; thus, this factor weighs against finding a compensable taking of appellants’ alternative livestock.

¶90 In this regard, the facts at bar distinguish this case from both Cienega Gardens and NRG Co., the two cases upon which Appellants rely. In Cienega Gardens, owners of low-income apartments sued the government for an unconstitutional taking after Congress nullified their contractual rights to prepay forty-year mortgage loans entered into with the Department of Housing and Urban Development (HUD) after a period of twenty years. Cienega Gardens, 331 F.3d at 1323. This congressional action was significant to the owners because so long as they participated in the HUD loan program, they were forced to charge rental rates far below market value. The Federal Court of Appeals agreed and found that the term in their contract with the Government guaranteeing them the right to exit the HUD program after twenty years by paying off their loans was “an explicit and material term of their mortgage contracts [and] simply not a change the ... Plaintiffs should have anticipated.” Cienega Gardens, 331 F.3d at 1351.

¶91 Similarly, in NRG Co., the Federal Claims Court found an unconstitutional taking under the Fifth Amendment when Congress cancelled mining prospecting permits held by several private companies. NRG Co., 24 Cl. Ct. at 52-55. In that case, the U.S. Government issued permits to several private companies, but Congress later unilaterally cancelled those permits, and related leases, out of concerns that the proposed mining operations would negatively impact Indian tribes on whose lands those operations would be conducted. NRG Co., 24 Cl. Ct. at 55-56. In analyzing the companies’ regulatory takings claims, the Claims Court found the companies had reasonable investment-backed expectations that, once they obtained the permits, they would have the option to obtain valuable mineral leases, and that the congressional acts cancelling those permits after they had already been issued was not reasonably within those investment-backed expectations. NRG Co., 24 Cl. Ct. at 61-63.

¶92 Here by contrast, the State never assured appellants they would always be permitted to charge a fee to shoot alternative livestock in Montana. Further, we agree with the District Court that appellants knew, or should have known, that Game Farm operations were highly controversial in Montana and that initiative measures could have been passed which would outlaw Game Farms entirely. The record is clear that FWP was aware of the significant public unrest and imparted this information to the Kafkas beginning in 1996. See ¶ 12. Other appellants should have been aware of these same facts. Nothing in the regulations, Licenses, or statutes, provides any assurance that the regulations could not be changed and appellants received no guarantees from the State that their operations would continue to be lawful.

¶93 We conclude that appellants should have reasonably anticipated that the Game Farm industry might be phased out due to health and safety-related concerns over CWD, or even that the State might make the regulatory burden of participating in this field so onerous that Game Farms would no longer be profitable enterprises. In other words, appellants could not maintain a reasonable investment-backed expectation that they would be permanently insulated against the possibility that the Game Farm industry would be either regulated so as to eliminate its profitability, or completely abolished. As a result, since appellants could have reasonably anticipated the complete elimination of Game Farms by the State or regulations that would make participation in the field unprofitable, they should have also anticipated that the State could make the operations less profitable by eliminating the in-state market for fee-shooting. Although appellants may not have specifically anticipated the passage and enactment of I-143, the practical effect of I-143-i.e., the elimination of the in-state market for fee-shooting-should have been within their reasonable investment-backed expectations, given the absence of assurances on this point from the State. Accordingly, the “reasonable investment-backed expectation” factor weighs against finding a compensable taking of appellants’ livestock.

¶94 The Penn Central test ultimately calls for a weighing or balancing of these factors in order “to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, 544 U.S. at 539, 125 S. Ct. at 2082. Utilizing this approach, we have concluded that the purported taking here is not the functional equivalent of a direct appropriation of property, nor does it constitute an ouster from appellants’ domain. In weighing these factors together, we are mindful of the admonition that “[resolution of each case ... ultimately calls as much for the exercise of judgment as for the application of logic.” Andrus, 444 U.S. at 65, 100 S. Ct. at 327. After weighing the effects of 1-143 under the Penn Central factors, and particularly the “character of the governmental action” factor, we conclude that appellants are not entitled to just compensation for the regulatory taking of their alternative livestock.

CONCLUSION

¶95 In summary, we affirm the District Court’s findings of fact and conclusions of law regarding appellants’ claims for compensation with respect to their Licenses, the goodwill and other intangible assets of their businesses, their real estate and fixtures, and their alternative livestock.

CHIEF JUSTICE GRAY, JUSTICE LEAPHART and DISTRICT JUDGE CHRISTOPHER, sitting for JUSTICE WARNER, concur.

1 “CWD isa fatal disease of the central nervous system of captive and free-ranging mule deer, white-tailed deer, and Rocky Mountain elk.” Hagener v. Wallace, 2002 MT 109, ¶ 25 n. 1, 309 Mont. 473, ¶ 25 n. 1, 47 P.3d 847, ¶ 25 n. 1.

2 The pertinent language of these statutes reads as follows: “An alternative livestock ranch license for a specific facility is transferable with the consent of the department.” Section 87-4-412(2), MCA (1999).

3 Throughout this Opinion, the phrase “compensable property interest” refers solely to a property interest which is potentially compensable under the Fifth Amendment or Article II, Section 29. This phrase does not refer to property interests that may be entitled to due process protections under the U.S. or Montana Constitutions. See ¶ 40.

4 The Penn Central analysis is described in greater detail below at ¶¶ 67-72.

5 As an aside, we note that the plain language of Article II, Section 29 is not unique among state constitutions. Roughly half the jurisdictions in the United States have the “or damaged” language in their state constitutions. Julius L. Sackman, Nichols on Eminent Domain vol. 2A, § 6.01[12][c], 6-29 (3d ed., Matthew Bender 2008).

6 Mitchell Arms is discussed infra at ¶ 58.

7 Black’s defines “going-concern value” as “value of a commercial enterprise’s assets or the enterprise itself as an active business with future earning power, as opposed to the liquidation value of the business or its assets.” Black’s Law Dictionary 1587 (Bryan Garner ed., 8th ed. 2004). “Good will” is defined in part as “the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets.” Black’s at 715.

8 Curiously, the Dissent criticizes the Court for claiming that regulatory takings were not recognized prior to Pennsylvania Coal in 1922. (Dissent at ¶¶ 140-141.) However, this statement is both historically accurate and well-established.

[U]ntil the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’ ” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15, 112 S.Ct. 2886 (“[E]arly constitutional theorists did not believe the Takings Clause embraced regulations of property at all”).

Lingle, 544 U.S. at 537, 125 S. Ct. at 2081.