(dissenting).
I respectfully dissent.
This case is about whether the State of Iowa has the right to take a person’s land and not pay for it. The majority opinion establishes the principle that the state can do that whenever it finds human bones over 150 years old buried on land that the state archaeologist declares has historical significance. I believe this is not the law of Iowa nor should it be.
The Fifth Amendment through the Fourteenth Amendment of the United States Constitution provides that the government shall not take private property for public úse without just compensation. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 111 (1980); Bakken v. City of Council Bluffs, 470 N.W.2d 34, 36 (Iowa 1991).
Iowa law has recognized the principle of inverse condemnation, when the government does not actually condemn property but its action amounts to the same thing. Scott v. City of Sioux City, 432 N.W.2d 144, 145 n. 1 (Iowa 1988). By establishing that an inverse condemnation has occurred, a property owner may recover just compensation. United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373, 377 (1980). In this mandamus action plaintiffs do not seek to prevent the state from preserving the burial mound site for. historical or scientific benefit. They claim only that they are entitled to compensation for the economic loss that befalls them from the state taking their property. I find their claim to be just and supported by law.
The trial court granted the State’s motion for summary judgment and the majority affirms on the ground that plaintiffs cannot prevail as a matter of law. I believe this result occurs from a misapplication of the statutory and common law. I would reverse the decision granting the State’s summary judgment and remand for entry of an order sustaining plaintiffs’ summary judgment motion.
We have recognized the inevitable danger to private property that exists if the “just compensation” requirements of the Fifth Amendment to the federal Constitution and article I, section 18 of the Iowa Constitution could be circumvented through the guise of police power regulation. Business Ventures, Inc. v. Iowa City, 234 N.W.2d 376, 381-82 (Iowa 1975). Although not every police power regulation that restricts some beneficial use of property creates a compensable taking the frustration of investment-backed expectations may constitute a taking for which compensation is due. Fitzgarrald v. City of Iowa City, 492 N.W.2d 659, 665 (Iowa 1992) (citing numerous cases).
Lot 15, the burial mound area, is part of an investment-backed expectation of plaintiffs in developing a 59-acre tract for homes. It had been sold for $50,000 and is now worth $100 because nothing can be built on it. The State argues that the plaintiffs caused their own loss by buying property without recognizing a burial mound was on it that they could not use for home development. The State also promotes the idea that plaintiffs are undeserving of compensation because they made so much money selling other lots in the 59-acre tract that their loss of Lot 15 is but a fraction of their investment and therefore “de minimus.” This patronizing view of entrepreneurship is unfounded in law and economic reality.
The majority result is premised on the law quoted from Lucas v. South Carolina Coastal Council, 505 U.S. — —, , 112 S.Ct. 2886, 2899, 120 L.Ed.2d 798, 820 (1992), and our state statutes. The language of the Lucas case relied upon is dictum expressing an undefined exception to the general rule that compensation must be paid for a taking. The holding of the Lucas case sustained the landowner’s claim that a taking had occurred and rejected the State’s argument that it owed no compensation because it was for the public benefit. The law established by Lucas actually supports the claim of plaintiffs in the case at bar. The Supreme Court in Lucas said:
In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation.
*373Id. at-, 112 S.Ct. at 2893, 120 L.Ed.2d at 812.
We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.
Id. at-, 112 S.Ct. at 2895, 120 L.Ed.2d at 815.
In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the “implied limitation” that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become a part of our constitutional culture.
Id. at-, 112 S.Ct. at 2900, 120 L.Ed.2d at 820.
As we have said, a “State, by ipse dixit, may not transform private property into public property without compensation....”
Id. at-, 112 S.Ct. at 2901, 120 L.Ed.2d at 823 (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 452, 66 L.Ed.2d 358, 367 (1980)).
The prohibition by the State of Iowa from using the burial mound in the instant case is a complete taking because there is no practical use of it left to the plaintiffs. It is more insidious than zoning laws that we have held to effect a taking when they deny the economically viable use of the land. See Agins, 447 U.S. at 260, 100 S.Ct. at 2141, 65 L.Ed.2d at 112; Osborn v. City of Cedar Rapids, 324 N.W.2d 471, 474 (Iowa 1982); Woodbury County Soil Conservation Dist. v. Ortner, 279 N.W.2d 276, 278 (Iowa 1979). It is pernicious because there is virtually no notice to a landowner of the State’s claim and no opportunity to review the government action or appeal to the courts.
The Iowa statutes cited as preventing full ownership of land containing a burial mound give no notice of the State’s inchoate claim of authority to deny compensation while prohibiting use. See Iowa Code §§ 263B.7, 263B.9, and 716.5(2) (1993). Nor do they state or even imply that land with a burial mound bears a perpetual cloud on the title removable only by authority of the state archaeologist. Section 305A.9, giving the state archaeologist authority to deny permission to disinter human remains, is not a self-executing statute creating a covenant running with the land. By its own terms the statute is activated only by an application for permission to disinter. Moreover, there is no indication from the language of these statutes that the legislature intended to take property for historical or scientific inspiration without paying for it.
In this case, a dead bones doctrine has risen from the soil, like a phoenix, to consume the live marrow of land ownership. The history surrounding these ancient bones should be preserved by granting compensation for its resurrection.