March 2013

Here’s the Reply Brief in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

The brief responds to the USDA’s brief, and argues that the issue before the Court is not “jurisdictional,” which means it could be raised any time, much like the USDA did here, even after the Ninth Circuit issued its opinion. Rather, this is a choice of remedies ripeness question subject to “forfeiture.” Barista’s note: we’re happy to see what is commonly referred to as “waiver” (a knowing and intentional relinquishment of a known right) properly labeled as “forefeiture” (relinquishment of a right by operation of law), because in civil litigation when…

Continue Reading Reply Brief In California Raisin Takings Case (Argued Today): Don’t Confuse Constitutional Rights With Remedies

Yesterday, we posted our thoughts about the upcoming (March 20) Supreme Court oral arguments in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

Here are a few more perspectives on the arguments:

  • Supreme Court will divine the legal stakes in California raisin wars – Michael Doyle at McClachy: “Dissident California raisin growers will soon get their day in the Supreme Court sun, with a case that’s juicier than it seems. Libertarians are weighing in. So, from the other side, is Sun-Maid, the largest single marketer of raisins in the world. Texas is siding with the dissidents, as is the U.S. Chamber of Commerce.Add it up

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Continue Reading More California Raisin Takings Case Previews

Hat tip to Dean Patty Salkin’s Law of the Land blog for bringing this case to our attention. We don’t have much to add to her comprehensive write up of the Georgia Supreme Court’s opinion in City of Suwanee v. Settles Bridge Farm, LLC, No. S12A1599 (Feb. 18, 2013), a case holding that a regulatory takings case was not ripe because the property owner had not exhausted available administrative remedies. But we do have one thought that she didn’t cover, so bear with us while we set the stage.

Settles Bridge obtained city approvals for a residential subdivision. Shortly thereafter, however, it sold the property to Notre Dame Academy, which, under the existing residential zoning could build a school on the site as a matter of right, and “Settles Bridge abandoned its subdivision plan.” Upon learning of the sale, the city first adopted a building permit moratorium, and followed…

Continue Reading ‘SUP, Georgia? Takings Case Not Ripe Because Property Owner Hasn’t Applied For A Permit It Doesn’t Want

Koontz Sets The Stage

The apparent sticking point during the January oral arguments in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), came to light via Justice Scalia’s questioning of the property owner’s counsel about whether anything had been “taken” when a property owner refused to accept a development permit conditioned on him paying for improvements to public land miles away from his property, because doing so would violate the unconstitutional conditions doctrine of Nollan/Dolan. For how could the owner claim that his property was taken when he didn’t accept the permit? The issue was succintly stated by Justice Kagan when she asked point-blank, “where is the taking?” (see p. 11 of the Koontz transcript).

We’re still waiting for the opinion in that case so don’t have the Court’s answer just yet, but Part II of the…

Continue Reading Horne v. USDA Oral Argument Preview: Is It The Takings Clause, Or Only The Just Compensation Clause?

Here’s the Brief in Opposition which responds to the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

In that case, an Agana, Guam property owner is alleging that a taking of his residential property so that his neighbor (the former mayor of Agana) could have a driveway for his lot, violated the Public Use Clause. Of course, the taking was not justified by private necessity but as part of the “Agana Plan,” an economic development plan adopted following World War II to reconfigure irregular lot lines in the city. The Guam trial court invalidated the taking, but the Guam Supreme Court unanimously reversed, holding that under Kelo v. City of New London, 545 U.S. 469 (2005), the taking was for a public use.

Disclosure: we represent the Owners’ Counsel of America, which has joined an amici brief supporting the property owner/petitioner…

Continue Reading BIO In Eminent Domain Pretext Case: Redevelopment Plan Established “Order Out Of Chaos”

Undercutting the trope that the lawsuit by a Marin County, California oyster farm to keep operating is all a right-wing plot (see also this story), famed Berkeley chef and food guru Alice Waters has asked the Ninth Circuit to file an amicus brief in support of Drakes Bay Oyster Company in its appeal of the District Court’s denial of its request for a preliminary injunction. As we noted here, the Secretary of the Interior denied the Company’s efforts to renew its license for its decades-old farming operation in the Point Reyes National Seashore. The Ninth Circuit has issued an injunction pending appeal, and ordered expedited calendaring.

Joining Waters on the brief is another nearby oyster farmer (located on private land), a San Francisco restaurant, the California Farm Bureau and two county farm bureaus, and “Food Democracy Now,” “Marin Organic,” and the “Alliance For Local Sustainable Agriculture.”…

Continue Reading Food Fight: Environmentalist Top Chef Supports Oyster Farmer Against Other Enviros In Ninth Circuit

Earlier, we posted the initial briefs in Big Oak Farms, Inc. v. United States, a case now pending in the Court of Federal Claims. Or, more correctly, perhaps being revived in the CFC because it was dismissed earlier.

The property owner in Big Oak Farms is seeking compensation for the flooding of its land in 2011 after the Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff’s words, “sacrifice Plaintiffs’ land to superimposed water, sand, and gravel in order to benefit the public diverting high water away from other personal and real properties in and around Cairo, Illinois.” Video here.

The Big Oak Farms briefs were the first briefs filed in which the parties attempted to apply the Supreme Court’s ruling in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012). These were filed even…

Continue Reading Response Briefs On Impact Of SCOTUS Flood Takings Opinion

Here’s one more amicus brief (Public Lands Council, National Cattlemen’s Beef Association, Oregon Cattlemen’s Association, Washington Cattlemen’s Association, and Nevada Cattlemen’s Association) supporting the cert petition in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

Estate of Hage is the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water.

Earlier, we posted two other amicus briefs supporting the granting of cert:

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Continue Reading One More Amicus Brief In Western Water Rights Takings Case