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Here’s the amici brief of the Cato Institute, the NFIB, the Center for Constitutional Jurisprudence, and the Reason Foundation in support of the petitioner/property owner in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).

That’s the case in which the Supreme Court is considering whether a property owner who is being targeted by the federal government for a fine may assert a takings defense, or whether the sole approach is to pay the fine and then seek compensation later in the Court of Federal Claims. We know that sounds stupid, but that’s exactly what the Ninth Circuit held a property owner must do. See Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011). And that’s the USDA’s argument, now too.

As the brief argues:

In the government’s view, property owners who have been wrongfully ordered to pay the…

Continue Reading Amicus Brief In California Raisin Takings Case: 9th Circuit Has A “Rube Goldberg” Approach To Takings

Okay, all you “relevant parcel” mavens, here’s another decision for you (once again involving land in Florida, although, unlike the other case which came out of the Florida court of appeals, this one is out of the U.S. Court of Appeals for the Federal Circuit) .

These decisions provide a measure of sanity to the issue of how much of the property owned by the plaintiff is included when determining whether value has been wiped out under Lucas, or the extent of the economic impact of the regulation on the claimant under Penn Central. These tests require an analysis of the impact of the regulatory action on the “parcel as a whole,” and since Penn Central first made the inquiry relevant, the courts an litigants have been trying to figure out the “denominator” — is it everything the plaintiff owns? Everything nearby? Everything it once owned? The discrete…

Continue Reading Federal Circuit: Denial Of Permit To Fill Wetlands Might Be A Taking

Here’s the petitioners’ merits brief in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).

That’s the case in which the Court is reviewing Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011), in which the Ninth Circuit concluded a takings claim raised as a defense by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. For the 2003 and 2004 crop years, the USDA government brought an enforcement action against the farmers, seeking to recover the monetary value of raisins they did not turn over to the government.

The Ninth Circuit dismissed the takings claim for lack of jurisdiction, effectively telling the…

Continue Reading Can A Property Owner Raise A Takings Defense? – Petitioners’ Brief In California Raisin Case

Here are some thoughts about yesterday’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), in which a unanimous Supreme Court held that government-induced flooding could be a taking, even if temporary. 

Bad Puns and a “Flood” of Litigation

First, the temptation in flooding cases is to make bad puns (the same seems to hold true for beach cases (‘shifting sands,’ for example  … what is it about property cases that especially inspires these bad puns anyway?), and this one is no exception. Justice Ginsburg’s opinion dismissed the trope that holding in favor of the property owner would result in more litigation or a resistance on the part of government to take flood control measures:

The sky did not fall after [United States v.] Causby[, 329 U.S. 256 (1946)], and today’s modest decision augurs no deluge of takings liability.

Slip op.

Continue Reading More Thoughts On Flooding, Takings, And How To Read A Supreme Court Opinion

Here are some initial reports of today’s unanimous Supreme Court decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), which held that government induced flooding could be a taking, even if the inundation of the land is temporary. We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. 

    • Gideon Kanner: “Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was

    …
    Continue Reading SCOTUS Flood Takings Case Round-Up

    This just in: the Supreme Court has issued a unanimous opinion (authored by Justice Ginsburg) in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), holding that government induced flooding is a taking, even if temporary.

    The Court roundly rejected the Federal Circuit’s conclusion that flooding caused by the Corps of Engineers water releases from a dam did not result in a taking because it eventually stopped which “at most created tort liablity.”

    We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. Our brief pointed out a somewhat obscure case that sets forth this test (National Bd. of …

    Continue Reading Unanimous SCOTUS: Temporary Flooding Could Be A Taking

    As you know, yesterday the Supreme Court granted cert in Horne v. U.S.D.A., No. 12-123 (cert. granted Nov. 20, 2012), the third takings claim this season. As this article asked, what, if anything, is going on? Is it just “serendipity” or a “return to the norm” as two lawprofs quoted in the article suggested, or might it be something else?

    Of course, no one knows but the justices themselves (and maybe the cert pool clerks). But that won’t prevent us from engaging in a little lighthearted speculation. One theory that might explain why the Court seems to be particularly interested in property cases this term is the recent election.

    It takes only four of the justices to agree to review a case, and we can safely count Justices Scalia, Thomas, and Alito as very property friendly, and Justice Kennedy and Chief Justice Roberts are moderately property friendly. If…

    Continue Reading Three Takings Cases This Term – What’s The Deal?

    It looks like our crystal balls are working.

    Wait, that didn’t come out the way we quite intended, so let’s rephrase. Recently, we and others suggested paying attention to the property rights cases on the Supreme Court’s cert docket, paying particular attention to a case out of the Ninth Circuit, Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011).

    In Horne, the Ninth Circuit concluded that the defensive takings claim raised by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. The court dismissed the case for lack of jurisdiction. That opinion replaced an earlier opinion holding that the reserve requirement was not a taking because the…

    Continue Reading SCOTUS Grants Cert In California Raisins Takings Case