Regulatory takings

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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

    Here are two more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

    That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief last week (posted here), and the other amicus briefs in support of the property owner/petitioner are here. 

    …
    Continue Reading More Amicus Briefs In Koontz

    Here they are, more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

    That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief yesterday (posted here).

    …
    Continue Reading More Amicus Briefs In Koontz: Nollan/Dolan Apply To All Exactions

    Today, on behalf of our colleagues at Owners’ Counsel of America, we filed this amicus brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests.

    Our brief argues:

    It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on…

    Continue Reading Amicus Brief: Exaction Not Subject To Lesser Standards Because Taking Measured In Dollars And Not Square Feet

    Check out this story, Excelaron filed $6.24 billion lawsuit against SLO county, and the filing below.

    $6.24 billion? According to the story, “[c]ounty Supervisor Adam Hill said the amount being sought makes this one of the largest, if not the largest lawsuit in San Luis Obispo County’s history.” 

    We’d certainly hope so.

    ead more here: http://www.sanluisobispo.com/2012/11/21/2303534/excelaron-lawsuit-huasna-valley.html#storylink=cpy

    Petition for Writ of Mandate; Complaint, Excelaron, LLC v. County of San Luis Obispo, No. CV 120675 (Nov. 19, 2012)Continue Reading Wow, That’s A Lot Of Just Compensation

    Here’s the property owner’s merits brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). 

    This case presents two questions:

    • Whether the government violates the Takings Clause when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan and Dolan?
    • Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

    The amicus briefs in support of the property owner are due next week. We’ll post those when available.

    Petitioner’s Brief on the Merits, Koontz v. St. Johns River Water Mgmt …

    Continue Reading Petitioner’s Brief In Koontz: No Bargaining Around The Takings Clause

    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?