We're sensing a trend here: takings cases where the property owners/plaintiffs are dead by the time their cases get considered by the Supreme Court. The week before last, the Court heard arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), a case where the original landowner has passed on to his final reward after arguing for decades that his property was taken. Yet the District argues a taking hasn't even occured yet.
Now comes a cert petition, recently filed, seeking review of a similiar situation, the Federal Circuit's decision in Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012). In that case, the court 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. Note the caption of the case, which reveals that Mr. Hage also is no longer with us.
Here is the decision by the Court of Federal Claims, which awarded $4.2 million in just compensation for the taking of Hage's water rights.
Here are the Questions Presented by the cert petition:
The United States Court of Federal Claims ("CFC") entered a judgment in the above-entitled case after nearly 20 years of proceedings, finding Fifth Amendment regulatory and physical takings of ditches and water rights owned by Petitioners pursuant to the Act of July 26, 1866, 43 U.S.C. § 661. The rights of 1866 Act ditch rights-of-way have been matters of intense controversy in recent years.The Federal Circuit court reversed the Claims Court’s findings of regulatory takings on ripeness grounds by holding that Petitioners should have made an application for a maintenance permit, overruling the Claims Court’s finding, consistent with SUWA II,
discussed infra, that no permit was legally required. It vacated the Claims Court’s findings as to physical takings resulting from the government’s fencing off of Hage water sources.The questions presented are:1. Whether governmental agency interference with a person’s ability to access and beneficially use his vested water right under threat of prosecution, in part by requiring a permit not authorized or contemplated by any statute or regulation and in derogation of the very nature of the property right, is properly analyzed as a per se taking under Loretto v. Teleprompter CATV Corp, 458 U.S. 419 (1982), rather than as a regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).2. Whether the Forest Service or Bureau of Land Management can alter the congressional grant or recognition of water rights and rights-of-way pursuant to the Act of July 26, 1866 by administratively redefining the scope and purpose of the easements or by superimposing a special use permitting requirement for their maintenance.3. Whether the fencing of water sources in which Petitioners had stockwater and other water rights, intended to and which was sufficient to prevent livestock access to the source for at least a period of time, is a physical taking subject to Loretto v. Teleprompter CATV Corp., 458 U.S. 419 (1982) and Arkansas Game and Fish Commission v. United States, 512 U.S. ___ (2012) (slip.op.), without regard to whether some residual amount of water could escape.
Here is the Court's docket report if you'd like to follow along. We'll bring you more, including the government's BIO -- if any -- as things progress.