We're used to knee-jerk reactions by state and local governments to takings claims: whatever the circumstances, the property owner is wrong, and loses. So it's nice to see a brief where a state government stakes out a more objective position.
Texas has filed an amicus brief in Horne v. United States Dep't of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012), in support of the petitioner/property owner. In Horne, the question is whether farmers who assert that an agricultural regulations known as "marketing orders," by which they are forced to surrender large percentages of their raisin crops to the USDA without payment or else face massive fines, can raise the argument that to do so would be a taking when defending against the fine, or if their only option is to pay the fine and file a lawsuit in the Court of Federal Claims to recover just compensation. The Ninth Circuit held the District Court had no jurisdiction to hear the takings defense, and the only option was new litigation instituted by the Hornes in the CFC to get the fine back.
Texas' brief doesn't take any position on the underlying substantive issue of whether this is a taking, but argues that takings claims should be handled efficiently, with an eye to actually resolving the case, not "maximizing the government's flexibility to avoid challenges to marketing orders." That's a welcome change in tone from most government amicus briefs:
Like the United States, the State of Texas maintains a comprehensive regulatory scheme that covers a broad spectrum of industries and individuals. Also like the federal government, Texas frequently confronts claims by regulated entities seeking just compensation when state administrative agencies take private property for public use. The Texas regulatory scheme demonstrates that takings claims, whether raised affirmatively or defensively,
do not require complex bifurcated procedures, as takings claims in Texas are resolved in a single proceeding with other challenges to administrative action. Resolving all claims in a single proceeding serves the interests of the government and of regulated entities by promoting efficient and final resolution of administrative claims.
Br. at 2-3. The brief makes two arguments.
First, the express terms of the USDA regulations allow farmers such as the Hornes to challenge marketing orders, and thus they possess the right to challenge the orders in the administrative process, and part of the right to challenge is the ability to raise the takings claim. Congress intended the challenge process to "establish an 'equitable and expeditious procedure for testing the validity of order, without hampering the Government's power to enforce compliance with their terms.'" Br. at 7 (quoting Block v. Community Nutrition Inst., 467 U.S. 340, 348 (1984)). The Ninth Circuit's conclusion results in a process that is neither equitable nor expeditious:
The only apparent purpose served by respondent’s interpretation of the Act is to perpetuate a heads-I-win-tails-you-lose procedural matrix that preserves the government’s ability to frustrate challenges to marketing orders. Whatever short-term tactical advantage this may provide cannot justify the cost to handlers and to the integrity of the statutory enforcement scheme.
Br. at 7-8.
Second, Texas' brief points out its own procedures that allow landowners to raise takings claims without a two-court shuffle, and argues that "[a]djudicating takings defenses in a single proceeding makes sense for all concerned" --
The State has no interest in discovering long after the fact that agency action caused a taking that now requires unanticipated retrospective compensation. Far better to know, as soon as possible, all costs for the State associated with contemplated agency action. The same is true for the party subject to a taking, who is best served by a prompt decision, whether it results in compensation, invalidation of the underlying regulatory action, or conclusive denial of the claim.
Br. at 11-12. This, the brief concludes, is a "sensible" process.
Can't say we disagree.