Sluggo's conscience, being shocked.
Here's more about that Nevada water rights fight we've posted about before (the Supreme Court phase of the case to consider the property owner's cert petition is on the calendar for the Court's June 13, 2013 conference).
While the property owner's case for compensation was making its way through the Court of Federal Claims, the federal government was going on the offensive in another forum, the U.S. District Court for the District of Nevada, wherein the government sued the owner for trespass for allegedly grazing its cattle on federal land without authorization.
After a bench trial, the district judge recently filed a 104-page Findings of Fact and Conclusions of Law, and entered an injunction prohibiting the government from issuing trespass or impound notices to the owner. Although long, the entire order is well worth reading, even though, as the opinion begins, "[t]he decision following reads like a book."
It tells the story of the bench trial in this case from beginning to end and contains many of the tentative findings and conclusions reached along the way, as supported by particular witness testimony and evidence received during the trial. The format is intentional. The impatient reader may be tempted to jump to the summary findings and conclusions at the end, but in so doing will be deprived of the analytical and evidentiary threat patiently perceived and conceived by the Court during the course of the trial.
Slip op. at 1. Indeed, the CFC opinion even goes into vested grazing rights under the Treaty of Guadalupe Hidalgo, the treaty that settled the Mexcian-American War, and in which the U.S promised to respect the property rights of Mexican citizens who remained in the ceded territories. If that doesn't grab you, see this post by PLF colleage Brian Hodges which summarizes the case nicely.
In sum, the CFC held that "[a]lthough there is no property interest in a grazing permit for purposes of the Takings Clause, there is a property interest in a grazing permit for the purpose of the due Process Clause, both procedural and substantive. That is, certain procedural safeguards may be required before denying, altering, suspending, or terminating a permit, and certian adverse actions affecting permits are not permitted regardless of the procedural safeguards." Slip op. at 90. The court concluded that the government's conduct "shocks the conscience" (which is, as my ABA colleague Paul Wilson wrote, as if the judge is a cartoon character whose hat flies into the air, not the "I'm shocked to find that gambling is going on in here" kind of shock), so it's a big deal:
In the present case, the Government’s actions over the past two decades shocks the conscience of the Court, and the burden on the Government of taking a few minutes to realize that the reference to the UCC on the Estate’s application was nonsensical and would not affect the terms of the permit was minuscule compared to the private interest affected. The risk of erroneous deprivation is great in such a case, because unless the Government analyzes such a note in the margin, it cannot know if the note would affect the terms of the permit such that the acceptance is in fact a counteroffer.
Slip op. at 91. See Paul D. Wilson and Noah C. Shaw, The Judge as Cartoon Character Whose Hat Flies Into the Air: The "Shocks The Conscience" Standard in Recent Substantive Due Process Land Use Litigation, 42 Urban Lawyer 677 (2010) ("The judge even suggested a colorful image for the test of conscience shocking behavior: “If I were a cartoon figure whether my hat would fly up in the air with an exclamation mark or a question mark next to it.") (footnote omitted) (ABA membership required for pdf download).
Given it's Nevada, we assume in this case the judge's hat is a Stetson.