Here's the amici brief we're filing today in a case we've been following, Jarreau v. South LaFourche Levee District, No. 17-163.
As the name of the case indicates, this one is out of Louisiana and the Question Presented asks whether the Fifth Amendment's Just Compensation Clause requires that an owner be made economically whole when her business is destroyed as the consequence of an exercise of eminent domain.
There's a lower court split, and the U.S. Supreme Court has weighed in on the subject in the famous case of Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), in which the Court held that the owner was entitled to so-called "business losses" when the government took the laundry. Many lower courts have distinguished Kimball Laundry, however, holding that it only applies when the government actually takes the business involved, and was not deciding that the Just Compensation Clause requires compensation where only the land, and not the business itself, is being condemned.
In Jarreau, the Louisiana Supreme Court held that the Levee District, which took Jarreau's land on which he farmed dirt (literally), was only liable for the value of the land taken, and did not have any obligation to pay him for the fact that taking his land wiped out his dirt farming business. The Louisiana Supreme Court's opinion is posted here.
The Institute for Justice, the good folks who brought us Kelo, represent the petitioner. Here is the IJ's page on the case. The cert petition is posted here.
Our brief helps the Court understand that the lofty theory of just compensation frequently doesn't work out that way for those on the target end of takings. Compensation is supposed to ensure that owners whose property is put to public use do not as a consequence shoulder more than their fair share of “public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). There's also a strong indemnity thread in the Just Compensation Clause, which you can pick up in cases such as United States v. Miller, 317 U.S. 369, 373 (1943) (an owner has the right "to be put in as good position pecuniarily as he would have occupied if his property had not been taken"); Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1892) (the owner has the right to receive the “full and perfect equivalent for the property taken"). Excellent principles, unquestionably. But too often these grand words ring hollow for our clients.
Here's the Summary of Argument:
This case presents the Court with a unique opportunity to address a yawning gap in Fifth Amendment eminent domain jurisprudence: the lower courts’ failure to recognize the indemnity principle behind the Just Compensation Clause in ensuring that owners are made truly whole when their property and businesses tied to the land are pressed into public service.
This brief makes two main points, one practical, one doctrinal. First, the practical: the theory of just compensation often diverges from the reality experienced by property owners. Although owners are, in theory, to be made whole—as if the taking never happened—the way that theory is applied often ends up with owners being forced to bear more than their fair share of public burdens. This Court should be awake to the very real context in which Just Compensation law is applied by the lower courts. The eminent domain process frequently leaves condemnees holding the economic bag for public improvements. This is neither just, nor fair. Accepting review in this case would go a long way towards rectifying that. Second, as a matter of Just Compensation doctrine, the original rationale for denying business losses in eminent domain—most land taken was undeveloped land—has now been superseded by more modern principles, resulting in a patchwork of lower court rules which only this Court can address.
There are other briefs, and we will post those shortly, as well as the BIO which the Court requested. Follow along here, or on the Court's docket.