Any time the Supreme Court rules for a property owner in a takings case, you’ve got reason to celebrate.
They didn’t pay the fine, g8vt didn’t take grab their raisins. Case over
So whats next? Does the dept have to write a check to the Hornes for $xxxx? Well, no, they csnt get that relief in usdc.
Breyer didnt apply the free rider argument to the taking part, but to the just comp part.
Do i want to live in a country without a raisin makrketing board?
1. Title page …. syllabus … who cares….
2. More syllabus ….
3. More syllabus …
4. OK, here we go. “PHYSICALLY SET ASIDE” OK, game over, Hornes win. This is going to be another one of those cases in which we cite for the Court’s physical occupation fetish – you know, Kaiser Aetna, Loretto … and now Horne.
“The question is whether the Takings Clause of the Fifth Amendment BARS the government from imposing such a demand on the growers without compensation.”
And now we know the remedy – invalidation of the government act. Which was pretty much decided in the first Supreme Court decision, where the court said that just comp in the Court of Federal Claims isn’t a property owner’s only remedy.
5. Background – USDA takes title to up to 47% of the Hornes’ yearly raisin crop. Again, the Court’s physical takings fetish emerges. We see that the Court agrees with the Hornes – a point on which the Government conceded, even though it argued it was only title, and that the Hornes maintained a potential, maybe beneficial interest in the raisins.
6. Most interesting thing on this page? The bottom, onto the next. The government tried to characterize this as a mere “use restriction” and a condition in a land use permit. “You want to play in the raisin market? This is the price of the ticket.”
I wonder what this says about stuff like…affordable housing requirements, an issue recently decided by the California Supreme Court in the San Jose case? That court held that the city’s requirement that builders of new homes set aside a certain percentage of their “crop” to sell at “affordable” levels (this is Silicon Valley, so their version of “affordable” probably looks like luxury to the rest of us) – isn’t an “exaction,” because it doesn’t require the developer to actually turn anything over to the government in return for permission to build. Title was not required to be turned over, no physical occupation, held the Cal Supremes.
Cert petition sure to follow, so Horne comes into play quickly.
7. Here’s a protip for all you appellate lawyers: when the Court tracks your questions presented , and uses the opinion to simply answer your questions seriatim, you know you’re doing a good job. Here, the majority opinion does just that. Cuts and pastes the QP’s, answers them. A sign of a great appellate advocacy. … Or lazy Clerks.
8. Section 1 of the opinion disposes of the easiest issue in the case – does the Takings Clause protect personal property as much as it protects land? Ninth Circuit said yet, citing Lucas. Eight Justices – 8, count ‘em – said no.
9. Magna Carta said so. Some dude with the cool name of “Saint George Tucker” said the takings clause was “probably” adopted in response to the ‘arbitrary and oppressive mode of obtaining supplies for the army.’
Dang, was hoping for a Third Amendment cite.
10. Well, that’s interesting: Pennsylvania Coal “expanded protections of the takings clause” by going beyond the previous understanding that the takings clause only operated in cases of direct appropriation. Save that one to your memory banks.
Penn Central – still the default test for reg takings.
11. That Lucas language the Ninth relied on: reg takings, not direct appropriations. Lucas wasn’t a physical take case, but a regulatory wipeout.
12. “Clear” Physical Take. Briefwriters say “don’t use CLEAR.” if its clear no need to say so. Good to be the Judge, I guess.
13. Again with the physical stuff: regulation can depress the value of your property pretty severely without it being a taking. But when you physically take it, that’s different. This leaves us lawyers with doing what we’ve always done: property advocates trying their darndest to find the Holy Grail in takings law: the physical take, while police power hawks say “poo, this is nothing but regulation.”
14. Next page … CJ Roberts junks the dissent’s claim that this isn’t a TOTAL wipeout of the value of the raisins – never mind the title stuff – and that hey, the government said that maybe, possibily, there’s a chance that the Hornes might get something back, after all of the admin costs of running the program are factored in.
Not good enough, a “contingent interest of indeterminate value” remaining doesn’t lessen the blow of the physical grab of the raisins.
Speaking of which … time to grab a health snack.
15. Okay … raisins are not eagle feathers. If the govt prohibits sale of feathers, you can still do other things with them. But these raisins – not THESE raisins, but the Hornes’ raisins – they don’t have the right to do other things with them any more. Got it.
And raisins are not shopping centers, either. The Pruneyard center voluntarily opened up its property to the public, and once it did that, it was hard for it to say that it could exclude some of the public because of what they wanted to speak about. Raisins, prunes … got it.
15. Speaking of which, what about the argument that the Hornes didn’t need to grow raisins, or they could have done something else with their raisins like make wine. Wine. Yeah, we’re down with that.
But the court wasn’t. “Let them sell wine” was CJ’s snarky response. We like judicial snark, for sure. As long as its not directed at us.
No, you can’t make the ticket to admission to the raisin market conditional on giving up some of your product. You know, like rent control and affordable housing.
Or maybe not, as I mentioned earlier. We shall see.
16. And raisins are pesticides either. Those are dangerous, while raisins are A HEALTHY SNACK. Quote of the day. So in the Monsanto case, it was OK for the G to condition Monsanto being allowed to market pesticides, conditioned on it surrendering its trade secrets, because otherwise, Monsanto might not be able to sell pesticides.
But raisins aren’t dangerous. EXCEPT when you eat too many of them, that is. Maybe that’s too much information as the kids say today.
17. And raisins aren’t oysters, either. Check. Oysters are wild animals owned by the state, while raisins are A HEALTHY SNACK. No, raisins grown on your own land are private property.
Interesting. This oyster issue was raised more at oral argument than in the briefs, and the distinction that the CJ is making … I wonder what it might mean for the public trust doctrine in wild animals and the like. Did the state really own the oysters in the Leonard case? Time to go read that one again.
And here we get to the disagreement: the remedy. Three Justices want to send the case back to the Ninth Circuit to calculate just comp, to see if that court can’t blow it yet again, and Professor McConnell can get a trifecta of Supreme court arguments in this case.
18. No need, said the Chief, three generations of imbeciles are enough.”
Oops, wrong case, you Buck v. Bell fans. Send your complaint letters to rht@hawaiilawyer.com.
Seriously, though, CJ Roberts and the majority concluded that the just comp in this case was already calculated, the amount of the fine imposed by the USDA, which was supposedly based on market value of the raisins.
That’s nice, but that’s too hard, Your Honor. What matters for this the takings defense is that the regulation itself didn’t provide for compensation. There never was any need to calculate compensation in this case, just determine that the government didn’t provide any, and the Hornes didn’t get any. You decided that in the first go-round, when you said they could raise their takings defense in the district court, and didn’t need to pay the fine, and then go ask for it back as just comp in a court of federal claims action.
19. So, we’re done, Ninth Circuit reversed, case over.
Special benefits, what’s this? Oh, we’re going to have to read Justice Breyer’s thoughts on that, since he was the lead guy in oral arguments pressing the “free rider” argument.
20, 21. As we said, case over.
22. But first, Justice Thomas, a short concurrence for the purpose, we presume, of making the necessary raisin pun. “Fruitless?” Well played, Sir, well played.
23. On to Justice Breyer. His beef is with the lack of remand. He and two others think that the case should be sent back down to calculate whether the Hornes received just comp, since the takings clause says, you know, “no takings WITHOUT just comp.” Maybe the Hornes were compensated … you know, by having the market price of their non-taken raisins raised, for instance.
And where did this argument come from? Did the government push hard for it? Was it in the cert petitions questions presented? Did the Ninth Circuit decide it? No. “It was barely touched on in the briefs.”
He Posner-ed it: “The case law I have found…” Whoa.
OK folks, here’s why that’s dangerouns:
24. Over the next couple of pages, Attorney Breyer … I mean Justice Breyer relies on the “benefits” rule to support his point that when looked at overall, the Hornes might be better off in the program than outside it.
You remember the benefits rule: when a taking increases the value of property, that has to be taken into account. So if a new road takes property and that road creates access to the remaining land that wasn’t there before, the land may be worth more in its after condition than before.
But this is not some general rule. This is the SPECIAL benefits rule, applicable only in rare situations:
Partial takings, and not total takes;
Where the “benefits” are specific to the remainder property, an d not shared with the public;
And the special benefits may only be set off against the remainder value, and not to the property actually taken.
At least in my jurisdiction.
25. So the bottom line is that Justice Bryer really is out in left field here, and in effect is trying to bootstrap a narrow just compensation doctrine into the question of whether there’s been a taking at all, even in a case of a physical occupation.
Which just seems wrong to me. First, this sounds more like “regulatory just compensation” and not “regulatory takings.” Takings is concerned with impact on the property, not value to the taker. And when there’s been a physical taking, you REALLY don’t care how the remainder has been benefitted at all, do we?
This highlights the danger of judges going off on their own, doing their own research on theories not developed below or argued by the parties. Because now the rest of us are going to have to deal with it. And this dicta in a dissent is going to be thrown about like it was handed down from Mount Sinai.
26. And what of the Lone Wolf, Justice Sotomayor? She does go off on her own in these type of cases. See her solo dissent in Brandt, the rails to trails case for an example.
Here, she says there’s been no taking at all, because the USDA didn’t take all of the Hornes’ rights in their raisins.
And what rights do they have left, according to the dissent?
The contingent remainder, maybe leftover, that we mentioned earlier. Raisins are like eagle feathers. They are like oysters. They’re like pesticides. They’re like mobile homes.
We own the market .. you guys who actually MAKE things? You just live in it.
She finishes with this gem: the virtue of Loretto was its clarity. But Horne has muddied its waters. Problem is, the way that Justice Sotomayor reads Loretto, there wasn’t anything there to begin with, because as she sees it, Loretto’s physical occupation rule only applies if the occupation DESTROYS the value of the property so occupied. Which is just another way of bootstrapping in the Penn Central ad hoc economic test into physical takings doctrine.
Now you know why no one else joined her dissent.
Horne v. Dep’t of Agriculture, No. 14-275 (June 22, 2015)