Here’s the Reply Brief and Brief in Opposition in Jarreau v. South LaFourche Levee District, No. 17-163 (cert. petition filed July 31, 2017), the case asking the Court to consider whether a property owner whose business is destroyed due to an exercise of eminent domain is entitled to just compensation for business losses.
The issue goes back at least to Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), where the Court held that “an exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable ‘taking’ of property.” But the Louisiana Supreme Court held no, the condemnor only had to pay for the land. The dissenting Justice there noted:
Defendant is in the dirt business and owns land from which he digs and sells dirt. The government is entitled to “appropriate” defendant’s land, but must pay him fair compensation mandated by the Constitution. This court affirms an award of $11,869 despite evidence in the record that the dirt taken from the land has a value in excess of $100,000. Even if the most restrictive measure of compensation is applied, this value should be considered in determining the award to defendant. When the government can take private property without paying the landowner, something is wrong.
The owner, represented by the Institute for Justice, filed a cert petition, with this Question Presented:
Whether the government must pay compensation under the Just Compensation Clause of the Fifth Amendment when the condemnation of real property inevitably destroys the value of a business as a going concern (as the high courts of Minnesota, Nevada, New Mexico, and Pennsylvania have held) or whether property owners are entitled to such compensation only if the government directly takes the business itself (as the court below held, joining the Federal Circuit and the highest courts of the District of Columbia, Montana, and Wisconsin).
We filed an amicus brief in support of the petitioner, pointing out that the way just compensation is set out by the Supreme Court isn’t necessarily the way it is treated by the lower courts, and property owners often end up holding the economic bag for public projects, with Jarreau’s case being a prime example. There are two other amici briefs (we’ll post those separately).
The case is on the Court’s docket for tomorrow’s conference, so we should know something early next week. Stay tuned, as we always say.
Reply Brief for Petitioners, Jarreau v. S. LaFourche Levee District, No. 17-163 (Oct. 5, 2017)