Barista’s note: We’re on the road today at the ABA Annual Meeting, so don’t have the time to set this one out in detail. But a quick review of a rather longish opinion (65 pages) makes it seem interesting enough.
In Dep’t of Fish and Game v. Superior Court, No. C066158 (Aug. 2, 2011), the California Court of Appeal (Third District) held that a case in which property owners challenged DFG’s efforts to eradicate the invasive northern pike from lakes in the Sierra Nevada should not have been certified as a class action. The property owners sued under an inverse condemnation theory (among other things). The court held:
In their inverse condemnation claim, plaintiffs allege defendants’ conduct “in attempting to eradicate the Northern Pike for a public purpose has caused a substantial impairment to Plaintiffs’ property rights and Plaintiffs were denied all economically beneficial uses of their property for a period of time during the 2007 poisoning. This substantial impairment constitutes a taking and damaging of Plaintiffs’ property for which Plaintiffs are entitled to compensation.” In the alternative, plaintiffs allege the 2007 poisoning drastically reduced tourism and/or the value of their property, or interfered with the sale of their property or collection of taxes to such an extent as to “severely frustrate[] the distinct investment-backed expectations of Plaintiffs . . . .” Unlike their nuisance and negligence claims, plaintiffs’ inverse condemnation claim appears to encompass not just the means used by defendants to carry out the 2007 poisoning but the decision to undertake the 2007 poisoning in the first place. In effect, plaintiffs allege they have been forced to shoulder the entire burden of eradicating the northern pike so that it does not find its way into other bodies of water in the state.
However, like their nuisance claim, the viability of plaintiffs’ inverse condemnation claim depends on the extent to which the 2007 poisoning interfered with the individual members’ use of their property. This in turn will depend on the characteristics of the property itself as well as the expectations of the owner or the nature of the business conducted on that property. As explained above, a taking will be found only where the governmental action deprives the owner of all economically beneficial use of his or her property. A property owner who attempted to sell his or her property during the relevant period will likely have an easier time establishing a taking than one who did not do so and only had to endure the short-term inconveniences occasioned by the 2007 poisoning.
Slip op. at 57-58.