It looks like our crystal balls are working.
Wait, that didn't come out the way we quite intended, so let's rephrase. Recently, we and others suggested paying attention to the property rights cases on the Supreme Court's cert docket, paying particular attention to a case out of the Ninth Circuit, Horne v. United States Dep't of Agriculture, 673 F.3d 1071 (9th Cir. 2011).
In Horne, the Ninth Circuit concluded that the defensive takings claim raised by raisin farmers who qualified as "raisin handlers" under federal regulations and thus were required to "reserve" (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. The court dismissed the case for lack of jurisdiction. That opinion replaced an earlier opinion holding that the reserve requirement was not a taking because the raisin farmers could have avoided the confiscatory regulations by choosing to not enter the raisin market.
Today, the Court granted cert (see order here).
This makes the third takings case to make it to the Court's merits docket this Term, joining the flood case, Arkansas Game & Fish (already argued), and the money exactions case, Koontz (to be argued in January).
Here's the cert petition in Horne, filed in late July. The Questions Presented:Under federal regulations, a "handler" of raisins must turn over a percentage of his raisin crop to a federal entity in order to sell the remainder on the open market — often in exchange for no payment or payment below the cost of raisin production. For the 2003 and 2004 crop years, the federal government
brought an enforcement action against petitioners, seeking to recover the monetary value of raisins they did not turn over to the government. Petitioners raised the Takings Clause as a defense. The Ninth Circuit initially rejected petitioners’ takings defense on the merits, but on Petition for Rehearing vacated its prior merits opinion and replaced it with an opinion dismissing the takings defense for lack of jurisdiction. The Questions Presented are:1. Whether the Ninth Circuit erred in holding, contrary to the decisions of five other Circuit Courts of Appeals, that a party may not raise the Takings Clause as a defense to a "direct transfer of funds mandated by the Government," Eastern Enterprises v. Apfel, 524 U.S. 498, 521 (1998) (plurality), but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims.2. Whether the Ninth Circuit erred in holding, contrary to a decision of the Federal Circuit, that it lacked jurisdiction over petitioners’ takings defense, even though petitioners, as "handlers" of raisins under the Raisin Marketing Order, are statutorily required under 7 U.S.C. § 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.
Here's the Court's docket report.
As we say, stay tuned.
