Check out "Property rights take center stage in disputes over wetlands, flooding," by Greenwire's Lawrence Hurley, asking whether the U.S. Supreme Court's recent "flurry of activity" in property cases augurs a renewed interest in these issues by the Court, or is, as lawprof John Echeverria is quoted as suggesting, "serendipity."
So far this Term, the Court has agreed to review two major property rights cases, Arkansas Game & Fish Comm'n (is government-caused flooding a taking) and Koontz (do the Nollan/Dolan limitations for land exactions apply to government demands for cash), and could grant cert in others. Lawprof Jonathan Adler suggesting this might not be a new trend, but simply "a return to the norm."
One of the views noted in the article is ours:
In analyzing why property rights is making a comeback at the high court, some court-watchers point to an active and ideologically driven group of lawyers who continually fight hard to bring cases to the attention of the justices.
These include both attorneys in private practice who represent property owners and also public-interest law groups like the Pacific Legal Foundation -- the lawyers behind both Sackett and Koontz -- and the Institute for Justice.
"The property owners' bar has become more active," said Thomas, the Hawaii-based lawyer, who has worked with the Pacific Legal Foundation in some cases.
Now that the court is showing some interest in property rights, lawyers like Thomas are hoping the justices take up more such cases in the near feature.
Among potential contenders is a case out of the San Francisco-based 9th U.S. Circuit Court of Appeals that the justices will decide soon whether or not to hear. Horne v. U.S.D.A. concerns a U.S. Department of Agriculture regulation that requires raisin producers to hand over a percentage of their crop to the federal government with no guarantee of compensation.
"It has some of the flavor of Sackett," Thomas said. "If they grab that, maybe they are really getting back focused on property rights."
As you know, it takes only four Justices to grant cert. Could this mean that some combination of the Chief Justice and Justices Scalia, Thomas, Alito, and Kennedy are looking for cases to repeat the trifecta-plus of 1987, when the Court determined no less than four takings cases (Nollan, First English, Keystone Bituminous, and Hodel v. Irving)?
Read the entire article here.
