After the Supreme Court's decision in Horne v. Dep't of Agriculture, 14-275 (U.S. June 22, 2015), we were waiting for this shoe to drop. And now it has.
In "Raisin ruling seen as a lifeline for endangered species," Environment & Energy writes, "[a] Supreme Court ruling that struck down an odd Depression-era raisin program may have revived a critical government defense for endangered species and other wildlife protections, legal experts say."
The theory is based on the Horne majority's rejection of Leonard & Leonard v. Earle, 279 U.S. 392 (1929), the case in which the Court upheld a Maryland state tax which required oyster farmers turn over to the state 10% of the empty oyster shells which they harvested, or pay a monetary equivalent. The Horne majority concluded that Leonard was not applicable because the oysters in Leonard were government property, in contrast to raisins, which -- in addition to being a "healthy snack," are private property grown on private land. The E&E article notes, "[w]ith that distinction, Roberts breathed new life into the public trust of ownership doctrine for wildlife that the Supreme Court had previously explicitly rejected, said Michael Blumm, a professor at Lewis & Clark Law School and a former U.S. EPA attorney.""Echeverria said Roberts implied that the 'government on the behalf of the public has a real property interest' in, for example, fish in a stream. . . Therefore, if the government were to tell a property owner that he cannot divert water from that stream because it's needed to protect the fish, that argument should fail under Roberts' reasoning in Horne, Echeverria said."
We were all set to write up our response to this assertion, first raised by Professor John Echeverria in a post-oral argument write up on his Takings Litigation blog, when our colleagues at the Pacific Legal Foundation beat us to the punch (and said it better than we could have). See "Did the raisin case silently insulate the Endangered Species Act from the Constitution?"
PLF's Jonathan Wood writes:
So what does this doctrine of state ownership of wildlife have to do with the Endangered Species Act? The answer is: not much. To the extent it’s relevant, it actually weighs against the constitutionality of the federal statute. As we recently explained in the prairie dog case, state ownership of wildlife makes its protection a traditional responsibility of state government. This weighs heavily against federal authority to regulate it under the Commerce Clause.The main thrust of the article is the implication of state ownership of wildlife for takings claims . Because the wildlife isn’t private property, the argument goes, it can’t be a taking when the federal government restricts how people use their private property to protect wildlife.
This doesn’t make any sense, and certainly can’t be derived from state ownership of wildlife. When someone brings a takings claim against endangered species regulation, they aren’t claiming a property interest in the species that’s being taken (the situation in the oyster case).
Instead, the claim is that the restrictions on the use of property caused by endangered species regulation takes the underlying property.
Well put. Read the entire post for the full analysis.
Here's what we have to add:
- The majority's discussion of Leonard was dicta, and in our experience, it's tough to get traction on an offhand comment in an opinion and turn it into a rule of decision.
- The USDA's requirement that the Hornes turn over physical possession of their raisins was a function of the federal government's commerce power, and not the taxation power as in Leonard. As revealed in the first ACA decision, the federal government's taxation power is nearly unlimited, and broader than the commerce power (surprising, perhaps, but we didn't say it, the Court's majority did). The question remains whether, instead of seizing the Hornes' raisins, the USDA could have taxed them or could have prohibited the sale of the reserve tonnage raisins, without acquiring government title. We don't think so, but others may have contrary views.
- As for a "revival" of the public trust regarding the ownership of wild animals, what's to revive? It's already here here in some courts. And, ultimately, what is or isn't private property is a matter of state law, not for the U.S. Supreme Court to decide in most cases.
