Like that old radio bit "Chicken Man" ("He's everywhere! He's everywhere!"), it looks like the robed ones down at 1 First Street NE are, like us, seeing takings lurking in cases where takings may not be the first thing on the menu.
For example, in yesterday's opinions about whether the Sixth Amendment requires unanimous criminal juries (yes), Justice Kavanaugh, commenting on the Court's overruling of earlier decisions -- the whole stare decisis debate -- wrote this:
In the Montana CERCLA case we've been following (we attended arguments back in December), Justice Gorsuch noted the same takings vibe we noted. See "Shades Of Presault In Big SCOTUS Superfund Arguments" -- that, like rails-to-trails cases, the feds may have the power to infringe on property rights, but that then raises the takings question:
We raised the same "storage of government's stuff" on your property/Loretto argument in a cert petition we recently filed, making the same point. There, it is Washoe County, Nevada's storage of flood water on the Fritz property, not the EPA forcing Montana property owners to store someone else's pollutants on their land. Same vibe, though.
We often say we can find takings issues everywhere. Glad it is catching on.
