Thanks to a colleague for cluing us in to the first case on the docket today, that brings to mind ferae naturae, Pierson v. Post, and (of course) takings.
In Britton v. Keller, No. 1:19-cv-01113 (D. N.M. Apr. 16, 2020), the U.S. District Court for the District of New Mexico held that the City of Albuquerque could not be liable for a taking of a homeowner's property when it set up a "trap, neuter, and release" site for feral cats next to her house. As you might expect, setting up a feral cat farm next to your house results in things like "disease vectors, property damage as a result of cat defecation and urination, and property damage from the feral cats themselves[.]" Slip op. at 2.
We don't have much to add to that, except to say the court goes about its analysis in the wrong way. First, it concluded that creating a "feral cat colony" (the court's words, not ours) next door is not a physical invasion. Slip op. at 4. These cats are wild animals, not the government's animals and the cats are trespassing, not the government. We don't really have a problem with that part of the opinion.
Where we lose the script is in the court's alternative analysis. The court held that because establishment of the feral cat colony was undertaken pursuant to the city's police powers, then there can be no taking as a matter of law. Now, we don't blame the district court for getting the analysis wrong, mind you. It was merely following the Tenth Circuit's ruling in the "destruction by SWAT isn't a taking" case that we recently focused on (see our amicus brief in that case). Since the creation of a feral cat colony was within the city's police powers -- reviewed on a rational basis -- no taking as a matter of law.
We explained why we think this analysis is wrong in this piece, However, we applaud the district court for walking through the Penn Central's three factors (yeah, it's a bad test but for now, it's the test the Supreme Court tells us applies). The complaint didn't plausibly plead any facts to support the claim that the plaintiff suffered a severe economic impact, the character of the government action is regulation (and not even regulation of the plaintiff's property), and the plaintiff didn't really allege a lot of investment-backed expectations that were thwarted.
The court also dismissed the claims against the defendant in their individual capacities because the taking was not "clearly established" by law, and they are entitled to qualified immunity.
So there you have it, cool cats and kittens: you must plead more to show a taking for a nearby feral cat colony. (The court dismissed the plaintiff's state law nuisance claims without prejudice, so she is free to pursue that claim elsewhere.)
And while we're on the subject of wild animals, check this out, the Illinois Court of Appeals' opinion in Tranchita v. Dep't of Natural Resources, No. 2019 CH 05969 (May 1, 2020), which we include here even though it was not a takings case.
There, the plaintiff operated a "rescue" facility for abandoned and abused coyotes. One day, her facility gets raided by Animal Control officers, who seized the coyotes. Three of the four seized coyotes later died at the facility that Animal Control placed them with. The plaintiff sued for due process violations (not for a taking).
We post the case here because, like the feral cats case, it reminds us of Pierson v. Post and ferae naturae. This case focused on the plaintiff's "property" interest in the coyotes, and concluded that she did not posses an interest worthy of due process protection. To possess a coyote under Illinois law, you need a permit, and even though she had a permit, it lapsed a few years before. No permit, no property. Also, all such permits are issued subject to Animal Control regulation. No permit, no property, no due process violation.
More here from Chicago Daily Law Bulletin ("Panel rejects woman's claim to coyote").
Memorandum Opinion and Order, Britton v. Keller, No. 1:19-cv-01113-KWR-JHR (D. N.M. Apr. 16, 2020)
Tranchita v. Dep't of Nat. Resources, No. 2019 CH 05968 (Ill. Ct. App. May 1, 2020)
