We've been meaning to post the U.S. Court of Appeals for the Sixth Circuit's opinion in Barber v. Charter Twp of Springfield, No. 20-2298 (Apr. 11, 2022) for a while because it emphasizes an important point about "final decision" ripeness, and the sometimes ridiculous arguments made to support an argument that a takings claim isn't ripe.
In many situations a takings claim is backwards looking, and seeks compensation or some other remedy for something the government has already done. You flooded my property, or your project encroached on my land, or you designated my property for future acquisition and prevented me from using it in the interim are good examples. But not always. Sometimes takings claims are forward looking. Your regulations require me to allow a cable TV company to install a box on my building's roof, or you are threatening to open my private marina to public navigation. Do you have to wait for the bad thing to happen in order to get a court to review your takings claim?
Back to our case. Barber owns land next to Mill Pond Dam, built in 1836 (wow). Apparently, the old dam was not going to hold up forever. After looking at a number of options, the Township and the County decided that removing the dam was the best option. Or at least that's what it looked like they decided. The Township hired engineers and included the removal project in its budget. Its web site noted that "the project has moved to the next phase which included preliminary engineering and conceptual park design." And the local newspaper reported that "Mill Pond Dam to be Removed Next Year."
Barber asserted that removal of the dam would have all sorts of bad impacts on her adjacent land, including flooding of her house. State court inverse and takings claim (§ 1983) followed. "She sought to enjoin the Dam-removal project, alleging that it would constitute a taking under the federal and Michigan constitutions and a trespass under Michigan law." Slip op. at 3.
The Township and the County removed the case to federal court, and followed with a motion to dismiss on the usual grounds - takings case filed too early (ripeness) and lack of standing. The district court agreed, and dismissed the complaint.
The Sixth Circuit rejected the Township's argument that it had not made the final decision to remove the dam. "Ordinarily" a claim that the government is physically invading property is ripe when the government invades. But that rule only applies when the remedy sought is backwards-looking (compensation), not when the owner seeks injunctive relief. An "impending physical taking could warrant injunctive relief." Slip op. at 7.
In Cedar Point Nursery, the plaintiffs sought to enjoin a local regulation that allowed union representatives to enter private property and speak to agricultural workers. Id. at 2070. The Court, treating the claim as a per se physical taking, allowed the plaintiffs to proceed with their motion for a preliminary injunction even though union representatives had never set foot on one plaintiff’s property. See id. Thus, the plaintiffs could bring suit even without experiencing a physical intrusion because the regulation allowed future physical intrusions. See id. at 2070, 2072–73. Accordingly, a claim for injunctive relief is ripe if the government has reached a final decision that will enable a future physical taking.
Id. The decision to remove the dam gave rise to two takings claim: a regulatory taking (the decision to remove), and the "inevitable demolition" that will amount to a physical taking. So if the Township reached a final decision to remove, both claims are ripe.
The court concluded that the Township did so. That newspaper article noted the removal project is "scheduled to begin in 2022." At oral arguments, the Township's lawyer acknowledged that "the choice has been made" to remove the dam. But that doesn't mean the taking is ripe, the Township responded, adjudication must wait until the dam is actually removed. The court rejected the idea that a property owner has to wait for the Sword of Damocles to fall before trying to, you know, prevent it:
Having conceded this point, Defendants are left with one argument; until the Dam is actually removed, there is no way to know whether Barber has a viable takings claim. But this cannot be the case in the wake of Cedar Point Nursery. As the Supreme Court made clear, plaintiffs may sue for injunctive relief even before a physical taking has happened. Cedar Point Nursery, 141 S. Ct. at 2070, 2072–73.4 Barber’s claims are therefore ripe.
Slip op. at 8.
Next, the court concluded that Barber had standing because the Township's actions threatened her with injury. If the Township had not made the decision to remove yet, the injury might be too speculative. The court looked at the same facts as its ripeness analysis focusing on the Township's admission that it "planned to remove the Dam in the near future." Slip op. at 11.
One judge dissented, concluding that yes, the Township was thinking of removing the dam, but had really not actually decided to do so because "they had yet to draft - much less approve - blueprints for the project." Dissent at 14. Nor had the Township had not rounded up the money to do so. This was a municipal "hope" to remove, not an actual decision to do so:
Applying an ounce of “experience and common sense” reveals that Barber had little idea how the project, should it come to fruition, would affect her property. Iqbal, 556 U.S. at 679. Instead, her fears rested on “mere speculation and assumptions,” a far cry from the “certainly impending” injury necessary to establish standing where harm has yet to occur. Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 410 (6th Cir. 2019) (cleaned up) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 411 (2013)).
Dissent at 15. This was nothing "more than an abstract policy disagreement about the dam’s future." Dissent at 17.
Barber v. Charter Twp of Springfield, No. 20-2298 (6th Cir. Apr. 11, 2022)
