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Aloha To Another Semester Of U. Hawaii Land Use

There are some rewards for working late in the 808

Yesterday was the last day of instruction for the Spring 2024 semester at the University of Hawaii Law School. Did these last few months ever go by fast. 

A big thank you to Professor Mark M. Murakami, with whom I guest-lectured at the Old School (both of us earned our JD's at the Law School) over the semester, on such topics as Euclid, vested rights and development agreements, and of course limitations on the police power such as takings.

Although our students have another couple of weeks to finish up with their final papers, we can say with certainty that the future of Hawaii land use law is in good hands. We had some very intriguing and educational discussions over the past few months. 

Law of the Splintered Paddle

      
Old School chalkboards remain in some of the classrooms.
(A plus.)


Speaking of Old School, the original signage from
the Law School's original location is up in the front office.

Flora abounds on the U. Hawaii campus, as you might expect.
Not a bad place to learn the law. Or to teach the law.

We say a fond "aloha" to our new colleagues

Pay To Play? Cal SCT Asked If Challenger Must First Pay A Fee To Object To Zero Water Allocation As A Taking

This one takes a bit of sifting through, but if you do so, you will eventually savor the arguments. Try and follow this thread.

In 2014, pistachio growers with what seemed to be established rights to pump groundwater for irrigation of their trees and who never had to pay fees or were subject to other governmental regulation, were subject to the newly-adopted Sustainable Groundwater Management Act. This statute, designed to manage groundwater, empowers local groundwater agencies to create management plans and the typical things that such regulatory agencies do.

In the course of determining the "sustainable yield" of the groundwater basin that supplies the pistachio growers' water, the local agency purported to determine the rights of various users relative to each other. The agency concluded that "public pumpers" have entitlement to 100% of the native groundwater, the pistachio growers' preexisting water rights notwithstanding. If the pistachio farmers wanted to pump any groundwater, they'd have to pay a "replenishment fee" to be used to purchase nonnative water to import to the area. The fee? $8.5 million. The pistachio growers didn't pay that fee nor had they paid it since 2021, meaning that the cumulative fee is in the neighborhood of $25 million.

The agency acknowledged that turning off the native groundwater taps and making replacement water very expensive would likely result in the demise of large-scale agriculture in the area (including the pistachio farms). So perhaps not surprisingly, the next step was a lawsuit by the pistachio growers challenging the zero allocation of native groundwater as a taking, inter alia. Of special note, the pistachio growers did not challenge the replenishment fee itself (mark that one down for later use -- that fact becomes important).

The trial court dismissed the claim, and in this opinion the Court of Appeal affirmed.

The court held that in order to pursue these challenges, the pistachio growers must first pay the replenishment fee. The court relied on California's "pay first, litigate later" rule -- which requires that in order to challenge a tax or a fee, a plaintiff must first pay the challenged tax or fee.

But wait, you say, you said that the pistachio growers didn't challenge the replenishment fee, right? Yes, we did. But the court held that because the allegedly illegal allocation was made under the authority of the same ordinance that imposed the replenishment fee and that the allocation would indirectly impact the fee charged, the pistachio growers must pay the fee before they could challenge their zero allocation:

As for the physical takings claim (the eleventh cause of action), the [trial] court reasoned that Mojave had not alleged it was in fact physically prevented from extracting water, and thus had not stated a claim.

We agree with respondent court’s analysis. If Mojave had paid the Replenishment Fee in compliance with the “pay first” rule, it could perhaps state a takings cause of action on the theory that the Replenishment Fee makes Mojave’s agricultural operations economically unviable because the fees for extracting groundwater are so high. Perhaps because Mojave has not paid the fee, however, it omitted any reference to the Replenishment Fee from the TAC’s takings claims, instead relying on the other Implementing Actions.

As respondent court correctly concluded, this attempt to escape the previous demurrer ruling fails because the only Implementing Action with an economic effect on Mojave is the Replenishment Fee. Since none of the other Implementing Actions physically prevent Mojave from extracting groundwater or interfere economically with Mojave’s ability to extract groundwater, Mojave’s TAC fails to state a cause of action for a taking.

Slip op. at 35-36.

In other words, the pistachio growers have not suffered an injury unless they pay first. They can still pump groundwater, right?

The growers have now asked the California Supreme Court to take up the case. In their petition, they argue "[t]his Court's guidance is necessary to ensure that overlying water rights holders, otherwise entitled to recognition, priority and protection under the holding of this Court in City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1233, 1253 (“Barstow”), may challenge an administrative action that (1) allocates them zero groundwater; (2) establishes an extortionate fee designed to bar challenge; and (3) bankrupts their businesses as a condition of litigating their claims." Pet. at 8.

Here are the Issues Presented:

1. Under the 2014 Sustainable Groundwater Management Act (“SGMA”), may a groundwater sustainability agency (“GSA”) determine law and facts to conclude that an overlying landowners’ correlative water rights are “inferior” to others and allocate them no (zero) groundwater?

2. Does the “pay first, litigate later” rule, California Constitution, article XIII, section 32 (“Pay First Rule”) apply to SGMA fees (or extend to non-fee provisions separately included in the local agency fee ordinance)?

3. If so, does the Pay First Rule immunize local agencies from constitutional takings claims where an agency establishes a usurious fee designed to bar challenge?

Pet. at 7.

Now we wait to see if the court agrees to review the case.

Petition for Review, Mojave Pistachios, LLC v. Superior Court, No. S284252 (Cal. Mar. 19, 2024)

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

Tuesday Round-Up: Sackett, Tyler, Defending Zoning, Canada Property Rights ... And More

Here's what we're reading this Tuesday:

• Tiffany Lashmet's Ag Law in the Field podcast: "Episode #155: Jesse Richardson and Anthony Schutz (Sackett v. EPA)"
• Lawprof Ilya Somin, Brennan Center for Justice: "Supreme Court Strengthens Federal Protection for Property Rights"
• Also from Prof Somin, Volokh Conspiracy: "A Flawed Attempt at a Libertarian Defense of Exclusionary Zoning"
• Here's the piece Prof Somin is responding to - Robert Poole, "A Brief History of Single-Family Zoning"
• Professor Malcolm Lavoie, SSRN, "Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality" (assessing the Supreme Court of Canada's latest ruling on property rights)
• Note, "The Contract Clause: Reawakened in the Age of COVID-19," 136 Harv. L. Rev. 2130 (2023)
• Lawprof Ilan Wurman, "Reconstructing Reconstruction-Era Rights," 109 Va. L. Rev. 885 (2023)

Worth checking out.

Denying Uses (But Allowing Discretionary Ad Hoc Exceptions) Isn't A Recipe For Rational Land Use

If a zoning statute or ordinance sets out the uses permitted in a zone, and the uses not permitted in the zone, and a property owner wants to make a use not permitted in the zone, all she needs to do is apply for a variance, or a Conditional Use Permit, or a nonconforming use permit, or a Special Use Permit, right? After all, isn't the point of these exceptions to bright-line use prohibitions to build in a large degree of flexibility and afford front-line regulators in the right circumstances the discretion to grant a use the legislature prohibited? One size does not fit all, does it? 

That was the issue that closely divided the Hawaii Supreme Court in Hoomoana Foundation v. Land Use Comm'n, No. SCWC-17-181 (Mar. 10, 2023). In a 3-2 opinion, the court concluded that when a use is expressly barred by a zoning statute (and yes, here it is a zoning statute because Hawaii has state-controlled zoning) you cannot ask for a Special Permit to make that use. The only way you can make a use expressly prohibited by the statute is to change the parcel's zoning.

The Case and the Issue

Here's the story. The Foundation wanted to set up an "overnight campground for homeless and commercial campers" (slip op. at 3) on land it leased, which was zoned by the State as Agriculture (B-rated soil, if you are interested):

16. Under Ho'omoana's proposal, the Project would consist of 2 acres, while the remaining adjacent 5.9 acres would be reserved as an agricultural field to be used by the campground occupants for therapy and work. It is envisioned that the [homeless] campers may work in the agricultural field to supplement their rental fees. Homeless campers are expected to pay $10 a night, while the commercial campers would be charged more. The camping fees are anticipated to underwrite the expenses of the campground. Although some of the campers may wish to participate in farming activities on the Property, there is no guarantee that the agricultural field would result in future agricultural productivity nor is there a current requirement placed upon the campers to engage in agricultural pursuits.

17. The 2-acre area of the Project would have up to 26 pods for tents accommodating up to 80 people. Tents are to be provided by the campers. It is intended that both the homeless campers and the commercial campers would be camping alongside each other. In addition to the pods, showers, toilet facilities, fire pits or camp stove areas, a paved parking area, and a charging station for campers are proposed. Homeless campers would be allowed to stay for two to three months or more as approved by the campground manager. It is unclear how long commercial campers would be allowed to use the grounds, but any stay would need to be approved by the manager.

Slip op. at 4.

Problem is, the Agricultural district doesn't seem to allow for overnight camping. The statute says that recreational uses like day camping is permitted, but expressly excludes "overnight camps" as allowed uses:

Within the agricultural district ... all lands ... shall be restricted to the following permitted uses: ... Public and private open area types of recreational uses, including day camps ... but not including ... overnight camps[.]

Haw. Rev. Stat. § 205-4.5(a)(6).

But an adjacent statute also allows a request for a Special Use Permit, for "unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified." Haw. Rev. Stat. § 205-6. So what's the deal, can a county Planning Commission or the state Land Use Commission consider a special use permit to allow a use expressly prohibited by the zoning statute?

What Happened

The Foundation thought so, and asked the Maui County Planning Commission for a Special Permit to allow the overnight homeless and commercial campground project as a "unusual and reasonable use." The Foundation also had behind it a Hawaii Supreme Court case, Mahaulepu v. Land Use Comm'n, 71 Haw. 332, 790 P.2d 906 (1990), which held that a use not permitted under section 205-4.5(a)(6) might well be authorized via a special use permit.

But neighbors who object to the project asked the State Land Use Commission for a declaratory ruling that the proposed use of Agricultural land requires a zoning change (known in the parlance of Hawaii's statewide zoning scheme as a "boundary amendment"), and cannot be accomplished ad hoc by a discretionary special use permit.

The LUC agreed with the neighbors, concluding that the overnight camping project could not be approved by way of a special use permit, but that there must be a change in the zoning in order to allow it. By expressly prohibiting "overnight camping," the legislature had, in effect, already made the determination that overnight camping was not an unusual and reasonable use. Thus, no special use permit.

The Foundation appealed to a state trial court under the Administrative Procedures Act. It argued that the special use permit statute doesn't expressly preclude asking for an exception for uses prohibited by the zoning, and moreover, that Mahahulepu case held that doing so is just fine. The trial court bought the Foundation's argument and reversed the Land Use Commission.

Next stop, the Hawaii Intermediate Court of Appeals, which seemed to go both ways on the issues:

The ICA concluded it was bound by Mahaʻulepu, making the LUC’s decision contradicting Mahaʻulepu palpably erroneous. However, the ICA observed that the specific exclusion of overnight camps should control over the general availability of special permits in keeping with canons of statutory construction and furthering the statutory scheme.

Slip op. at 11.

Majority: The Statute Bars Overnight Camping, And That's That

Final stop, discretionary review by the Hawaii Supreme Court. There, a three-Justice majority (Nakayama, Wilson, Eddins) overruled the Mahahulepu case, and concluded that no, you cannot ask for a special use permit if the use you are seeking is expressly prohibited in the zoning statute:

HRS §§ 205-4.5(a)(6) and 205-6 are clear: the “public and private open area types of recreational uses” of “dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps” are not permitted on class A and B agricultural land, and cannot be permitted by special use permit.

Slip op. at 19-20 (footnote omitted).

Relying on statutory text, legislative history, and the canon of statutory construction that the specific controls over the general, the majority concluded that the point of chapter 205 is the protection and preservation of agricultural lands, and allowing a use to be made of agricultural land that is expressly prohibited by the zoning statute would not "promote the effectiveness and objectives of this chapter" as the special use permit statute requires. Slip op. at 18.

Having concluded that a special use permit isn't the way one might ask to establish an overnight campground on agricultural land, the majority held that the only way for the Foundation to get its overnight camping project approved would be to seek a "boundary amendment" (aka zoning change) to change the zoning from Agricultural "to one where recreational overnight camps are permitted." Slip op. at 21.

As for Mahahulepu? Overruled. That decision was the product of "flawed" reasoning (that case held that golf courses, another use expressly prohibited by the statute on Agricultural land, could be approved by way of a special use permit), and "failed to engage with the plain language of [the statute] prohibiting certain uses[.]" Slip op. at 22.

Dissent: The Statute Prohibits "Recreational" Uses, Which This Isn't

Two Justices (Chief Justice Recktenwald and Justice McKenna) saw it differently. Stare decisis cautions against lightly overruling cases that are only 30 years old, "[w]hether or not we agree with its reasoning[.]" Dissent at 2. After all, the legislature has had ample time to supersede Mahahulepu, but it hasn't done so.

More interestingly, the dissenters did not view the proposal for an overnight homeless campground as a "recreational use" included in the statute's express prohibition. Dissent at 9-10 ("An overnight campground for unsheltered persons is not a 'recreational' use."). Thus, at least that part of the project might be subject to approval on Agricultural land, because the statute only bars "recreational uses" (and then lists out examples, including overnight camping. The dissenters also were troubled by the Land Use Commission barring the Foundation from intervening in the declaratory ruling process initiated by the neighbors, "some of whom asserted 'not in my backyard' concerns. Dissent at 14-15 (footnote omitted).

Some Thoughts On Bright Lines and Ad Hoccery

Overall, this one isn't terribly surprising, given the Hawaii Supreme Court's wanting to keep a tight rein on land use issues, and its record of reading exceptions to the court's view of the meaning of statutes and ordinances very narrowly. The court, for example, falls squarely in the "narrow" approach to variances.

And we have to agree more with the majority on this one, but for slightly different reasons. We don't really focus on the statutory interpretation as the majority reasoned (after all, it seems you might read the statute both as the majority and as the dissenters did). Instead, we see this one as a push in the correct direction on a larger-scope issue. That being what we see as a trend in land use regulation to paint with a very broad brush in a statute or ordinance, and then rely on administrative or agency officials to exercise discretion to craft ad hoc exceptions. 

To us, this is a bad trend. The problem with "ban use X by law, but allow a discretionary process that might allow use X" is that it shifts the locus of land use regulation from elected officials and legislative judgments to discretionary administrative determinations made by unelected officials (aka bureaucrats). It also seems to favor old-hand insiders who know how to play the system, legally or otherwise. It might not matter whether you can read the law, but it does matter who you know at the Planning Commission or the Land Use Commission.

Bear with us while we play this out. Let's say the legislature has decided to prohibit certain uses in a certain zone and writes the statute or the ordinance that way. Landowners may not like the restrictions because, well, they are restrictions on their use of their land, but at least having a clear line about what is allowed and what isn't fixes a position to which property owners can react and plan. But let's also say that the legislature also includes in the law that in specific cases, an administrative official has the discretion to effectively overrule the legislature's judgment and permit a use that is expressly prohibited. This leaves what should be legislative judgments up to the discretion of nonlegislative officials. 

What's wrong with that, you ask? After all, as noted at the start of this post, one size does not fit all and shouldn't the law itself account for situations in the grey areas that cannot be accounted for when a legislature regulates property? Don't we want to provide landowners with the chance of making a certain use of their property even though a zoning ordinance or statute prohibits it? Flexibility!

It's All Discretionary, Son

In our view, the "everything is discretionary" approach is a recipe for administrative gamesmanship, and runs counter to the idea that to be a valid exercise of police powers, land use regulation should be comprehensive and part of a bigger plan. Maybe more importantly, this type of scheme not only makes arbitrary decisions more likely, it allows government to create "permit purgatories" where property owners are sent to wither on the vine, especially where the legislatively-adopted regulation bars all uses.

In those cases, instead of having to face the takings music for a regulation that prohibits all economic uses, the government gets off the hook if it can point a court to the mere possibility that it might waive, overlook, or vary the restriction. And once a court hears from the government that there is some theoretical possibility that the use prohibited by the statute or ordinance might be allowed if only the property owner asked the right person in the right way (and that person makes a response that can be deemed "final") the judge's interest switch turns to "off" and the court can confidently kick the case for being unripe. We are referring of course to the "final decision" requirement of Williamson County. Because when there is any discretion in the process, courts are loathe to evaluate takings claims on the merits, on the theory that the government might -- just might! -- exercise its discretion and allow what its own statutes or ordinances plainly and expressly prohibit.

Discretion is Often Designed for Permit Purgatory And Takings Avoidance

Perhaps the most glaring example of how this dynamic enables administrative and judicial gamesmanship is California Public Resources Code § 30010, which has been interpreted as providing both the California Coastal Commission and local governments the complete and total discretion to overrule or ignore any restrictive regulation in the coastal zone, if the CCC or a local government can be convinced by the property owner that to apply the statute or ordinance as written would result in a taking. And believe us, the California Coastal Act and local coastal ordinances are full of restrictions that prohibit any and all economically-beneficial uses. But because section 30010 seems to leave open the possibility that these restrictions may be waived ad hoc (if only the property owner asked the right person the right way), courts never get to the merits. "Just ask for an exemption," they counsel landowners, ignoring protestations that these discretionary approvals are more imaginary than a real possibility, and that assembling a request to exercise discretion can be eye-wateringly expensive.

You don't have to be in the land use game all that long to see the evil genius in this, at least the way the courts read this statute: not only does this put the owner into permit purgatory where government is incentivized to avoid taking a concrete position about what its restrictions allow and what they prohibit, this procedure forces a property owner to present her constitutional takings claims to the very government that she claims is violating her rights, upon pain of a 12(b)(1) or 12(b)(6) dismissal if she files a takings lawsuit before the government responds. Yet the Supreme Court says it does not require exhaustion of administrative remedies in takings cases.

What About Euclid?

But these discretionary purgatories take the foundation of the constitutionality of zoning as expressed in Euclid -- the assumption that land use regulations are constitutional because they are the product of big picture thinking and a comprehensive plan -- and inverts it so that every decision is discretionary and case-by-case. The reality is that these "exceptions" are granted rarely, and the process isn't so much designed to get to a "yes" or "no" on what uses might be allowed on a particular parcel, but are often there more as a "takings avoidance" tool like section 30010, where property owners are forced into an open-ended maze and the government does everything it can to strenuously avoid making any decision. That way, the owner remains stuck in the discretionary maze, never to receive an answer, until the owner throws in the towel, after bleeding out financially or spiritually.

This is rational land use planning?

It isn't, but most federal courts have accepted it as the way the land regulation game is played. So kudos Hawaii Supreme Court, for holding the legislature to what it said in the statute, and not allowing unelected members of a county planning commission or the state Land Use Commission decide that in this case, the statute is meaningless.

Hoomoana Foundation v. Land Use Comm'n, No. SCWC-17-0000181 (Haw. Mar. 10, 2023)

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Montana: Owning The Land Is Enough To Plead A Property Interest: Property Means "Rights Inherent In Ownership," Not Extent Of Govt Discretion

The Supreme Court of Montana's opinion in Tai Tam, LLC v. Missoula County, No. DA21-0660 (Nov. 15, 2022) starts off like a somewhat typical land use dispute turned into a constitutional fight. The property owner sought subdivision approvals for a 28-acre parcel to allow residential development, and the County denied the applications because "the proposal failure to adequately mitigate the loss of agricultural soils." Slip op. at 2.(Oh, and "bird habitat." Slip op. at 3.)

Next, the complaint, alleging some of the usual claims: due process, equal protection, and takings, and a statutory claim under Montana law. The trial court dismissed all claims: the statutory claims for failure to get in before the 30-day limitations period, and the constitutional property claims based on the court's conclusion that the plaintiff lacked a "property" interest.

We'll let you read the part of the opinion in which the court reversed the dismissal of the statutory claim for not filing within 30 days. Short story: the 30-day limitations period doesn't apply to the type of statutory damage claim that the plaintiff brought. See slip op. at 8 ("Ultimately, we find the plain language of [the statute] is not ambiguous and does not contain a 30-day statute of limitations.").

Now on to the good stuff - the property interest. The trial court concluded that the plaintiff did not possess a property interest in a subdivision application. Or maybe more precisely, in subdivision approval. The court also rejected the notion that the plaintiff owned the land, and that was sufficient to plead a property interest.

The Supreme Court had a different view. It started with the notion that on a motion to dismiss, every fact is deemed true and all inferences cut in the plaintiff's favor. Addressing the "threshold" question of whether the plaintiff owns property, the court held that the plaintiff's "ownership of McCauley Meadows [the land] is sufficient to state a protected property interest and bring § 1983 claims against the Board in this case." Slip op. at 13.

Rather than apply this interest to Tai Tam’s § 1983 claims, the District Court took Tai Tam’s concession it did not have a protected property interest in the subdivision application and ended its inquiry there. This was in error, as the District Court was required to address whether Tai Tam’s rights inherent in its ownership of McCauley Meadows were violated by the Board’s actions, and inactions, in this case.

Slip op. at 14.

This is significant because it rejects the usual sleight-of-law way that many courts define the property in these type of challenges. Often, courts will define the property as the thing which the plaintiff claims the government wrongly denied. (Here, that would be a grant of the subdivision.) But if you define the property as the very action being challenged -- then the owner's property is shaped almost exclusively by the extent of the regulator's discretion, and not by the property owner's rights. Where the focus is on the scope of the government's discretion to limit property uses and not on the owner's inherent rights, it shouldn't be too surprising that most of the time the courts conclude "no property."

Not here. 

Having concluded that the complaint adequately pleaded a property interest, the court also held that the due process/1983 claim survived because the complaint alleged the County had not provided adequate notice and an opportunity to be heard by denying subdivision approval due to lack of protection for ecological concerns, despite never having adopted any regulations requiring protection of ecological concerns. Slip op. at 17 ("Specifically, Tai Tam asserts the Board has “implemented policies to protect viewsheds, protect generic ecologic values, and protect adjacent property owners, despite having no such adopted regulations.”). In short, it may violate due process if the government is implementing policies "which are not based on any adopted regulations at all." Id.

And finally, the takings claim. The court concluded that as an "ad hoc" claim, the Penn Central takings claim was adequately pleaded:

Taking the allegations of Tai Tam’s Complaint as true, which we must at this stage in the proceedings, Barthel, ¶ 9, we find Tai Tam has sufficiently pled a takings claim in this case. According to the Complaint, Tai Tam alleges the Board is applying rules and regulations to the development of McCauley Meadows which have not been adopted with proper notice and opportunity to be heard and is unfairly requiring Tai Tam to shoulder the burden of preserving agricultural lands and viewsheds which was not imposed on other landowners. Whether these burdens are so unfair that they require compensation is, again, a question for another day.

Slip op. at 18.

The majority rejected the dissent's view that because the County retained discretion to deny the subdivision (but wait, we thought subdivision approvals were ministerial?), there could never be a takings claim based on a denial of same. The dissent's reasoning is one based on its conclusion that the denial of a discretionary permit "does not sufficiently interfere with reasonable investment-backed expectations or economic value under Penn Central." Slip op. at 18-19. But that, the majority concluded, is a judgment reserved for the trier of fact, not as a matter of law. Penn Central is an ad hoc inquiry. Check out pages 18-20 for more details of the majority's reasoning (it is definitely worth your time to do so).

Tai Tam, LLC v. Missoula County, No. DA 21-0660 (Montana Nov. 15, 2022)

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Iowa Rejoins The Fold: Right-To-Farm Statute Does Not Violate State Constitution

We were all set to detail the Iowa Supreme Court's recent opinion in Garrison v. New Fashion Pork LLP, No. 21-0652 (June 20, 2022), when we discovered that Iowa State University's Center for Agricultural Law and Taxation beat us to it with "Iowa Supreme Court Overrules Key Ag Nuisance Case."

On June 30, 2022, the Iowa Supreme Court, in a 4-3 decision, overruled 18-year-old precedent to find that Iowa’s right to farm statute, Iowa Code § 657.11, does not violate the inalienable rights clause of the Iowa Constitution. This decision generally restores statutory immunity from nuisance lawsuits seeking special damages for many animal feeding operations.

The "18-year old precedent" mentioned made Iowa an "outlier" the majority concluded, because every other state that has considered RTF statutes has upheld them. Welcome back, Iowa.

We couldn't do a better job at summarizing the case and the arguments, so we'll stop right here and suggest you read the summary.

Garrison v. New Fashion Pork LLP, No. 21-0652 (Iowa June 30, 2022) b

Cal App Channels Dickens' Mr. Bumble: Bumblebees Are Fish Under Cal's Endangered Species Act

A "fish" need not be "connected to a marine habitat" after all.

You remember that classic lawyer joke?

A company is on the hunt for a new CEO and decides to undertake the search from within existing management. The hiring committee schedules interviews with the company engineer, the company accountant, and the company lawyer. The committee calls each candidate into the boardroom and asks a single question: "what is two-plus-two?"

First up, the engineer. After doing calculations on a slide rule [this is an older joke, you see] and scratching figures and equations with a pencil and paper, the engineer proclaims, "What is two-plus-two? I can say with a 99% level of certainty that two-plus-two is 4, out to the fourth decimal place."

Same question to the accountant, who after consulting the actuarial tables, the IRS's schedules for mileage reimbursement, and the latest interest rates, responds, "What is two-plus-two? Two-plus-two is 4, subject to a 5% discount for net-30 payment."

Finally, the company lawyer. Checking around to make sure no outsider is within earshot, he closes the boardroom doors and walks to the head of the table and whispers:

"What is two-plus-two? ... what do you want it to be?"

All that is prelude to the California Court of Appeal's opinion in Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (May 31, 2022), which reminds us of the joke's punchline. Because in that case, the court held that bumblebees qualify as "fish" under the California Endangered Species Act.

You read that right, folks: bees = fish. What do you want 'em to be?

Now before you start writing us to point out that the court wasn't smoking medical cannabis and didn't just pull this one out of thin air (it was interpreting the statute's definition of "fish," which, we must acknowledge, is very poorly drafted because it includes "invertebrates" within the definition of "fish" -- and yes, bees do not have backbones), please keep in mind that the court wasn't required to check common sense at the door either. 

So here's the setup: the Fish (ha!) & Game Commission designated four species of bumblebee (the Crotch bumble bee, the Franklin bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee, if you were wondering) as endangered. The California statute can be employed to designate "[c]ertain species of fish, wildlife, and plants" as either endangered or threatened. Bees ain't "wildlife" or "plants," so to be covered by California's Endangered Species Act, they must be "fish," right? And the statute defines "fish" as "a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." Cal. Fish & Game Code § 45.

But bees aren't fish, are they?

Almond growers and others certainly didn't think so, and challenged the designation in court, arguing that although bees are indeed invertebrates, they certainly are not fish. Guess what? - the trial court agreed that the inclusion of "invertebrates" in the definition of "fish" includes only, you know, "invertebrates connected to a marine habitat, not insects such as bumble bees." Slip op. at 17.

The Court of Appeal was having none of this. Pick up the opinion at page 19 if you want to really savor the court's reasoning. See slip op. at 20 ("Our task is to interpret the term fish as used in section 2062, 2067, and 2068 of the Act."). Lovers of the canons of statutory interpretation will appreciate this part of the opinion, as the court somehow navigates the rocky shoals of that method of analysis. Those of you who, by contrast, may believe that the canons of construction are mostly bunk -- tools that can be manipulated in any number of ways to justify post hoc any desired reading of a statute -- will likely conclude that this is "Exhibit A" in your indictment of Professor Sutherland.

And aren't bees ... insects? That was the conclusion of the California Attorney General, who opined that insects are ineligible for listing under the statute because insects are not included in the covered species. But the court concluded that this was "less persuasive," even though AG opinions are "entitled to great weight." Slip op. at 24. Let's just say that the court concluded that indeed "fish" includes "invertebrates," and indeed bees don't have no backbones.

"Connection to marine habitat" got nothing to do with being a fish, held the court of appeal. Indeed, "any" invertebrate will do: Ladybugs? Yes! Scorpions? You bet! Black widow spiders? Naturally. Banana slugs. Of course! Butterflies? Duh.

A fish.

Now yes, we're having a bit of fun at the expense of what to the legally-untrained eye must seem like a conclusion worthy of Twitter mockery (and Twitter analysis). A bumblebee is a fish? Come on, man! We expertly trained lawyers (unlike the great unwashed) know that context is everything and the court wasn't really concluding that bees are fish in the real world, only in the world of the California Endangered Species Act:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.

Slip op. at 2.

But seriously - don't you think that if the lege had meant to include bees and other insects in the statute's scope, it might have -- just maybe -- thought to include the term "insect?" And that to shoehorn bees into the definition of fish -- which every fiber of our being screams out is just plain goofy -- may also have the unfortunate consequence of lessening the majesty of the law in the eyes of anyone paying attention? And in that vein, we end with a quote from Dickens' coincidentally-named Mr. Bumble, quoted by no less a light than a current Supreme Court Justice:

An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass—a idiot." C. Dickens, Oliver Twist 277 (1867).

Collins v. Virginia, 584 U.S. ___ (2018) (Alito, J., dissenting) (cleaned up).

So there it is: a court just said a bee is a fish. With a straight face.

What do you want it to be? 

Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (Cal. Ct. App. May 31, 2022)

Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu - Join Us!

It's back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here's a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We'll be speaking during the session on Takings, along with our colleagues Greg Kugle, Brad Saito, and Ellen Ashford.

Register here (limited to 70 registrants, no walk-ins, so be sure to get your spot now). Travel to and from Hawaii is back open and no more Co-19 hassles at the airport, so take advantage of the opportunity for a little R&R and CLE. 

As Jack Lord would say, "be there, aloha!"

NC Right To Farm Act Is Not A Taking Of Nuisance Claims

In Rural Empowerment Ass'n for Community Help v. North Carolina, No. COA 21-175-1 (Dec. 21, 2021), the North Carolina Court of Appeals, the plaintiffs have a beef with hogs. Specifically, nearby hog farms that they allege are nuisances (see this story for a report on porky goings-on in NC). 

They want to sue, but they can't. North Carolina likes the local pork industry. North Carolina has a Right to Farm Act that limits the ability to sue for a common law nuisance. See here for more on RTF Acts, generally.

The plaintiffs sued to invalidate the Act, claiming the statute violates their rights under the N.C. Constitution's law of the land clause, and their "fundamental right to property."

NC's law of the land clause is the "equivalent of the Fourteenth Amendment's Due Process Clause in the Constitution of the United States." Slip op. at 11. An invalid exercise of police power. And you know how far substantive due process challenges to regulations usually get, don't you? Not far in most cases because of the rational basis test. The court of appeals didn't have much trouble concluding that yes, the Right to Farm Act is within the State's police power:

Our State’s long-asserted interest in promoting and preserving agriculture, forestry, horticulture, livestock, and animal husbandry activities and production within North Carolina clearly rests within the scope of the State’s police power. ... [The Right to Farm Act is] intended to promote agricultural and forestry activities and production in North Carolina by defining and limiting nuisance claims from agricultural, forestry, and related operations. ... The asserted and purported interference in the statute with the enjoyment of property is reasonable and clearly rests within the General Assembly’s enumerated powers. By passage of an act with the signature of the Governor of North Carolina, the General Assembly can modify or amend the common law or amend, replace, or repeal a state statute. See Pinkham v. Unborn Child. of Jather Pinkham, 227 N.C. 72, 78, 40 S.E.2d 690, 694 (1946) (“It is said that no person has a vested right in a continuance of the common or statute law. It follows, generally speaking, a right created solely by the statute may be taken away by its repeal or by new legislation.” (citation omitted)).

Limiting potential nuisance liability from agricultural, forestry, and related operations helps ensure the State’s stated goal to protect agricultural activities in North Carolina and to encourage the availability and continued “production of food, fiber, and other products.”

Slip op. at 13-14 (some citations omitted).

The plaintiffs' takings claim (labeled a "fundamental right  to property" claim) didn't fare any better. See slip op. at 15 ("Plaintiffs assert the limitations imposed on a cause of action for nuisance violates their fundamental right to enjoy their property, citing Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 786 S.E.2d 919, 921 (2016)).

Here, unlike Kirby, Plaintiffs’ have not alleged an inverse condemnation has occurred or any other kind of governmental taking by eminent domain. Plaintiffs assert these statutes facially violates their prospective fundamental right to property, which we above hold are facially constitutional under the Law of the Land Clause and the Due Process clause.

Slip op. at 15.

That's a pretty summary analysis, but an outcome in line with other courts that come to the same conclusion. See here, for example. Other courts take a more tailored approach. See here for more on that. 

Will this case go further up the appellate chain? Stay tuned.  

Finally, what's the deal with the classic vid above? It's there because we appreciate creative plaintiff/association names. Here, "Rural Empowerment Association for Community Help" or "REACH." I see what you did there. Good one, REACH. But as much as we appreciate REACH, it still can't quite touch what we think is the best plaintiff association acronym, AIR = Association of Irritated Residents.

Rural Empowerment Ass'n for Community Help v. North Carolina, No. COA 21-175-1 (N.C. App. Dec. 21, 2021)

Watch: "The Future of Regulatory Takings at the Supreme Court"

In case you missed it live, here's the recording of the recent one-hour program on "The Future of Regulatory Takings at the Supreme Court," featuring our colleagues Joshua Thompson (Pacific Legal Foundation) and Paul Utrecht (Utrecht & Lenvin, LLP), with Jim Burling (PLF) moderating.

The program discussed Cedar Point Nursery v. Hassid, Knick v. Township of Scott, and Pakdel v. City and County of San Francisco and what might be on the horizon.

If you are a takings nerd, a must-listen.

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Keynote: Do Animals Have Property Rights?
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Property Rights as Civil Rights
• Eminent Domain National Update
• Federal Court and the Daubert Challenge: How to Prepare
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Inorganic Fruit: Statute That Allows Creditor To Seize Property From Third Party Rec'd From The Debtor Is A Taking

You just have to love any case that starts with the sentence, "Dried mangoes form the core of this commercial dispute, which involves a Fifth Amendment challenge..." Shades of Horne!

Well, you can add mangoes to your "healthy snack" list (hat tip CJ Roberts) and include the Supreme Court of Guam's opinion in Western Sales Trading Co. v. Genpro Int'l, Inc. (Guam), No. CVA19-023 (July 28, 2021), in your oeuvre of fruit/takings cases, because the court held that a territorial statute permitting a judgment creditor to take property from a third party (who obtained it from the judgment debtor) violates the Takings Clause. The court concluded that Guam Code Ann. §§ 23401-23406 (the "turnover statute") works an unconstitutional taking in violation of the Fifth Amendment and the Guam Organic Act. Follow along.

The statute allows a judgment creditor to apply to the Guam courts for an order compelling the turnover of property where the assets are held by a third person (and not the judgment debtor):

A Guam judgment creditor is specifically authorized to file a motion for an order to show cause ... to compel any person who holds the assets of the judgment debtor to turn over those assets.

With respect to a person who holds the assets of the judgment debtor, a Guam court may issue an order requiring any person to deliver such assets, or to convert said assets to money for payment of the judgment. The court shall require any person to turn over the assets, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor. Disobedience of a turnover order is contempt of court and punishable as such.

Guam Code Ann. § 23403(a)-(b) (emphasis original). The statute also allows the third party to be reimbursed for its purchase costs of the turned-over asset.

Western Sales obtained a default civil judgment against FPD Food International for beach of a contract for dried mangoes, after FPD didn't deliver the mangoes as promised. To collect that judgment, Western Sales went after the aforementioned dried mangoes, which Genpro had purchased from FPD. The Guam Superior Court applied the turnover statute and ordered Genpro to cough up the mangoes.

Now hold on a minute, argued Genpro to the Supreme Court, we have nothing to do with the fight between Western Sales and FPD, and a statute that requires us to turn over our validly-purchased mangoes to satisfy the judgment is a taking. You can't take our property to pay another person's debt.

After dispensing with a challenge to the court's appellate jurisdiction, the Supreme Court agreed with Genpro that the statute worked a taking of its dried mangoes. Citing Horne, the court held that "the Takings Clause applies to both real and personal property, including dried fruits." Slip op. at 7. Can't overlook those dried fruits!

The court concluded that "where a statute enacts such a transfer from one private party to another without satisfying the 'public use' and 'just compensation' requirements, it is unconstitutional and inorganic." Slip op. at 7. "Inorganic." Whole Foods alert!

The debtor argued this isn't anything more than a run-of-the-mill process to collect a judgment, and that this situation lacks a "state action," meaning this can't be a taking. Only a government can "take" property in violation of the Fifth Amendment, right? No, the court concluded, while takings for the government's own use obviously implicate the Takings Clause, "it is not confined to this scenario." Slip op. at 8. Here, the "government-mediated realignment of property rights--legislatively or judicially--between private parties is subject to the Fifth Amendment's limits on takings." Slip op. at 8-9.  (This reminds us of a challenge now pending in the federal courts, in which the Commonwealth of Virginia adopted a statute that legislatively rewrote existing express electric utility easements to also allow installation of fiber-optic equipment and prohibited recourse to Virginia's eminent domain procedures.)

This is a physical taking: "[i]n the case before us, the government is not merely restricting what Genpro may do with its dried mangoes, it is compelling the physical surrender of the mangoes to WSTCO." Slip op. at 10. "The turnover statute permits the government facilitation of taking property from one private entity, without their consent, and reallocating that property to another." Id. at 11. The court goofs a bit when it analyzes the case under Penn Central (see id. at 11) even though this is a permanent physical deprivation, but since this opinion was issued while we were all still digesting Cedar Point Nursery, we'll let that one slide. In any event, however the court analyzed it, it concluded the statute violated the Takings Clause.

First, the taking was not for public use. This was a purely private taking. It doesn't benefit the public, but is for the creditor's benefit. There's a one-to-one transfer from A to B. "This is one of the evils the Takings Clause was designed to prevent." Slip op. at 14. Yeah, the turnover statute was designed to aid creditors in collecting a valid debt. But that doesn't immunize it from the public use requirements, and this one is for the creditor's benefit alone.  

And second, there was not just compensation, so the turnover statute violates the other part of the Fifth Amendment and is doubly inorganic. "Even from the time of the Magna Carta, just compensation for agricultural products--often taken to feed the military--must be tendered in case before confiscation." Slip op. at 15. The court rejected the argument that the third party's ability to be reimbursed its purchase costs qualified as just compensation. Reimbursement of purchase costs doesn't qualify as the full and perfect equivalent for the property taken (valued on the date of the taking), and the statute does not allow for interest, either. "The formula setting compensation as 'the purchase price of the turnover property' is not compensation." Slip op. at 16 (citation omitted). 

Take a read of this one. We think the Guam court got it pretty much right (despite that Penn Central hiccup).

Time to go bake us some mango turnovers (sorry, couldn't resist that one - here's a recipe).

Western Sales Trading Co. v. Genpro Int'l, Inc. (Guam), No. CVA19-023 (Guam July 28, 2021)

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Cedar Point Part VI: What Others Are Saying

Talk amongst yourselves.

We've had our say, so in this post -- the sixth and final post in a series of deeper dives about June's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid , No. 20-107 (June 23, 2021) -- we're linking to what others are saying about the case.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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(These are not in any special order):

• Cedar Point Nursery: Fighting for Private Property Rights with Pacific Legal Foundation (video from the property owners' counsel) (YouTube)
• Supreme Court's Cedar Point property rights decision protects both sides (lawprof Ilya Somin) (The Hill)
• Big Win for Property Rights (editorial board, Wall St. Journal)
• [podcast] Podcast Episode 69 – Professor Josh Blackman Discusses Cedar Point Nursery (lawprof Josh Blackman) (Clint Schumacher's Eminent Domain Podcast)
• Opinion: The Supreme Court’s conservative majority returns to its passion project (Ruth Marcus, editorial page editor, Washington Post)
• The Supreme Court just handed down disastrous news for unions (Ian Millhiser) (Vox.com)
• Is John Roberts channeling his inner Bob Ellickson? (lawprof Chris Elmendorf) (Twitter)
• Vox: SCOTUS issued "disastrous ... union-busting decision" on takings clause (Ed Morrisey) (Hot Air)
• Quick reactions to the Supreme Court's new Takings Clause blockbuster opinion in Cedar Point Nursery (lawprof Lior Strahilevitz) (Twitter)
• The Supreme Court’s Latest Union-Busting Decision Goes Far Beyond California Farmworkers (Mark Stern) (Slate)
• Is Chief Justice Roberts the Supreme Court's "Property Guy"? (lawprof Josh Blackman) (Volokh Conspiracy)
• Opinion: The Supreme Court’s pro-corporate revolution is accelerating (Paul Waldman) (Washington Post)
• U.S. Supreme Court Is ‘Fertile’ Ground for Property-Rights Group (Jordan Rubin) (BloombergLaw)
• Rory Little on Lange v. CA, Cedar Point Nursery v. Hassid, and Collins v. Yellen (Karina Demirchyan) (Hastings Law)
• The US Supreme Court's Latest Anti-Labor Ruling Goes Far Beyond Farm Workers (Jenny Breen) (Common Dreams)
• Supreme Court Issues Major Property Rights Decision in Favor of Landowners, Confirming that Government-Sanctioned Physical Invasions of Private Property are Categorically Compensable Under the Takings Clause (Bryan Wenter) (Land Use Developments)
• Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine (lawprof Josh Blackman) (Volokh Conspiracy)
• Supreme Court Holds That Regulation Allowing Access to Farmers' Property Is a Per Se Physical Taking (Edward D. Rogers, Michael Sklaroff, and Nathan Farris) (Ballard Spahr)
• SCOTUS' Take on Takings (Brad Kuhn) (Nossaman)
• And Stay Out! Supreme Court Rules Golden State Regulation Giving Unions Access to Private Farmland Is Unconstitutional Taking (National Law Review)
• [podcast] Deep Dive Episode 187 – Courthouse Steps Decision: Cedar Point Nursery v. Hassid (owner's counsel Wen Fa) (Regulatory Transparency Project)
• Supreme Court win for property rights is hardly a loss for the regulatory state (Sam Spiegelman) (the Hill)
• Update On Union Access To Property (Mark Arnold) (Husch Blackwell LLP)
• Supreme Court Tackles "Takings" Question Presented by California Labor Statute (Julie Tappendorf) (Municipal Minute)
• SCOTUS Takings Decision a Huge Victory for Property Owners: California Regulation Requiring Access Is a Taking (Debra Garfinkle, Brad Kuhn) (Nossaman)
• Biggest Supreme Court Win for Property Rights in a Long, Long Time (Ilya Shapiro and Sam Spiegelman) (Cato)
• Property Rights Versus Labor Unions in the Supreme Court (Rob Natelson) (Epoch Times)
• 24 Jun Supreme Court Holds in Favor of Property Owners in Takings Case (Amanda Karras) (IMLA)
• SCOTUS takes 'takings' to a new level in union-busting decision (Hassan Kanu) (Reuters)
• Ideology Shows in Supreme Court Ruling on Union Organizing (Noah Feldman) (Bloomberg)
• Supreme Court Finds Fifth Amendment Taking in State Regulation Granting Access to Private Property (Beveridge & Diamond)
• High Court Limits Labor Union Organizing At Calif. Farms (Law360)

Did we miss any? If so, send 'em our way.

Cedar Point Part V: Help Us Help You

In this post -- the fifth and penultimate post in a series of deeper dives that we're posting about June's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be trying to take some educated guesses about what the decision means for the future.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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So what to make of Cedar Point beyond its narrowest holding that absent a few exceptional circumstances, any regulation that gives a right of access to someone's land is a "categorical" taking regardless of the duration of the access granted, and that the only issue in these cases is the amount of compensation owed?

One one hand, you might see this case simply and only as clarifying (or sub silentio overruling, take your pick) the physical takings rule of Loretto, which if you were to read that case narrowly limited categorical treatment to "permanent" occupations, and subject less-than-permanent physical access regulations to non-categorical (Penn Central) treatment. Or you might see this as the Court doubling down on the distinction between physical invasions and plain-old regulatory takings. Or maybe an invitation to strike while the property rights iron is hot. 

Our point in this post is to look at these other possible hands. Or at least try and read any tea leaves the majority laid down.

So here are some of the points that get us thinking.

The Property Guy

The biggest point we read between the lines of Chief Justice Roberts' opinion was this: the Chief is solidly the "property guy" on the Court. In addition to Cedar Point, how many of the Court's property or property-related opinions has he authored? Knick. Penn East. Horne II. Murr dissent. Winter. This recent per curiam sure reads a lot like he wrote it, too. Those opinions he didn't author he played a big part in: the fifth vote in Koontz; presumably employing his role as Chief to organize unanimous or nearly unanimous decisions in Arkansas Game, Horne I, Brandt, Hawkes, and Sackett; and joining in very pro-property rights pluralities when there wasn't a majority. (Did we miss any?)

Yes, he was counsel for the government in Tahoe-Sierra (which held that a long-term moratorium on development is not a categorical taking), but that was in his role as advocate. And as we know, a lawyer's position when serving as counsel may not necessarily be the lawyer's own views. We read the Cedar Point majority opinion's nine positive Tahoe-Sierra citations not as a sign that CJ Roberts doesn't understand his his own earlier handiwork, but more as a signal that we shouldn't hold out his role as the advocate in that case as a sign he's a police power hawk or a takings dove. Indeed, if you were to not already know that Tahoe-Sierra was decided against the property owner, the Cedar Point majority opinion would not clue you in to that fact because it cites the case very positively -- you'd think the owner won that one.

We think a more likely signal comes from his time as a clerk for then-Associate Justice Rehnquist, author of the Kaiser Aetna opinion that plays such a large role in the Cedar Point rationale. Rehnquist was also on the unanimous Pruneyard Court -- and if we're reading the timeline correctly, young Mr. Roberts was one of his clerks during consideration of that case. [Barista's edit: lawprof Josh Blackman sent us a note with the correct timeline: "Roberts clerked for Rehnquist starting in OT 1980--a few months after Pruneyard was decided."] We're guessing that he is in sync with Justice Rehnquist's property sensibilities more than his own Tahoe-Sierra advocacy.

As an exercise, you might compare the style of the Kaiser Aetna opinion (Rehnquist) with Cedar Point (Roberts). We get a lot of the same vibe. To us, the opinions are similar enough that they could have been written by the same author if you didn't know better: the centrality of the right to exclude with a nod to local property law, but not a sole reliance on it; owners' reliance interests in property as a set of shared cultural understandings; and the eschewing of an overly technical labeling of these rights. Read them side-by-side and see if you don't agree.

In sum, despite a lot of criticism of the Chief in conservative circles because he goes wobbly on a lot of those issues, there's little question in our mind that he's the solid center of gravity on the Court for property rights. Convince him, and you will very likely carry the day. (Remember that as you frame the issues in your case, brothers and sisters.)

Help Us Help You

That takes us to our second point, which is related.

After a string of love-fest decisions in which the Court issued unanimous or near-unanimous opinions (many think in a reaction to the calls for expansion of the Court), what was the first case in which we might say that the Court broke the string and split along the "usual" conservative/liberal lines and the headlines could tell us about a "sharply divided" Court? That's right, Cedar Point. Do we think it was merely coincidence that a takings case was the one in which the Court's solid public front got put aside (albeit gently - see, e.g., the majority's and dissent's "you the man" nods to each other's analytical chops). No we don't.

Now maybe we're reading too much into the fact that a property rights case was selected as the one where everyone went back to their own hill, but hear us out: we think Cedar Point sends up a clear flag that the majority might not be overly excited about considering many of the headline-grabbing hot-button political and social issues, but may be receptive to more on the property front.

What drives our conclusion?

First, Cedar Point starts off with a strong reaffirmation of the essential nature of property rights. See slip op. at 5 (which cites "the Founders" including John Adams). The Justices might not feel institutionally equipped to resolve politically-charged social issues, but property rights may be a whole different story because property questions are firmly rooted in common law lawyering, a topic that the Justices seem very comfortable speaking with expertise about. Next, the majority continued by with pooh-poohing the core argument against a broader scope of regulatory takings (that any restrictions on property rights that are a result of regulations must be analyzed under Penn Central), and concluded that the result is more important than the method. See slip op. at 7. Finally, the majority shifted the focus when a regulation regulates property's use to the point that it "appropriates" the right to exclude (or other fundamental property right), from whether there's been a taking to the amount of compensation owed, a point the property rights bar has been emphasizing for a long time. See slip op. at 11 ("The duration of an appropriation—just like the size of an appropriation ... bears only on the amount of compensation.").

We're also taking as a good sign that six Justices signed on to the Cedar Point opinion although a couple of them have been property rights ciphers so far. There's no question in our view that Cedar Point takes a bold, confident stance on property rights at a time that the Court and its members are under extreme scrutiny and could just have easily adopted a Tahoe-Sierra-ish analysis of less-than-permanent invasions. But they didn't and instead went big. So even though Cedar Point may be a good example of Chief Justice Roberts' usual incremental approach, we're taking it as a big hint that the Court wouldn't mind the opportunity to look at a lot of takings stuff with fresh eyes. Bring us cases. "Show us the pure joy of the game" (to paraphrase Jerry Maguire). Go big or go home. Help us help you. 

And if we're completely off base about this, we think that if nothing else the solid majority in Cedar Point does offer a lot of intriguing possibilities about takings and property due process cases in the next few years, whichever way they cut.

More than the "Just Compensation" Clause

Next, Cedar Point confirmed for us something we've contended for a long time: that the Fifth Amendment is not just the "Just Compensation" clause, and that declaratory and injunctive relief are available remedies for "takings" issues. In Cedar Point, the property owner did not ask for just compensation, but only "declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them." Slip op. at 3. Just comp may be the usual remedy in these cases, but it isn't the only remedy.

In our thinking, this should spur us all to go back and look at a few issues. First, the jurisdiction of the federal courts to hear takings claims against the federal government, and whether they belong exclusively in the Court of Federal Claims. Second, the same issue with respect to takings claims against state governments in federal court. The real party in interest in Cedar Point, after all, was the State of California, notwithstanding the Eleventh Amendment. And finally, whether more regulation may be subject to takings challenges because the relief sought isn't limited to a massive just compensation judgment (thus taking out of contention many cases that may not present be ones the owner can convince a lawyer to undertake), but includes a remedy that puts the onus where it should be: on the government asking itself not simply whether a regulation is a good thing, but thinking about whether it wants to pay for it. 

State law isn't the be-all-end-all of "property"

In light of Cedar Point's "common sense" and "intuitive" approach to defining private property in the Fifth and Fourteenth Amendments and its re-emphasis of background principles of nuisance law, we think that there's going to be a renewed focus on what it means to own property, and more fundamentally, where that debate takes place (in state courts, state legislatures, or elsewhere). Cedar Point rejected the argument that state law alone defines "property," and can with the stroke of a pen "manipulate" certain concepts inherent in the notion of the Court’s conception of what it means to own private property.

And don't get too hung up on labels the Court cautioned, and we think this governs not only "regulatory takings," but the definition of property itself. See slip op. at 6 ("But that label can mislead."). Formalities may count for a lot in the law (and in property law specifically), but just as we don't require livery of seisin in order to convey real property any longer, the Court isn't going to be hidebound to how a state defines or redefines property if doing so undermines traditional "sticks" the majority see as fundamental.

Next up, Part VI (the final post in this series), in which we'll check out what others are saying about the case, and post up some of the many commentaries that have been written about Cedar Point.

Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)

Cedar Point Part IV: The Other Opinions

In this post -- the fourth in a series of deeper dives that we're posting about June's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be discussing the two separate opinions, Justice Kavanaugh's concurrence, and the Justice Breyer-authored dissent.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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Justice Kavanaugh: Only Truly Necessary Intrusions Allowed (And This One Wasn't)

Along with joining the majority's opinion in full, Justice Kavanaugh wrote a short concurring opinion to explain why an existing precedent -- about which he pointedly asked at oral argument -- also supported the outcome.

The case: NLRB v. Babcock & Wilcox, Co., 351 U.S. 105 (1956). This is the one which got several people asking "hasn't the Court already ruled that a union-access easement is constitutional?" That case upheld the federal National Labor Relations Act's requirement that certain employers open their properties to union organizers. Sounds like Cedar Point, no? 

Yes, but you have to read that decision carefully, Justice Kavanaugh cautioned, because the Court there avoided the takings question by interpreting the NLRB's requirement narrowly. The canon of construction that counsels to avoid reading statutes to create constitutional problems applied, and resulted in the Court upholding the requirement by avoiding the takings problem lurking in the statute:

Against the backdrop of the Constitution's strong protection of property rights, the court interpreted the Act to afford access to union organizers only when "needed," ibid. -- that is, when the employees live on company property and union organizers have no other reasonable means of communicating wit the employees.

Concurring op. at 2.

This looks like a form of necessity referenced in the majority opinion, although here too, some caution is in order. As we noted in this piece, necessity should only be an exception to the general rule of compensation when the action undertaken by the government really is among the least imposing alternatives to avoid a genuinely drastic result. Babcock certainly can be read through that lens, as Justice Kavanaugh pointed out when he noted that absent entry onto private property, there'd be no other way for the government to ensure that employees had access to information about unions (other than, you know, taking an access easement by eminent domain).

In Babcock, the workers apparently could not be accessed readily off-premises, because they lived on the employer's property. In Cedar Point by contrast, the workers did not live on the nursery's property, and union organizers were free to proselytize to the workers elsewhere. Yes, private property might be the most convenient venue for such activities, but that's a pretty far cry from being necessary due to no other alternatives, Justice Kavanaugh argued.

The Three-Justice Dissent: The Appropriations Clause

Justice Breyer, joined by Justices Sotomayor and Kagan -- in what the majority opinion made a point to call a "thoughtful opinion" -- dissented.

Their basic point was what you would expect -- regulations that impose a temporary or non-permanent physical invasion are not treated categorically, but instead are analyzed as plain old regulatory takings under Penn Central's three-part ad hoc test. What is interesting is the way the dissenters got there. 

They first characterized the Takings Clause as the Appropriations Clause:

The question before us is how to characterize this regulation for the purpose of the Constitution's Takings Clause.

Does the regulation physically appropriate the employer's property? If so, there is no need to look further; the Government must pay the employers "just compensation."

Dissent at 1. (Accused the majority of recasting the Takings Clause as the Appropriations Clause might be more accurate.)

The Regulatory "Hook"

That phrasing of the question ("does the regulation physically appropriate the employer's property?") telegraphed the dissenters' analysis in a couple of ways.

First, it set up a truism: the applicable test is the default "regulatory takings" analysis because these physical invasions are required by regulations (in contrast, we suppose, to invasions such as flooding). And since these are "regulatory takings" shouldn't the default Penn Central test apply? But that seems like a straw argument. After all, aren't all of these types of invasions the result of regulations, and therefore a species of "regulatory takings?" Nearly any invasion that is not the result of an affirmative exercise of eminent domain can be classified as a "regulatory" taking because it is incident to an exercise of some government regulatory power. Most non-eminent domain physical and categorical takings cases fall in this category: Loretto (police power), Kaiser Aetna (commerce power), Nollan (police power), Lucas (police power), etc., etc. But the regulatory enablement of the invasion has never alone mandated we analyze it under Penn Central simply because its a "regulatory" taking. ​

Yes, you could look at every regulation-enabled invasion through a Penn Central lens (as we did as an academic exercise here), with physical invasions being analyzed under the "character of the government action" factor, with invasions being so contrary to common notions of what it means to own property (there's that "keep out" vibe again) that both the magnitude (Loretto) and the duration (Cedar Point) of the invasion are irrelevant, and looking at the other two Penn Central factors is unnecessary. Remember that the central question in regulatory takings is "how much does this look like a classic exercise of eminent domain" --

Although our regulatory takings jurisprudence cannot be characterized as unified, these three inquiries (reflected in Loretto, Lucas, and Penn Central) share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). Thus, it seems you get to the same result whether or not you treat the invasion as the deciding Penn Central factor or simply as a separate species of taking, and the debate may be a mostly-academic exercise because the Cedar Point invasion looks an awful lot like an exercise of eminent domain from the owner's point of view. In short, in our view the dissent's building its analysis on the framing of the case as a "regulatory taking" doesn't get it very far, and avoids the central question: what is the dissent's concept of "property?"

The majority pretty clearly told us what they think it means to own property, or at least a big part of it. This is the majority's "intuitive" and "common sense" approach to defining private property under the Fifth and Fourteenth Amendments. Our read of the dissent, by contrast, is that it talks all around the issue, but never explicitly lays out its property theory.

This leads into what we think is the second dissent "telegraph" -- the way it employed semantics to make its main point. The dissent asserted, "[t]he Court holds that the provision's 'access to organizers' requirement amounts to a physical appropriation of property. In its view, virtually every government-authored invasion is an 'appropriation.'" Dissent at 2. But this regulation does no such thing, they argued, it merely regulates the right to exclude because the permitted invasion is not a permanent occupation. Having set up another straw argument (appropriations are permanent, anything less is a regulation), the dissent asserted that a regulation requiring an owner open their property to others does not result in an "appropriation" of the right to exclude, merely a regulatory limitation of that right.

The dissent defended its "characterization" in several ways:

• California's regulations do not require agricultural property owners to convey an easement to the government or to the public. Whatever the regulation imposed, it was not "any traditional property interest in land." Dissent at 4. It may be a winged waterfowl that makes quacking noises when you call out "Donald" or "Daffy," but it's not really, you know, a duck.
• Second, the regulation doesn't literally transfer the nursery's right to exclude to the union organizers. Dissent at 5 ("It is important to understand, however, that technically speaking, the majority is wrong. The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone."). This to us illustrates the sleight-of-word that the dissenters are playing, because if the regulation indeed actually appropriated and transferred a traditional interest in property from the nursery to the union organizations, we wouldn't be having this discussion, would we? We'd be talking eminent domain and compensation.
• Ah, but we're not saying that California's regulations cannot be a taking, the dissent argued, we're only saying that the regs should not be automatically considered a taking. Dissent at 5 ("The issue is whether a regulation that temporarily limits an owner's right to exclude others from property automatically amounts to a Fifth Amendment taking."). Prove up the other two Penn Central factors, and you get your compensation!

Saving Loretto By Blowing Up Loretto

In what may be the dissent's strongest point (the majority conceded the "point is well taken"), it noted that in Loretto, the Court concluded that "[n]ot every physical invasion is a taking." Dissent at 6 (citing Loretto, 458 U.S. at 435 n.12). Indeed, the occupation in Loretto was more-or-less permanent (or, more accurately indefinite -- since very little it truly permanent), and the consequences of permanent action were the only things we were worried about in that case. Read the dissent pages 6-7 for why the dissenters think that permanent occupations always undermine the concept of private property, while less-than-permanent occupations do not. For example, a permanent occupation prevents the owner from using that space, controlling it, and wipes out every right associated with that space. As the dissent quoted Loretto, "a permanent physical occupation 'is perhaps the most serious form of invasion of an owner's property interests.'" Dissent at 7 (quoting Loretto, 458 U.S. at 435).

Cedar Point does not disturb that reasoning. But whether you want to say that the majority sub silentio overruled Loretto or merely clarified its dicta or cleaned up the misunderstandings it created, did anyone accurately predict that the Court would have to burn a common reading of the Loretto opinion in order to save the common reading of the Loretto rule?

Pruneyard Distinguished

The dissenters pointed to Pruneyard, asserting that case "fits this case almost perfectly." Dissent at 8. The invasion was not round-the-clock, was limited in purpose, and was subject to government regulation on time, place, manner. In Cedar Point, the scope of entry was narrower: instead of the general public, the regulation required only that union organizers are allowed. Ah hah, if that's the case, we're in "regulatory-balancing" territory, the dissenters argued. Dissent at 9.

What we thinks that overlooks is the critical fact in Pruneyard: the shopping center owner had already thrown open its doors to the public, inviting everyone to come on in to patronize Pruneyard's tenants. Having acknowledged that it had invited the public onto its premises, the shopping center had not shown that allowing handbilling would interfere with whatever right to exclude remained. Pruneyard, 447 U.S. at 77 ("The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments.”). In short, the shopping center owner "failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking.'"  Id. at 84. Here, Cedar Point Nursery had not thrown its doors open to the public, only what we might call "invitees" -- employees there for a limited time, and limited purpose, and the property owner's complaint alleged that the union's intrusions interfered with the owner's quiet enjoyment.

We Want to Regulate, But Can't Afford to Pay

Next, the dissenters employed a revised form of the "sky will fall" argument that is frequently employed to object to takings argument. Here, the dissent didn't so much focus on "this will tie government's hands by making every intrusion a taking" (the most-oft deployed argument), but one that isn't more compelling, but at least is more straightforward: "And it is impractical to compensate every property owner for any brief use of their land." Dissent at 12. In other words, we can't afford to pay, you know, for everything we take. The dissent employs the second most famous Justice Holmes quote from Pennsylvania Coal: "[a]s we have frequently said, '[g]overnment could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.'" Dissent at 12 (quoting Pennsylvania Coal, 260 U.S. at 413). That seems to be mixing the apples of invasion-takings with the oranges of regulatory takings. The nursery isn't only claiming that the impact of California's regulations incidentally diminish the value of its property, but the main concern asserted is an interference with an essential attribute of property.

Who Keeps The Gates?

And here is where we get to the essence of the disagreement between the majority and the dissent (hint: it's not about the metaphysical distinction between permanent or temporary). Their fundamentally different world views of what it means to possess private property. As we noted here, the majority opinion is based on a view of property that maybe comes more from the heart, than from the head. Private property means "keep out." Or maybe "if you can't say 'keep out,' you really don't own 'private' property." More Locke (or Grotius), less Hobbes.

The dissent didn't see it that way, at least as we read between the lines. Your right to say "keep out" only applies to keeping everyone out, always. And we don't live in a world where you can do that. After all, "[w]e live together in communities." Dissent at 12. Rather, we live in a world where Leviathan, not private owners, determines who can come and go. All in the name of the public good, naturally. See, e.g., Dissent at 12-13 (listing regulations that require access to private property for food safety inspections, mobilehome construction inspections, coastal wetland inspections, family care inspections, school inspections, elderly care facility inspections, waste management facility inspections, and "owl surveys"). All of this based on the "regulatory" hook we mentioned earlier, without which none of this would be okay. After all, if government officials simply barged in someone's property without regulatory authorization, unannounced at 5:00 a.m. and stayed for 3 hours, 120 days per year, we'd hope dissenters would agree that this would be categorically contrary to the notion of private property.

The dissent wrapped up with a final complaint, based in procedure. In its complaint, the nursery sought only declaratory and injunctive relief, not just compensation. Dissent at 16. But as we've long suggested, even though compensation is the usual remedy in "takings" cases, it is not the exclusive remedy.

Next up: Part V, where we'll try to read between the lines of the majority opinion and have some thoughts on what this all might mean for future cases.

Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)

Links From Today's ABA RPTE Session

Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section's Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court's decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

• Land use and short-term rentals: Euclid Lives! Mass SJC: "Short-Term" Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of "Residential Character"
• Environmental standing: Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers
• Environmental standing, part 2: Hawaii Supreme Court: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
• Exactions (sorry we didn't get to this one in the session, but here it is anyway because it is a good case to review): Ordinance Requiring Developer Pay For "All Necessary Road Capacity Improvements" Violates Nollan/Dolan
• Public use in eminent domain: So Close: SCOTUS Declines To Revisit Kelo (For Now) (a taking to remedy potential future blight is a "public use")
• Public use in eminent domain, part 2: Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• Just compensation in eminent domain: Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)
• Regulatory takings, emergencies, and necessity: Fourth Circuit: No Taking When Aerial Pesticide Spray Killed Bees ... But Not Why You Think

Thanks again, colleagues.

Cedar Point Part III: No, Chicken Little, The Sky Isn't Falling

In this post -- the third in a series of deeper dives that we'll be posting about last week's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be discussing whether the "right to exclude" is absolute, what exceptions the Court laid out, and how it responded to the arguments that the ruling will bring the system crashing down.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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Last we left it, we had finished up reviewing the majority opinion's emphasis on the fundamental-ness of the right to exclude, a revisit (finally!) to the Pruneyard case, and figured out what factors are not going to get the Court to apply Penn Central to a physical invasion (it's not permanence of the invasion or occupation, or the number or classification of people or things doing the invading, or whether the regulation or state law describes the required access as an "easement").

So does that mean the dissenters and commentators have a point when they claimed that the Court's ruling that all physical invasions are presumed to be categorical takings is going to result in dogs and cats living together ... mass hysteria and everyday things like your postal carrier dropping off mail at your house being deemed a taking?

Well no, and the majority addressed those concerns -- often raised in opposition to takings claims, see, e.g., Justice Brennan, dissenting in San Diego Gas & Elec., where he noted, "After all, a policeman must know the Constitution, then why not a planner? In any event, one may wonder as an empirical matter whether the threat of just compensation will greatly impede the efforts of planners." -- and laid out three general exceptions to the categorical presumption:

• some entries are takings, others are torts (slip op. at 17-18)
• some entries are not takings, as long as they are "consistent with longstanding background restrictions on property rights (Lucas) (slip op. at 18-19)
• some entries may be exacted by the government as a condition of government benefits (slip op. at 19-20)

Let's take a look at each of these in turn.

Takings vs. Torts

The majority dismissed minor intrusions, concluding that things like "[i]solated physical invasions, not undertaken pursuant to a granted right of access" should be analyzed under tort law, not as takings. One-time, casual, unofficial intrusions are not going to get you to the promised land of takings. The city's Public Works truck parking on your lawn one time isn't going to require just compensation. Okay, those kind of things are the easy cases when viewed as single events. But the more they occur, and the more severe the intrusion, you depart torty territory and head for takingsville. Slip op. at 17-18 (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [the intent to take property]. Every successive trespass adds to the force of the evidence.”).

Thus, even though the Court did not apply a categorical takings approach to temporary government-caused flooding in Arkansas Game, the Court still approached it as a taking, not a tort, and that distinction was the only question the Court addressed in that case. Cedar Point clarified that Arkansas Game's strict holding that "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection" simply confirmed that "temporary" isn't an automatic get-out-of-jail-free card for a physical invasion, and expressly did not address the question whether temporary invasion takings are subject to categorical treatment.

In his fantastic law review article analyzing Arkansas Game, our colleague Brian Hodges presaged the analysis in Cedar Point, when he wrote that "[t]here is real danger that the Supreme Court’s overview in Arkansas Game & Fish Commission v. United States of various takings tests in which questions of duration may be relevant will be read as establishing a new, multi-factor test applicable to temporary physical takings." See Hodges, Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings?, 41 B.C. Envtl. Aff. L. Rev. 365, 385 (2014). As Cedar Point now tells us, no Penn Central style approach.

One caution: the tort/takings distinction isn't as clear cut as the Cedar Point opinion makes out. For example, what about stuff like flooding where government action or inaction is the cause of all or part of the invasion? Should these cases be examined under a tort or takings lens? The lower courts are not settled on this issue, with some, like the Federal Circuit, the Fourth Circuit, and the Montana Supreme Court thinking these are just torts, where the issue is whether the damage to property was foreseeable and whether the sovereign has waived immunity, while others are not so limited in their approach and look at it as a self-executing claim for just compensation. But, the Cedar Point majority cautioned, you should instead look at causation, not foreseeability (an approach consistent with the takings lens some lower courts look at these situations through).

Prediction: the tort vs. taking sparring match is not yet over.

Background Principles

Next the Court noted that if an invasion of property is part and parcel of "longstanding background restrictions on property rights," there's no categorical taking. Slip op. at 18. What can we say about the Lucas exception, except that we think it is one of the most overbroad-as-applied concepts, and gets stretched way beyond the bounds intended by the Lucas case itself.

First, think nuisance prevention. Now that's a background principle of property law that the Court can wrap its head around. You can't make a noxious use of your property so there's no taking when a regulation merely codifies nuisance-prevention. Slip op. at 18. Second, think what the majority calls "privileges to access private property." Slip op. at 19. Things that fall under the umbrella of necessity (as lawprof Shelley Saxer recently wrote about). Think your letter carrier and constable, for example (unless they are blowing up your house, that is; in that case no problem at least to the Tenth Circuit).  

The Cedar Point opinion's reference to background principles as a limitation on categorical takings must be read in light of the opinion's earlier references to the right to exclude as one of those "fundamental" rights that cannot be casually or easily tweaked by state legislatures and courts to shape state property law to avoid the Fifth and Fourteenth Amendment's compensation requirements. Cedar Point does suggest that a state's ability to redefine background principles to avoid takings has its limits on those sticks the court deems fundamental.

By "fundamental" (also referred to as "core") property rights, we're talking about aspects of property such as interest following principal, obtaining ownership of accretion, the ability to transfer property, and making reasonable use and development of land. And, of course, the right to exclude others. When these core rights are threatened, the Court has had little difficulty finding them to be fundamental property rights that transcend a state’s ability to redefine them by regulating them out of existence without just compensation.

Does Cedar Point's reemphasis of “background principles” continue to insulate state legislatures and courts from federal takings jeopardy when they try and bake in a background principle into a change in property law? We don't think so because Cedar Point rejected the argument that state law alone defines “property,” and with the stroke of a pen—whether by amending a state's positive law, or by changing a state's common law—can “manipulate” certain concepts inherent in the notion of the Court’s conception of what it means to own property. As we noted earlier, the Court noted that this conclusion is an “intuitive” one, the product of “common sense” as much as Blackstone. This reemphasized Justice Marshall’s concurring opinion in Pruneyard, which asserted that “serious constitutional questions” would result if the “legislature attempted to abolish certain categories of common-law rights in some general way,” and that “’core’ common-law rights, including rights against trespass,” cannot simply be abandoned.

Prediction: if that right/stick you claim was taken is one that looks like what the common folks think of when they think "property," you're going to do a lot better on the takings front.

Exacted Access

Finally, the Cedar Point opinion ventured into exactions territory:

Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.

Slip op. at 19. This covers things like "health and safety inspection regimes." Id. So what you are saying, Court, is that even though the government can't straight-up require access to property without running afoul of the Takings Clause, it can adopt regimes where, in return for a permit, the government can ask the property owner to surrender the absolute right to exclude? Kind of. Like the background principles exception, we caution against reading this one too broadly.

First, the Court noted that this was for government "benefits." Exercising your fundamental or core property rights are not government "benefits," and thus the Nollan/Dolan/Koontz (your money or your life) unconstitutional conditions doctrines are a formidable bulwark against overactive leveraging of regulatory authority in those situations.

Take, for example, Kaiser Aetna, in which the Court rejected the government's argument that by breaking through the "existing barrier beach" and connecting the dredged Marina to the Pacific Ocean, the owner had thrown open the doors to the waterway and abandoned its right to exclude, much as the shopping center owner in Pruneyard had. As the Court put it:

The Government contends that as a result of one of these improvements, the pond’s connection to the navigable water in a manner approved by the Corps of Engineers, the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others.

In follow-on dicta, the Court foreshadowed Nollan, when it noted that "[w]e have not the slightest doubt that the Government could have refused to allow such dredging on the ground that it would have impaired navigation in the bay, or could have conditioned its approval of the dredging on petitioners’ agreement to comply with various measures that it deemed appropriate for the promotion of navigation." But critically, the Court also noted that the right to exclude was not one of those things that an owner can be asked to surrender, at least without compensation:

[W]what petitioners now have is a body of water that was private property under Hawaiian law, linked to navigable water by a channel dredged by them with the consent of the Government. While the consent of individual officials representing the United States cannot “estop” the United States, it can lead to the fruition of a number of expectancies embodied in the concept of “property”—expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property. In this case, we hold that the “right to exclude,” so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.

Prediction: in spite of the Court saying in essence, "don't get too carried away with this exaction stuff, governments," we'll probably see a lot of lower court developments in this area.

Wrapping Up

So what to make of these "exceptions." Unlike some others, they don't seem to us to be ones where they will swallow up the main rule. The majority opinion ended by pooh-poohing the dissent's view of sky now set to fall:

None of these considerations undermine our determination that the access regulation here gives rise to a per se physical taking. Unlike a mere trespass, the regulation grants a formal entitlement to physically invade the growers’ land. Unlike a law enforcement search, no traditional background principle of property law requires the growers to admit union organizers onto their premises. And unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public. See Horne, 576 U. S., at 366 (“basic and familiar uses of property” are not a special benefit that “the Government may hold hostage, to be ransomed by the waiver of constitutional protection”). The access regulation amounts to simple appropriation of private property.

Slip op. at 20.

So, fellow dirt lawyers, put on your intuitive, common sense hats and strap in: get ready to try and figure out the nature of fundamental, core property rights. What it means to "own" something. That, in our view, is where the action is going to be.

Stay tuned for Part IV, where we'll examine the concurring opinion of Justice Kavanaugh, and the dissent authored by Justice Breyer.

Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)

Cedar Point Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)

In this post -- the second in a series of deeper dives that we're posting about last week's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be covering more on the "right to exclude," how the Court treated our old frenemy Pruneyard, and how the majority dealt with that case's holding that the California Supreme Court's rule that shopping center owners must allow use of their properties as forums for public speech was not a judicial taking.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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Last we left it, the Cedar Point majority (Roberts, CJ, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) had distinguished regulations that require or result in physical invasions of private property from regulations that otherwise "restrict an owner's ability to use his own property." Slip op. at 6. A majority of the latter cases are analyzed under Penn Central (or, in cases where the regulation results in a significant diminution of beneficial use or value, under Lucas), while the former, the majority concluded, result in a categorical obligation to compensate without balancing the Penn Central factors:

The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.

Slip op. at 7.

In the core of the opinion, the Court rejected the argument (based on language in Loretto) that categorical treatment is only appropriate for "permanent" invasions, and anything less than a 24/7/365 intrusion is simply a regulation on use, meaning the invasion is merely one of the Penn Central factors to consider. Not so, held the Court, infringing on the right to exclude inflicts a special form of constitutional wrong, and a “different standard applies” to analysis of any regulation that allows a physical invasion, than to other regulations that merely regulate use.

Leaning heavily on Kaiser Aetna's view of the right to exclude as the stick in the property rights bundle "universally held the be a fundamental element of the property right" and "one of the most essential sticks,” the Court held that physical invasions at the invitation of the government undermine the "central importance” of property's exclusive use. See slip op. at 7-8 (citing Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998) (noting the right to exclude is the “sine qua non” of property)). [Barista's note: although not cited in the opinion, you may also want to read Professor Merrill's follow up, "Property and the Right to Exclude II."] The Court called this an "intuitive approach" based as much on "common sense" as precedent. Slip op. at 10. In short, if you don't have the ability to control who can come on your property -- and the law backing you up -- you don't really possess what most folks would think is "property," do you?

The Court addressed the "permanent" language in Loretto and clarified that when it used the phrase there, it was being more descriptive than normative, because the occupation by the cable TV box in that case was indeed "permanent" (even though in reality, very little is really permanent, as our cert stage amicus brief points out). But permanent occupations didn't close out the field of per se takings, the Cedar Point majority clarified, it merely set the ceiling. Intrusions of a lesser duration are also categorical takings. If you took us at our word in Loretto that "permanent" was a hard-and-fast requirement for categorical treatment, you apparently missed Nollan where were told you that wasn't really the rule:

To be sure, Loretto emphasized the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in contrast to “temporary limitations on the right to exclude,” and stated that “[n]ot every physical invasion is a taking.” 458 U. S., at 435, n. 12; see also id., at 432–435. The latter point is well taken, as we will explain. But Nollan clarified that appropriation of a right to physically invade property may constitute a taking “even though no particular individual is permitted to station himself permanently upon the premises.” 483 U. S., at 832.

Slip op. at 11.

Did anyone accurately predict that the Court would have
to burn the Loretto opinion in order to save the Loretto rule?

So "permanence," vel non, is not where the line is. Nor are the purpose or scope of the the access regulation particularly relevant. See slip op. at 12 (rejecting the Board's argument that California's regulations are more limited than the easement in Nollan because they are designed only to allow a limited class of union organizers and not the general public to access property). That does not change the essential character of the regulation from one requiring access to one regulating use. The Cedar Point opinion reemphasized the nature of the imposition: 3 hours per day, up to 120 days per year, with the union organizers in the event that triggered the lawsuit showing up unannounced at 5am.

Nor is the label put on the access terribly important. The Court rejected the argument that California's regulation does not impose an actual easement because it is neither labeled an easement nor has all of the usual attributes of an easement (a burden on a specific parcel, is not recordable, for example). Slip op. at 12-13. Yes, state law is the source of most of the sticks in property, but (a) California law otherwise would recognize Cedar Point's right to control who comes onto its property, and (2) most importantly, state law has never been the be-all-end-all of what counts as "property" under the U.S. Constitution.

In that regard, the Court has traditionally been most protective of the right to exclude (and a few other sticks), and it is one of the areas in which the Court has exhibited some “anti-federalism” leanings—by concluding that there are certain "fundamental" or "core" notions of private property in which state law may not intrude, even if state law for the most part defines and shapes property law.

Justice Thurgood Marshall said it best in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). where the Court considered whether a shopping center open to the public was a forum for public speech. The California Supreme Court had expressly changed its prior view of the California Constitution’s free speech provision, overruled an earlier decision holding that it did not protect speech on shopping center property, and held that shopping centers therefore were fora for public speech. The shopping center owner appealed (yes, appealed) to the U.S. Supreme Court, asserting what later became known as a judicial taking: the owner argued that when the California Supreme Court changed its speech jurisprudence to allow a physical invasion of its property by handbillers the owner wished to exclude, a taking resulted.

The U.S. Supreme Court held that the California Supreme Court’s decision was not a taking, even though the California court acknowledged it had changed California law. The change in law did not interfere with the shopping center owner’s right to exclude because it had voluntarily opened its property to the public for shopping for the owner’s commercial gain, it thus possessed only a limited right to exclude; the shopping center failed to demonstrate that allowing both handbillers and shoppers would interfere with whatever right to exclude remained. Having invited the public in to shop, the owner could not be heard to complain that others entered as well. In short, the shopping center owner “failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking.’” Pruneyard, 447 U.S. at 84. Despite that holding, however, the Justices did not seem at all bothered by the notion that the takings doctrine might require them to make qualitative judgments about state property law.

Justice Marshall concurred in a separate opinion setting forth his view that property has a “normative dimension” which the U.S. Constitution protects from state court redefinition:

I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.

Id. at 93 (Marshall, J., concurring). Justice Marshall continued:

Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.

Id. at 93–94 (Marshall, J., concurring). Justice Marshall noted that in Ingraham v. Wright, 430 U.S. 651 (1977), the Court determined the Due Process Clause prohibits abolishment of “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Id. at 94 n.3 (Marshall J., concurring) (quoting Ingraham, 430 U.S. at 672–73).

In Stop the Beach Renourishment, for example, six Justices agreed that “private property” is not a completely malleable concept that may be redefined at will by state courts. The plurality noted that in Lucas, the Court had reserved for itself the determination whether the restriction in the regulation that was claimed to work a taking was inherent in title and a preexisting limitation on land ownership.

The “core” common law property rights referenced by Justice Marshall include aspects of property such as interest following principal. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162 (1980) (legislature may not simply declare that interest on principal is state-owned property); Phillips v. Wash. Legal Found., 524 U.S. 156, 172 (1998) (interest on lawyers’ trust accounts is “property”). Obtaining ownership of accretion. Cnty. of St. Clair v. Lovingston, 90 U.S. 46, 68–69 (1874) (right to future accretions is a vested right and “rests in the law of nature”). The  the ability to transfer property. Hodel v. Irving, 481 U.S. 704, 716 (1987) (passing property by inheritance is a fundamental attribute of property). Importantly, making reasonable use and development of land. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992). And, of course, the right to exclude others.

When these core rights are threatened, the Justices now in the majority have had little difficulty finding them to be fundamental property rights that transcend a state’s ability to redefine them by regulating them out of existence without just compensation, and without detailed reliance on state law. See Lucas, 505 U.S. at 1014 (“[T]he government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits.”) (citation omitted).

But what about Murr, you ask? In that case the tables were turned, with the Chief Justice dissent arguing that Wisconsin law should define (or at least be the presumptive controlling law) for the "larger parcel" issue. There's no direct mention of Murr in the Cedar Point majority opinion, but we're guessing that the Chief reconciled what might be viewed as his contrary dissent that state law should define the parcel, but not the property right

I think the answer is far more straightforward: State laws define the boundaries of distinct units of land, and those boundaries should, in all but the most exceptional circumstances, determine the parcel at issue.

Murr v. Wisconsin, 137 S. Ct. 1933, 1953 (2017) (Roberts, CJ, dissenting) (emphasis added). We'll see if that distinction is challenged.

In what's been a long time coming (in our opinion), the Court definitively clarified Pruneyard. That case merely stands for the proposition that by opening its property to the public for some purpose, the owner can't really say it has some absolute right to keep the public out:

Limitations on how a business is generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.

Slip op. at 14-15. There's some nuance in Pruneyard, naturally. Opening up your property to A, doesn't necessarily mean you think its okay for B to come on and shout political slogans at you, A, and others who might just want to shop or work in peace, and there may be limitations on how deeply the government may dictate what members of the public do once they are on the property. But that doesn't really seem like a categorical takings problem.

In sum, the Cedar Point majority accepted the notion that by inviting the agricultural workers on its property, the property owners did not also open up the property to others who might be, let's say, "appurtenant" to those workers. Absent some Pruneyard-like facts, the choice remains with the property owner.

To wrap up this post, here's the short story about what will not automatically get a regulation requiring access to property off the takings hook after Cedar Point:

• permanence
• the number or classification of people or things doing the invading
• whether the regulation or state law describes the access as an "easement"

That, as we concluded in our first post is a strong affirmation of property rights generally, and for common understandings of what it means to own something more specifically.

What does this portend for regulations that impose a "lesser" level of invasion? And are there exceptions to the general rule that all invasions -- whether straight-up government incursions, or regulations that throw open otherwise closed doors to third parties -- are presumed to be takings?

Stay tuned for Part III, where we'll take a look at that.

Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)

Cedar Point Part I: SCOTUS's Strawberry Letter 23 To Property Rights

In this post -- the first in a series of deeper dives that we'll be posting about over the next few days about yesterday's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be covering the background of the case, and the heart of the majority opinion.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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Take off your lawyer hat for a minute and hark back to your days before law school. You remember, don't you? (Do you?) If you could go back in time and ask your younger self what it means to own property, what might you have responded?

We're guessing that like most regular people, your younger self would have replied that it meant, at heart, the owner could say "keep out," or "this is mine" (which is another way, we think, of saying keep out). (If that isn't what you think you would have responded, we're curious what first came to mind. If that's you, please let us know what your lay self would have answered.)

Our sense after reading (and re-reading) the 6-3 majority opinion authored by Chief Justice Roberts in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) is that the Court was fueled by the same vibe, even though it never expressly said so. Yes, there was a lot of great technical, lawyerish stuff in the opinion about the "right to exclude," Blackstone, Loretto, Kaiser Aetna, and all that, but now that we've digested the opinions (majority, concurrence (Kavanaugh), and dissent (Breyer, Sotomayor, and Kagan)), we've come to the conclusion that the Court was undertaking what it called an "intuitive approach" (slip op. at 18) to defining the critical term in the case, the meaning of "private property" in the Fifth Amendment. Granted, the Court never says that's what it is doing, but read along and we think you will agree with our read of it.

Before we go further, a necessary disclosure: our law firm, Pacific Legal Foundation, represents the successful petitioners/property owners. I had little to do with the case since I only joined PLF a few months ago (although I did author an amicus brief at the cert stage prior to joining the firm). Now back to your regular programming.

Because we've been following the case for a long time and predicted that this one would end up at the Court, we're not going to go into great detail about the facts, and it might be simpler just to read one of our earlier posts. But here's the short story.

For a long time -- indeed decades -- California's Agricultural Labor Relations Board has had a regulation that requires agricultural employers to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support." The time, place, and manner of the union entries are not unlimited but are nonetheless pretty severe, giving the union to, in the words of the regulation a "right to take access" to an employer's property for up to 3 hours per day, 120 days per year. Remember the phrase "right to take access" because it's going to come back and haunt the Board once the case gets to the Supreme Court.

Two separate agricultural employers (one a strawberry farm, the other a grower of grapes and citrus) filed a § 1983 complaint against the Board in federal court for declaratory and injunctive relief, alleging the regulation was a taking under the Fifth Amendment, and an unlawful seizure under the Fourth Amendment. The district court granted the Board's motion to dismiss for failure to state a claim (12(b)(6)).

The Ninth Circuit affirmed (2-1), and over a strong dissental, denied en banc review, concluding that the allegations of the complaint did not state a plausible Loretto physical invasion takings claim under Twombly/Iqbal. The complaint pointedly did not raise a Penn Central ad hoc taking. The Ninth Circuit rejected the claim because the invasions were not permanent.

The Supreme Court agreed to review this question presented:

California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow “24 hours a day, 365 days a year” occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel “decision not only contradicts Supreme Court precedent but also causes a conflict split.”

The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.

Chief Justice Roberts authored the majority opinion, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. Right off the bat, you knew where this one was going when the opinion began with "[a] California regulation grants labor organizations a 'right to take access' to an agricultural employer's property in order to solicit support for unionization." Slip op. at 1. (If you're the government and the question is whether there's been a taking, and your regulation is phrased in terms of "taking," it's not likely going to be a good day.)

And it wasn't, at least from the government side of things. The Court concluded that "[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation." Slip op. at 5 (citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002)).

The majority noted three situations in which fall within the "physical taking" category:

• affirmative ("formal") exercises of eminent domain
• when government takes physical possession of property without obtaining title
• when government action results ("effects") an occupation of property

When any of these occur, that results in a categorical obligation to compensate.

The Court contrasted what it called "restrict[ions on] an owner's ability to use his own property," noting that "a different standard applies." Slip op. at 6. These are what are commonly known as "regulatory takings," but the Court cautioned that the "label can mislead." Id.

What we think the Court is getting at here is an essential point (and a preemptive rebuff of Justice Breyer's dissent): what we know as "physical takings" cases such as Loretto and Kaiser Aetna and Nollan do indeed fall under the general umbrella of "regulatory" takings because in those cases, the physical invasions were required by the government's exercise of its regulatory power (in Loretto and Nollan, the police power), and in Kaiser Aetna, the federal government's commerce power). That may be so, the Cedar Point opinion reminds, but the "regulatory" aspect of it should not distract us from the essential point: what matters is "whether the government has physically taken property for itself or someone else." Slip op. at 7. The means isn't as important as the result. A physical invasion is a physical invasion, "by whatever means." Id.

Having taken the steam out of the dissent's main argument, the majority then explained why California's regulation qualified as a physical invasion. That might seem obvious. Union organizers, under the regulation have the ability to enter Cedar Point's property 120 days per year for up to 3 hours per entry, and had exercised that right as the Court described in the opinion. See slip op. at 2 (noting the complaint alleged an unannounced 0500 hrs entry, with blaring bullhorns). But the Ninth Circuit's main sticking point -- that the entries the regulations require are not "permanent" ("24/7" as the Ninth Circuit put it) -- seemed to be supported by the language of Loretto, which spoke of permanent physical invasions being categorical takings. The question after Loretto was whether non-permanent invasions were also categorical takings, or should be subject to the Penn Central ad hoc takings test in which the nature of the government action as either requiring a physical invasion or simply adjusting the benefits and burdens of society was just one of the things a court would look at, as opposed to the only factor to consider.

The Court came down squarely on the side of nonpermanent invasions as being categorical takings. The reason why is the sanctity of the right to exclude. In other words, "keep out." Relying on the classic canon of physical invasion cases -- Causby (B-25's), Portsmouth (cannon fire), our old friend KaiserAetna (uninvited boaters), Loretto (that cable TV box), Nollan (beachcombers) and Horne (segregating raisins) -- the Court emphasized the "fundamental" nature of the right to exclude. Limiting that right really deprives the word "property" of its essential meaning:

The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat,cable, or beachcomber—are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year. The regulation appropriates a right to physically invade the growers’ property—to literally “take access,” as the regulation provides. Cal. Code Regs., tit. 8, §20900(e)(1)(C). It is therefore a per se physical taking under our precedents. Accordingly, the growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments.

Slip op. at 10.

The Court next took down the Ninth Circuit's reasoning on that only "24/7" occupations are categorical takings. Permanent or temporary, what matters from a "common sense" point of view (see slip op. at 10) is that there's been an invasion, not its duration. The question of the duration of the invasion "bears only on the amount of compensation." Slip op. at 12. The Court clarified that (in)famous footnote in Loretto on which the Ninth Circuit relied, reemphasizing that the focus is on the invasion, not the duration or the size. Id.

Although the Court called this an "intuitive approach" (id. at 13), we suggest you read this part of the opinion in detail. There's a lot there, especially for property advocates. It's an ode -- or maybe even a love letter (hence the title, and the video above) -- to the right to exclude, and its role as a (maybe the?) central stick in the bundle of sticks.

"Keep out" indeed!

Next, in Part II, we'll take a look at how the Court treated our old friend, the Pruneyard case, and how the majority dealt with that case's holding that the California Supreme Court's rule that shopping center owners must allow use of their properties as forums for public speech was not a judicial taking.

Stay tuned.

Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)

Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers

When the relief sought in a lawsuit is to compel the State to enact legislation a particular way, you have to know that in most courts that dog won't hunt. Separation of powers, political question, et cetera, et cetera. 

So even though it isn't about takings or compensation, you should check out the Iowa Supreme Court's opinion in Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (June 18, 2021), because in that case, the court rejected the claims of "[t]wo social justice organizations" in a lawsuit that asked the court to order the legislature "to enact legislation that will compel Iowa farmers to take steps that will have the effect of significantly reducing levels of nitrogen and phosphorus in the Raccoon River." Slip op. at 4.

Hold on, you say, on what basis might a court order another co-equal branch to do something like this? And there's the interesting part of the decision - the plaintiffs argued the public trust doctrine:

The plaintiffs’ claims are all based on the public trust doctrine. The plaintiffs allege that their members are beneficiaries under the public trust doctrine and that the State has a duty to protect the public use of navigable waters and to prevent substantial impairment of navigable waters. They allege that the State has abdicated control of the meandered section of the Raccoon River to private parties by pursuing a “voluntary” nitrogen and phosphorus control strategy for agricultural nonpoint sources.

...

The plaintiffs seek both declaratory and injunctive relief, at a high level of generality. In brief, they seek a declaration that the State violated the public trust doctrine by not protecting the public’s recreational and drinking water use of navigable waters.

Slip op. at 7, 8.  

Perhaps not surprisingly, the trial court balked. It dismissed for lack of standing, nonjusticiability, and failure to exhaust administrative remedies.

The Supreme Court affirmed, but only on the first two grounds (standing and political question). To do so, the opinion detailed the public trust, and in contrast to the way some other courts leverage the doctrine expansively, held that it was a limited doctrine, to preserve public use of state waterways, and to prevent alienation of that property. But ultimately, the court "assume[d] for present purposes that the public trust doctrine could be expanded to serve the plaintiffs' regulatory ends." Slip op. at 13.

The court could avoid the question (or, more precisely, saved it for a later day since we doubt this case is the end of the plaintiffs' efforts) because it concluded that the plaintiffs did not have a problem the court could fix. See slip op. at 15 ("Think about it this way: If the court can’t fix your problem, if the judicial action you seek won’t redress it, then you are only asking for an advisory opinion."). There's no causal connection here because the "asserted injury arises from the government's allegedly unlawful failure to regulate someone else[,]" and it is simply speculation that "a favorable court decision in this litigation would lead to a more aesthetically pleasing Raccoon River, better swimming and kayaking on the river, and lower water rates in the Des Moines metropolitan area." Slip op. at 16.

Contrast this approach with the Hawaii Supreme Court's analysis in this recent case which held that anyone with environmental concerns has standing to participate in administrative proceedings that conceivably could affect those interests (although there, the court was dealing with an express provision in the state constitution).

Finally, the court deemed the issues presented political questions:

As we have noted, the plaintiffs here seek to expand the traditional Iowa public trust doctrine. Historically, this doctrine has been applied by our courts in cases seeking to remove private obstructions or interferences. These types of disputes are susceptible to judicial resolution using principles of property law. The plaintiffs allege, however, that the public trust doctrine “broadly protects the public’s use of navigable waters.” In other words, the plaintiffs argue that the doctrine imposes a duty on the State to pass laws that regulate those waters in the best interests of the public.

Under those circumstances, we perceive “a lack of judicially discoverable and manageable standards.” In our view, stating that the legislature must “broadly protect[] the public’s use of navigable waters” provides no meaningful standard at all. Different uses matter in different degrees to different people. How does one balance farming against swimming and kayaking? How should additional costs for farming be weighed against additional costs for drinking water? Even if courts were capable of deciding the correct outcomes, they would then have to decide the best ways to get there. Should incentives be used? What about taxes? Command-and-control policies? In sum, these matters are not “claims of legal right, resolvable according to legal principles, [but] political questions that must find their resolution elsewhere.”

Slip op. at 24-25 (citations omitted).

Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (Iowa June 18, 2021)

Fed Cir (unpub.): Feds Not Liable For Taking When Wyld Stallyns Drink Your Milkshake

OK, we get that law is a serious business and that one should never make light of others' situations. Each person's claim is important to them, at the very least.

But after reading today's Federal Circuit opinion (unpublished, nonprecedential) in Bench Creek Ranch, LLC v. United States, No. 20-2151 (May 7, 2021), we couldn't help but make a couple of lighthearted movie references.

First, the above clip from one of the "Bill and Ted" movies is there because the Bench Creek case alleged that the feds are liable for a taking due to its failure to prevent wild horses from invading their land where they drank Bench Creek's water.

Bench Creek alleged in its complaint that, after a wildfire in July 2017, hundreds of wild horses on federal lands—owned by the United States and managed by the Bureau of Land Management—drank water that belonged to Bench Creek under a permit the Bureau issued to Bench Creek for grazing livestock on the lands at issue. Bench Creek alleged that the Bureau’s failure to manage the wild horses resulted in a taking of its property without just compensation, in violation of the Takings Clause of the Fifth Amendment to the United States Constitution.

Slip op. at 1. In case you aren't a fan of the Bill and Ted trilogy, their band is "Wyld Stallyns." That's it.

Second, the horses were drinking plaintiff's water, which triggered in us the other reference in this post's title, Daniel Day-Lewis's over the top "I drink your milkshake" scene in "Let There Be Blood." We've always viewed that scene through the lens of eminent domain (naturally).

Back to the opinion. It actually addresses an issue that is worthy of attention. Might the government be liable for a taking if instead of affirmative action it has failed to do something? Some courts say yes (sometimes), other courts, like the Federal Circuit, say categorically no.

Here, the answer is no (same as it ever was), the feds are not liable for wild horses drinking plaintiff's milkshake water. Just like feral cats, we suppose.

On that note, enjoy the weekend and be excellent to each other!

Bench Creek Ranch, LLC v. United States, No. 20-2151 (Fed. Cir. May 7, 2021) (unpub.)

Read And Listen To The Oral Arguments In SCOTUS' Latest Takings Case

You listened live. Or you missed that, and listened to the recording. Or, you preferred to review what others thought of the arguments. Now you can read it yourself.

Here's the transcript of Monday's oral arguments in Cedar Point Nursery v. Hassid, No. 20-107, the case in which the Supreme Court is considering whether California's forbidding of agricultural property owners from keeping union organizers off their land is a taking.

Some highlights, in our opinion:

• Several of the Justices wanted to know whether it was important that the property owners called the access required by the regulation an "easement," even though it is not formally an easement (you know, the thing where the dominant and servient estate owners agree that one can use the land of another, that is recorded, that runs with the land, and the like. Lawprof Josh Blackman writes about that here ("Actual Property Law in Cedar Point Nursery v. Hassid").
  
• Many of the question seemed designed to try and find the line, if any, between a compensable taking, and a government-authorized entry for some public purpose, such as a safety inspection.And the duration and extent of the invasion.
  
• Justice Breyer: what about spaceships? (p. 12-13).
• Justice Alito: whose law defines "property?"
• Justices Kavanaugh and Sotomayor: didn't we already resolve this question in earlier cases (one about federal labor law, the other about state-owned trees in Arkansas)?

Check it out.

You may also want to check out the Twitter thread posted by our Pacific Legal Foundation colleague Joshua Thompson (@JPTizzle), who argued the case for the property owners, with his insights on what it was like to argue (remotely), and where he thinks the case may be heading ("The commentary on the case all seems to think we are going to win. I agree. But how that looks could vary greatly. ... And of course, it's possible the Court affirms. The CA Solicitor did a great job, I just don't think his arguments make a whole lot of sense, and the Justices seemed skeptical. But they could always kick everything into Penn Central.").

Transcript, Cedar Point Nursery v. Hassid, No. 20-107 (U.S. Mar. 22, 2021)

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

New Ag Law In The Field Podcast Ep: Jim Spivey On Eminent Domain & Just Compensation

Tiffany Lashment's "Ag Law in the Field" podcast is one of those you really should follow. Every episode is worthwhile in our opinion. The latest episode is a chat with Texas property owner lawyer Jim Spivey. From the show notes:

Eminent domain is one of the most popular topics we cover. Today, we are focusing on the important issue of compensation when property is being condemned. San Antonio-based attorney, Jim Spivey, joins us to talk us through many helpful concepts related to compensation, and offers important tips to Texas landowners dealing with eminent domain.

Check it out.

Is It A Taking When Five-O Bogarts Your (Legal) Weed?

California law has decriminalized weed. Local governments, however, may regulate the use, sale, possession, and other things (like it can regulate other perfectly legal things). You know, police power kind of regulation.

Under that latter authority, the County of Santa Cruz adopted an ordinance that prohibits a medical weed facility from growing more than 99 plants. A dispensary was growing way more than 99 plants: more like 2,200 to be precise. This is Santa Cruz, man. 

Well, the Sheriff's Department didn't quite see it the same way. Under the authority of the ordinance, they seized the weed, and issued a notice of violation of the law. The dispensary sued for a taking (and other causes of action), and among the remedies sought was a return of the plants. The trial court demurred (without leave to amend, for all you California practitioners), on the basis that it isn't a taking for the government to seize illegal property, and is under no obligation to return such property. 

The court of appeal concluded that because weed has been functionally legal under state criminal law since 1996, the plants are not illegal contraband. The court concluded that the county ordinance was not really a classic police power regulation, but was more like zoning (regulating the use of land), and it could not criminalize what state law had not made criminal (even though violation of the county ordinance was a criminal offense).

Thus, the court held, the complaint validly stated a claim for return of the plants. Remember, this was up on a demurrer, which meant that the court of appeal assumed the most critical fact is true: that the plaintiff's weed plants complied with state law. Ultimately that might not be true, but for purposes of the appeal it is deemed true. "If the plaintiff was cultivating marijuana in a manner not allowed by state law, the marijuana would indeed be contraband and not subject to return." Slip op. at 8.

What about the takings claim? On that one, the court employed a different analysis that looked at the county ordinance as a criminal offense, and came to a different conclusion, one we just can't square:

An essential element of the claim is that the property was taken for public use or damaged in connection with a public work of improvement. (Ibid.) Here, the marijuana was seized in connection with enforcing the ordinance prohibiting cultivation, violation of which is a criminal offense. (See Santa Cruz County Code §§ 7.126.070 (A); 19.01.030(A).) But inverse condemnation has never been applied “to require a public entity to compensate a property owner for property damage resulting from the efforts of law enforcement officers to enforce the criminal laws.” (Customer Co. v City of Sacramento, supra, at p. 377–378.) The complaint contains no allegation indicating the marijuana was taken for public use or damaged in connection with a public work of improvement, so it does not state a cause of action for inverse condemnation.

The demurrer was properly sustained as to the causes of action seeking damages (trespass, conversion, and inverse condemnation).

Slip op. at 11.

Sorry, we don't get the distinction. If Five-O can't keep your weed, why isn't it a taking if they do?

The court seems to be applying the old "there's no taking when the government is exercising its police powers" rule, a rule we've criticized as nonsensical. And, even under the court's analysis, isn't a seizure of (allegedly) illegal property "for public use?" What are we missing here?

Granny Purps, Inc. v. County of Santa Cruz, No. H045387 (Cal. Ct. App. Aug. 5, 2020)

New Stinky Cert Petition: By Wiping Out Nuisance Claims, Right-To-Farm Act Is A Taking

Here's a cert petition that we've been waiting to drop in a case we've been following. This one asks whether a state legislature's virtual elimination of a cause of action is a taking.

The harsh reality is that farms and ranches can stink. But in Right to Farm Acts, many state legislatures, Indiana's included, have concluded that farming and ranching are so important that the consequences ("negative externalities") that naturally occur have to be accepted. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, "so long as the human race consumes pork, someone must tolerate the smell." Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). Let's call it a "stink easement."

Indiana's version stands somewhat apart from others, however. Like many other states, it bars lawsuits which assert that a long-standing agricultural operation is a nuisance, as long as the ag operation hasn't "significantly changed." Most RTF acts define "significant change" as, for example, a change in the type of operation, or a farm's operating hours. But the Indiana statute defines "significant change" in a way that excludes these type of changes, thus allowing them.

That's what happened in this case. In 2013, a property owner whose land was zoned for mixed agricultural and residental uses rezoned it to "AGI-Agriculture Intense" and opened up a CAFO (concentrated animal feeding operation). A really big hog raising operation. Two downwind owners whose lands had been in their families for generations, sued for trespass and nuisance, arguing that to bar these claims would be a taking. Trial court dismissed, and the Indiana Court of Appeals affirmed.

The court of appeals concluded this was not a physical invasion, and analyzed ita s Penn Central regulatory takings claim. Because the economic impact was severe (but not total), the plaintiffs lost. The Indiana Supreme Court denied review, leading to the cert petition.

Here's the Question Presented:

Does a state statute violate the Takings Clause of the United States Constitution when it provides complete immunity from nuisance and trespass liability for an industrial-scale hog facility newly sited next to long-standing family homes, even though the facility causes noxious waste substances to continuously invade those homes, making it impossible for the families to use and enjoy their properties where they have lived for decades?

Check it out. There's a lot of layers. Is this a physical invasion? The total wipeout of a fundamental "stick?" There's Roman law. And Blackstone, and a strong federalism thread. There's a prominent "judicial takings" vibe in this, too. But make no mistake: this one doesn't seem as much pro-property as it is anti-CAFO. With a claim that the Indiana Legislature ipse dixet-ed property and nuisance law, the petition surprisingly does not cite cases like Webb's Fabulous Pharmacy, Hughes v. Washington, Miller v. Schoene, Causby, or Hodel v. Irving).

When presented with these type of questions, the Supreme Court has tended to either avoid the issue (PruneYard, Stop the Beach), or issue narrow rulings (Hodel, Lucas, Webb's Fabulous Pharmacy, for example).

To us, the most interesting assertion in the petition is towards the end, where the petitioners make the argument that the Supremacy Clause requires some uniformity on property law: 

These divergent outcomes based on states’ unique property laws are themselves reasons for this Court to review this matter. Under the Supremacy Clause, U.S. Const. art. VI, ¶ 2, whether a government action is a takings does not depend on the peculiarities of each state’s property laws. See, e.g., Lucas, 505 U.S. at 1033 (“If the Takings Clause is to protect against temporary deprivations, as well as permanent ones, its enforcement must not be frustrated by a shifting background of state law.”) (Kennedy, J., concurring). Thus, if barring nuisance or trespass suits against a CAFO violates the Constitution in one state, then it should do so in all states. Indeed, if it were otherwise, Iowa’s state legislature could simply rewrite its state’s property laws such that the same invasion causing the same harm would no longer represent a takings. Surely such end-runs around constitutional requirements should not be countenanced.

Pet. at 35-36.

More on the petition here: "Right to farm: Indiana families ask U.S. Supreme Court to weigh in on case over factory farm."

Stay tuned, or follow along with the case on the Court's electronic docket here.

Petition for a Writ of Certiorari, Himsel v. 4/9 Livestock, LLC, No. 20-72 (July 17, 2020)

Hey All You Cool Cats And Kittens: Creating A Feral Cat Colony Next To Your Property Isn't A Taking

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) 

Your Takings Cert Petition Checklist: Ninth Circuit, En Banc Denial, Concurral, Dissental, Circuit Split, PLF

If you were thinking of teeing up a case "just so" for Supreme Court review, what does your fevered quill-pen dream checklist look like? Well, here's some of the usual things that are good indicators:

• The Ninth Circuit decided against you. That court may not truly have the distinction of being the most reversed federal circuit, but come on, if you have to lose in a federal circuit court of appeals, don't you want to lose ugly in the Ninth Circuit? 
• The panel opinion creates a circuit split.  With the court that does federal takings (the Federal Circuit).
• You try for en banc rehearing, but no deal...
• ...but, there's both a concurral...
• ...and a dissental from the denial of en banc review.
• The dissental expressly points out the circuit split, in effect saying: "oooh, looky here cert pool, a safe grant!"
• There were beaucoup amici in the court of appeals.
• The losing party is represented by lawyers who have an enviable track record of getting the Supreme Court's attention (and winning). 

You'd be happy if your case had a few of these.

But if they had each of them? That means you know what's coming next: a serious cert petition, that's what. 

Well, that's what we have in this Order, issued today in a case we've been following.

In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal.  At issue was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support."

The panel majority viewed the complaint as alleging a Loretto physical invasion taking, and held the plaintiffs did not plausibly state a claim because they could not allege the invasion was permanent. The majority instead relied on PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), in which the Supreme Court concluded that the California Supreme Court had not effected a taking when it held that the California Constitution required shopping centers to be forums for public speech.

The property owners sought en banc review, asking all of the active judges on the Ninth Circuit to take a look. No deal, review denied. But not without comments. Two judges concurred in the denial: the panel got it right. A whole lot more judges (eight, including some -- but not all -- recent appointees) dissented from the denial en banc, and pointed out "[t]his decision not only contradicts Supreme Court precedent but also causes a circuit split." Dissental at 10. (That split is with the Federal Circuit, by the way, perhaps the most important federal circuit when it comes to takings cases.)

The issue? How "permanent" does a physical invasion have to be to qualify as a Loretto taking (or, more accurately here, how well does a complaint need to plead facts to show that the invasion qualified as a Loretto taking)? The panel majority and the concurral pointed out that union organizers aren't allowed on the property all the time. The panel dissent and the dissental pointed out that it shouldn't matter that the occupation by union organizers was not literally 24/7, merely that the property right allegedly taken was, you know, taken (government takes easements all the time and pays for that privilege).

[Barista's note: the "permanent" fetish for physical occupations is way overblown, in our opinion. Wait long enough and everything is really temporary; nothing is truly permanent (hat tip John Maynard Keynes). And we thought Arkansas Game solved that particular matter. And last time we checked, surfers weren't on Nollan property day and night; when we went by Loretto building in 2017, the cables on the building wasn't the same CATV cables weren't there in 1982 (and the installer can always remove any equipment); Army Air Corps B-25's weren't stationed over farmer Causby's chickens 24/7.]  

We're not in this post going to go into detail of the two opinions. Lawprof Ilya Somin has, as usual, beat us to the punch, and we really can't much improve on what he said (see "Ninth Circuit Refuses to Reconsider Ruling that Mandating Union Organizer Access to Employer Property is not a Taking—but Eight Judges Dissent"). We suggest you read his analysis and conclusion ("The issue here comes down to whether a "permanent physical occupation" occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time.").

We might add more after a chance to read the judges' writings, but for now will leave you with Professor Somin:

A permanent right to an easement to enter or occupy an owner's land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.

It's also worth noting that this case has implications that go far beyond the union organizing context. If the Ninth Circuit majority's position prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.

Stay tuned. There's no question in our mind that a cert petition is on the way. 

Order, Cedar Point Nursery v. Shiroma, No. 16-16321 (9th Cir. Apr. 29, 2020) 

Videos: Oyster Takings On The Nansemond River

Following up on the petition, filed last Friday, asking the Virginia Supreme Court to review a trial court's demurrer which failed to recognize that the owners of a state lease to harvest oysters in the Nansemond River have a property interest . The court concluded that the city and santitation district possess a superior right to pollute the river with sewage.

The case arose when the city and sanitation district declared the oysterbeds "condemned" during certain times of the year because they put sewage into the river. They denied compensation, and the trial court held that Darling v. City of Newport News, 249 U.S. 540 (1919) subjected the lease owners to the city's superior right to pollute.

We paid a visit to the site a couple of weeks ago to see the pollution source, and how the oysters are harvested in the river. The above video is from that trip. The below is from WAVY 10's report on the case.

Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don't miss out: in recent years, we've been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we'll be discussing: 

• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
• The Missing Link in Valuing Fixtures
• When a River Runs Through it: Water Rights and Takings
• Responding to Project Changes: Valuation When Government Action is Ongoing
• Property Rights as Civil Rights: Seeking Justice Through The Fifth Amendment
• Special Benefits: The Givings Clause?
• How To Try and Settle Pipeline Cases
• And, of course Ethics. 

Many of our expert faculty are returning, but we're also featuring many new presenters who have never been on our dais before. And a mix of perspectives and backgrounds: property owners' counsel, condemning agency lawyers, public interest, judges, and legal scholars. Plus a chance to meet your colleagues from across the country. Make connections, and see old friends. 

Early bird registration underway here. See you there. 

New Land Use Law Blog To Follow: Merriam's Corner ("Life, Liberty, and the Pursuit of Land Use")

Land users and dirt lawyers know Dwight Merriam. (And if you don't, you are not really a land user, are you?)

He's won landmark cases (has even beaten Yours Truly in one of those cases way back in the day). Written tons of articles and books. Edits Rathkopf. Contributes to Nichols. Mentored multiple generations of land use lawyers (me included). All while serving his country in the U.S. Navy. 

Here's your chance to tap directly into the source. Dwight has (finally) started a blog, Merriam's Corner, about the topics we all love. 

So sign up and follow. Listen in as Dwight thinks out loud for our benefit.

Welcome to the blog world, Mr. Merriam.  

A Detour To The Vineyards Of Eminent Domaine

The title of this post isn't poetic or figurative (like the windmills of your mind), it's literal: for a field trip after the recent Oregon Eminent Domain Conference, we paid a visit to a nearby winery which -- given its name, "Eminent Domaine" -- we naturally could not resist. Besides, we already like their wines. 

The winery and estate vineyards are only a short drive from downtown Portland. Go past suburban Tigard (of Dolan v. City of Tigard infamy). Beyond the metro urban growth boundary. Avoid the guy living in an old jetliner parked in the woods.

Turn off the main road. 

After leaving the pavement, you'll end up on a gravel road which continues on just long enough for you to question whether you've perhaps strayed off the correct path. 

You haven't. You've just entered the Ribbon Ridge AVA, and in a short while will come across the entrance and its welcoming sign.

Which means you have arrived. 

Park the car and plan to stay for a while and sample some of their award-winning products.

Open Thursday through Monday (in the summertime).

You can even stay there overnight at their bed and breakfast a couple of miles away. 

Their website (www.eminentdomaine.com -- don't forget the extra "e") tells the story of how the owners took a bad -- and unfortunately too frequent -- situation (having property taken and the owner being provided less than the "full and perfect equivalent"), and found the silver lining. 

* * * *

The name, Eminent Domaine, reflects our experience with the legal term, eminent domain, our dedication to the Oregon wine industry, and our love of the wines produced in our region.

In 2002, Jeff was compelled to sell an investment property to the City of Portland/TriMet under the guise of eminent domain. Ultimately, the property was claimed with compensation much lower than market rate and was used for purposes other than the greater good, as the law requires. However, out of this unfortunate experience came a chance to pursue a new opportunity; making his own wine. Re-investing in a small piece of land in the coveted Ribbon Ridge AVA, with plans for a vineyard and more, the adventure began.

Beginning with just 150 cases of Pinot Noir in 2006, the label steadily grew, and by 2011, the first estate vintage was bottled. After opening a tasting room on the property in 2016, plans began for a winery and home next door. In 2018, Jeff, his wife Heather, their two daughters, Ava and Charley, and their dog, Benny moved to the estate.

* * * *

Their pinot, as we can personally attest, is fantastic.

Even though we're not big chardonnay fans, theirs is making us rethink that. 

And the view out the back of the tasting room isn't bad, either. 

How's the serenity?

After you've sampled their wines and put in your order, consider joining their wine club which will have several bottles shipped to you once or twice per year.  

Remember, that's eminent domaine (with an "e").

When you are ready to depart, simply retrace your steps, and shortly you will be back in Portland.

PruneYard Undone: California's Union Easement - Which Invites Labor Organizers To Enter Private Property - Isn't A Physical Taking

The title of this post may have you wondering, especially the part about how a regulation that invites others to physically enter private property, is determined by a court to not be a physical taking. (The court also hints at looking at a physical taking under Penn Central, and not by applying per se rules.) 

At issue in the Ninth Circuit's 2-1 opinion in Cedar Point Nursery v. Shiroma, No. 16-16321 (May 8, 2019) was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support."

The regulation, as the Ninth Circuit majority pointed out, "is not unlimited," and regulates the "time, place, number of organizers, purpose, and conduct" of the union organizers. Slip op. at 7-8. The union is required to submit a "notice of intent to take access" (protip: if you don't want your regulation to be challenged as a taking, maybe start by not calling the entry which the regulation requires a "take').

Two separate agricultural employers filed a § 1983 complaint against the Board in federal court for declaratory and injunctive relief, alleging the regulation was a taking under the Fifth Amendment, and an unlawful seizure under the Fourth Amendment.  The district court granted the Board's motion to dismiss for failure to state a claim (12(b)(6)). 

Two of three judges on the Ninth Circuit panel agreed, and the court affirmed, concluding the allegations of the complaint do not state a plausible takings claim under Twombly/Iqbal. The employers alleged a physical Loretto taking. Slip op. at 14-15 ("Here, the Growers alleged that the access regulation, as applied to them, effects a Fifth Amendment taking by creating an easement that allows union organizers to enter their property 'without just compensation.' The Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking").

The panel majority rejected the argument that the invasions were permanent. The owners argued they were permanent even though the union organizers cannot remain on the property permanently (obviously), but because they were open-ended, with no end date. The majority instead relied on PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), in which the Supreme Court concluded that the California Supreme Court had not effected a taking when it held that the California Constitution required shopping centers to be forums for public speech. The Ninth Circuit panel read PruneYard as rejecting the "end-date" requirement:

Thus, in PruneYard there was no “contemplated end-date” to the California Supreme Court’s decision holding that the California Constitution protects reasonably exercised speech and petitioning in privately owned shopping centers. Yet, contrary to the Growers’ argument, the Court did not conclude that the California Supreme Court’s decision resulted in a permanent physical invasion. Id. at 83–84.

Slip op. at 16. 

Wait a sec. We have always viewed the result in PruneYard as stemming not from any end-date in the entry allowance, but rather as standing for the proposition that under California property law, the owner of a shopping center than is open to the public for commercial purposes can't be closed off to others who enter for non-commercial purposes. 

The panel majority also rejected the argument that union easement in this case was like the beach access easement in Nollan. As you remember, there the Court held there was a taking. (Or, more accurately, that the California Coastal Commission could not condition the Nollans' development permit on them surrendering their right to be compensated for dedicating a public access easement.) The panel majority concluded that the Nollan easement was permanent because the public had a right to enter at any time (unlike the union easement, which can only be effected with advanced notice and at limited times):

Although the access regulation does not have a “contemplated end-date,” it does not meet Nollan’s definition of a permanent physical occupation. As structured, the regulation does not grant union organizers a “permanent and continuous right to pass to and fro” such that the Growers’ property “may continuously be traversed.” Id. at 832. The regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, it does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.

Slip op. at 17. 

Besides, the panel majority concluded, the right to exclude is only one of the sticks, not the whole shebang. See pages 17-18 of the opinion for all the sticks/bundle analogies you can handle. Again, we thought that there was something doubleplusgood about the right to exclude that made it stand apart from other sticks like the right to develop, for example. But not to the panel majority. 

Interestingly, the panel majority did not analyze the regulation under Penn Central, noting the property owners only alleged a permanent physical invasion, and not a regulatory taking. "Therefore, we take no position regarding whether the access regulation falls under the category of takings governed by the standards set forth in Penn Central." Slip op. at 20. But the majority made it pretty clear that it thought Penn Central was the right test, by asserting that both Loretto and Kaiser Aetna, were held to be takings by applying the then-recent Penn Central decision.

True enough, but that does overlook, in our opinion, the fact that the "character of the government action" as a physical invasion in the Court's mind sure did seem to overwhelm the other two Penn Central factors in importance in both Loretto and Kaiser Aetna, so much so that it has become a canard of takings law that a physical invasion is a per se taking without regard to the economic impact or an owner's expectations. Nor does it take into account that since Loretto and Kaiser Aetna, the contours of per se vs ad hoc takings has become more defined.

The majority also rejected the Fourth Amendment seizure claim, concluding that the access regulation was not a "meaningful interference" with the owners' possessory interests in their property. Read pages 22-24 of the opinion for the details.

One judge dissented, concluding that "have found no Supreme Court case holding that non-employee labor organizers may enter an employer’s nonpublic, private property for substantial periods of time, when none of the employees live on the employer’s premises." Slip op. at 25. Judge Leavy disagreed with the majority's view of PruneYard, concluding that the case was mostly about the free speech rights of the invaders, and therefore not very helpful here. 

Instead, Judge Leavy concluded that "the Access Regulation allowing ongoing access to Growers’ private properties, multiple times a day for 120 days a year (four 30-day periods per year) is a physical, not regulatory, occupation because the 'right to exclude' is 'one of the most fundamental sticks' in the bundle of property rights." Slip op.at 27. Here, the employees the unions needed to reach did not live on the employers' properties, so there were other ways to get in touch with the employees. 

So, what do you think? Might we see more on this case? 

Cedar Point Nursery v. Shiroma, No. 16-16321 (9th Cir. May 8, 2019)

The "2015 Supreme Court case that nearly leveled Fresno" - The Raisin Industry, Post-Horne

We're not quite sure what to make of this story ("The Raisin Situation") in the New York Times, about the situation in Fresno, California, after the Horne case. You remember that one, don't you? All about whether USDA's seizure of raisins in order to maintain the price was a taking. 

The piece tackles a serious subject, the dwindling raisin market and the problems that have reverberated in Fresno (the raisin capital of the world), but like many stories about the raisin industry -- Comedy Central did a report in which it described SCOTUS petitioner Marvin Horne as a "modern day Jesse James," for example -- this one is done in a tongue-in-cheek fashion (it appears in the "Style" section of the Times).

It reminds us of the 1980's satirical miniseries "Fresno," a comedic take on then then-popular nighttime soaps Dallas and Dynasty. 

But the piece is still worth reading, especially if you want to see the fallout of the Horne decision. 

Indiana's Right To Farm Act Isn't A Taking

Nothing really can be done: the harsh reality is that CAFO's (concentrated animal feeding operations) stink. But many state legislatures have concluded that farming and ranching are so important that the consequences ("externalities") that naturally occur have to be accepted.

Right to Farm Acts, Indiana's included, generally deprive neighboring property owners of their common law tort nuisance claims for the smell and noise, and other effects of having a nearby agricultural operation, often subject to certain conditions. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, "so long as the human race consumes pork, someone must tolerate the smell." Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). 

In Himsel v. Himsel, No. 18A-PL-645 (Apr. 22, 2019), that same court has now concluded that depriving neighboring landowners of their nuisance tort claims is not a taking. The opinion noted that this was a regulatory takings claim and not a physical invasion (see slip op. at 21 & n.10), and concluded that the neighbors have not been deprived of all use of their land. Yes, they have lost value, but "[t]he designated evidence reveals that the Plaintiff's properties have retained significant economic value." Slip op. at 22. 

The court also applied the other two Penn Central factors, and held:

Moreover, they continue to reside in their residences, making valuable use of their properties, and have alleged no distinct, investment-backed expectations that have been frustrated by the CAFO. Finally, with respect to the character of the governmental action, we do not agree with the Plaintiffs that the RTFA has permitted a physical invasion of their property. While their property rights are clearly affected by application of the RTFA, the Plaintiffs cannot dispute that the regulation is reasonably related to the promotion of the common good. In sum, we conclude that the odorous emissions from 4/9 Livestock’s CAFO do not effect a taking.

Slip op. at 23.  

Himsel v. Himsel, No. 18A-PL-645 (Indiana App. Apr. 22, 2019)

Takings By Government Inaction?

Check out this recent article by lawprof Timothy Mulvaney, "Non-Enforcement Takings." We're used to situations in which government regulation results in a takings claim, but Professor Mulvaney asks about cases in which the government's inaction is argued to result in a taking.

Here's the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

We've written about one of the recent cases which the article analyzes, Harris County Flood Control District v. Kerr, 499 S.W.3d 793 (Tex. 2016). In that case, property owners brought an inverse case after their land and homes were repeatedly flooded, blaming the flood control district for approving the development of the land in the first place, even though the district spent a lot of money on flood control. The property is in a flood zone, and the district didn't require the appropriate mitigation measures when it approved development.

Initially, the Texas Supreme Court sided with the owners, reversing the lower court's summary judgment in favor of the District, and sending the case back down to give the owners a chance to prove their case. But upon further review (a motion for reconsideration by the District, supported by scads of amicus briefs from local governments), the Supreme Court had a change of heart (or, more accurately, one Justice had a change of heart and a 5-4 decision in favor of the owner turned into a 5-4 decision in favor of the government). 

Professor Mulvaney's article analyzes that case, "right to farm" statutes, and one of our favorite cases, Miller v. Schoene, 276 U.S. 272 (1928) (the "cedar blight" case, where in order to save A's apple trees from the disease, Virginia chose to destroy B's cedar trees which were hosts of the disease, but not affected by it; and the Court, citing Hadacheck, held no due process violation when the state chooses who gets harmed).  

Download the article on SSRN here. 

April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

Here's the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We've plugged the program before so we won't do so again, except to say that you really should attend because (1) it's a very good program that won't take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it's one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

How Do You Exclude Someone From A Clean And Healthful Environment? Hawaii Supreme Court Rules The Public Has A Property Right In The Environment

What better way to bid farewell to 2017 than with a whopper case from the Hawaii Supreme Court? And we're not exaggerating -- this one is really big.  

Now you might think that given the amount of time this blog devotes to property interests and property rights, we'd be downright tickled when our home court -- which may not be the friendliest court in the land for property owners and property rights -- goes against expectations and actually recognizes a constitutional property right. A right that, as far as we can tell, no other court, state or federal, has ever recognized.

Despite the Hawaii Supreme Court's recognition of a property right, however, we're not at all on board, because In re Maui Electric Co., No. SCWC-15-0000640 (Dec. 14, 2017), concluded the Sierra Club possesses a constitutional property right in a "clean and healthful environment" entitling the organization to due process protections. This allowed the Club to intervene in a Public Utilities Commission petition regarding a power purchase agreement for a now-defunct electric plant on Maui.

Read that again in case it didn't quite sink in: the court recognized a property right in a clean and healthful environment.

Before we get to our thoughts about why we characterize this as a whopper conclusion, some background.

A Defunct Coal-Powered Sugar Power Plant

Maui Electric filed an application with the State PUC, seeking the Commission's approval of an agreement between the utility and Hawaiian Commercial and Sugar Company which, if approved, would allow a rate increase to account for the additional production charges associated with the Puunene Plant, a coal-powered facility on former sugar lands in central Maui which transformed bagasse, the byproduct of sugar production, into electric power. We use the past tense because by the time the Supreme Court decided the case, the plant had closed, following the recent closure of the sugar plantation. No sugar plantation, no sugar, no bagasse.

Sierra Club asked the PUC to intervene in the administrative process under the PUC's rules, asserting its own rights as well as several of its Maui members. The power plant, the petition asserted, would "impact Sierra Club's members' health, aesthetic, and recreational interests. Sierra Club also asserted its organizational interest in reducing Hawaii's dependence on imported fossil fuels and advancing a clean energy grid." Slip op. at 5.

Standing vs. Administrative Intervention

Pretty vague stuff, and more like policy questions than something best resolved by an adjudicative proceeding, but under existing judicial standing rules in similar cases in original jurisdiction actions brought in Hawaii courts, nothing too far from the norm. There's little doubt that if this were a case brought in a Hawaii trial court, that Sierra Club adequately alleged judicial standing. Anyone questioning that conclusion need only recall the Superferry case in which the Hawaii Supreme Court held that Sierra Club had standing to raise an environmental challenge to the now-defunct inter-island ferry because the ferry threatened the organization with four types of injury: (1) endangered species could be adversely impacted by a high-speed ferry; (2) the Superferry could increase the introduction of alien species; (3) surfers, divers, and canoe paddlers who use Kahului Harbor could suffer adverse impacts; and (4) the threat of increased traffic on the road next to the harbor entrance. Again, that's a pretty vague connect-the-dots logic to gain standing. But for better or worse, that's the current state of Hawaii's standing law. 

However, the Maui Electric case was not an original jurisdiction action, it was an administrative proceeding in the Commission under the PUC's admin rules, governed by a different standard, one based in the Hawaii Administrative Procedures Act. Under the APA, an outsider may intervene in a "contested case" (an quasi-judicial adjudicative administrative process) when an agency rule or a statute gives the party a seat at the table, or when intervention is required by law because the agency is adjudicating that party's rights (in this case, the law was the Hawaii Constitution's due process clause). See Kaleikini v. Thielen, 237 P.3d 1067, 1082-83 (Haw. 2010).

Here, the Sierra Club alleged both that PUC statutes and the Hawaii Constitution's procedural due process protections gave it the right to intervene in the agency proceedings:

Sierra Club argued that its members were concerned that the Puunene Plant relied too heavily on coal in order to meet its power obligations under the existing agreement and also that its members were concerned "about the public health and visibility impacts of burning coal."

Slip op. at 5.

Intervention Denied

Neither the PUC nor the court of appeals bought the Sierra Club's theory. The Commission denied intervention and decided Maui Electric's application without the Club's presence. The Club appealed to the Intermediate Court of Appeals which agreed with Maui Electric and dismissed the appeal for lack of jurisdiction. It concluded that because Sierra Club was not "aggrieved" by the decision by the PUC (because it correctly excluded the Club form the case), the appellate court did not have jurisdiction. 

At Long Last, a Vehicle for the Supreme Court

The issue had been brewing in Hawaii's agencies and lower courts for awhile, and giving the current Hawaii Supreme Court the opportunity to make this ruling had been on wish lists at least since former Governor Neil Abercrombie appointed the majority of the five Justice court back in 2014. But until now, this issue (and others with a similar approach -- recognizing certain rights in the Hawaii Constitution as property, for example) had never secured the necessary three votes.

So up to the Hawaii Supreme Court they went, on the same two theories: the Club should have been allowed to intervene, either because the PUC's governing statutes gave it the right to do so, or because due process required it because the Club's property was at stake in the PUC proceeding.

Three-Justice Majority: No Statutory Right to Intervene, But Sierra Club Owns "Property"

The Gov. Abercrombie-appointed three Justice majority, in an opinion authored by Justice Pollack, rejected two arguments which could have avoided this difficult and groundbreaking result. First, as we noted above, by the time the case reached the court, the Puunene Plant was offline, a victim of Hawaii's loss of the sugar industry. Maui Electric argued the Sierra Club's appeal was thus moot and the court should dismiss. Or, the majority might have combed through the PUC's statutes and concluded that Sierra Club possessed a statutory (and not a constitutional) right to intervene.

But the majority accepted neither argument, first concluding that the case even though moot was nonetheless crying out for resolution by the court (the so-called "public interest" exception to the usual mootness rules), and also rejecting Sierra Club's claim for a statutory right to intervene. See slip op. at 12-15 for the majority's mootness analysis, and pages 19-21 for its rejection of the statutory argument.

Having disposed of these preliminaries, the court got to the constitutional question: does the Hawaii Constitution recognize Sierra Club's environmental concerns as a property interest entitling it to procedural due process?

The majority based its conclusion on Article XI, section 9 of the Hawaii Constitution (a provision added by the 1978 constitutional convention):

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

That, the majority held, created a legitimate claim of entitlement to a clean and healthful environment, and thus it is a property right. It "is a substantive right guaranteed to each person." Slip op. at 23-24. The majority noted that the court had earlier held that Native Hawaiian rights -- a right also found in the Hawaii Constitution -- are "property" rights, and that environmental concerns are no different. Slip op. at 23 (citing In re Īao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 287 P.3d 129, 142 (Haw. 2012)). As a self-executing right, it is a legitimate entitlement.

Interestingly, the majority seemed to anticipate criticisms of this conclusion by noting that the constitutional text itself limited this property right to being exercised within the framework of existing environmental statutues, rules, and ordinances. This will, the majority reasoned, keep things in check. What made it interesting is that the opinion concluded that the very PUC statutes which it had earlier rejected as providing Sierra Club with the right to intervene, were environmental statutes that gave it a property right to intervene.

We therefore conclude that HRS Chapter 269 is a law relating to environmental quality that defines the right to a clean and healthful environment under article XI, section 9 by providing that express consideration be given to reduction of greenhouse gas emissions in the decision-making of the Commission. Accordingly, we hold that Sierra Club has established a legitimate claim of entitlement to a clean and healthful environment under article XI, section 9 and HRS Chapter 269.

Slip op. at 34-35.

After reaching the conclusion that Sierra Club owns property in a clean and healthful environment, it was all over but the shouting and the majority held that the PUC had a duty to provide a hearing before it deprived the Club of its property:

The risks of an erroneous deprivation are high in this case absent the protections provided by a contested case hearing, particularly in light of the potential long-term impact on the air quality in the area, the denial of Sierra Club’s motion for intervention or participation in the proceeding, and the absence of other proceedings in which Sierra Club could have a meaningful opportunity to be heard concerning HC&S’s performance of the Agreement.

Slip op. at 30.

Finally, in a footnote, the majority made it clear that the result is immune from future legislative tinkering. This is a ruling based on the Hawaii Constitution, and thus no mere legislature can mess with it too much. See slip op. at 43 & n.33 ("Our ultimate authority is the Constitution; and the courts, not the legislature, are the ultimate interpreters of the Constitution."). 

Two-Justice Dissent

We won't walk through the complete rationale of the two-Justice dissent, because it is a relatively short 20 pages, and it would be easier for you to read it yourself. In sum, Chief Justice Recktenwald (joined by Justice Nakayama), would have concluded that neither the PUC statutes nor Hawaii's due process clause gave Sierra Club the right to intervene in the power plant's PUC application. The dissenters warned of "unintended" consequences which will flow from this decision:

Respectfully, the Majority’s expansive interpretation of what constitutes a protected property interest in these circumstances may have unintended consequences in other contexts, such as statutes where the legislature has mandated consideration of specific factors by executive agencies when implementing a statute.

Dissent at 14.

The dissent concluded the majority's result was unnecessary, because it was more of a policy choice than a judicial decision, and ultimately, if denied administrative intervention in the PUC, Sierra Club could deploy the loose standing rules which we mentioned earlier in this post, and institute an original jurisdiction action. Dissent at 17. 

How Do You Exclude Others From a Clean and Healthful Environment?

The biggest question we have about the majority's conclusion is this: if the most fundamental aspect of owning "property" is the right to exclude others from the res, how in the world do members of the public have the right to exclude other members of the public from a clean and healthful environment?

As the U.S. Supreme Court held in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), "[w]e have repeatedly held that, as to property reserved by its owner for private use, 'the right to exclude [others is] 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'' Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)." Or maybe Stevie Wonder said it better when he sang "this is mine, you can't take it."

Either way, the ability to keep others off of what you own -- and have the law support you -- is one of the defining sticks in the bundle of rights which we call property. 

Thus, we think the court didn't grapple with the real foundational question built into the arguments -- should these types of environmental concerns even be shoehorned into the concept of "property" as that term has been used for thousands of years? Doesn't "property" as used in the Hawaii Constitution's due process clause mean private property? After all, as far as we can tell, every other time this court has dealt with property in Hawaii's due process clause, it has either expressly defined, or implicitly assumed, that the property interest at stake was private property, and not a right that looks more like something "owned" collectively by everyone. Essentially what the majority accomplished was a subtle redefinition of property from a private right to a public resource.

We understand the Hawaii Supreme Court's commitment to keeping courthouse doors open to resolve claims, especially when the claims involve the environment and those who profess to protect it. As we noted earlier, the court's standing doctrine for original jurisdiction cases sets the bar so low that it is, for all practical purposes, a mere pleading speed bump, and not a substantive check on dragging the courts into political and policy questions. The standing rule, as our courts have held, is a "prudential rule of judicial self-governance" for courts exercising their original jurisdiction, and does not, technically speaking, govern courts' appellate jurisdiction in appeals under the Administrative Procedures Act. But now the barn doors are open in both. On that, we think the dissenting opinion is right when it concluded that rejecting intervention in the PUC only meant Sierra Club could have instituted an original action in a Maui trial court. Thus, the courthouse door could remain open without needlessly undermining the concept of property. 

On The Horizon: Public Trust as a "Property" Right?

Also as we noted earlier, this decision was a long time coming, and anyone paying attention has been expecting this shoe to drop whenever the Justice Pollack-led branch could garner that critical third vote. Now that it has, this naturally leads to the follow up question, what could be next?

It stands to reason the next candidate for the second shoe is "public trust" rights, which in the recent telescope cases just missed that third vote. There, Justice Pollack and Justice Wilson concurred, concluding that both Native Hawaii and public trust are property interests. They argued that article XI, section 1 of the Hawaii Constitution created a property property interest in natural resources which are to be administered for public benefit. See Concurring op. at 29-30. Now that this same telescope case is back in the Supreme Court, we would not be surprised if the same three Justices who found that environmental concerns are property take a hard look at extending that rationale.

Other Thoughts

Two final thoughts before wrapping up this long post in farewell to 2017:

1.  If environmental concerns grounded in the Hawaii Constitution are property, and Native Hawaiian interests are property, and if public trust principles are property, are there other, similar interests in the constitution where property could be found? We think there is one that deserves a hard look. Article XI, section 3 reads a lot like sections 1 and 9:

The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Farmers and ranchers may want to consider raising arguments similar to those which carried the day in Maui Electric. After all, we don't have a hierarchy of state constitutional rights, where some rights are more equal than others.

2.  Citizens United lovers, rejoice: in Hawaii's courts, corporations are persons entitled to constitutional rights. Yes, you read that correctly. The constitutional provision at issue here provides that "Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law." The Maui Electric majority held that the Sierra Club has a property right under this provision meaning that hey, the Sierra Club is a "person."

Aloha and welcome to Hawaii jurisprudence, Citizens United!

In re Maui Electric Co., No. SCWC-15-0000640 (Haw. Dec. 14, 2017)

 

In re Maui Electric Co., No. SCWC-15-0000640 (Dec. 14, 2017) (Recktenwald, C.J., dissenting)

Nebraska: No "Property" In Water Rights Subject To Interstate Compact

In Cappel v. Nebraska Dep't of Natural Resources, No. S-16-1037 (Dec. 22, 2017), the Nebraska Supreme Court concluded the Department's notices to Cappel pursuant to an interstate water compact which closed off his land's ability to draw surface water from the Republican River for irrigating his crops was neither a physical nor regulatory taking. 

As you might expect, the central takings question which the court addressed was whether Cappel's water allocations were "property." The court held that because the closing notice was made pursuant to the Department's obligations under the compact, "the water rights at issue were not a compensable property interest and the Cappels' physical taking argument must fail." Slip op. at 454. The court also dispensed with the regulatory takings claim by applying the Penn Central test. And you know what that means. 

Here's the money quote, which reveals the court's essential problem with the takings claims: "the regulation in the instant case did not directly affect private property, but, rather, the use of a public resource. Water in Nebraska is a public resource dedicated for certain uses." Slip op. at 456. In other words, the ability to take and use water is not a private right, but a burden on a public resource. 

Cappel v. Nebraska Dep't of Natural Resources, No. S-16-1037 (Neb. Dec. 22, 2017) 

Cases And Links From Today's American Planning Association's 2017 Planning Law Review

Here are links to the cases and materials we spoke about today during our portions of the APA's 2017 Planning Law Review webinar:

• Justice Kennedy's Social Justice Warrior Test For Takings Clause "Property" In Murr v. Wisconsin
• The Federal Circuit's Lost Tree decision (cert denied just after Murr, so this should be seen as a bookend to that case).
• Town of Ponce Inlet v. Pacetta, LLC, No. 5D14-4520 (Fla. Dist. Ct. App. June 16, 2017).
• Case to watch: 616 Croft Avenue, LLC v. City of West Hollywood, No. 16-1137 (cert. petition filed Mar. 17, 2017) (legislative vs. administrative exactions). 
• Case to Watch II: Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Fla. Dist. Ct. App. Apr. 28, 2017) (quasi-legislative exactions and Nollan/Dolan).
• Case to Watch III: Scher v. Burke, No. S230104 (Cal. June 15, 2017) (public recreational dedications along the coast, and vested rights).
• Case to Watch IV: State of New Jersey v. North Beach 1003, LLC, No. A-3393-15T4 (N.J. App. Div. June 22, 2017) (coastal dunes and takings). 
• Case to Watch V: "Voters May Not Usurp City’s Administrative Land Use Authority Through Initiative Process" (from Miller, Starr, Regalia's land use blog). 

Thanks to all those who were on the call. They tell us there was record attendance. 

Notes And Links From Today's Hawaii Land Use Conference Session On Reg Takings

To supplement your written materials for the 2017 Hawaii Land Use Conference, here are the decisions and other materials which we spoke about this morning at the 2017 Hawaii Land Use Conference:  

• Leone: Hawaii Supreme Court oral arguments in "economically beneficial use" case. 
• CNMI: Compensation Delayed, Is Justice Denied
• Our colleagues' recent Hawaii State Bar Association talk about developments in Hawaii land use law.
• Kauai condemnation: Hawaii Supreme Court arguments in "larger parcel" case. 
• Guam: Eminent Domain Interest Statute Cannot Limit Constitutional Right to Just Compensation
• Entry statutes: the California Supreme Court decision in Property Reserve: the court rewrites the statute in order to save it.
• Virginia federal court rejects facial challenge to Virginia's entry statute.
• North Dakota Supreme Court finds that small entries are "examinations" and not takings.
• Pipeline takings: Pennsylvania appellate court agrees that the polar vortex made them do it.
• North Carolina's Map Act case (Kirby). Land banking to keep the eventual acquisition price low, is a taking.
• California's City of Indio case: temporary "no build" area while city gets around to taking the property is a taking.
• Virginia: an unacceptably low appraisal = "bona fide" offer.
• Colorado Supreme Court reads its eminent domain statute narrowly: when it says Commission must approve taking, DOT can't do it.
• Georgia appellate court: appraisal "before" negotiations means just that.
• Who decides, Part I: California Supreme Court in City of Perris -- judge decides Nollan/Dolan issues (but they may be project influences, so property owners do the happy dance).
• Who decides, Part II: West Virginia Supreme Court concludes that condemnor (not the courts) is sole determiner of sufficiency of quick take deposit.
• Municipal takings of public utilities: Montana Supreme Court writes "more" out of the "more necessary" clause.
• Creative Thinking Prize: Texas Supreme Court sides with property owner who formed conservation district to beat back a taking. Don't tell me no, tell me how.
• Pending issues at SCOTUS: (1) attorneys' fees under the URA; (2) Murr v. Wisconsin - the "larger parcel' in regulatory takings.
• Speaking of attorneys' fees: property owner's claim that trial date (and not date of complaint) was date of valuation was not reasonable.
• Law review articles of note:
• Bill Wade's article on damages and just comp when you are dealing in income-producing properties
• Virginia Law Review article on state constitutional property.
• Mike Berger's lookback on "Property, Democracy & The Constitution."
• Arizona Law Review: do animals have property rights?

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Monday Reading: Raisin Redux, Beach Appeal Dismissal, Zoning, And More

Here's what we're reading today:

• From the Los Angeles Times, via Professor Kanner: "Those California raisins may be gone from the airwaves, but they're still making waves in court" - after Horne, what's next for the California raisin industry? 
• Remember that case about who owns parts of North Carolina's beaches, set for argument shortly (we filed an amicus brief in the case, by the way)? Well, in this terse order, the N.C. Supreme Court sua sponte (or "ex mero motu" as they call it there) dismissed the appeal, no reason given. Read "NC Supreme Court drops case over beachfront property" for some of the guesses why. 
• From Forbes: "Gallup, Zoning Is Reducing American Productivity And Making The Poor Poorer" (Many people are choosing to live in more expensive and smaller spaces, and "the Gallup report lays the real blame squarely on local elected officials and the influence of incumbent homeowners that constrain supply with aggressive zoning.")
• From Professor Richard Epstein: "The Environmental Permit Menace" (his thoughts on NEPA, if you couldn't guess already)  

 

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2017 Hawaii Land Use Law Conference, January 19-20, 2017

Registration is now open for the 2017 Hawaii Land Use Conference, presented by the Hawaii State Bar Association and the University of Hawaii Law School, at the downtown Honolulu YWCA's Fuller Hall on January 19-20, 2017. "This 2 day conference is a must attend for any attorney or professional whose practice involves land use and development," as the registration web site says (we agree).  

Topics include the latest in Transit-Oriented Development, the Thirty Meter Telescope, GMO (including the recent rulings from the Ninth Circuit), and the topic we'll be presenting, "Takings: Regulatory and Physical."

The final agenda has not yet been released, but if experience is any guide, Planning Chair Professor David Callies will put together two days of timely topics, presented by distinguished faculty. 

And the cost can't be beat: $200 for members of the Real Property and Financial Services Section and government lawyers, $300 for other HSBA members, and $325 for everyone else. 

Members of the HSBA can register on line, while others need to do so on paper here or below. 

We'll post more when the agenda and faculty list is finalized. In the meantime, reserve your space, because this conference is only held once every two years, and as a consequence, the room fills up quickly. 

2017 Hawaii Land Use Law Conference brochure and registration form 

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Nebraska: Inverse Condemnation Claims A Bridge Too Far

We've had bridges on our minds lately. Plus, we've been meaning to post the Nebraska Supreme Court's opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn't.

But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court's ruling. 

The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City's zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their fencing manufacturing business. They also asserted that a load limit on a nearby bridge -- the main access route to the parcel -- effectively cut off the land because it meant heavy loads couldn't reach them directly. 

The court held that they waited too long on the first claim. Nebraska has a ten-year statute of limitations for inverse claims, but even that lengthy time window wasn't met, because they knew way back in 2003 of the limitations the zoning regulations put on their land when the City told them their use was illegal.

As for the bridge claim, the court held they didn't show enough to get around Penn Central's requirement that the property lose substantially all value:

The regulation prevents the Strodes from transporting their goods across the bridge in semitrailer trucks that exceed 14 tons. But the Strodes can use the railroad underpass for semitrailer trucks that exceed the 14-ton weight limit. Randy contends that this is not an adequate alternative, because the height of the railroad underpass is 11 feet 3 inches, and when he transports bulk amounts from his business, the semitrailer trucks usually reach 13 feet 6 inches. Randy testified that when he transports his fencing in smaller loads, he can use smaller trucks. The load limit on the bridge restricts Randy to using either semitrailer trucks that weigh less for access across the bridge or trucks of a limited height for access through the railroad underpass. This may be a “more roundabout way” to perform his business, in which he incurs some damages, but it does not constitute an injury different in kind than the general public, only different in terms of degree.

The Strodes have failed to present any evidence that the weight limit of the bridge decreases the economic value of the property. Randy testified that it cost two to three times more to transport steel in smaller loads rather than in bulk, but he did not conduct any analyses to either substantiate this claim or determine how the property has diminished in value by the weight limits on the bridge.

Slip op. at 65-66. 

Strode v. City of Ashland, No. S-15-956 (Neb. Oct. 28, 2016) 

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Monday Round-Up: Food Takings; Honolulu And Nebraska Takings; Property Rights And The Environment

Here's what we're reading today:

• Raisin redux: "Uncle Sam took this farmer's raisins, and now he wants his money." No, this isn't the third time for the Horne case, but a new case seeking just comp in the Court of Federal Claims. Read the story from McClatchy. We'll post the CFC's opinion in a separate post. 
• Oyster redux: remember that case about the San Francisco Bay Area oyster farm in the National Park? Here's the latest, and update after the feds shut the farm down. "Two years after shutdown, California oyster farm remains a community hot-button." 
• "City Gets Authority to Condemn Private Kakaako Streets." From Honolulu Civil Beat, about the latest efforts to clean up a problem of ownership of some downtown Honolulu streets. Now, eminent domain?
• "NE Supreme Court Holds Load Limit on Bridge to Property Did Not Constitute a Regulatory Taking." From Dean Patty Salkin's Law of the Land Blog.  We'll post this opinion in a separate post also. 
• "Should property rights to taken seriously?" A blog post by Pacific Legal Foundation's Jonathan Wood about a libertarian approach to environment and species protection. 

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