Tuesday, March 4, 2014
In its opinion in Wilkins v. Daniels, a panel of the Sixth Circuit affirmed the district judge and affirmed the constitutionality of the Ohio Dangerous Wild Animals and Restricted Snakes Act, which became effective January 1, 2014. The Act prohibits possession of dangerous wild animals - - - including tigers, lions, bears, alligators, and pythons 12 feet or longer - - - without a permit. The permit requirements include the implantation of a microchip under the animal's skin. The Act includes an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).
The exemption in the Act's scheme and the "chipping" requirement give rise to the constitutional challenges.
First, and perhaps most creatively, the challengers argued that the exemption for "individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA)" constituted compelled speech prohibited by the First Amendment. This compelled speech argument had two "distinct but interrelated" parts: a compelled association claim because the Act "forces" them to join either the AZA or ZAA and a compelled speech claim because the Act requires them to "subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.
The panel briefly and accurately set out the doctrine and classic First Amendment cases, but the court's analysis is digestable to its conclusion that there was no compulsion, by association or subsidy: "There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions." As the panel concluded, "[m]ere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA."
Second, the challengers argued that microchipping requirement violated the Takings Clause. The panel found the challenge not ripe because there was no pursuit of state compensation. But, on the merits, the panel found that there was not a taking, stressing the physical taking (rather than the regulatory taking) aspect that seemed to be the central argument. The court analogized to other types of "property," accepting the State's argument that if the Act’s microchipping requirement to be ruled a taking, “laws requiring license plates on cars, warning labels on packaging, lighting on boats, handrails in apartment buildings, and ramps leading to restaurants” would be suspect.
The court rejected these constitutional challenges that, while innovative, seemed to have little support in the doctrine. The arguments also had little political appeal - - - the court notes in its opinion that the Ohio Act was prompted by an incident in which "an Ohio man released over fifty exotic animals before committing suicide."
Friday, August 9, 2013
NPR's "All Things Considered" today featured a segment on "The Raisin Outlaw of Kerman, California," none other than Marvin Horne, of Horne v. Department of Agriculture, decided by the Court in June. Recall that the Court, in a unanimous opinion, reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking. At issue are marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandate that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
As NPR phrases it, "For not agreeing to participate in behavior that in many other industries would be considered collusion, the federal government sued the Hornes for hundreds of thousands of dollars in uncollected raisins and fines." (emphasis in original).
For anyone following takings clause doctrine (or agricultural matters and food law), this is worth a listen.
Tuesday, June 25, 2013
A sharply divided Supreme Court (5-4) today ruled in Koontz v. St. Johns River Water Management District that a government's demand for a monetary exaction from a property owner as a condition of receiving a development permit is subject to the unconstitutional conditions doctrine in Nollan v. California Coastal Comm'n and Dolan v. City of Tigard and the Takings Clause.
The ruling means that a local government cannot require a property owner to pay money in exchange for a building permit unless there is a "nexus" and "rough proportionality" between the government's demand and the effects of the proposed land use. This is an expansion of the Nollan/Dolan doctrine that creates likely heightened judicial scrutiny of local land-use regulations and fees. Although it's not clear exactly how far this expansion extends--and whether these claims, like Koontz's, would ever be successful--the ruling restricts local governments in the way they create conditions for land-use permits and is therefore a likely victory for property owners.
Nollan and Dolan say that when the government demands a property exaction in exchange for a land-use permit, there must be a "nexus" and "rough proportionality" between the exaction and the proposed land use. If there's no "nexus" and "rough proportionality," then the condition is a government taking, and, under the Takings Clause, the government owes just compensation. The cases represent a version of the unconstitutional conditions doctrine, because they're designed to protect against the government exacting unreasonable conditions in exchange for land-use permits, without paying just compensation for those unreasonable exactions, in violation of the Takings Clause. ("Nexus" and "rough proportionality" protect against government coercion of a property owner, by imposing unreasonable government exactions, unrelated to the property development.)
Those cases were relevant here, because Koontz sought to develop his land in Florida, but the District said it wouldn't grant a permit until Koontz (1) deeded to the District a conservation easement on his property or (2) hired contractors to make imrpovements to District-owned wetlands several miles away.
The Court ruled that Nollan/Dolan applied to both conditions. The Court ruled 5-4 that the Nollan/Dolan rule applied to monetary exactions (the second alternative condition), because, the Court said, monetary exactions implicate the central concern of those cases: the risk that the government might use its power in land-use permitting exact an unreasonable sum of money from a property owner that doesn't have anything to do with the proposed development. Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
The dissent argued that this holding "runs roughshod over Eastern Enterprises v. Apfel" and "threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny." Justice Kagan wrote the dissent, joined by Justices Ginsburg, Breyer, and Sotomayor.
(The dissent also argued that the case could be disposed of around Nollan/Dolan, because (1) "the District never demanded that Koontz give up anything (including money) as a condition for granting him a permit" and (2) "no actual taking occurred," leaving Koontz just a state-law basis for monetary damages, but the dissenters "cannot see how, and so would spare the Florida courts.")
All nine Justices agreed, however, that the Nollan/Dolan rule applied to the first alternative condition. The question here was whether that rule applied where, as here, the government demands a condition before it approves a permit (rather than denying a permit for failure to meet the condition). All nine said yes. But because the government didn't take anything--it simply declined to grant a permit until a condition was satisfied--the property owner cannot get just compensation (although he might be entitled to monetary relief under state law).
The Court remanded the case to the Florida Supreme Court for a determination whether Koontz is entitled to any monetary relief under state law. If the dissent is right, this is a futile effort.
Monday, June 10, 2013
In a relatively brief opinion in Horne v. Department of Agriculture by Justice Thomas writing for a unanimous Court, the Court reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking.
Recall that the Hornes are involved in the raisin business and the Ninth Circuit had upheld a regulatory scheme that mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
The precise nature of the Hornes' involvement in the raisin business - - - whether they are handlers or producers - - - is important to the controversy. But, the Supreme Court held, not as important as the Ninth Circuit ruled. Instead, the Court held that
The Ninth Circuit confused petitioners’ statutory argument (i.e., “we are producers, not handlers”) with their constitutional argument (i.e., “assuming we are handlers, fining us for refusing to turn over reserve-tonnage raisins violates the Fifth Amendment”).
Thus, the Ninth Circuit should have reached the merits of the Takings Clause claim.
Moreover, the argument that the Hornes' claim was not ripe was also incorrect. They were subject to enforcement proceedings and they are free to raise their Takings Clause defense before the USDA and the courts.
Although a somewhat technical decision sounding in "jurisdiction," the Court has opened the way for a regulatory Takings Clause claim against an agricultural scheme seeking to control prices and supply.
[image of raisin via]
Friday, February 1, 2013
As Grand Central Station celebrates its centennial today, there are many celebrations and discussions, including this excellent one from "Transportation Nation" being aired on some NPR stations, including NYC:
The case to which the report refers is Penn Central Transportation Co. v. New York City (1978), a staple of modern takings clause doctrine and theory. The owner of Grand Central - - - confusingly it was Penn Central - - - wanted relief from the NYC landmarks law which prevented the building of a large office building over Grand Central because it would destroy the historic and aesthetic features of the Grand Central. The United States Supreme Court rejected the takings argument. Writing for the Court, Justice Brennan noted that "the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable." The opinion continued:
"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.
Of course, the Court would vacillate from between this whole vs. fractional approach in subsequent cases, but the most recent takings cases seem to confirm Brennan's view.
For a trenchant discussion of the current state of "air rights" and takings doctrine, take a look at LawProf Troy Rule's Airspace and the Takings Clause, forthcoming in Washington University Law Review, and available in draft on ssrn.
Tuesday, December 4, 2012
A unanimous Supreme Court (with Justice Kagan recused) ruled today in Arkansas Game & Fish Commission v. U.S. that government temporary flooding may constitute a taking. The ruling is not particularly surprising and only reversed and remanded a lower court decision that read precedent to give temporary floods a pass under the Takings Clause. Justice Ginsburg wrote for the Court that temporary floods get no such pass and may well constitute a taking, depending on a number of well-settled factors.
We covered the oral argument here.
The case arose out of the Army Corps of Engineer's varying water release rates from the Clearwater Dam, upstream from the Commission's Management Area. The release rates caused a series of temporary floods in the Management Area during key tree-growing season, thus harming certain tree species and the wildlife that they supported. The Commission sued, arguing that the floods constituted a taking. The Federal Circuit read Supreme Court precedent to say that temporary floods (as opposed to permanent ones) were categorically exempt from the Takings Clause.
The Supreme Court reversed. Justice Ginsburg wrote that the Federal Circuit misread Court precedent and that even temporary floods could constitute a taking. How do we know when?
When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. . . .
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use. . . . Severity of the interference figures in the calculus as well.
Op at 14-15.
The Court sent the case back to the Federal Circuit to take a crack at applying these factors.
Wednesday, November 21, 2012
Just when it seems as if the "takings clause revolution" is over, it re-emerges. This time, the property is not a "little pink house," but raisins.
The United States Supreme Court has granted certiorari in Horne v. USDA. As we discussed last year, the Ninth Circuit upheld the constitutionality of a USDA regulatory scheme regarding raisins against a takings clause challenge. The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices. The Hornes argued that "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."
Friday, October 5, 2012
Oral argument this week in Arkansas Game & Fish Commission v. United States revealed little certainty in the test—much less the result—in a Takings Clause claim when the government releases water from an upstream dam, temporarily flooding and damaging downstream property. Even after a barrage of probing questions and hypotheticals, the parties struggled to convey a clear test that would yield determinate results beyond this case. Still, it seemed that they both might agree that a strict formalistic test—judging a “permanent” flood a taking, but a “temporary” flood a non-taking—may not be the best choice. But as to any new test, and how it might apply in new cases, it seems, the best either party could say is: It depends.
The case arose out of a series of planned releases of water from the Clearwater Dam by the Army Corps of Engineers. These releases were deviations from the Corps’ operating plan for the Dam and were approved by a working group comprised of interested individuals and groups. The Arkansas Commission claimed that the releases caused annual temporary flooding on its property, the Dave Donaldson Black River Wildlife Management Area, 110 miles downstream from the Dam, which permanently damaged unique hardwood trees and the wildlife they support. The lower court, the United States Court of Appeals for the Federal Circuit, ruled that the releases and the resulting floods did not amount to a taking, because they only produced temporary flooding, not permanent flooding.
It may not be a big surprise that the parties and justices struggled with a clear test, given the challenges in figuring out whether the government’s temporary release of water at a remote dam and the resulting flooding on downstream property effected the kind of taking that the Takings Clause is designed to address—especially when the releases were designed to protect other public interests at and around the Dam. The problem is that a temporary flood looks a little like a nonintrusive trespass—maybe like, as Justice Breyer asked, a Department of Interior employee trampling paths on private land (on the one hand)—and a little like a physical invasion by the government that causes permanent damage (on the other). If the former, it looks less like a taking (and more like a trespass); if the latter, it looks more like a taking. Another problem: the releases 115 miles upstream from the Management Area may not have been the direct cause of its flooding, that is, there may have been other, contributing causes. And we don’t know what’s the relevant baseline for comparison: The water level in the Management Area before the Dam was constructed? The water level after the Dam was constructed, under the normal water release plan? The water level based on the deviations? Or some other baseline? Finally, temporary flooding doesn’t necessarily result in long-term damage or deprivation or property (because the water might simply recede); permanent flooding does. All these problems were on full display at the argument this week.
The lower court navigated these issues in a categorical way, saying that permanent floods are takings while temporary floods are not—an easy answer, even if perhaps overly formalist, and one that the Federal Circuit said was rooted in precedent. In this case, said the lower court, the floods were temporary—no taking.
Arkansas disagreed. It argued that the test for determining whether a government flood is a taking should look to whether the government action is direct, predictable, and substantial—a totality-of-the-circumstances approach that looks to the facts. Arkansas said that the totality pointed to a taking here, but might not in other similar situations.
The government argued that the flooding and any resulting damages were too loosely related to the Corps’ releases. After all, the releases occurred 115 miles upstream—enough distance to allow any number of contributing and intervening acts to break the causal chain. In any event, according to the government, any flooding on the Management Area was just an incidental result of the Corps’ operation of the Dam. In other words, the Corps didn’t target the releases to flood the Management Area; instead, it designed the releases to serve other public interests, with the incidental effect of flooding.
On balance, the parties and the Court seemed to move beyond the lower court’s formalistic approach into a new, more holistic test based on the circumstances. But neither party could produce a coherent, workable test that could apply to this case and beyond.
One possibility is that the Court could craft a test based on the directness of the government action, the predictability of the action, or the substantial nature of the action, or some combination of those and even other factors, and remand for application. Another possibility: the Court could write its test and apply it. In any event, there weren’t enough strong signals from the justices to predict a result, but, on balance, the Court seemed to lean toward a taking.
Friday, September 14, 2012
A state judge has declared sections of the controversial 2011 Wisconsin Act 10 unconstitutional as violative of state constitutional provisions. This follows a federal district judge also declaring portions of Act 10 unconstitutional in March.
In today's 27 page opinion in Madison Teachers Inc. v. Walker by state judge Juan Colas rejected the challenges based on the state constitutional provision limiting special sessions and the takings clause, as well as arguments that the controversy was nonjusticiable.
However, the judge found Act 10 violated the free speech, free association, and equal protection state constitutional protections, construing them as consistent with federal interpretations of the First and Fourteenth Amendments. Much of the judge's reasoning stressed that Wisconsin did not come forward with any arguments. The judge also found that there was a violation of the Wisconsin constitutional provision guaranteeing Milwaukee home rule.
[image: protests of Act 10 via]
Monday, November 14, 2011
An interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians. Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).
The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."
These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.
"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."
"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."
A video of the interview is available in 3 parts; here's part 1:
While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).
Wednesday, July 27, 2011
The raisins so prominent in morning cereal and children's snacks are "heavily regulated" agricultural commodities under marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq.
In its opinion in Horne v. USDA, the Ninth Circuit upheld the imposition of civil assessments under the regulations and upheld the constitutionality of the regulatory scheme. The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
The Hornes' administrative and statutory claim was that they had reorganized their raisin business and were no longer subject to the regulations because they were no longer "handlers" but only "producers."
Their major constitutional claim was that even if subject to the regulations, "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment." They also claimed that the penalities imposed for their “self-help” noncompliance (caused by their reorganization in an attempt to escape from the regulations) violated the Eighth Amendment's Excessive Fines Clause.
The Ninth Circuit panel opinion has an excellent rehearsal of regulatory takings doctrine, which clearly does not support the Hornes' claim. However, as the opinion notes,the Hornes claim that the Ransin Marketing Order is a physical taking because there is an annual “direct appropriation” of their reserve-tonnage raisins. The panel rejected this construction: "Though the simplicity of their logic has some understandable appeal—their raisins are personal property, personal property is protected by the Fifth Amendment, and each year the RAC “takes” some of their raisins, at least in the colloquial sense—their argument rests on a fundamental misunderstanding of the nature of property rights and instead clings to a phrase divorced from context."
Instead, as the panel reasoned,
the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. Simply put, it is a use restriction, not a direct appropriation. The Secretary of Agriculture did not authorize a forced seizure of forty-seven percent of the Hornes’ 2002-03 crops and thirty percent of their 2003-04 crops, but rather imposed a condition on the Hornes’ use of their crops by regulating their sale.
The panel then cited a Ninth Circuit opinion from 1938 - - - Wallace v. Hudson-Duncan & Co., 98 F.2d 985 - - - rejecting a takings challenge to a reserve requirement under the walnut marketing order. The panel therefore joined the Court of Federal Claims, which not long ago decided the same question under the Raisin Marketing Order, Evans v. United States, 74 Fed. Cl. 554 (2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007); in accord with a smiliar case rejecting a challenge to the reserve program under the almond marketing order, Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244 (1994).
On the Eighth Amendment claim, the panel applied the test from United States v. Bajakajian, 524 U.S. 321(1998), considering whether the assessment is imposed, at least in part, for punitive and not merely remedial purposes, and whether the fine is grossly disproportional to the gravity of the offense for which it is imposed. Affirming the district judge, the panel found the fine was remedial and the infractions serious. It also noted that the fines were not as "steep" as those authorized by the statute.
The panel's conclusion notes the Hornes' frustration with the raisin regulatory scheme, but observes that the judicial role "is limited to reviewing the constitutionality and not the wisdom of the current regulation." The Hornes' remedy, the opinion suggests, is with the Secretary of Agriculture.
Sunday, June 26, 2011
New Jersey - - - like Wisconsin and Florida amonsgt other states - - - has acted to limit public employee compensations and benefits. And, as in Wisconsin and Florida, public employees have filed a lawsuit alleging constitutional infringements.
The bill S-2937/A-4133 is an extensive overhauling of the public employee pension and health care benefits of New Jersey employees. Governor Christie promoted the bill and is expected to sign it.
The complaint, filed in federal court, alleges violations of both federal and state law. Like the Florida complaint, it alleges impairments of the obligations of contracts, although it includes the federal provision, as well as a takings clause claim. There is also a federal tax claim.
Sunday, February 6, 2011
Some will be watching today's "Superbowl" in the Cowboys Stadium as a sports event, but for constitutional law fans, the 1.3 (or so) billion dollar Stadium is an example of the Fifth Amendment's Taking Clause in action. First, there is the taking of private property for public use. In the case of the Cowboys Stadium in Arlington, Texas, the state and local government used eminent domain powers in residential areas. Second, there is public financing used to support a privately owned by "public use" project, reportedly 3.25 million for the Cowboys Stadium. In 1999, Professor Dale Rubin named the process a "constitutional disgrace" in his law review article on public aid to professional sports teams.
More recent articles, many authored by students, explore the Takings Clause problems in building and maintaining a sports stadium. Two excellent examples are Erin A. Stanton's, Home Team Advantage?: The Taking Of Private Property For Sports Stadiums, 9 N.Y. City L. Rev. 93 (2005), and Peter Asselin's Supporting The Home Team ... In More Ways Than One: An Analysis Of The Public Financing of Philadelphia's New Sports Stadia, 3 Rutgers J. L. & Urb. Pol'y 389 (2006).
[image: Cowboys Stadium via]
Sunday, January 30, 2011
Earlier this month, the Environmental Protection Agency (EPA) issued its 99 page final determination regarding the mining permit for Arch Coal, Inc.’s Spruce No. 1 mine, located in southern West Virginia (pictured below). The EPA rescinded the Clean Water Act approval for what would have been one of the largest surface mining sites in Appalachia. The EPA's action is controversial. There are sure to be challenges, just as there are challenges to the recently issued guidance protocols that increase scrutiny on mountaintop coal operations. Indeed, there is a lawsuit filed on behalf of the State of West Virginia filed by the then-Governor of West Virginia, the recently elected United States Senator Manchin. While such litigation typically raises administrative law claims, the denial of a mining permit may also raise the specter of possible constitutional challenges.
The Fifth Amendment's takings clause may provide the constitutional grounding for asserting claims of regulatory takings, especially for those coal and mineral interest owners whose coal cannot be economically mined by more traditional below ground methods.
Professor Patrick McGinley at the West Virginia College of Law analyzes such challenges in his recent work Bundled Rights and Reasonable Expectations: Applying the Lucas Categorical Taking Rule to Severed Mineral Property Interests, 11 Vermont Journal of Environmental Law 525 (2010), available on the journal website. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court held that the government must pay just compensation for takings that deprive an owner of “all economically beneficial use” of the owner’s property. The rule is often referred to as the “categorical” or “total takings” rule because the reviewing court need not examine the owner’s expectations in the property.
McGinley argues that “the expectations of owners of less-than-fee interests in one mineral–coal–do not deserve the additional protection of Lucas’s categorical rule.” Id. at 529. He arrives at this conclusion “based upon the consideration of the historic limited expectations of severed coal interest ownership.” Id. Professor McGinley explains:
[W]hen the property owned is a severed coal interest or a more ephemeral interest such as [a] fractional royalty interest . . . , the bundle of rights metaphor seems an inappropriate way to describe the owner’s rights. While there are exceptions, as a general rule, one who owns a possessory interest in coal has, at most, the “right” to sell the coal in place if she can find a buyer; to use the surface to access the reserve; to extract the fuel from the land; and to transport it to market for sale. . . . For owners of non-possessory or non-executory interests in minerals . . . , their “bundle of rights” is sparse indeed. Their rights are narrowly limited to entitlement to a small percentage of the sale price of a mineral extracted from the land and carried to market–such owners do not even possess the right to walk freely upon the land from whence the mineral may be mined. Such ownership “right” is illusory unless and until the mineral is actually mined.
Id. at 571 (citations omitted).
While he disclaims the application of the Lucas categorical rule, McGinley concludes that “Penn Central’s examination of takings claimant’s distinct investment-backed expectations should continue to be applied to claims of regulatory takings of coal property interests severed from fee simple estates in land.” Id. at 529.
Thus, McGinley argues that coal operators and mineral rights owners will find no satisfaction in regulatory takings under the Lucas categorical rule. Nevertheless, the recent EPA action regarding the Spruce No. 1 mine and the 2009 announcement by the EPA that the Obama Administration is taking "unprecedented steps to reduce environmental impacts of mountaintop coal mining" will most likely raise regulatory taking issues under the Fifth Amendment.
(with J. Zak Ritchie)
[image: from cover of EPA final determination on mining permit for Arch Coal, Inc.’s Spruce No. 1 mine]
Thursday, November 11, 2010
The FDA this week unveiled its new proposed cigarette warning labels under the Family Smoking Prevention and Tobacco Control Act, signed on June 22, 2009. Here are a some sample approved warning labels, from the FDA web-site:
As you might imagine, manufacturers aren't happy. They vow to sue--again, as it turns out. Commonwealth Brands, Conwood, Discount Tobacco City, Lorillard, National Tobacco, and R.J. Reynolds sued last year challenging the Act's labeling requirements under the First Amendment, the Takings Clause, and the Due Process Clause. The District Court for the Western District of Kentucky issued a split decision; here are the highlights:
Ban on Color and Graphics Violates First Amendment. The Act requires tobacco labels and advertisements to be in black text on white background, with no graphics. (The idea is to deter children, who are more attracted to colorful labels with things like cartoon camels.) The court ruled that the ban swept too broadly: "Congress could have exempted large categories of innocuous images and color--e.g., images that teach adult consumers how to use novel tobacco products, images that merely identify products and producers, and colors that communicate information about the nature of a product . . . ." It thus violated the Central Hudson commercial speech test.
Ban on Event Sponsorship and Merchandise Do Not Violate First Amendment. The Act bans tobacco companies from sponsoring sporting, social, and cultural events in the name of a tobacco product in order to prevent positive association between these events and tobacco and marketing to youth. It also bans the use of tobacco product names on merchandise give-aways. The court defered to Congress in finding that sponsorship and merchandise advertisements can reach children, and therefore the bans were sufficiently tailored to withstand First Amendment scrutiny.
Authorization of Regulatory Power Not Unconstitutional Delegation. The Act permits state and local governments to enact more stringent standards. The court ruled that this was not an unconstitutional delegation of authority, because it wasn't a "delegation" or "authorization"; it simply did not preempt state efforts to regulate in this area.
Warning Labels Not Unconstitutional. The Act requires warning labels on the top 50% of the front and rear panels of packages with color graphics that depict the negative health consequences of smoking. (Examples above.) The court ruled that this requirement meets the Central Hudson standard--sufficiently tailored to advance the government's substantial interest.
Modified Risk Tobacco Products Labelling Not Unconstitutional. The Act prohibits labelling that suggests that a tobacco product is less harmful than other tobacco products. The court ruled that the requirement was not a viewpoint-based restriction on speech and was not unconstitutionally vague.
Ban on FDA Approval Claims Unconstitutional. The Act prohibits a statement that implies that the tobacco products are safer because they comply with FDA standards. The court ruled that this ban applies to more than mere commercial speech and that it failed strict scrutiny.
Ban on Outdoor Advertising Not Ripe. The Act bans outdoor advertising within 1,000 feet of a school or playground. The court ruled that this was not ripe, because the FDA hadn't yet issued its final regulations (which allowed the Secretary to modify the ban in light of "governing First Amendment case law").
Ban on Gifts Not Unconstitutional. The Act bans gifts that manufacturers sometimes give away with a purchase of their products. The court ruled that any impact on free speech was incidental and outside the scope of the First Amendment.
Takings: No Jurisdiction. The court ruled that it had no jurisdiction over the plaintiffs' claims that the Act violated the Takings Clause by depriving them of their "trademarks, trade dress, packaging, and advertising without just compensation." The court ruled that the plaintiffs must bring this claim under the Tucker Act in the Court of Federal Claims.
Tuesday, September 28, 2010
Is the "takings revolution" over? This conference "explores the regulatory takings issue as it relates to land use and environmental regulation" and "brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent and pending court cases and new regulatory initiatives."
"Some topics to be discussed include the Supreme Court's recent Stop the Beach Renourishment decision, the future of the "judicial takings" theory, takings questions raised by sea level rise and other consequences of climate change, controversial new decisions applying an expansive interpretation of the Penn Central analysis, and recent takings cases involving water and endangered species laws."
Thursday, June 17, 2010
The question of whether there can be a judicial taking under the Fifth Amendment's takings clause was not definitely decided by the Court in its opinion today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection.
The underlying controversy concerns the littoral interests of waterfront property owners; it can seem more a property law issue than a constitutional law issue as the oral argument illustrated. Writing for the Court, Justice Scalia ultimately concluded that the Florida Supreme Court did not violate the takings clause, but first discussed water rights under Florida law and common law. However, when Scalia opined that the takings clause "applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land," (plurality, opinion at 11), he was not speaking for the majority, but only a plurality of four justices (Roberts, Alito, Thomas, and himself). Likewise, it is only in the plurality portions of the opinion where there is an acceptance of a judicial taking: "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." (plurality, opinion at 12).
Concurring in a separate opinion, Kennedy and Sotomayor noted "certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” constitutes a violation of the Takings Clause." One of their "difficulties" is an originalist one:
Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028, n. 15 (1992). And it appears these physical appropriations were traditionally made by legislatures. See 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833).Courts, on the other hand, lacked the power of eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed. 1897). The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding,as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.
(Kennedy Opinion at 7).
In a different separate concurring opinion, Breyer joined by Ginsburg contended that a judicial takings doctrine would open the floodgates and allow federal judges to decide matters of complex state property law. Essentially, Breyer and Ginsburg argued for judicial restraint.
Stevens took no part in the decision, presumably because he owns beachfront property in Florida.
Friday, January 8, 2010
Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional. We've covered the issue here, here, and here.
Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:
This "inactivity" is empty and verbal gimmickry. Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing." They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.
Brief at 8-9.
Lazarus concludes by putting the issue in a larger context:
If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce. In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress. The reason is simple: most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.
Brief at 15 (emphasis in original).
Thursday, December 3, 2009
An appellate division court in New York issued its opinion today in Matter of Kaur v New York State Urban Dev. Corp., involving the controversial bid of Columbia University to expand further into the Manhattanville section of Harlem by acquiring 17 acres, some of it by government's exercise of eminent domain.
After opening with a quote from Calder v. Bull, 3 U.S. 386, 388, 3 Dall. 386, 388, 1 L.Ed. 648 (1798), the court states:
The exercise of eminent domain power by the New York State Urban Development Corporation d/b/a Empire State Development Corporation (hereinafter referred to as "ESDC") to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, article 1, § 7 of the New York Constitution, and the "first principles of the social contract." The process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court. In short, it is a skein worth unraveling.
The "skein" as interpreted by the court includes its conclusion that any "blight" designation of this area is "mere sophistry." The court extensively discusses Kelo v. City of New London, 545 U.S. 469 (2005), distinguishing it, but also finding the "time has come to categorically reject" the relevance of underutilization:
This concept put forward by the respondent transforms the purpose of blight removal from the elimination of harmful social and economic conditions in a specific area to a policy affirmatively requiring the ultimate commercial development of all property regardless of the character of the community subject to such urban renewal.
Moreover, the court held that "the record overwhelmingly establishes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution." This, the court stated, "conflicts with Kelo on virtually every level" and thus "render the taking in this case unconstitutional."
While the court cites the state constitutional provisions, Kelo is clearly the relevant precedent. This could be the basis for a great exam question on the takings clause - - - or a great in-class exercise for next semester.
(Thanks to Sam Sue of CUNY School of Law)
Wednesday, December 2, 2009
The Court heard oral arguments today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, in which the certified questions include whether a Florida decision on littoral rights constituted a "judicial taking" in violation of the Fifth Amendment's takings clause.
However, as the oral arguments indicated, the “background principles” of Florida law were less than clear. First of all, there is the distinction between an accretion and an avulsion, with the former being gradual and the later being more sudden. Justice Alito seemed less concerned with these distinct labels, saying that they don’t “eliminate the fact that there's been a fundamental change, taking a doctrine that applies to things that occur as a result of nature and you've applied it to things that are produced by the State.” (at 32). For other Justices, the State’s actions of beach renourishment seemed to be beneficial to the property owners, even though these particular property owners were complaining.
Roberts posed this hypothetical, first to counsel for the property owners and then repeating a version of it to counsel for the state of Florida:
(at 33, compare 56). Neither counsel seemed to have a particularly insightful answer to the question, perhaps because Roberts’ hypothetical assumes that the precedents in the state had always been clear.. . . let's say the legislature passes an act saying the boundary of beachfront property is now where the sand starts and not the mean high water mark but the mean high sand mark. All right. And -- and then -- so that's sued. You -- you sue under that and the court says, yes, of course that's a taking, our precedents have always said it's the mean high water line and nothing else. Florida has judicial elections, say, somebody runs for election for the Florida Supreme Court and says I'm going to change that law, I'm going to say that it is not a taking. I think people should be able to walk right up to the land. And that person is elected and the law is changed. Now, is -- is that a judicial taking?
Certainly the case poses important issues under the Fifth Amendment’s Takings Clause regarding judicial takings. However, the oral argument transcript seems more an exploration of property law than constitutional issues; the littoral rights of landowners is not generally bandied about in constitutional law discussions. Nevertheless, the emphasis on rights at common law is a familiar subject in previous takings clause cases. Moreover, every takings clause case the Court considers has the potential to revitalize Lochner-era property rights. As the "Legal Backgrounder" for the Washington Legal Foundation phrases it, at the question in Stop the Beach Renourishment is "Will the Court return some teeth to the Takings Clause, or hammer another nail into property rights’ coffin?"