Monday, October 15, 2012

Takings, the Supreme Court, and the Demise (Maybe) of Categorical Rules

­­The United States Supreme Court recently granted cert in Koontz v. St. Johns River Watershed Management District, a takings case involving wetlands and exactions.  The case already has received quite a lot of attention on blogs and elsewhere (see, e.g., here, here, and here, as well as Tim Mulvaney's previous posts on this blog) and I have only one small, and perhaps somewhat obvious, point to add.

For years, the Court’s takings decisions have sought to resolve a few tensions.  One—probably the most important one—pits our desire to protect private property owners from regulatory control against our desire to let government protect society (including other property owners) from problematic uses of property.  But another prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.

Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned.  That’s most prominently a product of Justice Scalia’s opinion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), which many commentators viewed as an effort to provide property owners with predictable anti-regulatory protection through the creation of a categorical legal test.  That alignment has manifested itself in other contexts as well.  The one I’m most familiar with is the intersection of takings doctrine and water rights, where takings plaintiffs and advocacy firms have sought, largely but not entirely unsuccessfully, to convince courts that the categorical physical takings test ought to apply to regulatory restrictions on water rights.  Conversely, some advocates of a more government-friendly takings doctrine have argued that the ad-hoc Penn Central takings test has much to offer.

The last few years, however, have produced a few cases that don’t fit with that traditional perception.  In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible.  Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings.  Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States.  The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land.  Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule.  Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim).   While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.

So does that mean that the conservative justices have discovered a new love for ad-hoc standards, and have lost their interest in categorical rules?  Probably not.  First, one plurality decision, an oral argument transcript, and a cert grant don’t exactly add up to a trend (and if it was a trend, it wouldn’t be entirely new; the Court’s First English decision, which rejected a categorical rule against temporary regulatory takings, was to similar effect).  Second, the justices may just care a whole lot more about regulatory intensity than they do about legal predictability.  Categorical rules and ad hoc analyses, then, are primarily tools to be deployed in a larger struggle, not independent ends.

-Dave Owen

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