9 states challenge Wis. in high-profile takings case

By Robin Bravender | 04/19/2016 01:06 PM EDT

A coalition of nine states is challenging Wisconsin in a closely watched case over property rights that will soon head to the Supreme Court.

A coalition of nine states is challenging Wisconsin in a closely watched case over property rights that will soon head to the Supreme Court.

The states, led by Nevada, filed a friend-of-the-court brief with the justices this week, arguing that the lower court’s ruling in that case could hurt landowners across the country by failing to adequately compensate property owners for regulatory "takings" when government regulations affect how they can use their property.

The justices are expected to hear oral arguments in the case, Murr v. Wisconsin, this fall. The lawsuit involves four siblings who say regulators forced a merger of their two adjoining Wisconsin waterfront properties, hindered development and failed to properly compensate them for the economic loss they suffered. The siblings are represented by the conservative Pacific Legal Foundation.


"[T]he law has wrongfully veered toward allowing more takings of property," Nevada Attorney General Adam Laxalt (R) said today in a statement. "In Nevada, more than 80% of land is already owned by the federal government, and the new rule proposed in the Murr case would only increase its ability to take state and private land without just compensation."

Nevada was joined in its brief by Alaska, Arizona, Arkansas, Kansas, Oklahoma, South Carolina, West Virginia and Wyoming.

The states’ interest "is at its apex here," the brief says. By considering the siblings’ two properties together to determine takings compensation, a Wisconsin appeals court "not only imperils the property rights of citizens vis-à-vis the States, but also endangers the property rights of the States as against the federal government," the states told the justices.

On the opposing side of the case are Wisconsin and the state’s St. Croix County.

The state and county told the high court last year that it is "well-settled" that those alleging regulatory takings are required to assess the value of the "parcel as a whole," rather than dividing it into segments to determine lost value.

Wisconsin and St. Croix County pointed to a previous Supreme Court decision where coal operators argued that a court should only "consider the coal that could not be mined to determine whether a state law requiring them to leave a certain amount of coal in the ground amounted to a regulatory taking." There, the Supreme Court determined that the property at issue included all the coal, not just the portion that could not be mined.

The issue is an important one in environmental law, said Remzy Bitar, the attorney representing the state and county respondents in the case.

"I think it would be financially vexing on the public purse if any alleged diminished value always amounted to a compensable taking," he said in an interview. If every parcel can be broken up to determine takings compensation, he added, "what’s to stop any property owner from dividing up their property so that they have multiple parcels within the property in order to claim that some part of it that they hardly use" amounts to a taking?

The Murr family and their attorneys argue that the family’s lots should not be treated as one by the courts.

"Although the Murrs own two parcels that happen to be adjacent, those parcels were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed," the family said in its merits brief to the court last week. They added, "This Court has long recognized that excessive regulation of private property can unjustly burden landowners just as much as physical occupation or condemnation."

Click here to read the states’ filing.

Click here to read the Murr family’s filing.