Property rights take center stage in disputes over wetlands, flooding

After several years of paying little attention to property rights -- a darling cause of conservative activists -- the Supreme Court has abruptly changed course.

The justices have agreed to hear two cases this term, Arkansas Game and Fish Commission v. United States and Koontz v. St. Johns River Water Management District, that concern the "takings" clause of the Fifth Amendment, which requires the government to compensate property owners when it takes property.

Property rights advocates also had some interest in two cases decided last term that, while not raising takings questions, did focus on broader questions of property rights in relation to government interference. In both, Sackett v. EPA and PPL Montana v. Montana, the property owners won.

The flurry of activity is in stark contrast to previous years. The last time the court heard more than one case on property rights was in the 2004-2005 term.

That was the year the justices issued the controversial Kelo v. City of New London ruling, in which the court held on a 5-4 vote that government officials could use the power of eminent domain for economic development projects primarily intended to increase tax revenues. It prompted a significant backlash in conservative circles.


Under Chief Justice William Rehnquist, who died in 2005, the court normally heard at least one property rights case a term, experts say. Since Chief Justice John Roberts took over later that year, there has been a substantial drop in the number of cases, at least until the recent uptick.

Before last term, the court under Roberts had heard one substantial property rights case, and that was in 2010. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the court ruled 8-0 that the Florida Supreme Court had not seized property in violation of the takings clause when it ruled that a state beach reclamation program did not violate property rights.

At a stretch, the 2006 ruling in Rapanos v. U.S., in which the court limited wetlands jurisdiction under the Clean Water Act, could also be included on the list, although it did not involve a takings issue.

Scholars aren't sure why there was a lull followed by the recent apparent resurgence in interest. Some put it down to the way the Supreme Court, which gets to decide which cases it hears, goes about choosing what issues to focus on.

"There's a lot of serendipity involved," said John Echeverria, a professor at Vermont Law School. "The court is always searching high and low for cases that show an interesting or important issue in a clean way. Suddenly, some case emerges from the morass."

Others, like Jonathan Adler, a law professor at Case Western Reserve University School of Law, don't see the recent developments as a trend so much as a return to the norm.

"Property rights cases, and takings cases in particular, were a pretty regular feature of the Rehnquist court's docket," Adler said. "It was inevitable that the Roberts court would get around to looking at some of these issues."

Wetlands, game lands

One of this term's cases could be seen as an illustration of the court's willingness to wait for the right case to come along.

In Koontz, the court will examine a Florida landowner's claim that he is owed compensation by a land-use agency after it declined to issue permits for a wetlands area he wanted to develop because he would not agree to certain conditions (E&ENews PM, Oct. 5).

Specifically, the case hinges on whether a property owner can pursue a takings claim due to onerous permitting conditions, even when no permit is actually issued.

At least some members of the court have indicated interest in the subject in the past. In 2000, the Supreme Court decided against reviewing Lambert v. City and County of San Francisco, a case concerning a property owner in San Francisco who wanted to convert residential rooms into hotel rooms and sought to fight city regulations that required for any lost residential units to be replaced by the owner. The property owner eventually decided not to proceed with the plan.

Although the court did not take the case, which the property owners lost in the California courts, Justice Antonin Scalia wrote what is known as a dissent from denial, in which he complained that the court should have taken up the issue. He was joined by two of his colleagues, Justice Clarence Thomas and Justice Anthony Kennedy.

In that light, it is no surprise the court has now decided to answer the question.

It's one that "has been kicking around for a long time," said Robert Thomas, a lawyer in Hawaii who represents property owners.

The justices have likely been "looking for an appropriate vehicle," Thomas added.

As for the Arkansas case, which concerns a claim by the Arkansas Game and Fish Commission that it is owed compensation by the Army Corps of Engineers for timber damage caused by flooding, experts say the justices may have intervened simply to correct what many view as a clearly wrong lower court ruling.

The U.S. Court of Appeals for the Federal Circuit had ruled that temporary flooding does not constitute a taking.

The oral argument earlier this month did indeed suggest the majority of justices were sympathetic to the commission's position (Greenwire, Oct. 3).

The case could be seen in a similar light to last term's PPL Montana, in which the court held that a power company did not have to pay rent for the use of riverbeds that its hydroelectric projects are built on (Greenwire, Feb. 22). On that occasion, it was the Montana Supreme Court that was on the firing line.

Court balance

The increased interest in property rights puts the spotlight on the new arrivals on the court since the justices regularly handled such cases. There are four: Chief Justice Roberts, Justice Samuel Alito, Justice Sonia Sotomayor and Justice Elena Kagan.

Of the old-timers, Scalia is well-established as the outspoken supporter of property rights.

Alito, appointed by President George W. Bush in 2006, has indicated he shares some of those views. He wrote a concurring opinion last term in Sackett, in which he lamented the failure of Congress to resolve outstanding questions about wetlands jurisdiction. The court held unanimously that property owners facing potential enforcement actions under the Clean Water Act may seek judicial review before being forced to comply (Greenwire, March 21).

Alito's opinion "suggests he is sympathetic to the plight of small property owners," Case Western's Adler said.

Some property rights advocates quietly worry about the chief justice, another Bush appointee.

That is because, before he became a judge, he once represented a government agency, the Tahoe Regional Planning Agency, in a high-profile property rights case at the Supreme Court.

Property owners had claimed they were due compensation for a temporary development moratorium. Roberts won the case, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, on a 6-3 vote.

"That was an important victory for government in a takings case," Echeverria said.

As in other contexts, most see Justice Anthony Kennedy as the swing vote.

The fact that Kennedy signed onto Scalia's 2000 dissent from denial "is heartening for property rights advocates" following this term's Florida case, Echeverria said.

The liberal wing of the court -- including new arrivals Sotomayor and Kagan, both appointed by President Obama -- is generally more sympathetic to government interests in property rights cases, although there are some cases in which they can be swayed, according to Adler.

"We have come to expect an ideological lineup," he said. "It's possible we might see something different."

Raising the bar

In analyzing why property rights is making a comeback at the high court, some court-watchers point to an active and ideologically driven group of lawyers who continually fight hard to bring cases to the attention of the justices.

These include both attorneys in private practice who represent property owners and also public-interest law groups like the Pacific Legal Foundation -- the lawyers behind both Sackett and Koontz -- and the Institute for Justice.

"The property owners' bar has become more active," said Thomas, the Hawaii-based lawyer, who has worked with the Pacific Legal Foundation in some cases.

Now that the court is showing some interest in property rights, lawyers like Thomas are hoping the justices take up more such cases in the near feature.

Among potential contenders is a case out of the San Francisco-based 9th U.S. Circuit Court of Appeals that the justices will decide soon whether or not to hear. Horne v. U.S.D.A concerns a U.S. Department of Agriculture regulation that requires raisin producers to hand over a percentage of their crop to the federal government with no guarantee of compensation.

"It has some of the flavor of Sackett," Thomas said. "If they grab that, maybe they are really getting back focused on property rights."

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