SUPREME COURT

Raisin ruling seen as lifeline for endangered species

A Supreme Court ruling that struck down an odd Depression-era raisin program may have revived a critical government defense for endangered species and other wildlife protections, legal experts say.

The high court ruled 8-1 in June that a program requiring raisin producers to turn over a portion of their crop every year to the government amounted to an unconstitutional taking of private property.

But buried in Chief Justice John Roberts' opinion was an effort to differentiate the raisins case from a 1929 Supreme Court precedent that upheld Maryland's management of oyster shells.

The court in that case, Leonard & Leonard v. Earle, upheld the state's requirement that oyster producers turn over 10 percent of their shucked shells to the state because the oysters, Roberts wrote, "belonged to the state."

"Raisins are not like oysters: they are private property -- fruit of the growers' labor," Roberts wrote in the Horne v. U.S. Department of Agriculture opinion.

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With that distinction, Roberts breathed new life into the public trust of ownership doctrine for wildlife that the Supreme Court had previously explicitly rejected, said Michael Blumm, a professor at Lewis & Clark Law School and a former U.S. EPA attorney.

"The court clearly distinguishes raisins from oysters and says oysters are different because they are publicly owned and that the state has the absolute right to do what it wants with oysters," Blumm said. "That invokes what I would call sovereign ownership of public trust resources like oysters in submerged lands."

He went on, "So if the state owns those resources, then an allegation -- the likes of which succeeded in the raisin case -- of a taking couldn't possibly succeed as a background principle."

The Horne case was brought by a California farmer who challenged the USDA program that was designed to stabilize the price of raisins. The court ruled that turning over the raisins -- at times for limited or no payment -- was a per se taking, meaning an automatic, physical taking that should have been compensated under the Constitution's Fifth Amendment. The per se takings rubric had previously applied almost exclusively to seizures of real property, like land.

Roberts' reasoning for why the raisins are different than the oysters -- that the state ultimately owns the oysters -- could provide a valuable defense for the government in seeking to defend itself from takings claims resulting from efforts to protect endangered species, said John Echeverria, a Vermont Law School professor who has written extensively on the issue.

Other law professors who typically side with property owners disagree, but Echeverria said Roberts implied that the "government on the behalf of the public has a real property interest" in, for example, fish in a stream.

Therefore, if the government were to tell a property owner that he cannot divert water from that stream because it's needed to protect the fish, that argument should fail under Roberts' reasoning in Horne, Echeverria said.

That, he added, is a "potentially powerful defense to takings claims based on ESA [Endangered Species Act] restrictions."

Blumm said that defense could also be used to ward off challenges to government actions to protect migratory birds on private lands, or in areas where the government allows private activity on public lands, such as oil and gas leases.

Roberts' opinion could therefore be critical, even if he established a new precedent inadvertently.

"It's right in the decision," Blumm said. "Whether or not Chief Justice Roberts meant to recognize the wildlife trust, he certainly did."

'19th-century legal fiction'

Roberts' Horne opinion is notable because the Supreme Court had previously referred to the notion of state ownership of wild animals as a "fiction."

The high court has grappled with the issue for more than 100 years, typically in the realm of whether a state can restrict transporting wildlife across state lines.

In 1896, the justices held that Connecticut owned wild animals within its borders and could consequently regulate whether wildfowl could be taken across the border in Geer v. Connecticut.

But nearly a century later, the Supreme Court overruled that precedent in a case concerning an Oklahoma statute that prohibited taking minnows from within its borders to other states.

In Hughes v. Oklahoma, the court held that the idea of state "ownership" of wildlife "must be understood as no more than 19th-century legal fiction."

The court struck down Oklahoma's regulation but attempted to carve out "ample allowance for preserving ... legitimate state concerns for conservation and protection of wild animals" that do not run afoul of the Constitution's Commerce clause.

Other academics -- especially those who typically side with property rights causes -- questioned whether Roberts' Horne revived the wildlife trust doctrine at all.

Ilya Somin, a law professor at George Mason University and scholar at the libertarian Cato Institute, said "nothing in Horne" suggests that natural resources "necessarily belong to the state and that the state can therefore impose any conditions it wants on those who try to suggest appropriate them."

He added that takings litigation is fact-specific, and he cautioned against reading Horne too broadly.

With regard to the Maryland case, the court held that the state owned the oyster shells not just because they were wild, but also because they were pulled from state-owned waters.

If the oysters were from a private farm, he said, the court might have ruled differently. And most controversial takings cases involving the ESA, he said, arise from federal actions on private lands.

Jonathan Adler, a law professor at Case Western Reserve University, agreed, saying that he is "skeptical" of how much can be read into Roberts' opinion.

"Takings doctrine generally contemplates property as it is defined by state law," he said, "so I wouldn't read all that much into that part of the opinion."

Importantly, Echeverria, the Vermont Law professor, added that there would be limits to his reading of the Horne ruling.

"This is an important argument," he said, "but it's limited to wildlife" and wouldn't cover general water regulation, for example.

But Blumm, of Lewis and Clark, added that the Horne opinion could apply to more than just federal wildlife actions.

Horne, he said, "would have implications for state and local governments, as well."

Twitter: @GreenwireJeremy Email: jjacobs@eenews.net

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