Koontz Update: Government Argues It Denied Permit after Merely Suggesting Mitigation

The governmental agency has filed its brief responding to the property owner in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). This is the case before the U.S. Supreme Court where the property owner is arguing that the Florida Supreme Court disregarded significant constitutional protections, while asking the Court to establish that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and the Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

The government's brief asks: what's the big deal? This aligns with interviews of the government's attorney, who has said exactions like the one in this case are more or less "run of the mill." Here's the summary from the government's brief:

Petitioner applied for permits from the St. Johns River Water Management District (“the District”) to dredge and fill part of his property in the Econlockhatchee River Hydrologic Basin. Petitioner acknowledged that his proposal would destroy more than three acres of wetlands in an area designated for special protection, so he proposed to preserve about 11 acres elsewhere on his property as mitigation for the environmental harm. Applying generally applicable criteria—the validity of which petitioner does not contest—the District concluded that the mitigation petitioner proposed would not offset the harm caused by his project enough to meet the permitting standards. The District therefore told petitioner that the permits could not be issued unless he modified the project or pro-posed additional or alternative mitigation. The District suggested several ways petitioner could meet the permitting requirements, including by enhancing other wetlands near his property. Petitioner, however, disagreed with the District’s conclusions about the sufficiency of the mitigation he had proposed. He refused to modify his project or propose any other mitigation, and the District denied the permits. 

Instead of appealing the permit denial, petitioner filed this inverse-condemnation action. He sought monetary compensation on the ground that the District’s decision constituted a taking. But nothing was taken from petitioner when the permits were denied. Petitioner did not have to convey any property interest to the District or suffer any other invasion of his property. He spent no money, time, or labor performing any mitigation. Nor does petitioner argue here that he suffered any taking of the economically viable uses of his property under Lucas or Penn Central. Indeed, he stipulated that his suit did not “proceed[] upon a theory that the [permit denial] deprived [him] of all or substantially all economically beneficial or productive use of the subject property.” JA 76. In short, he suffered no loss for which he is entitled to compensation. 

Before this Court, petitioner now seeks compensation for a regulatory taking of his real property on the ground that the District’s request for additional mitigation was not sufficiently tailored to a legitimate regulatory purpose under the “nexus” and “proportionality”test of Nollan and Dolan. This Court rejected that means-ends approach to regulatory takings in Lingle, and it should not revive it here. 

Even if one could seek compensation under Nollan and Dolan for some proposed conditions that were never accepted or imposed, such a claim must fail in this case. Contrary to petitioner’s characterizations, the District never required him to perform any particular form of mitigation. Nor does the District’s suggestion for mitigation that petitioner singles out—which would have required him to spend money to enhance wetlands within the same hydrologic basin—constitute a taking under this Court’s decisions. In these circumstances, the Supreme Court of Florida correctly held that petitioner has no valid claim to just compensation under Nollan and Dolan.

It looks like the United States, through the Solicitor General, and one organization have filed amici briefs in support of the District. I have not seen these briefs yet, but I'll report on it once I do. The Solicitor General has also requested leave to take part in oral argument.

Recall that my colleague David Smolker and I submitted an amicus brief in support of the property owner, arguing that the Florida Supreme Court ignored the unconstitutional conditions doctrine, which protects all property owners:

Although a government may regulate the ownership of property under its police power, this Court has found it necessary to develop outer limits so that the power does not swallow property rights. This Court developed exactions law to protect property owners from a government’s extortionate leveraging of the police power to obtain benefits for which the government would otherwise have to pay for. The unconstitutional conditions doctrine provides this protection through both the Takings Clause and the Due Process Clause.

The government's brief failed to engage with this argument.

Changes in Environmental Law to Watch for in President Obama's Second Term

In an interesting series of articles, attorneys on the West Coast have been writing about the changes to watch for in environmental law in the under President Obama's second term administration. The articles include:

• A summary of air, energy, water, natural resources, and waste policy change:

The Obama Administration is expected to advance major changes to energy and environmental laws in the next four years. There is already a backlog of pending legislation and proposed regulation to work through, and both environmental and industry groups will press for major reforms.

• A detailed look at changes in air quality rules:

Now that the election is over, EPA is expected to begin moving forward a crowded air docket, including greenhouse gas standards for utilities and refineries, updates to ambient air quality standards for particulate matter and ozone, and several rules that are being rewritten in response to legal challenges. Utilities, refineries, and operators of industrial boilers will all face new requirements specific to their source categories, as well as potential for further constraints due to more stringent, generally applicable ambient air quality standards. Final action on the first of these rules is expected before the end of 2012.

• A overview of the future of energy policy:

The first Obama administration saw many proposals, but few final actions on new federal regulation of oil and gas production. That pattern appears likely to change in the President’s second administration. The boom in oil and gas production is creating a counter-boom in litigation aimed at stopping or limiting development, and both industry and environmentalists are pressing their case as to the role the federal government should play in an era of greater energy abundance.  

• A discussion considering why waste policy may be a bigger issue than considered at first glance:

Compared with some other items on the Obama Administration’s second term agenda, hazardous waste and chemicals regulation is not as likely to be seen as an area of significant change. That’s a mistake. A number of issues are percolating at or just below the surface of the Administration’s regulatory priorities in this area that may bring significant change over the next four years.

Each issue discussed will not necessarily affect every landowner, but the takeaway here is that we could see some significant changes to our federal environmental laws and regulations over the next four years.

Friday Roundup of Environmental & Property Rights Cases before the U.S. Supreme Court

This was a big week at the U.S. Supreme Court for environmental and property rights cases. What's my soundbite? The environmental cases are extremely unlikely to actually resolve anything, which will certainly lead to more litigation. The property rights case was a big win for landowners.

First, as I discussed earlier in the week, the Court issued its opinion in Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012), holding that where the government causes flooding, even if the flooding is merely temporary and non-recurring, it may be liable for a taking. Commentary and recaps:

• SCOTUSblog analysis of the opinion.
• Collection of commentary at SCOTUSblog.
• Robert Thomas at InverseCondemnation collects commentary and gives his own detailed thoughts.

Second, the Court heard the Forest Roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). As I blogged about previously, EPA issued a new final rule about logging roads on the eve of oral arguments, so the Court spent most of its time discussing what should be done in light of the new development. After this, I question whether this case will actually resolve anything about the Clean Water Act. Commentary and recaps:

• The SCOTUSblog preview and recap.
• Lawrence Hurley reports over at Greenwire.
• From the New York Times.
• The National Alliance of Forest Owner's blog, which as always, boils down the legalese into something that's easy to understand, if unfortunate: "Perhaps the most significant impact of the new rule is that it will perpetuate litigation in the Ninth Circuit with the added twist that, since the rule applies nationwide, whatever the Ninth Circuit ultimately decides will apply nationwide as well. The NEDC attorney told the Court in very clear terms that NEDC intends to continue litigation by whatever means to require permits for forest roads, stating:“…we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself…I think that what we’ll do is proceed whatever way we can.”"

Third, the Court heard the other Clean Water Case, Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). As with Decker, it appears that this case may not end up resulting in much insight because all parties agreed the Ninth Circuit was wrong; they just disagreed on how to fix the error. It also appears that most of the arguments are permit-specific and an opinion from the Court would likely be confined to the facts. Commentary and recaps:

• SCOTUSblog has a great preview and excellent recap of why this case will probably not end up being all that important.
• The transcript.
• From the L.A. Times.
• One Los Angeles blog thinks this case was all about money behind the scenes.

Why Koontz Matters to All Property Owners: Protections of the Unconstitutional Conditions Doctrine and Due Process

Last week, my colleague David Smolker and I filed an amicus brief before the U.S. Supreme Court in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). As we point out, the outcome of this case will be important to any landowner in the country, including average homeowners and even agricultural and recreational landowners. That may not be immediately obvious, however, because at first glance, the case might only seem to be relevant to the development community. We argued that the unconstitutional conditions doctrine protects all property owners:

Although a government may regulate the ownership of property under its police power, this Court has found it necessary to develop outer limits so that the power does not swallow property rights. This Court developed exactions law to protect property owners from a government’s extortionate leveraging of the police power to obtain benefits for which the government would otherwise have to pay for. The unconstitutional conditions doctrine provides this protection through both the Takings Clause and the Due Process Clause.

The Florida Supreme Court ignored this doctrine, which underlies this Court’s exactions jurisprudence—even though the lower appellate court extensively discussed it. See St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220 (Fla. 2011) [Koontz V]; St. Johns River Water Mgmt. Dist. v. Koontz, 5 So. 3d 8 (Fla. 5th DCA 2009) [Koontz IV]). Instead, with little critical analysis, the Florida Supreme Court took a simplistic and flawed view of exactions that led the court to conclude that the need for government regulatory “authority and flexibility” trumps the protections of the Fifth Amendment. It held that Mr. Koontz could only challenge an unconstitutional condition related to a land use permit if he first gave in to it, and even then that only an illegitimate demand for real property could be challenged. 

In response, this Court should hold that: (1) a government is liable when it refuses to issue a land use permit because the landowner refuses to accede to a permit condition that would have violated the test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. Tigard, 512 U.S. 374 (1994); and (2) the protections of Nollan and Dolan apply to all types of governmental demands that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use. Because local government exaction practices have become so widespread, Hillcrest respectfully suggests that this Court should take this opportunity to clearly and comprehensively address the constitutional limitations governing exactions and the remedies available to landowners faced with extortionate leveraging of the police power. Experience since Nollan and Dolan strongly suggests that such guidance is necessary to ensure that government compliance with the Fifth Amendment is “more than an exercise in cleverness and imagination.” Nollan, 483 U.S. at 841.

Two other amicus briefs that have just arrived support this interpretation. The brief of the Atlantic Legal Center, the Center for Constitutional Jurisprudence, and the Reason Foundation also discusses the unconstitutional condition doctrine in detail:

The district does not escape liability for imposing the unconstitutional condition in an attempt to cash in on its permitting power. Nollan, 483 U.S. at 837. It is the imposition of the condition, not the success or failure of compelling the applicant to sign a check or deed, that is the violation. Sherbert v. Verner, 374 U.S. 398, 403-04 (1963). Thus, in unconstitutional condition cases, the Court has recognized the availability of damage awards, voided the condition, or established a procedure to protect against the condition. When the condition has denied a constitutional right, such as an uncompensated taking, government must either lift the condition or pay compensation. Nollan, 483 U.S. at 837. The Court has not required the denial of constitutional rights before actions may be taken, however. From the earliest cases on unconstitutional conditions, the Court has allowed the voiding of the condition as a means of protecting the constitutional rights at stake. Home Ins. Co., 87 U.S. at 451. Modern cases have imposed prophylactic procedures to protect against the unconstitutional condition coming to fruition.... The district's failure to obtain the deed and cash payment from property owner here does nothing to obviate the constitutional violation.

As the American Civil Rights Union points out, such bald denials of due process lead to violations of the Takings Clause. You can read my quick review of the other amicus briefs here.

U.S. Supreme Court Refuses to Elevate Vague Public Interest above Private Property Rights

In a unanimous opinion today by Justice Ginsburg, the U.S. Supreme Court refused to elevate vague public interests above private property rights. The Court's opinion in Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012), explains that where the government causes flooding, even if the flooding is merely temporary and non-recurring, it may be liable for a taking.

The Court roundly criticizes the government for attempting to carve out exceptions to the Takings Clause. It rejects the familiar argument that is made in nearly every takings case that the government won't be able to do its job if it is burdened with the mandate to pay just compensation:

There is thus no solid grounding in precedent for setting flooding apart from all other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is of the in for a penny, in for a pound genre: reversing the decision below, the Government worries, risks disruption of public works dedicated to flood  control.  “[E]very passing flood attributable to the  government’s operation of a floodcontrol project, no matter  how brief,” the Government hypothesizes, might qualify as a compensable taking. Brief for United States 29.  To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course incumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions. See infra, at 14. 

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting).  We have rejected this argument when  deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases.  The sky did not fall after Causby, and today’s modest decision augurs no deluge of takings liability.

This is a solid opinion for property owners that brings some much-needed clarity to the law. It's good to see a unanimous opinion protecting property rights. The Court also seems comfortable that its current takings precedents cover most situations, making it disinclined to adopt any new rules. We may see more of this philosophy in January when the Court hears Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). This still leaves the petitioning property owner there in a good position because the biggest stretch the Court would need to make is to modestly expand its current caselaw. Dolan v. Tigard, 512 U.S. 374, 391 (2005); Nollan v. Cal. Coastal Com., 483 U.S. 825, 837 (1987).

I'll post more analysis later, but until then my archives on the case are here. My fellow blogger Robert Thomas has already posted some of his initial thoughts.

U.S. Supreme Court Hears Forest Roads Case: Legal Uncertainty Very Likely to Continue

The U.S. Supreme Court heard the forest roads case today (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Boy, how things change in just a few days. What was postured to have been a heavyweight brawl with industry, Oregon, and EPA favored by a wide margin appears likely to become a mere footnote in environmental law.

Right out of the gates, Chief Justice Roberts wanted to talk about how the EPA's new rule would affect the case, congratulating the industry on "getting almost all the relief they're looking for under the new rule issued on Friday." LegalPlanet's analysis of the arguments continues:

The Chief Justice was not nearly as polite when the Deputy Solicitor General began his argument on behalf of USEPA (as amicus supporting the industry and Oregon petitioners). Were you as surprised as we were, asked Roberts, that the rule would be issued on Friday? After the government’s lawyer revealed that he, too, had only learned of the new regulation on Friday, the Chief Justice mused that 375 pages of merits briefing had been rendered largely irrelevant, and that the Court could have postponed the Decker arguments until April if it had known in advance that the new rule was coming–presumably to allow supplemental briefing on the effect on the case of the late-breaking EPA regulation. 

*** 

Following this morning’s arguments, it seems obvious that the Northwest Environmental Defense Center will not preserve its win in the Ninth Circuit. But it’s almost equally unlikely that the timber industry and Oregon will obtain the reversal on the merits that they had been fervently seeking from the Supreme Court. More likely, the Court will wind up disposing of the Decker case on procedural grounds, without issuing a substantive decision. And that, ironically, will vindicate the Solicitor General’s original recommendation to the Court–ignored by the justices–that the Decker case was not cert-worthy in the first place.

All this without Justice Breyer, who had recused himself from the case, and whose expertise in administrative law may have been originally helpful, and which certainly would have been valuable after the case's change in posture. With that, the environmental cases don't seem to be making as big of a splash before the Court as many thought they would. As SCOTUSblog reports, the other Clean Water Act case before the Supreme Court, to be argued tomorrow, also appears to have become irrelevant. See Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012).

The upshot here for forest landowners is, just as NAFO predicted, EPA's new rule has created legal uncertainty that landowners will be forced to deal with, possibly for years into the future. Based on the arguments today, it's hard to imagine a scenario that doesn't keep this issue in litigation for years to come.

Forest Roads Update: EPA Finalizes New Logging Road Rule on the Eve of U.S. Supreme Court Arguments

Tomorrow, the U.S. Supreme Court will hear oral arguments in the forest roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). I've been following this legal battle for quite some time, so my readers know its importance for forest landowners. The statutory and regulatory mechanisms in play are complex, which has made the case tough to follow. The National Alliance of Forest Owners, however, has boiled down the legal arguments in the briefs of the parties and the many amici to three main questions:

• Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. Environmental Protection Agency (EPA) exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow NEDC to file this case in a federal district court 30 years after the Silvicultural Rule became final?

SCOTUSblog, as usual, has a great preview of the case:

Next week, in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, the Court will review a controversial Ninth Circuit environmental decision that has swept up all three branches of government. A panel of the court that included Justice Breyer’s younger brother Charles, sitting by designation, rejected the Environmental Protection Agency’s view that the federal Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used for harvesting lumber (i.e., logging). Congress was sufficiently unhappy with the decision that bipartisan majorities enacted legislation to stay permitting until the beginning of this Term, and members of Congress have introduced legislation seeking to restore EPA’s former approach. To top it all off, EPA recently released proposed regulations for comment that, if finalized, would “clarify” that such stormwater runoff is not subject to permitting. 

The case is of central importance to the logging industry and businesses that rely on it. If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States. Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry. 

When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal. The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail. Still, the case’s fate is far from clear. 

*** 

On balance, the NEDC has the more difficult challenge: It must win all threearguments to prevail. But while the early consensus appeared to be that the Supreme Court would clearly reverse the Ninth Circuit’s decision, focusing on the Silvicultural Rule, as argument approaches, it appears the case presents some closer questions. The jurisdictional issue is of particularly broad importance, because affirmance could broaden the ability to challenge EPA interpretations of regulations.

Meanwhile, EPA's new logging road rule was signed on Friday. It will go into effect 30 days after it is published, which should be soon. The rule is nearly identical to the proposed rule, which I discussed here. The industry has criticized the rule as poorly timed and creating legal uncertainty, even though it clarifies that logging roads are not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity.

All You Ever Wanted to Know about Exactions: Dozens of Amici Support Property Owner in Koontz

Yesterday, dozens of organizations and business weighed in to support the property owner in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). Even if you're an expert in land use exactions, chances are you'll learn something from these briefs.

There are some great folks writing these briefs. My colleague David Smolker and I authored the Hillcrest brief. My former colleagues at Hopping Green & Sams wrote the Florida industry association brief. That team includes Gary Hunter and Kent Safriet, who led the team that I privilege of working on representing the property owners in Stop the Beach Renourishment, Inc v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010). Finally, my fellow property rights advocate Robert Thomas, who has an excellent blog, authored the Owner's Counsel of America Brief.

• The Hillcrest Property, LLP brief focuses on the grounding of exactions law in the unconstitutional conditions doctrine and relates that concept to due process. It also gives the Court a vivid example of the abuse that property owners are facing: "This Court developed the unconstitutional conditions doctrine as a calculated and limited check on government discretion. It applied the doctrine to exactions because the realities of modern land use regulation had resulted in constant expansion of the police power. The Florida Supreme Court summarily disposed of this check on government power–going so far as to base its decision on the grounds that government needs more power, not less. Now beyond merely making adjudicative permitting decisions that occasionally cross constitutional lines, governments will brazenly legislate around the Constitution. The Pasco County ordinance that Hillcrest has endured will be a mere precursor. This Court should take this opportunity to put an end to such chicanery."

• The Institute for Justice and Cato Institute brief attempts to draw the "Court’s attention to the widespread abuse of non-real property exactions in the absence of judicial scrutiny," explaining many situations where property owners were treated unfairly. It concludes that, "[l]imiting the application of Nollan/Dolan to exactions of real property would effectively eliminate the exactions doctrine as a check on government extortion."

• The Land Use Institute brief explains why there is no significant danger of permitting authorities arbitrarily denying permits without negotiation, questioning the Florida Supreme Court's suspect policy argument: "One observation in the wake of Nollan and Dolan is that planners have demonstrated new creativity in imposing conditions, often favoring impact fees in many instances, which can be more readily tailored to specific circumstances. Id. at 137. This demonstrates that agencies can and do easily comply with the requirements of Nollan and Dolan and that they need not and will not fear takings liability because compliance with constitutional requirements can be readily and predictably accomplished."

• The Owner's Counsel of America brief shows why compliance with the Constitution  makes for better planning, and why there is really no difference when a government exacts real property or exacts something else, like money: "It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on her powers, so must the planner."

• The National Industry Association brief discusses how the Fifth Amendment is designed to restrict government action, and why the burden is on placed on the government to show its compliance with the Constitution: "Put still another way, the exercise of the power to govern — whether by eminent domain or by far-reaching regulations that de facto deprive the owners of their right to make productive use of their land or by exactions that seek to compel individual citizens to pay for public services or projects that are properly the burden of society at large — is not a tort. Nor is it per se wrongful — unless the government refuses to pay the just compensation required by the Constitution. That the District may prefer to foist the cost of wetlands protection onto the convenient citizen seeking a land use permit is not relevant. The general public, which benefits from such public action, must constitutionally bear the cost.

• The Florida Industry Association brief sketches the practicalities of the land development negotiation process. "If a project cannot “pencil out” because of a disputed exaction, then forcing the applicant to accept a permit as a condition precedent to challenging the disputed exaction would force the applicant to accept an  approval for a project it would not build in order to challenge the condition which rendered it infeasible. Stated differently, if upheld, the Florida Supreme Court’s decision would require an applicant to accept a condition – binding itself in the process – before challenging the condition’s constitutional validity. This would surely discourage applicants from relying on the Nollan/Dolan doctrine when it matters most, when a  condition stands between a feasible or infeasible project."

This case will be argued on January 15. Until then, catch up on the case in my archives.

The Other Clean Water Act Case: One of Five Cases Relevant to Property Owners Before the U.S. Supreme Court

With all of the environmental and land use cases on the Court's docket this term, it's shaping up to be an important year for property owners (and maybe another tough year for environmental interests). It's may also be a year of correction for the Ninth Circuit, since several of these cases are out of that Circuit. It's unusual for the Court to hear so many of this type of case in the same term; it's unclear whether this is just a coincidence, or if there is something else driving their interests. These cases, with links to my commentary about them, are below:

• Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012, argued Oct. 3d, 2012), concerning the federal government's taking of timber by flooding.
• Decker v. NEDC, No. 11-338 (cert. granted June 25, 2012, to be argued Dec. 3, 2012) (consolidated with Georgia-Pacific West, Inc. v. NEDC, No. 11-347), about the viability of the EPA's Silvicultural Rule under the Clean Water Act.
• Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012, to be argued Dec. 4, 2012), which will consider whether the District should be held liable under the Clean Water Act for polluted stormwater that is discharged into two rivers.
• Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012, to be argued Jan. 15, 2012), regarding a government's failed attempt to exact personal property in connection with a land use permit.
• Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012), considering whether a New Deal agricultural statute takes property of raisin growers without compensation.

Next week, the U.S. Supreme Court will hear oral arguments in two of these cases, both of which concern the Clean Water Act. My readers know that I've followed the first very closely because, here in Florida, so much of my practice representing agricultural landowners relates to forest landowners. And, sure, it doesn't hurt that I'm in the fifth generation of my family in a profession dealing with forestry. Those cases are the forest roads litigation (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347).

The second case is the only case among this bunch that I haven't discussed in any detail: Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). I have not spent much time discussing this case because it does not directly affect my main audience of private landowners. The case could, however, have implications for some private landowners, as indicated by the National Association of Home Builders' amicus brief. As it points out, "[f]or all its complexity, the Clean Water Act is simple in one respect-it creates liability for a person who adds pollutants to 'a water of the United States' through a 'point source.'" The main issue I see that could ensnare a private landowner is that, if the Supreme Court rules against the District, then those who merely convey pollutants into a water of the United States could be exposed to liability, even if others actually create the pollutants. However, as the Solicitor General of the United States argued, no matter what the ruling in this case, the Supreme Court should be able to confine it to the unique facts of this case.

You can follow the case's progress at SCOTUSblog, or read here for much more depth about the legal issues in this case.

Exactions Update: Property Owner Files Brief Arguing Florida Decision Allows Extortionate Leveraging of Police Power

The property owner has filed its opening merits brief in the exactions case before the U.S. Supreme Court.  Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). Recall that the property owner has argued that the Florida Supreme Court disregarded significant constitutional protections, while asking the Court to establish that (1) the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and (2) the Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

The summary in the property owner's brief is worth a quick read. It does a good job of pointing out the significant exposure property owners in Florida now have to extortionate leveraging of the police power by governments:

The District’s demand that Mr. Koontz finance improvements to its property as a condition of permit approval—in addition to giving up almost 75% of his land—was an exaction implicating the Takings Clause and, therefore, triggering review under Nollan and Dolan. The District forced Mr. Koontz to choose between two fundamental constitutional rights: (1) the right to make lawful use of his property and (2) the right under the Takings Clause to compensation for the substantial cost incurred making unrelated public improvements. When Mr. Koontz would not agree to waive his right to compensation for the cost incurred making the off-site improvements, the District denied his permit applications. The District’s attempt to bargain its way around the Takings Clause’s requirement that property taken for a public use be compensated is precisely the kind of government “dealmaking” the unconstitutional conditions doctrine, as applied in Nollan and Dolan, is meant to check. 

The doctrine has long been a staple of this Court’s jurisprudence. In its most basic formulation, the doctrine provides that government may not grant an individual a benefit or permit to exercise a constitutional right on the condition that he surrender another constitutional right. The doctrine has shielded countless Americans who seek a government benefit or permit from government “deals” that would strip them of their constitutionally protected rights, including the right to free speech, the right to free exercise of religion, and the right to be free from unreasonable searches. In 1987, this Court expressly recognized the doctrine’s applicability in the land-use context in Nollan and, subsequently, in Dolan. 

While the Takings Clause generally prohibits uncompensated takings, the Court in Nollan recognized a narrow exception to that general rule: In the land-use context, the government has the discretion to exact property—without having to pay for it—as a condition of permit approval. But the Court went on to place a vital limitation on that exception. Only those exactions that bear an “essential nexus” to the alleged adverse impact of the proposed land use are authorized; as the unconstitutional conditions doctrine teaches, any other exaction is merely an unlawful attempt to skirt the Takings Clause’s prohibition on uncompensated takings and therefore is an unconstitutional condition. Later, in Dolan, the Court refined the “essential nexus” test, requiring that any permit exaction must also be “roughly proportional” to the alleged adverse impact of the proposed land use. The discretion and the limitations go hand-in-hand: The Takings Clause does not allow the government unbridled power to confiscate property of any kind, whenever and however it wants, simply because it holds the power to issue land-use permits. 

While rooted in the Takings Clause, Nollan and Dolan rely on the unconstitutional conditions doctrine to smoke out attempts by government agencies to circumvent that Clause’s requirement that compensation be paid for property takings. Nothing in that doctrine, the Takings Clause, Nollan, or Dolan recognizes a relevant distinction among the types of permit exaction subject to the “essential nexus” and “rough proportionality” limitations. Government demands for real or personal property—both categories protected by the Takings Clause—are subject to the same limitations. Nor does application of the limitations depend upon when in the permit process the exaction is imposed. A decision to deny a permit application based on refusal to accede to an unlawful exaction and a decision to approve a permit application subject to acceptance of an unlawful exaction are substantively identical: In both cases, no permit issues unless and until the permit applicant agrees to waive his right to compensation for the confiscated property. 

The Florida Supreme Court’s decision to the contrary fails to take into account the logic of Nollan and Dolan. Uncompensated takings in the land-use context are permissible only because such takings are limited by the “essential nexus” and “rough proportionality” tests in Nollan and Dolan. If those limitations do not apply, neither does the exception to the Takings Clause’s prohibition against uncompensated takings recognized in those precedents. In other words, the Takings Clause does not countenance a totally unlimited power to confiscate property in the permit process. Thus, if Nollan and Dolan do not apply to the District’s exaction of Mr. Koontz’s money, then the District must accept the Takings Clause’s default rule prohibiting government from confiscating permit applicants’ property. The Florida Supreme Court’s decision confining the “essential nexus” and “rough proportionality” limitations to the narrow facts of those cases ignores the interdependence between the limitations and the extraordinary power that the government has to exact property from permit applicants. The decision also leaves Floridians with little to no protection against government attempts to “cloak[] within the permit process ‘an out-and-out plan of extortion.” Lambert v. City & Cnty. of San Francisco, 529 U.S. 1045, 1048 (2000) (Scalia, Kennedy, and Thomas, JJ., dissenting from denial of certiorari) (internal citations omitted). Naked, uncompensated confiscations of land are uncommon, because of the obvious application of Nollan and Dolan. Instead, land-use authorities increasingly have resorted to confiscating property other than interests in real property—most often, money, in the form of either financing of public projects (as in Mr. Koontz’s case) or payment of fees in-lieu of a land dedication. Yet the constitutional injury is the same: The property owner is required, as a permit condition, to waive his right to compensation for the confiscation. If the Florida Supreme Court’s decision stands, that constitutional right will rarely have a remedy. 

The Florida Supreme Court based its decision in large part on its desire to preserve the freedom and flexibility of land-use agencies like the District to make “deals” with permit applicants. It did so, but at too high a cost to the constitutional rights of those applicants. The decision of the Florida Supreme Court should be reversed.

Amicus briefs in support of the property owner are due on Wednesday. The District's brief in response is due next month, and the property owner's reply brief is be due on January 8. The case is set to be heard on January 15, 2013. For more information in the meantime, check out my posts on the case's background.

Yes, Silviculture is Agriculture: Forest Roads Case to be Argued Next Week Before U.S. Supreme Court

If it were up to your environmental organizations, your local tree farmer couldn't call himself a farmer. And he doesn't have a tree farm. No, he is an industrial titan - just as much an industrial operation as mining, oil exploration, and heavy equipment manufacturing.

What? Even though silviculture is simply the agriculture of trees? Even though silviculture is always regulated as agriculture? And EPA says forestry is agriculture? Incredibly, that is just the argument being made by NEDC in the forest roads litigation to be heard before the U.S. Supreme Court next week (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Absurd arguments like this show the disconnect these days between environmental advocacy and reality.

The closing reply briefs of the forest and silviculture interests were filed recently, just ahead of the oral arguments. Georgia-Pacific's brief makes some strong technical arguments about the Clean Water Act, but its strength is in explaining the practicalities of forestry. For example, as lampooned above, the NEDC argued that the timber harvesting is industrial activity, twisting those words almost to their breaking point. Georgia-Pacific, however, points out that silviculture is no more industry than agriculture is: "The use of a chain saw, feller buncher, or cable-yarder to harvest trees no more makes logging 'industrial' than using a 20-ton combine to pick and segregate corn makes crop harvesting 'industrial.'" Consequently, "EPA has determined that forestry roads and silvicultural harvesting ... more closely resemble agricultural land uses than industrial uses."

Georgia Pacific's brief makes four main legal arguments:

• Channeled forest road runoff is not a discharge "associated with industrial activity."
• Channeled forest road runoff is not a "point source" discharge.
• The respondent environmental organization's interpretations would undermine the purpose of the CWA.
• The U.S. Supreme Court lacks jurisdiction to invalidate EPA regulations in this kind of enforcement action.

The brief by the State of Oregon  focuses on the Ninth Circuit's refusal to defer to the expertise of the EPA. Normally, courts are supposed to give the opinions and rules of expert agencies great weight, but in the case below, the Ninth Circuit did not do that: 

Here, EPA has consistently interpreted its stormwater discharge rule to exclude stormwater runoff from forest roads from the permitting requirements and its interpretation is consistent with the text of the rule and EPA's expressed intention when it adopted the rule. In light of its unfaltering interpretation of its rule, EPA's interpretation binds this Court. 

But respondent now suggests that this Court should simply pretend as if the very regulation that respondent is seeking to enforce does not exist at all because the relevant statutory language is "plainly dispositive." (Resp. Br. 17). Yet in so arguing, respondent fails to grapple with the two roadblocks in its path: (1) this Court's longstanding recognition that when Congress entrusts an agency with the responsibility to carry out Congress' directives and that agency carries out its responsibility by adopting a rule, the agency's regulations executing those directions cannot simply be ignored; and (2) the limitations on the scope of review in a citizen suit, which preclude a reviewing court from rejecting an agency's regulations because, in the court's view, the agency's interpretation is inconsistent with the relevant statute.

Stay tuned. The Supreme Court will hear this case next week. I'll post commentary once the transcripts are released. In the meantime, catch up on the history of this dispute in my archives.

U.S. Supreme Court to Hear Third Property Rights Case This Term, Consider New Deal Agriculture Statute

The U.S. Supreme Court announced earlier this week that it would hear its third property rights case this term. The case is Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012). In the case below, the Ninth Circuit held that it lacked jurisdiction to hear a takings claim:

Under a federal marketing program for California raisins, the government seeks to stabilize prices by taking some of the annual crop off the market. A federal committee each year recommends to the Agriculture Department the part of the crop that it believes should be held off the market. A packer or processor may buy raisins from the growers for the part of an annual yield that can be marketed, but the part ordered to be withheld must be kept in reserve. These so-called “reserve tonnage” amounts, though, can be sold in markets where competition does not exist, such as school-lunch programs. The proceeds from selling those raisins are used to pay the costs of running that part of the program. 

A group of grape vineyard operators in California were accused by the Department of setting up a program to evade the reserve pool requirement by processing their own grapes into raisins, then selling them. They countered that they were only producers, not processors, and so were not covered by the marketing order and its reserve set-aside. The Department sought to compel them to obey the marketing order, and the vineyards ultimately were ordered to pay $483,844 in civil penalties. 

The vineyards went to court, contending that the reserve set-aside requirement amounted to a “taking” of their private property without just compensation, as required by the Fifth Amendment. A federal district court judge ruled for the Department, finding that the vineyard operators were, in fact, functioning as processors or packers. Transfer of title to the reserve raisins was not a “taking,” the judge concluded. 

The Ninth Circuit Court ultimately ruled that it lacked jurisdiction to hear the “takings” claim, and that the vineyards should take that plea to the Court of Federal Claims under the so-called ”Tucker Act,” which allows lawsuits against the government seeking monetary compensation for taking private property for public use. The vineyards then took the issue of where they may sue to the Supreme Court, resulting in Tuesday’s grant of review.

My fellow bloggers are already noting that this situation sounds a lot like an exaction. This case has an interesting parallel with Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). In both cases, the courts below held that the property owner needed to give in to the government's demand for their property before challenging the demand. With any luck, the Court will make clear two cases arising out of very different contexts that unlawful government demands for property may be challenged in court without giving in first. In that sense, the Court's ruling in either of these cases could end up seeming a bit like Sackett v. EPA, where the Court gave landowners the right to take EPA to court to challenge environmental compliance orders.

You can follow the case's progress over at SCOTUSblog. More background is available from the LA Times. The briefs from the petition for certiorari stage are below.

Boundary and Fencing Disputes, Adverse Possession, and Property Law in Florida

This weekend I ran across a good resource for Florida property owners. The University of Florida IFAS Extension produced the Handbook of Florida Fence and Property Law a couple of years ago. I thought I would point it out to my readers because it covers a range of interesting topics that I get asked about a lot. It covers a bit about adverse possession, which my most popular blog post covers. It also covers another topic that I am asked about a great deal: neighbor boundary disputes. What happens when neighbors have disputes over their boundary lines or their fences? The handbook summarizes, after giving a great deal of detail:

If your title clearly describes your land and, according to your deed and your neighbor’s deed, your neighbor’s fence is clearly encroaching upon your land, you should immediately notify your neighbor in writing of the encroachment. Your neighbor is required to remove this encroachment. 

If the location of the true boundary line is unclear from both your deed and your neighbor’s deed, avoid future dispute by notifying your neighbor of the ambiguity, calling a surveyor, and clarifying your boundary lines. In the case where you think boundary by agreement or boundary by acquiescence may apply to the dispute, think of the aspects of each and whether they actually apply to your case. 

Remember the three aspects of boundary by agreement: 

1. Uncertainty or doubt as to the true boundary line
2. Agreement that a certain line will be treated by the parties as the true boundary line
3. Subsequent occupation by the parties in accordance with the agreement for a period of time sufficient to show settled recognition of the line as a permanent boundary 

Consider also the two aspects of boundary by acquiescence: 

1. A dispute or uncertainty from which it can be implied that both parties are in doubt as to the true boundary line
2. Continued occupation and acquiescence in a line other than the true boundary for a period of more than seven years (as required by the statute of limitations)

Of course, IFAS has many other guides and handbooks that landowners may find useful.

A Prime Example of Why the U.S. Supreme Court Needs to Throw Out Florida's Misguided Exactions Ruling

You might ask why the U.S. Supreme Court should overturn Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). Look no further than amicus briefs in Florida courts citing to that case's misguided public policy reasoning. Koontz is the exactions case recently accepted by the U.S. Supreme Court that will decide (1) whether  the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and (2) whether the Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

In Pacetta, LLC v. Ponce Inlet, Case. No. 2010-31696-CICI (Fla. 7th Cir. Apr. 20, 2012), the question was not about an exaction, but about inverse condemnation and a Bert Harris Act claim. The trial court described a shocking Florida takings tale of government abuse and political corruption. The Florida Chapter of the American Planning Association (FAPA) and the Florida League of Cities have filed an amicus brief in the case on appeal. The amici make a number of arguments that should concern property owners. For example, the amici argue that the public's statutory right to participate in the planning process is disenfranchised by the trial court's protection of the landowners' constitutional property rights. Then, the amici ask the court to assume that landowers will be better off if they have to continuously negotiate their projects, using Koontz:

Finally, the lower court's decision that the discussions between Pacetta and the Town's officials created an equitable estoppel has a pernicious and counterproductive result for the relations between local governments and developers. A prudent developer will consult with the local government when preparing a land development proposal, especially if the existing comprehensive plan and land development regulations do not allow the development as a matter of right. A local government, especially its planning and management staff, ordinarily will expect to advise an potential applicant of the regulatory constraints and will advise the potential applicant about perceived improvements to the potential development. The negotiations continue even after an application is filed, especially if the required Town action on the application is a legislative decision, as here, and not a quasi-judicial decision. Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991) (lobbyist's ex-parte communications in a quasi-judicial variance proceeding can violate due process). The discussions and negotiations can result in a better result for both the developer and the local government. As recognized in St. Johns River Water Management District v. Koontz, 77 So.3d 1220, 1231 (Fla. 2011), penalizing the local government for such discussions with the threat of financial consequences if the negotiations fail by the time of the final decision injures both sides:

"... agencies will opt to simply deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation. Property owners will have no opportunity to amend their applications or discuss mitigation options because the regulatory entity will be unwilling to subject itself to potential liability. Land development in certain areas of Florida would come to a standstill. We decline to approve a rule of law that would place Florida land-use regulation in such an unduly restrictive position."

The course of the proceedings between the Pacetta entities, the Town staff and individual officials were not actions that Pacetta can reasonably claim to rely upon for purposes of equitable estoppel. Rather, they were the preliminary, non-binding discussions between the parties that were not legislative, final action. 

The amici might be right about the equitable estoppel issue. I've not reviewed the case record. But it seems especially misguided to say that somehow the landowners should have continued working with a local government that was doing everything in its power to thwart the landowners' efforts. In Koontz, the Florida Supreme Court gave no logical or case law justifications for how property owners would be worse off if governments were allowed to extort property, money, and labor from landowners. The Florida Supreme Court even said that the landowners were better off allowing the practice--though ignoring the fact that the case before it was not about the negotiation process, it was about the permit's denial following negotiations. If there were ever a reason for the U.S. Supreme Court to overturn Koontz, the amici's use of that case to support the government in Ponce Inlet is a great one.

In full disclosure, I'm a member of FAPA and actively involved in it. I spoke at its annual conference this summer on agricultural law and policy in Florida. When I was in my graduate planning program, it honored me as "Student Planner of the Year." Nevertheless, briefs advocating in support of such egregious governmental action, and showing such disregard for individual property rights, make me wonder whether I should continue to support the organization.

Environmental Organization Files Brief in Forest Roads Litigation before U.S. Supreme Court

The Northwest Environmental Defense Center (NEDC), a non-profit environmental organization, has filed its brief in the forest roads case before the U.S. Supreme Court (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Before I jump into the summary, here's a quick reminder of where we're at. It all started when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule under the Clean Water Act, which meant that many forest landowners would need federal stormwater permits for their forest and logging roads. In response, last December, Congress stayed NPDES permitting through October 1, 2012. EPA worked much of this year to develop revisions to its Clean Water Act rules for logging roads (but it is still working on what to do with the broader category of forest roads).

Meanwhile, courts and legal commentators urged the U.S. Supreme Court to grant certiorari and hear the case, although the U.S. Solicitor General recommended against it. Ultimately, the U.S. Supreme Court agreed to hear the case. Now, the case is being briefed, and the U.S. Solicitor General decided to support petitioners (the landowners). You can read all of my blog posts on this issue here.

NEDC argues that the Ninth Circuit's opinion was correct because:

1. The Court has subject matter jurisdiction because the NEDC's citizen suit seeks to enforce EPA's regulations, rather than challenge them. 
2. This case only involves the active channelization of water into ditches and conveyances that go along with logging roads and are discharges that must be permitted. It doesn't involve non-point sources or natural runoff.
3. The accumulation of sediment into the water is an "acute environmental problem" that the EPA must address.

We'll see the landowners' responses to these points soon enough, but here is some food for thought. NEDC's first point seems to be one of those games we lawyers play with words and semantics. Even though NEDC was seeking to enforce EPA's regulations, it still challenged EPA's interpretation of them. The second point is well taken. But it does not squarely address the landowners' argument, which is not whether there is a discharge, but rather whether that discharge is associated with industrial activity, as required by law.. The third point is not especially compelling, since it basically argues that the Court should ignore out the landowners' policy reasoning but accept its own.

EDIT: 10/31/12 - Originally, I mistakenly used the acronym "NRDC," rather than NEDC. This may have called to mind for my readers familiar with environmental organizations the Natural Resource Defense Counsel. That organization is not a party to the case. Thanks to my readers for pointing out the mistake, which has now been corrected.

Third Quarter 2012: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the third quarter of 2012. It's a relatively small bunch this time:

• Southern Union Co. v. United States, - S. Ct. -, 2012 WL 2344465 (2012), determined that the Sixth Amendment protection requiring that juries determine any fact, other than a prior conviction, that increases a criminal defendant’s maximum potential sentence applies to the sentencing of criminal environmental fines. The U.S. Supreme Court overturned the $18 million penalty assessed against Southern Union and sent the case back to the appeals court for further consideration.
• FT Investments, Inc. v. Florida Department of Environmental Protection, - So.3d -, 2012 WL 2138110 (Fla. 1st DCa 2012), holding that a third party defense to strict liability for petroleum contamination only applies if the purchaser of the contaminated property had no knowledge of the contamination after a reasonable inquiry. The takeaway here is that liability under the statute is strict - do not assume that just because you did not cause the contamination you cannot be held liable for it.
• Department of Transportation v. Florida Gas Transmission Co., - So.3d -, 2012 WL 2014755 (Fla. 1st DCA 2012), discussing issues related to contractual interpretation of a gas pipeline easement.
• Turkali v. Safety Harbor, Case no. 2D11-3649 (Fla. 2d DCA 2012), explaining, as I have discussed previously, that a "valid, bona fide appraisal" under the Bert J. Harris Private Property Protection Act must provide information about the value of the individual property at issue. As I discussed before, it's important to make sure that you follow the statute precisely to preserve your statutory rights.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.

U.S. Supreme Court to Determine What Governments Can Request in Exchange for Permits

In a case with big implications for landowners and governments of all levels and sizes, the U.S. Supreme Court has just agreed to hear Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). As readers of my blog know, this is an important property rights case dealing with exactions.

In St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2011), the Florida Supreme Court declined to recognize an exaction under U.S. Supreme Court precedent. Koontz had been trying to develop his property since 1994, when he had applied to the District for a permit. The District agreed to grant the permit on two conditions. First, the District required that Koontz deed part of his property into a conservation area, which he agreed to do. Second, the District required that Koontz perform offsite mitigation several miles by replacing culverts and plugging drainage canals on District-owned properties seven miles from his property, which Koontz refused. When the District then denied the permit, Koontz sued in state court, arguing that the District’s offsite mitigation condition was an unconstitutional exaction because it violated the Nollan-Dolan test. The trial court found that the District had taken Koontz’s property through an unconstitutional exaction because the condition was not related to the impacts of his project. The intermediate appellate court affirmed.

The Florida Supreme Court reversed, holding there was no taking. The court explained that the Nollan-Dolan test only applied to exactions of real property, where a permit was actually issued imposing the onerous exaction. The court acknowledged a line of cases applying the Nollan-Dolan test beyond real property exactions, but it held that these cases went beyond the U.S. Supreme Court’s holdings. The court also explained that, as a matter of public policy, land use regulation would become prohibitively expensive if agencies were subject to inverse condemnation claims anytime they denied a permit. Consequently, the court held there was no taking because no permit was ever issued.

Before the U.S. Supreme Court, Koontz has asked the Court to establish that:

1. The Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and 
2. The Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

This is excellent news for landowners. The Pacific Legal Organization, which is representing the landowner in this case, has an excellent track record before the Supreme Court: it has won six out of the seven cases it has argued there. It won the seminal case in this area of the law before the Supreme Court, Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987). And in March of this year, it won Sackett v. EPA, 566 U.S. __ (2012), which gave property owners the right to take EPA to court over a compliance order dealing with wetlands.

This case just may go down in history as the only time my hometown Palatka, Florida is relevant before the Supreme Court. The District is housed there. For those interested in researching further, the Supreme Court's docket for the case is here. I'll have an article in the American Planning Association's Planning & Law Newsletter soon with more analysis.

What If the Government's Power Plant Kills Your Chickens? More on Elevating Public Interest above Private Property Rights

The transcript for today's flood takings case argued before the U.S. Supreme Court is out. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). As Lawrence Hurley points in out in his recap of today's oral argument, a majority of the Court seemed sympathetic to the property owner's plight. As always, the justices tossed out some fun, nearly nonsensical hypotheticals that make lawyers recall their worst days in law school.

Earlier this week, I explained that, behind the legal doctrines, is a simple philosophical question: should property rights depend on the importance of the public interest? Today, the federal government said that's exactly the case (represented below by Mr. Kneedler). In fact, Congress had been good enough to help these landowners to begin with, so that the landowners should have known that the government could later decide to flood their lands:

MR. KNEEDLER: I don't believe that that's correct. I mean, that -- that would turn on the happenstance of what a particular landowner had -- had on his property downstream. And I think the government, in operating the general project, cannot be held to do an investigation of every property owner. Again, it's releasing water generally. And if we -- maybe if I could use the levy example here. This -- the release changes that were made here were made to protect farmers so that they could -­ so that they could plant more crops and not -- and be protected during their harvesting.  If you shift back to what the Corps -- to the Corps' regular operating scheme, it affects the farmers. There might be a flood -­ 

MR. KNEEDLER: It is in the nature -­ 

JUSTICE SCALIA: That doesn't seem to me particularly fair. 

MR. KNEEDLER: It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes. The government is -- there are a thousand square miles, more square miles of drainage area -- 

JUSTICE SCALIA: I don't think -- one of those risks has to be the Government's going to make you pay for protecting somebody else.  Is that one of the risks? 

MR. KNEEDLER: Well, when -- picking up on what I said about Congress, Congress would not have
gotten into the flood control business without this protection of liability. People -­

JUSTICE SCALIA: I doubt that.

JUSTICE SCALIA: I mean, the issue is who is going to pay for the wonderful benefit to these farmers. Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this -­ this particular sorry landowner who happens to lose all his trees?

Even Justice Breyer agreed that this position was absurd, since the government undertakes public works in many fields, and in all of them it must compensate a property owners if something goes awry and property is taken:

JUSTICE BREYER: But building a Government project, let's say an electricity plant or high tension wires, you could require the taking of some land to build it. Now, you've got that and you begin to run it. You could run it in such a way that it takes some of the property. I mean, the electricity could, for example, because of some odd thing run around over somebody's land and kill all the chickens. That wasn't expected but it happens, and it happened because of the way the Government runs the plant. Now, I guess there would be a taking in such circumstance if in fact, because of the way it's run, it makes that land which no one thought would happen, as a consequence of the project uninhabitable; wouldn't there be? 

MR. KNEEDLER: Well, again, it depends. If the Government -- if the Government is occupying the land when it happens, yes. But there's -- as you've I think pointed out, there's a critical difference between a tort and a taking. And there -- there can be collateral consequences of what the Government does that -- that cause injury. 

JUSTICE BREYER: The collateral consequence is to make some piece of land 4 miles away quite unexpectedly but totally uninhabitable. Now, what's supposed to happen there? That's not just a trespass because it's permanent. And even if it's once every 2 years, it's permanently once every 2 years.

Hopefully the rest of the Court will agree that it is absurd to elevate the public interest so much that a private landowner must single-handedly bear a burden that results from a benefit given to the public at large. Otherwise, expect to see less private investment in areas near government public works.

Can a Legislature Pass Laws Limiting the Right to Compensation for a Taking?

Over the past week, I've been writing about a case before the U.S. Supreme Court that asks whether a property owner can be compensated for its timber, where the government destroyed the trees. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). In Florida, we have a long line of cases dealing with the destruction of trees because the state has the power by statute to destroy citrus trees where they pose a danger to other trees, such as by citrus canker infection. A recent case highlighted the problem of compensation for the trees and answered an interesting property rights question.

What if a legislature decided that private property takings claims were becoming too burdensome? Could the legislature pass a law limiting the right to compensation for inverse condemnation? The 3d DCA recently addressed this question head-on. Florida Dept. of Agric. & Consumer Services v. Brignoni, - So. 3d -, 37 Fla. L. Weekly D2199 (Fla. 3d DCA 2012). According to the 3d DCA, the answer is no:

The provision of the Florida Constitution providing that “[n]o private property shall be taken except for a public purpose and with full compensation,” Art. X, § 6(a), Fla. Const., is self-executing; therefore, “it is immaterial that there is no statute specifically authorizing recovery for loss.” Dep't of Agric. & Consumer Servs. v. Mid–Florida Growers, Inc., 521 So.2d 101, 103 n. 2 (Fla.1988). “[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation....” Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 90 (Fla. 4th DCA), review denied, 48 So.3d 835 (Fla.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2874, 179 L.Ed.2d 1188 (2011). 

The relevant compensation portion of Florida's Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides: The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program. 

As the Florida Supreme Court has stated: [The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So.2d 774, 785 (Fla.2004) (quoting State Plant Bd. v. Smith, 110 So.2d 401, 407 (Fla.1959)); see also Patchen, 906 So.2d at 1008 (“[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law.” (quoting Haire, 870 So.2d at 785)). 

In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, “which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995.” Patchen, 906 So.2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed.³ See Patchen, 906 So.2d at 1005–09. Accordingly, “[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.” Bogorff, 35 So.3d at 91.

That is, in Florida, the Legislature is welcome to set a minimum for compensation to injured property owners.  It could not, however, arbitrarily cap the amount of compensation that a property owner could receive, or keep the property owners out of court in an effort to recover just compensation. Put simply, the Legislature must respect the rights protected in the federal and state constitutions.

Property Rights at Stake This Week: Should Property Rights Depend on the Importance of the Public Interest?

Last week, I previewed the property rights case to be argued this week before the U.S. Supreme Court. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). I focused on the legal arguments in the case, which seeks payment for the extensive timber that was destroyed when the Army Corps of Engineers flooded the Commission's property. Lawrence Hurley has written a great article giving a feel for just how important this case is at the local level. The article also explains the property rights at stake and the implications of the case:

The case could have implications beyond the narrow question of Army Corps-directed water discharges. Those keen for the Supreme Court to become more active in the property rights area, like Jonathan Adler, a law professor at Case Western Reserve University School of Law, certainly hope so. "We don't see many property rights cases," he said. "The language of the opinion will really matter." 

Others are wary of the Supreme Court expanding the definition of what constitutes a taking. John Echeverria, a professor at Vermont Law School, is concerned that any kind of ruling in favor of Arkansas could have "enormous implications" for local governments. 

Although the federal government is the defendant in the case before the court, local governments are far more likely to be on the receiving end of such claims if the Supreme Court endorses the practice, Echeverria wrote in a brief in support of the Army Corps filed by the International Municipal Lawyers Association and other local government groups. 

In an interview, Echeverria said property rights advocates would be keen for a broad ruling on "temporary takings" that could prompt challenges to such activities as government inspections of property. "This is one front of a multifaceted debate over property rights," he added. "The property rights advocates see it as an opportunity to expand the doctrine."

Professor Echeverria is well known for having never seen a property rights claim that amounted to a taking. He supported the State of Florida before the U.S. Supreme Court in Stop the Beach Renourishment, Inc v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010). In that case, I worked for counsel of record in representing the property owners after the Florida Supreme Court rewrote its waterfront property law. 

In this case, Professor Echeverria "urge[s] the Court to avoid an interpretation of the Takings Clause that would impose unreasonable new burdens on local governments charged with addressing flooding threats and other serious water management challenges":

The facts of this relatively unique case have the potential to obscure the particular threats to local governments posed by the arguments of Petitioner and its  amici curiae for extending physical takings octrine to temporary occupations or invasions. In a variety of contexts, for a variety of important public purposes, government officials intentionally or inadvertently cause temporary or occasional physical invasions of private property. Exposing local taxpayers to potential financial liability under the Takings Clause for all such incidental injuries to property would impose significant  new financial burdens on already straitened local governments as well as impede important government functions. In other words, in the context of  temporary invasions or occupations, as much as with regulatory restrictions, “government hardly could go on” if it could be held liable under the Takings Clause every time it acted. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). 

Of most immediate concern, Petitioner’s proposed takings theory would seriously undermine the ability of local governments to address a host of local water management issues. Managing the flow of storm water, sewage and other forms of water is one of the most important and difficult functions of local government.

Professor Echeverria seems to miss the point of constitutional protection of property rights entirely. As is always the case in property rights disputes, there are many competing interests at stake here. The interests of farmers and others that the Army Corps was working towards when it flooded the Commission's property are certainly important, as were the more general interests of the public in being protected from flooding. That makes this case all the more compelling: property rights must be respected, no matter how compelling the public interest is. Any other rule cheapens the freedoms we've worked so diligently for in this country.