Your Raisins or Your Life: Recapping the Horne Oral Argument before the U.S. Supreme Court

Last week, the U.S. Supreme Court heard oral arguments in this term's third property rights case, which could have important implications for a variety of agriculture interests. Horne v. U.S. Department of Agriculture, No. 12-236 (argued Mar. 20, 2013). This is the case where raisin producers raised the Takings Clause as a defense to the government's imposition of fines for a New-Deal-era agricultural marketing law. The government, on the other hand, has argued that the raisin producers can try their hand at bringing a separate lawsuit but cannot use it as a weapon against government enforcement.

Lyle Denniston at SCOTUSblog recaps the strange and lively arguments:

A portentous constitutional issue hung in the air Wednesday as the Supreme Court examined government seizures of private property, and everybody seemed to want to have it decided. But it was almost totally lost in a fog raised by a perplexing array of minutiae about how the government tries to push up the price of raisins. The cloud was so thick that even a highly respected professor and former judge misspoke twice in describing his clients’ role.

***

In one of the points Wednesday when a bit of clarity seemed within reach, Justice Stephen G. Breyer (who often asks questions with multiple layers of complexity) suggested simply that the raisin program is either constitutional or it’s not, and “it rather seems to me that it is not a right fit for the Court of Claims. Am I wrong about that?”

The Wall Street Journal gets the implications right for the average Joe:

Taxpayers are wary of government programs that confiscate private property—witness outrage over the 2005 Supreme Court Kelo decision that let government take homes via eminent domain for private use. Now the High Court is considering another program that orders citizens to surrender their assets—or else.

U.S. raisin farmers have been required for nearly 80 years to turn over a share of their crops to the federal government every year, often at below-market prices. Last week the Supreme Court heard oral argument on whether, in the words of Justice Elena Kagan, this annual raisin heist is "a taking, or just the world's most outdated law." 

*** 

For small businesses, these routine confiscations are a special burden because so few can afford to defend their property rights. Similar federal marketing orders cover produce including apricots, avocados, kiwis and olives. The effect is to impose a tax on farmers. 

As Justice Antonin Scalia put it, so it's "your raisins or your life, right? . . . you don't have to pay the penalty if you give us the raisins." No, Mr. Palmore explained. "They have to give the raisins . . . It's not a choice." Which is why the Justices should find these takings to be unconstitutional.

Seems like The Onion picked a good case to parody, doesn't it?

Those who like to read the tea leaves would do best by checking out Robert Thomas's blow-by-blow analysis of the arguments. His prediction?

We're predicting a narrow ruling from the Court vacating the Ninth Circuit's amended opinion, holding that the issue is not "jurisdictional," and sending the case back to the Ninth Circuit for further consideration of the Hornes' request for en banc review. The multiple concessions from USDA's counsel are probably going to be too much to overcome, and a narrow remand would allow the Court to resolve the case without getting too far into the weeds about "handlers" and "producers," issues that no Justice seemed ready to tackle, and without getting into the merits of the takings issue.

In his preview of the Horne case, Robert Thomas did a good job of connecting Horne to a case that's near and dear to this author's heart, Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). I've written about the Koontz case many times, and as my readers know, I co-authored an amicus brief in support of the landowner-petitioner in that case. As I've discussed before, Horne, like Koontz, raises a fundamental question about the Takings Clause: does it have any power to prevent unconstitutional threats? Or must a property owner roll over to the government's extortion and only then go to court?

U.S. Supreme Court Says No Clean Water Act Permit Needed for Logging Roads, Raises Other Questions for Landowners and Agencies

In a victory for landowners, the U.S. Supreme Court just issued its opinion in the forest roads case, Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). The Supreme Court began by breezing past the argument by EPA and the environmental plaintiff that the case was moot because of EPA's newly-revised rule exempting logging roads from permitting under the Clean Water Act. It held that the new rule was irrelevant to the merits of the case before it because the landowners might still be liable for penalties under the old rule for past violations of the Clean Water Act.

On the merits, the Supreme Court held that EPA's rules exempt "discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme." Slip Op. at 15. The Court reasoned that EPA's reading of its regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act:

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Chase Bank USA, N. A. v. McCoy, 562 U. S. _, _ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.  

There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.  

The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff  before it enters rivers and streams, Ore. Admin. Rule 629–625–0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6). 

Slip Op. at 14-15. The Court's resolution of this issue seems to still leave the Ninth Circuit litigation on the EPA's new rule in play. I'll continue following that issue.

Beyond the immediate comfort that this opinion should give forest landowners, there are two significant issues that could have broader implications. First, we could see an increase in citizen-suit environmental litigation under the Clean Water Act. The Supreme Court held that "the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation." Slip Op. at 9. It just happens to be that the NEDC's reading of the rule did not match EPA's. Therefore, "[t]he present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule." Slip Op. at 8. Consequently, environmental organizations will most certainly argue in the future that regulations are ambiguous and should be interpreted in a different--and novel--way that implicates liability for landowners. What's a landowner to do if it can be sued for following a regulation in exactly the way that EPA interprets it?

The second broader implication, as the New York Times notes, is Justice Scalia's call for review in his dissent of the longstanding principle of administrative law that executives agencies receive great deference to agency interpretations of their own regulations:

The Court gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough. 

Justice Scalia forcefully argues that, while there may be reasons to defer to an agency's interpretation to a statute where Congress has purposefully delegated authority to the agency, there is no good reason to do the same for an agency when it interprets its own rule. "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Ultimately, he says, "He who writes a law must not adjudge its violation."

This idea seems quite reasonable to me, just as it did to Chief Justice Roberts and Justice Alito. They, however, recognized the argument goes "to the heart of administrative law." Accordingly, while they expressed some interest in reconsidering this principle, they felt this case was not the proper vehicle for the argument because it had not been argued in any depth. At the very least, Justice Scalia's dissent should give rise to some interesting petitions for certiorari to the Supreme Court in the coming days.

What are the Timing Requirements of a Bert Harris Act Claim? New Decision Reinforces Need for Florida Supreme Court Review

Under a recent decision about the Bert Harris Act, property owners in some parts of the state will receive stronger protections than in others. Wendler v. St. Augustine, 5D12-2563, 2013 WL 1007290 (Fla. 5th DCA 2013). The case muddies the waters for the timeline of when a claim under the Act must be presented to a government entity before a lawsuit is filed. A local news outlet reports the background:

Between 1998 and 2006, the Wendlers purchased eight parcels in St. Augustine; including seven structures built between 1910 and 1930 located in a National Register of Historic Places District. The parcels are subject to city ordinance, section 28-89, City of St Augustine Municipal Code, which regulates the demolition or relocation of certain historic structures—the Wendlers say that they were aware of the ordinance at the time they purchased the property.

But, in 2002, the City revised the ordinance by expanding the list of regulated structures to include homes at least 50 years old. The amendment also extended the waiting period for a demolition permit from six months to one year. In 2005, the City again amended the ordinance, authorizing the City’s Historic Architectural Review Board to deny demolition or relocation requests indefinitely for three types of structures, including those considered “contributing property to a National Register of Historic Places District”. On December 5, 2007, St Augustine’s Historic Architectural Review Board first applied the twice-amended ordinance to the Wendler property and denied the demolition permits.

In a press release I received by email from the Coalition for Property Rights, the attorney representing the property owners explains in more detail:

In 2007, the Wendlers applied for “Certificates of Demolition” regarding seven buildings located on their private property. The buildings, originally built between 1910 and 1930, have been used as apartments rented primarily to Flagler College students. With the passage of time, the buildings have become uneconomic due to the extraordinary costs of upkeep and Flagler College’s recent construction of student dormitories 

The Wendlers wanted to demolish or relocate the old buildings to make way for a new Henry Flagler-styled hotel they wished to develop at the gateway of the City along King Street. The City denied the Wendlers’ request on historic preservation grounds, on a general finding that removal of buildings would be detrimental to the historic and architectural character of the City. 

This was surprising given that the City had earlier approved the demolition of houses next door for Flagler College’s construction of lighted tennis courts and also designated the King Street “entry corridor” as “blighted” and in need of redevelopment by private enterprise. The City showed little concern that the Wendlers were losing money on their property when left with the present use of the old buildings as apartments. For the public good, the City expected the Wendlers to continue with their economic hardship as part of historic preservation. 

To understand the case, one has to look through the City’s smokescreen to really see what is going on. Of 162 applications for demolition made in a 10-year period, the City of St. Augustine denied only 7 of those applications indefinitely – those 7 applications were the ones made by the Wendlers. Incredible as it may sound, the City argued that the Wendlers should have known that their applications would be denied when the City approved all of the other 152 applications. 

The trial court judge threw out the Wendler's suit, reasoning they had not presented their claim in a timely manner to the local government before suing. The 5th DCA reversed, with two important holdings concerning when a suit is properly brought under the Bert Harris Act. 

First, the 5th DCA upheld Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009). That case held that the impact of governmental regulations can sometimes be determined when a government simply adopts the changes to its laws and regulations, rather than when they are specifically applied to the property owner. The 5th DCA implied that its decision conflicts with the 1st DCA, which has held to the contrary that “until an actual development plan is submitted, a court cannot determine whether the government action has ‘inordinately burdened’ property." M & H Profit, Inc. v. Panama City, 28 So. 3d 71, 76 (Fla. 1st DCA 2009). This holding probably only applies to the pre-2011 Bert Harris Act. In 2011, it was amended to provide that a law or regulation is only applied upon enactment if notice is provided to affected property owners.

Second, the 5th DCA held that the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act. The court also agreed with Russo Assocs., Inc. v. Dania Beach Code Enforcement Bd., 920 So. 2d 716 (Fla. 4th DCA 2006), that the law's tolling provision for other legal relief applies to both the pre-suit notice condition and to the filing of the claim in court. The 5th DCA implied that its decision conflicts with the 2d DCA, which held to the contrary that the Bert Harris Act "provides that the action must be filed within one year of the application of the ordinance to the subject property." Turkali v. Safety Harbor, 93 So.3d 493, 494 (Fla. 2d DCA 2012). I posted previously on the Turkali decision. This holding is important because it applies to cases both before and after the 2011 amendments to the Bert Harris Act.

With the 5th DCA recognizing that its decision conflicts with two other district courts of appeal, I wouldn't be surprised to see this one show up at the Florida Supreme Court. Until then, the safe thing to do is the present claims to government entities within 1 year of the government's action, period.

Horne Oral Argument Preview: The Takings Clause as a Weapon Against Government Enforcement Actions

On Wednesday, the U.S. Supreme Court will hear its third property rights case of the term, Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012). As I've explained, in this case, raisin producers raised the Takings Clause as a defense to the government's imposition of fines for a New-Deal-era agricultural marketing law. The government, on the other hand, has argued that the raisin producers can try their hand at bringing a separate lawsuit but cannot use it as a defense.

Lyle Denniston at SCOTUSblog always has insightful analyses, and he has done it again in this weekend's argument preview. He notes the tricky line in this case between jurisdiction and the merits of this case:

Although the bottom line of the case is about court jurisdiction, and about when a claim of “takings” is “ripe” for judicial review, the growers’ petition put a heavy emphasis on their argument that the government, by ordering them to make a cash payment to the government, had taken their property in violation of the Fifth Amendment. Any time the government imposes a penalty in the form of money damages, the petition contended, a “takings” claim is available because in demanding money, the government “had already determined that no ‘just compensation’ will be forthcoming.” So, at that very point, a claim of a “taking” should be allowed as a defense to the fine’s imposition, the growers asserted.

In his analysis, this case could have important implications:

This is another of those cases before the Court where the outcome may follow quite easily from the Court’s choice of which of two different theoretical boxes is the right one for this dispute. If it sees the case as a controversy over the government’s use of a “bait-and-switch” strategy to thwart a serious challenge to its marketing program enforcement, the growers could be well on their way to winning. The growers’ lawyers have done quite a good job of portraying this as a David-and-Goliath contest; here and there, the filings portray these vineyards as small parts of the raisin industry. 

But if the Court sees the case as one more in a lengthy line of pleas to relax its hard line against “premature” claims for just compensation under the Takings Clause, the Agriculture Department could be home free. The Court has steadfastly refused to budge on requiring those who claim a “taking” to go through the proper channels before they can mount a definitive claim for compensation. 

The case, as it was being readied for the Court, moved a considerable distance away from the legalities of the decades-long programs for shoring up agricultural prices. In fact, the back-and-forth categorization of the growers, as the controversy moved along, between “handlers” and “producers” is not likely to clarify legal responsibilities under these farm crop marketing schemes. In the end, the case began to appear, in some significant ways, as a case that turns on its special facts. 

But the larger potential of the case, to draw the Court deeply into the history and meaning of the Fifth Amendment Takings Clause, gives it the promise of producing a major new precedent. It could, indeed, clarify not only when claims under that Clause are, or are not, premature, but also determine whether there is anything to the growers’ quite novel argument that the Clause is a weapon against government enforcement actions through monetary fines.

This should be an interesting oral argument. Michael McConnell, a Stanford law professor and former federal appellate judge, will be arguing for the raisin producers. He and his team have done an excellent job of positioning this case as a David versus Goliath battle: “All we want to do is pack our raisins and sell them,” Mr. Horne has said. “The only thing I wanted, along with my group, was to be free.” 

Think Adverse Possession is Tough in Florida Now? Take a Look at These Bills!

In honor of my most popular blog post ever, I'm bringing my readers this update on adverse possession legislation. First, what's adverse possession?

The doctrine of adverse possession “dates back at least to sixteenth century England and has been an element of American law since the country's founding.”2 The first adverse possession statute appeared in the United States in North Carolina in 1715.3 Adverse possession is defined as "[a] method of acquisition of title to real property by possession for a statutory period under certain conditions." An adverse possessor must generally establish five elements in relationship to possession. The possession must be:

• Open; 
• Continuous for the statutory period; 
• For the entirety of the area; 
• Adverse to the record owner's interests; and 
• Notorious.

In most jurisdictions, state statutory law prescribes the limitations period – the period within which the record owner must act to preserve his or her interests in the property – while the state's body of common law governs the nature of use and possession necessary to trigger the running of the statutory time period. As legal scholars have noted, “[a]dverse possession decisions are inherently fact specific.” Therefore, an adverse possessor must establish “multiple elements whose tests are elastic and provide the trier of fact with flexibility and discretion.”

That most popular post ever was "Adverse Possession Now More Difficult in Florida." It's been more than twice as popular as any other post I've written. It's also my first post from when I really got starting blogging in earnest. In that post, I explained how adverse possession worked in Florida and how Senate Bill 1142 (2011) changed it:

In Florida, this ancient English doctrine of property law is defined in chapter 95, Florida Statutes. Under Florida law, there are two ways to adversely possess property. First, a person can adversely possess by actually possessing it and claiming color of title, or claiming a right to it based on a recorded document, for seven years. Second, a person can actually possess a property and, within the first year of possession, file a claim with the county property appraiser's office. Under this method, the person also has to pay property taxes during the seven year possession period. 

SB 1142 amends the current law to make it harder to acquire property by adverse possession by paying taxes on a parcel. Currently, there is no requirement that a property owner be notified that someone has stepped in to pay taxes on the property. It requires property appraiser to notify the rightful property owner when someone files for adverse possession with the appraiser. When filing, the possessor must disclose the intended use of the property.

That bill passed, but the Legislature doesn't seem to be completely satisfied that property owners are protected enough. House Bill 903 and its counterpart, Senate Bill 1166, are winding through the legislative process. If passed, they would make it nearly impossible to claim adverse possession in Florida without color of title (i.e., by what is commonly called squatting). The staff analysis reports:

This bill adds a number of requirements related to adverse possession without color of title. The bill requires that a person who files a return for taxes with the intent of claiming the property by adverse possession must:

• Wait for all taxes and liens on the property to accrue for two years.
• Have actual and continued control of the property.
• Maintain or improve the exterior of any structures on the land.
• Pay all mortgages and liens on the property.
• Not apply for adverse possession for more than one property in the state at the same time.
• Not enter any structure on the land until the end of the adverse possession period and after a deed has been issued to the possessor.
• Maintain the property without entering any of the structures.
• Provide a notarized statement from the record owner giving consent to the adverse possession.

It's tough to imagine a situation where someone could meet these requirements. And, as the staff report hints, the bill seems more intended at eliminating adverse possession than fixing it: "The bill .. requires a signed statement of the existing owner acknowledging the adverse possession, but the concept of adverse possession is that possession is adverse to the owner. If the owner acquiesces to possession, there can be no claim for adverse possession."

Maybe cases like this attempt to adversely possess a $2.5M mansion here in Florida (along with the banks that own those properties) are the impetus behind these bills. But adverse possession was designed to preserve the status quo and keep property productive. These bills seem to destroy that delicate balance.

Must Congress Approve an Interstate Water Compact's Restrictions on Interstate Commerce? An Update on the Tarrant Case

I reported in January that the U.S. Supreme Court would hear a case dealing with how an interstate water compact relates to the commerce clause. Tarrant Regional Water District v. Herrmann, 11-889 (cert. granted Jan. 4, 2013). 

As Megan Herzog discussed at Legal Plant, the case "could have consequences for urban metropolises seeking to satisfy their growing populations’ water demand as climate change impacts water supply reliability, as well as for states experimenting with protectionist policies to preserve natural resources within their borders." She further thinks that "it is unlikely that the Supreme Court will reach a Commerce Clause analysis, but let us nonetheless take Tarrant as an opportunity to evaluate whether anti-export laws like Oklahoma’s hold water. Efficiently managing scarce resources in the face of climate change requires an interstate market; the kind of retaliation-bating, “what’s mine is mine” mentality that Oklahoma displays in its anti-export water laws is not productive." Another commentator, a water law attorney, wrote that the decision below "bodes poorly for water right holders in a broad range of relations with their respective states, and will likely have an impact on the interpretation of other interstate stream compacts or interstate water transfers in streams without compacts in place."

Some of my readers will probably recall that Florida is not a signatory to a water compact. Even so, it was in the past, and will probably have to work one out in the future with Alabama and Georgia. We have seen our own water wars here, though they haven't been as severe as those the Wall Street Journal describes in its backgrounder on Tarrant . So this will be a case for us in the Southeast to watch, since it could determine what that future compact will look like. One blogger explained the potential implications of the case outside of Oklahoma, Texas, and Arkansas:

[I]t’s the Water District’s constitutional argument that the [we] should pay attention to. The Water District claims that the “protectionist” character of the Red River Compact violates the dormant Commerce Clause of the U.S. Constitution. The Commerce Clause of Article 1 of the U.S Constitution gives Congress the exclusive authority to regulate interstate commerce. The dormant Commerce Clause is the legal theory that because Congress regulates interstate commerce, States cannot enact legislation that unreasonably restricts interstate commerce and prevents States from being “protectionist” with their natural resources. 

According to the Water District, the Supreme Court has consistently required that Congress unambiguously acknowledge and approve a statute’s or a Compact’s unreasonable restrictions on interstate commerce .... In the Water District’s view, Congress has to explicitly approve the restrictive nature of the Compact and Congress’ intent cannot be gleaned by looking at the restrictive language in the Red River Compact as a whole. 

Thus, if the Red River Compact falls, other compacts may be subject to challenge. The District's opening brief and supporting amicus briefs have been filed. The questions presented are: 

1. Whether the Red River Compact, which allocates to each of the signatory States an “equal share” of the water in a specified subbasin, preempts discriminatory Oklahoma laws that prevent certain signatory States from obtaining their equal share of that water.
2. Whether Congress’s approval of Compact language providing that the Compact shall not “be deemed ... to interfere” with each State’s “appropriation, use, and control of water .. not inconsistent with its obligations under this Compact” manifests an unmistakably clear congressional consent to discriminatory state laws.

On the first question, the District states that the decision below is unsupportable because the plain language of the "Red River Compact guarantees Texas equal rights to the use of specified water." On the Commerce Clause question, which is probably more interesting for readers of this blog, the District summarizes its argument: 

Oklahoma’s discriminatory water legislation, which would preclude Texas users from obtaining water located in but not apportioned to Oklahoma, also cannot survive scrutiny under the Commerce Clause. That legislation, which discriminates on its face against out-of-state water users, is virtually per se unconstitutional. Although recognizing that principle, the Tenth Circuit thought that Congress authorized Oklahoma’s legislation by approving the Compact. But such authorization is found only when Congress expressly announces its approval for discriminatory state laws. The provisions of the Compact invoked by the court of appeals, however, say nothing whatsoever about the Commerce Clause or state authority to discriminate against interstate commerce. It is immaterial that some provisions of the Compact generally defer to state water law; as this Court has recognized, such general language must be understood as deferring only to valid state law, an ingredient of which is conformity with the requirements of the Commerce Clause.

The United States, though, wrote in its amicus brief that the Supreme Court should vacate and remand the case because the interstate compact preempts Oklahoma state law, and that the Commerce Clause question shouldn't be reached. We'll see how Oklahoma responds soon.

Is it a Regulatory Taking if the Government Forces You to Hand Over Your Crops in Exchange for the Privilege of Entering the Marketplace?

Now that all the responsive briefs are have been submitted in Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012), I've had a chance to take a look. Recall that this is the third property rights case that the U.S. Supreme Court will hear this term. Recall that this is the raisins case, Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012), that has been compared to guerrilla warefare, and which is to consider whether a New Deal agricultural statute takes property of raisin growers without compensation. As I've written before, the issues is this: if the government takes you to court because you failed to pay something it required, can you defend against the government by arguing it is attempting to take your property without compensation?

In its response brief, the Department of Agriculture begins by continuing a recent theme in takings cases by naming the Takings Clause the Just Compensation Clause. Robert Thomas believes this move was to imply that the Hornes are seeking compensation, when in fact they are simply defending against government enforcement. The Department makes two main points:

1. The Hornes can attack the raisin confiscation through a claim for compensation through the federal Tucker Act, which authorizes the Court of Federal Claims to award compensation when it finds a taking has occured.
2. The Hornes engaged in a procedural "shell-game" in defending against government enforcement using the takings clause. The Department argues that the Hornes are defending in their statutory capacity as a "producer" of raisins rather than as a "handler."

As for the second point, the amicus brief of the Sun-Maid Growers of California makes the same argument. I ask: should the government really be able to shield itself when it takes property by erecting arbitrary statutory categories of property owners?

In the amicus brief of the International Municipal Lawyers Association, Prof. John Echeverria of Vermont Law School, who always resolves takings claims in favor of the government, argues:

Petitioners have needlessly complicated the vindication of their asserted rights under the Takings Clause of the Fifth Amendment by failing to file a straight forward claim for just compensation in the U.S.Court of Federal Claims. Petitioners have long participated in the raisin industry marketing program which they now believe results in a taking. Thus, they could easily have filed a claim for just compensation in the U.S. Court of Federal Claims based on this asserted taking. Instead, petitioners decided to disregard federal law requiring that they participate in the program and now seek to invoke the Takings Clause to defend against the sanctions imposed as a result of their illegal action.This effort should fail for three independent reasons. First, because the purpose of the Takings Clause is to provide compensation for takings, rather to stop takings from occurring, it would contradict the purpose and function of the Takings Clause to allow a party who has defied federal law and thereby blocked implementation of a federal program to defend his or her action by invoking the Takings Clause. Second, government seizures of private property for law enforcement purposes, such as forfeitures, are outside the scope of the Takings Clause. Third, government-imposed mandates to pay money in general, including but not limited to the kinds of monetary sanctions at issue in this case, are outside the scope of the Takings Clause.While it is unlikely the Court will reach the merits of the takings issue in this case, amici submit that the takings argument is meritless. The raisin marketing program is best viewed as involving a regulatory restriction on property rather than an appropriation of property, and therefore the Penn Central analysis should govern this claim. Given the modest (if any) net economic burden imposed by the raisin marketing program, and the modest (if any) interference with petitioners’ reasonable investment-backed expectations, the Penn Central claim should fail. Even if the alleged taking were analyzed under a per se test,the claim should fail because petitioners could not carry the burden of demonstrating that the program has imposed any net compensable injury on them.

Let's hope the U.S. Supreme Court doesn't have as much disdain for private property rights as Prof. Echeverria does! This case is scheduled for oral argument on March 20, 2013.