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Wednesday, March 27, 2013

The Supreme Court Rediscovers Property Rights: Six Recent Cases

Robert Meltz
Legislative Attorney

In 2010, the Supreme Court ended a five-year period in which it had accepted no property rights cases, granting certiorari in no less than six such cases between 2010 and 2012. This large number of cases suggests a renewed interest by the Court in property rights, and particularly in the Fifth Amendment Takings Clause. The Takings Clause is the Constitution’s principal protection of property rights, promising just compensation when property rights are “taken” by government for a “public use.”

The first case, decided in 2010, was Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection. There, a four-Justice plurality endorsed the idea that courts, just as other branches of government, could be subject to takings liability. This question of “judicial takings” often arises when courts articulate new principles of common law that extinguish existing property rights.

The next two cases were decided during the Court’s 2011-2012 term, but did not involve the Takings Clause. In PPL Montana LLC v. Montana, the Court fleshed out the test for “title navigability”—only streambeds under “navigable” waters pass to a state upon admission to the Union. The Court ruled that the hydropower company, not the state, held title to the riverbeds on which its dams were located, and thus did not have to pay rent to the state. In Sackett v. Environmental Protection Agency, enforcement of the wetlands permitting program in the Clean Water Act was at issue. The holding was that when property owners receive an order from the Environmental Protection Agency under the act, they have a right to “pre-enforcement review”— that is, a right to judicially challenge the order right away, before EPA seeks to enforce it and impose potentially large penalties. The major question now is how many other federal programs, due to this decision, must afford pre-enforcement review of agency orders.

Finally, the Court accepted three takings cases during its 2012-2013 term. The first-accepted case, Arkansas Game & Fish Comm’n v. United States, has just been decided. The Court jettisoned the long-standing rule that when a government project induces flooding of private property, only flooding that is continual or at least “intermittent but inevitably recurring” can result in takings liability. Temporary flooding, the Court now says, may also in some instances subject the government to such liability. The other two takings cases accepted in the current term are not yet decided. One is Koontz v. St. Johns River Water Management District, dealing with the scope of the Supreme Court’s tests for when exactions demanded of land owners as a condition of development approval bring about a taking; the other is Horne v. U.S. Department of Agriculture, raising a jurisdictional issue in connection with takings claims.

Typically, one can only speculate why the Supreme Court takes this or that case; only rarely are the Court’s reasons easily discerned. Still, informed guesses can be made. In all six cases here, the decision below had been against the property owner, suggesting that the Justices (or some of them) are looking anew for circumstances where property rights are unfairly burdened. And indeed, in three of the four Supreme Court decisions rendered so far in these cases, the decision has endorsed the property owner’s position—unanimously at that.

Date of Report: March 13, 2013
Number of Pages: 15
Order Number: R43005
Price: $29.95

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