May 11, 2020 by John Echeverria

The Coronavirus and the Takings Clause

Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be – and likely will be – rejected based on firm U.S. Supreme Court precedent.

In the absence of clear direction from the Trump administration, states have been left largely to themselves to devise emergency rules designed to “flatten the curve’” of new coronavirus cases and reduce the toll of sickness and death. Most states have adopted some subset of now-familiar restrictions, including stay-at- home directives, requirements that “non-essential” businesses shut down, and bans on owners traveling to and using vacation homes. In response to these measures, property owners have filed takings lawsuits in more than half a dozen states across the country, ranging from California to Florida …

Sept. 28, 2018 by John Echeverria

On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred.

The Knick case presents the opportunity for the Court to decide whether or not to embrace a longstanding goal of property advocates: to overturn the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, which channels most takings lawsuits arising from local zoning and other similar land use disputes into state court. In my view, Williamson County was correctly decided, its essential premises have been repeatedly …

Sept. 25, 2018 by John Echeverria

This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. While no single storm event can be entirely attributed to climate change, Hurricane Sandy is precisely the kind of severe storm event that scientists predict will become more frequent in the era of climate change.

One issue raised by Hurricane Sandy — and the prospect of other, potentially even more severe storms in the future — is how to keep residents and businesses (and their occupants) out of harm’s way. This question in turn implicates …

Oct. 23, 2017 by John Echeverria

On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water. 

The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps' decision on August 27 and on the following days, to release up to 13,000 cubic feet per second …

March 15, 2017 by John Echeverria

On Monday, the Supreme Court will hear oral argument in a seemingly minor zoning case, Murr v. State of Wisconsin. In reality, the case involves a fundamental challenge to public authority to protect our communities and private property. In particular, if the Court were to rule in favor of petitioners, it would make it vastly more difficult for communities to compel large-scale developers to comply with zoning and other land use laws.

Here’s the back story. In 1972, the Secretary of the Interior approved a request by the Governors of Wisconsin and Minnesota to include the Lower St. Croix River in the national Wild and Scenic Rivers system based on its outstanding scenic and recreational values. Despite this national designation, state and local land use agencies control development along the river’s banks. The Murr case arises from the efforts by St. Croix County, Wisconsin, to …

April 29, 2015 by John Echeverria

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court last week might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case involves a claim that an arcane raisin-marketing program administered by the Department of Agriculture effects a taking by requiring raisin growers, in certain years, to turn over a portion of their crop to the government in order to keep raisin prices high.   While there are several issues presented and lurking in the case, the central question is whether takings claims based on government seizures or other “appropriations” of personal property are governed by a per se rule. The Petitioners’ case rests on persuading the Court to apply a per se rule because they declined, for better or for worse, to present an alternative takings claim resting on …

March 13, 2013 by John Echeverria

Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches.  To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls.

The issue representing the innermost doll, which the Court will only get to if it can unpack the outer dolls, is the most intriguing and arguably the most significant in terms of the future of takings doctrine.  The question is whether a federal agricultural marketing program results in a “taking” of private property within the meaning of the Takings Clause of the Fifth Amendment by requiring raisin producers to …

Sept. 25, 2012 by John Echeverria

The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed.  The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause.  But there are two other  -- arguably more important -- issues lurking in the background that have barely received mention:  (1) whether the claim is barred by the doctrine of sovereign immunity and (2) whether the plaintiff can claim an impairment of its rights as a riparian property owner under state law. 

This case involves the unusual situation of one governmental entity, a state agency, suing another government, the United States, for “just compensation” under the …

June 17, 2010 by John Echeverria

If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands …

Nov. 30, 2009 by John Echeverria

On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here).

Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their property interests within the meaning of the Takings Clause of the Fifth Amendment.

The case potentially raises two interesting questions, but for various reasons the Court may well find itself incapable of addressing the merits of those questions. In any event, the Court will not likely disturb the judgment of the Florida Supreme Court rejecting petitioner’s case.

The first issue is whether a Florida …

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More on CPR's Work & Scholars.
May 11, 2020

The Coronavirus and the Takings Clause

Sept. 28, 2018

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

Sept. 25, 2018

From Surviving to Thriving: Coastal Storms, Private Property, and the Takings Issue

Oct. 23, 2017

The Flood of Takings Cases after Hurricane Harvey

March 15, 2017

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

April 29, 2015

The Horne Case and the Public Trust in Wildlife

March 13, 2013

In Horne v. Department of Agriculture, SCOTUS to Wade into Complicated Nest of Takings Issues