Horne: Supreme Court Says Seizures of Personal Property Are Subject to a Per Se Rule

The U.S. Supreme Court issued its decision today in Horne v. Department of Agriculture, reversing the Ninth Circuit and ruling that the Hornes are not subject to monetary fines for violating the Department’s raisin marketing order.  The fines were invalid, the Court ruled, because compliance with the marketing order would have resulted in a taking of private property without compensation under the Takings Clause. The Court split along depressingly predictable partisan lines, with four justices (you know who they are) joining an opinion for the Court written by Chief Justice John Roberts, and four other justices (you know who they are) dissenting in whole or in part.  Many people will have interesting things to say about this case, which will deserve continued study, but here is a brief recap and a few initial observations.  Read the rest of this entry »

Cert Grant in Horne v. Department of Agriculture

Today the U.S. Supreme Court granted a petition for certiorari in the takings case of Horne v. Department of Agriculture.    As followers of this blog may recall, the U.S. Supreme Court has already been around once in this case.

The issues as presented in the cert petition are as follows:   “(1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.”

Stay tuned.  More to follow.


Property Rights in Water Are Different

Further confirmation that property rights in water really are different — and more limited — than property rights in other resources is provided by the June 16 decision of the California Court of Appeals in the case of Light v. State Water Resources Control Board.   The court rejected a challenge by property owners in the Russian River basin to a state water board regulation that will restrict surface water diversions to protect endangered salmon. The regulation was adopted in response to disastrous strandings of salmon that occurred in April 2008 when large volumes of water were drained from the river and sprayed on vineyards and orchards to prevent frost damage.   The board’s new regulation is designed to protect the salmon by controlling similar future diversions of water. Read on …

The Ninth Circuit Rules in Horne: The Plot Thickens

The Supreme Court’s takings decisions last term in Horne and Koontz have each generated considerable debate and consternation.  Now, the Ninth Circuit has issued a new ruling in Horne on remand that relies heavily on the analysis in Koontz to resolve the Hornes’ claim. The Ninth Circuit handed the government a win, ruling that the Hornes failed to demonstrate a taking due to the Secretary of Agriculture’s assessment of penalties against them for declining to “reserve” a portion of their raisin crop in accordance with the Agricultural Marketing Agreement Act of 1937.  Unfortunately, the Ninth Circuit’s legal analysis is an impenetrable tangle, largely because the Supreme Court itself has been so confusing, and the long-term implications of the Ninth Circuit’s decision are both unpredictable and troubling. Read on …