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 »

Property Reserve case — Precondemnation Activities

On Wednesday the California Supreme Court agreed to hear an interesting case addressing the types of surveys and investigations of private property the government can undertake without triggering takings liability before deciding whether the property is suitable for a planned public infrastructure project and should be taken by eminent domain for that purpose.

The case arises from California’s proposal to construct a tunnel or canal to divert fresh water from northern California around the Sacramento–San Joaquin River Delta to central and southern California.  The project has enormous significance for meeting the water supply needs of many millions of Californians, and also raises a host of environmental concerns.  The tunnel or canal would cross tens of thousands of acres of land held by several hundred different owners.  To determine whether the project can be built as planned, the State proposes to do a series of geological explorations and environmental surveys of the proposed right on way.  The question is whether these precondemnation activities themselves amount to takings. Read on …