Amicus Curiae Brief — Martins Beach 1, LLC, et al., Petitioners v. Surfrider Foundation

No. 17-1198

In The

Supreme Court of the United States

____________________

MARTINS BEACH 1, LLC and

MARTINS BEACH 2, LLC,

Petitioners,

v.

SURFRIDER FOUNDATION,

Respondent.

____________________

On Petition for Writ of Certiorari to

the First Appellate District Court of Appeal

of the State of California

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION AND

WESTERN MANUFACTURED HOUSING

COMMUNITIES ASSOCIATION IN SUPPORT

OF PETITIONERS

____________________

BRIAN T. HODGES

Counsel of Record

Pacific Legal Foundation

10940 NE 33rd Place, Suite 210

Bellevue, Washington 98004

Telephone: (425) 576-0484

E-mail: bth@pacificlegal.org

Counsel for Amici Curiae Pacific Legal

Foundation and Western Manufactured

Housing Communities Association (WMA)

i

QUESTIONS PRESENTED

1. Whether a compulsory public-access easement

of indefinite duration is a per se physical taking.

2. Whether applying the California Coastal Act to

require the owner of private beachfront property to

apply for a permit before excluding the public from its

private property; closing or changing the hours,

prices, or days of operation of a private business on its

private property; or even declining to advertise public

access to its private property, violates the Takings

Clause, the Due Process Clause, and/or the First

Amendment.

ii

Table of Contents

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 6

I. THE CALIFORNIA COURT’S FOCUS ON THE

DURATION OF GOVERNMENT ACTION TO

DETERMINE WHETHER A PHYSICAL

INVASION IF “TEMPORARY” OR

“PERMANENT” CONFLICTS WITH

DECISIONS OF THIS COURT.......................... 6

A.

Physical Invasions Are Subject to the Same

Test Regardless of Their Duration............. 6

B.

Review Is Additionally Necessary To

Address Widespread Confusion Concerning

Loretto’s Discussion of Temporary

Physical Takings ....................................... 12

C.

Arkansas Game & Fish Did Not Change

the Test Applicable to Physical

Invasion Cases .......................................... 18

II. THERE IS NO BASIS FOR THE CALIFORNIA

COURT’S DECISION TO SUBJECT A

PHYSICAL INVASION OF LIMITED

DURATION TO A DIFFERENT TEST THAN

THAT APPLICABLE TO AN INVASION

OF A LONGER DURATION........................... 20

CONCLUSION.......................................................... 23

iii

Table of Authorities

Page

Cases

Arkansas Game & Fish,

568 U.S. 23 (2012) ........................ 1, 6, 12, 18, 19-21

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) ........................................ 2

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ......... 21

Hendler v. United States, 952 F.2d 1364

(Fed. Cir. 1991) ................................................. 15-16

International Paper Co. v. United States,

282 U.S. 399 (1931) ............................................... 10

Juliano v. Montgomery-Ostego-Schoharie Solid Waste

Management Authority, 983 F. Supp. 319

(N.D.N.Y. 1997) ..................................................... 16

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) ................................................... 10

Koontz v. St. Johns River Water Management

District, 570 U.S. 595 (2013) ................................... 1

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) ........................................... 2, 21

Loretto v. Teleprompter Manhattan CATV Corp.,

423 N.E.2d 320 (N.Y. 1981) .................................. 13

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ................. 3-4, 12, 13-15, 18, 21

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ............................................... 4

Murr v. Wisconsin, 137 S. Ct. 1933 (2017)................. 1

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ................................................. 1

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ........ 1

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) ..................................... 3, 13, 19

iv

Portsmouth Harbor Land & Hotel Co. v. United

States, 260 U.S. 327 (1922) ............................. 19, 21

Pumpelly v. Green Bay Co.,

80 U.S. (13 Wall.) 166 (1871) .................................. 7

Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) ....................... 12, 19

Sackett v. Environmental Protection Agency,

566 U.S. 120 (2012) ................................................. 1

St. Louis v. Western Union Telegraph Co.,

148 U.S. 92 (1893) ................................................. 18

Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997) ................................................. 1

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

535 U.S. 302 (2002) ................................. 4, 7, 14, 20

U.S. Army Corps of Engineers v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) ............................................. 1

United States v. Causby,

328 U.S. 256, 266 (1946) ................................... 7, 11

United States v. Cress, 243 U.S. 316 (1917)..... 6, 8, 20

United States v. Dickinson,

331 U.S. 745 (1947) ......................................... 10, 22

United States v. General Motors Corp.,

323 U.S. 373 (1945) ..................................... 5, 10, 21

United States v. Lynah, 188 U.S. 445 (1903) ............. 7

United States v. Pewee Coal Co.,

341 U.S. 114 (1951) ................................................. 9

United States v. Welch, 217 U.S. 333 (1910).......... 7, 8

Other Authorities

Blevit, Steven, Note, A Tale of Two Amendments:

Property Rights and Takings in the Context of

Environmental Surveillance,

68 S. Cal. L. Rev. 885 (1995) ................................. 19

v

Constonsis, John J., Presumptive and Per Se

Takings: A Decisional Model for the Taking Issue,

58 N.Y.U. L. Rev. 465 (1983) .................................. 4

Coursen, David F., The Takings Jurisprudence of the

Court of Federal Claims and Federal Circuit,

29 Envt’l L. 821 (1999) ............................................ 4

Eagle, Steven J., Some Permanent Problems with the

Supreme Court’s Temporary Takings

Jurisprudence,

25 U. Haw. L. Rev. 325 (2003) .......................... 4, 24

Echeverria, John D., Making Sense of Penn Central,

23 UCLA J. Envtl. L. & Pol’y 171 (2005) ............. 24

Laitos, Jan G., The Takings Clause in America’s

Industrial States After Lucas,

24 U. Tol. L. Rev. 281 (1993) .................................. 4

LeVine, Michael C., How Permanent Became

Temporary in Del Monte Dunes,

49 Duke L.J. 803 (1999) .......................................... 4

Lock, Marcus J., Braving the Waters of Supreme

Court Takings Jurisprudence: Will the Fifth

Amendment Protect Western Water Rights From

Federal Regulation?,

4 U. Denv. Water L. Rev. 76 (2000) ........................ 4

Long, Dennis H., Note, The Expanding Importance of

Temporary Physical Takings: Some Unresolved

Issues and an Opportunity for New Directions in

Takings Law, 72 Ind. L. J. 1185 (1997) ................ 13

Manheim, Karl, Tenant Eviction Protection and the

Takings Clause, 1989 Wis. L. Rev. 925 (1989) ..... 18

Meltz, Robert, Merriam, Dwight H., & Frank,

Richard M., The Takings Issue (1999) .................. 24

Meltz, Robert, Takings Law Today: A Primer for the

Perplexed, 34 Ecology L.Q. 307 (2007).................. 13

vi

Radford, R.S. & Wake, Luke A., Deciphering and

Extrapolating: Making Sense of Penn Central,

38 Ecology L.Q. 731 (2011) ................................... 24

1

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2(a), Pacific

Legal Foundation and Western Manufactured

Housing Communities Association (WMA) submit this

brief amicus curiae in support of Petitioners Martins

Beach 1, LLC, and Martins Beach 2, LLC. 1

Pacific Legal Foundation (PLF) was founded 45

years ago and is widely recognized as the largest and

most experienced nonprofit legal foundation of its

kind. PLF has participated in numerous cases before

this Court both as counsel for parties and as amicus

curiae. PLF attorneys litigate matters affecting the

public interest at all levels of state and federal courts

and represent the views of thousands of supporters

nationwide who believe in limited government and

private property rights. PLF attorneys participated as

lead counsel in Murr v. Wisconsin, 137 S. Ct. 1933

(2017); U.S. Army Corps of Engineers v. Hawkes Co.,

Inc., 136 S. Ct. 1807 (2016); Koontz v. St. Johns River

Water Management District, 570 U.S. 595 (2013);

Sackett v. Environmental Protection Agency, 566 U.S.

120 (2012), Palazzolo v. Rhode Island, 533 U.S. 606

(2001); Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997); and Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and participated as

amicus curiae in numerous takings cases before this

Court, including Arkansas Game & Fish, 568 U.S. 23

(2012), Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

1 All parties were notified and have consented to the filing of this

brief. No counsel for any party authored this brief in whole or in

part and no person or entity made a monetary contribution

specifically for the preparation or submission of this brief. No

person other than Amici Curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

2

(2005), and City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999). Because of its

history and experience with regard to issues affecting

private property, PLF believes that its perspective

will aid this Court in considering Martins Beach’s

petition.

The WMA is a statewide trade association

representing

the

owners

of

1,700

manufactured/mobilehome

communities,

which

contain approximately 180,000 homes, distributed

throughout California. In total there are 4,600

manufactured/mobilehome communities representing

393,000 homes in California. WMA was founded in

1945 and is the largest and oldest trade association

representing community owners in California and in

the United States. WMA is a 501(c)(3) mutual benefit

nonprofit corporation whose mission is to preserve

and promote the interests of manufactured and

mobilehome community owners, operators, and

developers. WMA’s activities include educational

programs and legislative and judicial advocacy.

WMA’s members are interested in this case because it

concerns an important issue that affects their

industry, the preservation of property rights.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Martins Beach’s petition for a writ of certiorari

raises an important and unresolved question

concerning the protections provided by the Takings

Clause of the Fifth Amendment of the U.S.

Constitution. Specifically, the petition asks the Court

to resolve the longstanding confusion regarding the

terms “temporary” and “permanent” when used to

3

describe a physical taking of limited duration.

Clarifying these terms is a matter of utmost

importance to property owners across the nation

because the lower courts, like the California court

below, often use the term “temporary” to shield a

government intrusion upon private property from

meaningful scrutiny, depriving those owners of their

right to just compensation.

This case arises from a California trial court’s

issuance of an injunction authorizing the public to

cross over Martins Beach’s property to access and

recreate on the beach. Martins Beach sought to

invalidate the injunction on appeal, arguing that the

injunction effected a per se physical taking of its

property under Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 435 (1982). Pet. App. at 3942. The California court of appeal, however, refused to

enforce that categorical rule because the injunction

was “temporary” in duration (due to the fact that the

government may modify its decision in the future).

Pet. App. at 42-51. The court then concluded that a

landowner alleging a “temporary” physical taking

must adjudicate his or her claim under an undisclosed

multifactorial test—not the categorical test set out in

Loretto. Pet. App. at 39 (suggesting without deciding

that temporary physical takings plaintiffs may be

required to satisfy the ad hoc regulatory taking test

announced in Penn Central Transp. Co. v. New York

City, 438 U.S. 104, 123-24 (1978)). Then, instead of

identifying the appropriate test, the court simply

dismissed Martins Beach’s taking claim because it

made “no attempt to show the injunction effected a

taking under Penn Central test (or any other

multifactor test)”. Pet. App. at 39, 56-60.

4

The California courts’ sole focus on the duration

of the physical invasion as determining the applicable

takings test is not supported by this Court’s takings

precedents. Over the years, this Court has used the

terms “permanent” and “temporary” to describe a

compensable government interference with property

with little regard to the actual duration of the

intrusion. 2 For example, the “temporary” land use

moratoria at issue in Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535

U.S. 302, 322-23 (2002), lasted six years; whereas, the

regulation resulting in a “permanent” deprivation of

all economically viable land uses in Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992), was only in

effect for two years. 3 And this Court’s seminal

physical taking case, Loretto v. Teleprompter

Manhattan CATV Corp., used the term “permanent”

to describe a physical occupation—i.e., installation of

a cable box—where the statute at issue required

landlords to permit cable companies to install

facilities on their properties for “[s]o long as the

property remain[ed] residential and a [cable] company

wishe[d] to retain the installation.” 458 U.S. at 439.

2 See, e.g., Professor Jan G. Laitos, The Takings Clause in

America’s Industrial States After Lucas, 24 U. Tol. L. Rev. 281,

293 (1993) (“While the Court has distinguished between

‘temporary physical invasions’ and ‘permanent physical

occupations,’ after [First English], even temporary physical

invasions may be per se takings, requiring just compensation for

the time the property is occupied.”).

See Steven J. Eagle, Some Permanent Problems with the

Supreme Court’s Temporary Takings Jurisprudence, 25 U. Haw.

L. Rev. 325, 340 (2003).

3

5

A close reading of this Court’s takings case law

confirms that the terms “temporary” and “permanent”

properly refer to the lasting effect that the

government intrusion has on the owner’s rights, not

the duration of the government’s activities. Thus, in

United States v. General Motors Corp., the Court held

that government’s one-year occupation of an

automotive parts plant during World War II took an

easement for a term of years for which just

compensation was required. 323 U.S. 373, 378 (1945).

The effect of the temporary occupation was

“permanent” because, although the plant was

returned, the owner’s rights in the property were

irreparably harmed. Id.

The California court’s decision is particularly

objectionable—and particularly appropriate for

review—because it rejects the test that this Court

developed for physical takings based solely on the

duration of the injunction, and without any analysis

regarding the impact that the public access easement

has on Martins Beach’s rights. Furthermore, if left

unreviewed, the state court decision will turn

constitutional litigation into a game of blindman’s

bluff, where property owners will have to guess as to

what test is applicable to their claim, risking

dismissal for not satisfying any of the undisclosed

factors. As such, the decision below provides a

roadmap for government to circumvent the scrutiny

required by this Court by simply stating that a

physical invasion or occupation is temporary and/or

subject to modification.

6

ARGUMENT

I

THE CALIFORNIA COURT’S FOCUS

ON THE DURATION OF GOVERNMENT

ACTION TO DETERMINE WHETHER A

PHYSICAL INVASION IF “TEMPORARY” OR

“PERMANENT” CONFLICTS WITH

DECISIONS OF THIS COURT

The reason why the California court’s decision

creates so many conflicts with this Court’s takings

case law is because the lower court focused on the

wrong question to determine whether the injunction

authorizing the public to cross over Martins Beach’s

land should be characterized as a “temporary” or

“permanent” taking. This Court has long held that it

is the character of the government action—i.e.,

whether it directly interferes with the owner’s rights

in his or her property—that determines whether a

physical invasion is “permanent” or not. See, e.g.,

United States v. Cress, 243 U.S. 316 (1917). The

California court, however, focused solely on the

duration of the public access order to characterize the

physical invasion as “temporary.” Pet. App. 39, 42-51.

That conclusion markedly departs from this Court’s

physical takings case law and warrants review.

A. Physical Invasions Are Subject to the

Same Test Regardless of Their Duration

This Court’s decision in Arkansas Game & Fish

Commission v. United States confirmed that a

temporary physical taking will occur when

government action gives rise “to ‘a direct and

immediate interference with the enjoyment and use of

7

the land.’” 568 U.S. at 33 (quoting United States v.

Causby, 328 U.S. 256, 266 (1946)). The decision also

reaffirmed the rule that when “the government

physically takes possession of an interest in property

for some public purpose, it has a categorical duty to

compensate the former owner.” Id. at 31 (quoting

Tahoe-Sierra Preservation Council, Inc., 535 U.S. at

322).

Those two principles arise from a long line of case

law dating back to the Court’s first physical invasion

case, Pumpelly v. Green Bay Co., in which this Court

held that the government must compensate a property

owner when it uses private property in a manner that

inflicts “irreparable and permanent injury to any

extent.” 80 U.S. (13 Wall.) 166, 177-78 (1871). Several

decades later, in United States v. Lynah, 188 U.S. 445,

468 (1903), the Court explained why some physical

invasions will rise to the level of a compensable taking

while others will not. There, distinguishing between

direct and consequential injuries, the Court held that

the government will be held liable for a taking when

it causes a physical invasion or occupation of private

property that results in a “serious interruption to the

common and necessary use of property” or is “so as to

substantially destroy” the land’s value and effect a

“practical ouster” of that land. Id. at 470, 472.

The first time a majority of the Court spoke

directly to the effect of a temporary invasion was in

United States v. Welch, 217 U.S. 333 (1910). There, a

dam on the Kentucky River permanently flooded a

strip of land adjacent to Welch’s farm, depriving him

of the only practical way to access the county road

from his property. Id. at 338. The government argued

that the interference with access was collateral and

8

consequential—at most a tort. Id. The Court rejected

the government’s argument, holding that the flooding,

even though it occurred on land adjacent to Welch’s

farm, had a direct impact on Welch’s right to access

his land. Id. at 339. The government flooding

effectively appropriated Welch’s interest in his right

of way. Id. Important to the discussion of temporary

takings, the Court explained that, even if the

government had caused flood waters to enter and

destroy private property, then stopped the flooding, its

actions would still amount to a taking: “But if it were

only destroyed and ended, a destruction for public

purposes may as well be a taking as would an

appropriation for the same end.” Id.

Several years later, in United States v. Cress, the

Court directly addressed physical invasions of a

limited duration when it concluded that governmentinduced flooding does not have to be a continuous

condition on the land to rise to the level of a taking.

243 U.S. 316, 327-28 (1917). In Cress, the federal

government’s construction and operation of locks and

dams on the Kentucky and Cumberland Rivers caused

the rivers and their tributaries to back up and

intermittently overflow a portion of one plaintiff’s

property and interfere with another plaintiff’s

operation of a mill. Id. at 318-19, 327. The Court found

that the periodic intrusions appropriated an easement

because, during periods of overflow, the government’s

actions directly and substantially interfered with each

landowner’s rights to make valuable use of his

property. Id. at 329-30. The Court concluded that,

although intermittent, the flooding directly interfered

with the landowner’s rights to possess, use, exclude

others, and/or dispose of his or her property. Id. at

9

328, 330. Cress, therefore, rejected the argument that

the duration of the government action is

determinative of whether a taking has occurred,

holding that there is “no difference in kind . . . between

a permanent condition of continual overflow by backwater and permanent liability to intermittent but

inevitably recurring overflows.” Id. at 328.

Importantly, Cress recognized that the only

distinction between permanent and intermittent

flooding was that, in the latter circumstance, the

landowner may retain possession of his land and the

government is obligated to compensate the owner for

the value of the easement taken. Id. at 328-29 (“If any

substantial enjoyment of the land still remains to the

owner, it may be treated as a partial, instead of a total,

devesting of his property in the land. The taking by

condemnation of an interest less than the fee is

familiar in the law of eminent domain.”). Thus, Cress

established the modern test for physical takings: “it is

the character of the invasion, not the amount of

damage resulting from it, so long as the damage is

substantial, that determines the question of whether

it is a taking.” Id. at 328.

The Court applied this rule across a series of cases

involving the government’s temporary seizure of

private property during World War II. In United

States v. Pewee Coal Co., for example, the Court held

that the federal government was obligated to pay just

compensation after it had “possessed and operated”

the property of a coal mining company for 5½ months

in order to fend off a nationwide miners’ strike in the

middle of the war. 341 U.S. 114, 115 (1951). The Court

unanimously agreed that the government’s seizure

was a taking, with no regard to the occupation’s

10

limited duration. Id. (plurality); id. at 119 (Reed, J.,

concurring); id. at 121-22 (Burton, J., dissenting).

References to the “temporary” nature of the

government’s possession were made in the context

only of the amount of compensation due to the

property owner. See, e.g., id. at 117 (plurality). Other

wartime seizure cases confirm the principle that

short-term occupations can effect a categorical taking.

See Kimball Laundry Co. v. United States, 338 U.S. 1,

3-4, 7, 16 (1949) (government commandeered laundry

plant for less than four years, was required to pay

rental value for occupied period of time plus

depreciation and value of lost trade routes); United

States v. Petty Motor Co., 327 U.S. 372, 374 (1946)

(government compensated leaseholders for the

temporary taking of their leaseholds for period of over

two-and-a-half years); General Motors, 323 U.S. at 375

(government required to pay short-term rental value

for taking portion of a building that had been leased

by an automobile parts company); International Paper

Co. v. United States, 282 U.S. 399, 407-08 (1931)

(government order authorizing a third party to draw

the whole of a river’s water flow for a period of 10

months effected a physical taking of a paper mill’s

water rights requiring the payment of just

compensation).

Critically, in United States v. Dickinson, the Court

explained why a physical invasion of limited duration

constitutes a “permanent” taking. 331 U.S. 745, 750

(1947). In that case, the Court found that governmentinduced flooding, which lasted for approximately five

years, constituted a taking even though most of the

affected land had been reclaimed prior to the takings

claim being filed. Id. at 750-51. The Court concluded

11

that, by subjecting the property to flooding, the

government had exercised dominion over the land

and, therefore, had taken an easement. Id. at 750. The

Court explained that, for the period of time the land

was under water, “no use to which Dickinson could

subsequently put the property by his reclamation

efforts changed the fact that the land was taken when

it was taken and an obligation to pay for it then arose.”

Id. at 751.

Causby is perhaps the most significant decision

from this period because the Court was directly

confronted with the question of what test applies to a

temporary invasion of private property. There, the

Court was asked to determine whether a taking was

effected when the U.S. Navy authorized, for a

temporary and determinable period of time, low

altitude overflights that prevented use of Causby’s

property as a commercial chicken farm. 328 U.S. at

258-62. On these facts, the Court held that “the land

is appropriated as directly and completely as if it were

used for the runways themselves.” Id. at 262.

In regard to the duration of the Navy’s operations,

the Court, once again, explained that “it is the

character of the invasion, not the amount of damage

resulting from it, so long as the damage is substantial,

that determines the question whether it is a taking.”

Id. at 266. The Court found that a taking had occurred

because “the damages were not merely consequential.

They were the product of a direct invasion of

respondent’s domain.” Id. at 265. The government’s

“intrusion was so immediate and direct as to subtract

from the owner’s full enjoyment of the property and to

limit his exploitation of it.” Id. at 265. Thus, the harm

to the property owner was permanent.

12

This longstanding formulation of the physical

takings doctrine is the precise expression of the per se

rule that the Court adopted in Loretto, 458 U.S. at 426

(When the government physically occupies private

property, “‘the character of the government action’ not

only is an important factor in resolving whether the

action works a taking, but also is determinative.”).

This same formulation was reaffirmed in Arkansas

Game & Fish, 568 U.S. at 39 (citing Ridge Line, Inc. v.

United States, 346 F.3d 1346, 1355-56 (Fed. Cir.

2003)). The California court’s focus on the duration of

the public access order as being determinative of

Martins Beach’s takings claim—rather than the

character of the invasion—directly conflicts with this

Court’s case law and warrants review.

B. Review Is Additionally Necessary To

Address Widespread Confusion

Concerning Loretto’s Discussion of

Temporary Physical Takings

Much of the confusion in the California court’s

decision is attributable to a single footnote to Loretto,

in which the Court stated that it had subjected

“temporary” takings physical cases to “a more complex

balancing test.” 4 Pet App. at 42 (quoting Loretto, 458

U.S. at 435 n.12). The California court read this

The meaning of this footnote has perplexed other courts and

legal scholars for decades. See, e.g., Dennis H. Long, Note, The

Expanding Importance of Temporary Physical Takings: Some

Unresolved Issues and an Opportunity for New Directions in

Takings Law, 72 Ind. L. J. 1185, 1194 (1997) (“This single judicial

pronouncement is a principal source of the current uncertainty

in the temporary physical takings jurisprudence.”); Robert Meltz,

Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q.

307, 362-63 (2007).

4

13

footnote as requiring that any claim alleging a

physical invasion of a limited duration be adjudicated

under a multifactorial test, like the ad hoc test

developed in Penn Central Transp. Co. v. New York

City, 438 U.S. at 123-24. Pet. App. at 42, 56-60. The

lower court’s confusion in this regard is readily

refuted, once again, by a close reading Loretto.

In Loretto, a New York statute required landlords

to permit cable companies to install facilities on their

properties “[s]o long as the property remain[ed]

residential and a [cable] company wishe[d] to retain

the installation.” 458 U.S. at 439. Despite the

indefinite duration of the occupation, the question

presented asked “whether a minor but permanent

physical occupation of an owner’s property authorized

by government constitutes a ‘taking’ of property for

which just compensation is due under the Fifth and

Fourteenth Amendments of the Constitution.” Id. at

421.

The underlying state court decision mirrored the

California decision below. The New York court refused

to analyze Loretto’s claim under the physical takings

test set forth by Causby, applying instead the Penn

Central’s multifactor regulatory takings test. Id. at

425-26; see also Loretto v. Teleprompter Manhattan

CATV Corp., 423 N.E.2d 320, 330 (N.Y. 1981). The

threshold issue before this Court, therefore, was

whether Penn Central had supplanted the physical

takings test. Id. at 425-26. And on that question, the

Court held that Penn Central did not change the test

14

for physical takings (id. at 426, 432)—a ruling the

Court reaffirmed in Tahoe Sierra. 5

While Loretto was not called upon to distinguish a

“temporary” from a “permanent” physical taking, the

Court observed that a when a regulatory action

“reaches the extreme form of a permanent physical

occupation,” the character of the government’s action

becomes the determinative factor, giving rise to a

compensable taking without regard to any other

considerations applicable to regulatory claims. Id.

Then, in a footnote, the Court stated:

The permanence and absolute exclusivity of

a physical occupation distinguish it from

temporary limitations on the right to

exclude. Not every physical invasion is a

taking. [S]uch temporary limitations are

subject to a more complex balancing process

to determine whether they are a taking. The

rationale is evident: they do not absolutely

dispossess the owner of his rights to use, and

exclude others from, his property.

Id. at 436 n.12.

The California court read the footnote to refer to

the duration of the government action, not its

permanent impact. That reading, however, renders

Loretto both internally and externally inconsistent.

5 See 535 U.S. at 323 (“This longstanding distinction between

acquisitions of property for public use, on the one hand, and

regulations prohibiting private uses, on the other, makes it

inappropriate to treat cases involving physical takings as

controlling precedents for the evaluation of a claim that there has

been a ‘regulatory taking’ and vice versa.”).

15

Indeed, if those terms refer solely to duration, then

Loretto must be interpreted to have overruled sub

silentio all of the cases discussed above, including

Pewee Coal. Yet Loretto unqualifiedly relied on Pewee

Coal. See Loretto, 458 U.S. at 431. Clarification of this

critical point of law is essential.

Indeed, given the fact that this Court has

repeatedly held physical takings of limited duration

subject to the test for permanent physical takings, it

is surprising that only one court has carefully and

comprehensively addressed this issue—Hendler v.

United States, 952 F.2d 1364 (Fed. Cir. 1991). To

combat ground water pollution, the federal

government in Hendler requested access to plaintiffs’

property to install wells for monitoring and extracting

waste migrating from a nearby site. Disregarding the

landowner’s objections, government agents entered

the property and installed the wells. Id. at 1367. The

property owner challenged the government’s actions

as effecting a taking. The Court of Federal Claims

ruled in the government’s favor, but the Federal

Circuit reversed. Id. at 1368. Consistent with the

wartime seizure cases, the Federal Circuit held that

the installation of wells on plaintiffs’ property

constituted a physical occupation, and thus a per se

taking—regardless of the finite or even short-term

duration of the occupation. Id. at 1378. Addressing the

government’s claim that the occupation was

temporary (and thus subject to a multifactor

balancing test), the Federal Circuit offered a different

interpretation of the term “temporary:”

“[P]ermanent” does not mean forever. A

taking can be for a limited term—what is

“taken” is an estate for years, that is, a term

16

of finite duration as distinct from the infinite

term of an estate in fee simple absolute.

....

If the term temporary has any real world

reference in takings jurisprudence, it

logically refers to those governmental

activities which involve an occupancy that is

transient and relatively inconsequential, and

thus properly can be viewed as no more than

a common law trespass. 6

Id. at 1376-77.

Many legal scholars have reached the same

conclusion as Hendler, noting this Court’s consistent

use of the terms “temporary” and “permanent” to

indicate the character of the government’s intrusion

upon an individual’s property rights:

[P]ermanency for doctrinal purposes is not

synonymous with permanency in a temporal

sense. Rather, it is a label attached to

property interference of a sufficiently severe

nature. Thus, in developing its [physical]

takings doctrine, the Supreme Court has

focused on the quality, not the duration of

invasion. This was true in early cases and

more recent cases. The Court has even

viewed interference with limited term

leaseholds as a compensable taking.

Occasional,

periodic,

or

intermittent

6 Other courts adhere to the view that all temporary physical

takings be reviewed under Penn Central. See Juliano v.

Montgomery-Ostego-Schoharie Solid Waste Management

Authority, 983 F. Supp. 319, 327 (N.D.N.Y. 1997) (accusing

Hendler of “completely emasculat[ing]” takings law).

17

occupations can also fall within the rule. In

contrast, an isolated, or technical trespass

has been viewed as a temporary invasion.

Indeed, the Court’s latest land use decisions

reject any literal distinction between

temporary and permanent interferences as

determinative in either regulatory or

[physical] takings cases. . . . ‘Permanency’ is

thus a legal conclusion, rather than an

evidentiary fact.

Karl Manheim, Tenant Eviction Protection and the

Takings Clause, 1989 Wis. L. Rev. 925, 994-96 (1989)

(emphasis added). Similarly, Steven Blevit noted:

It almost goes without saying that ‘when the

Court speaks in terms of permanent physical

occupation, it does not necessarily mean that

the occupation is one that will last forever.’

. . . The term “permanent” is really the

Court’s shorthand way of describing which

physical occupations, because of the

character of the occupation, have a

sufficiently severe effect on the property

owner such that no public interest can

outweigh the impact on the property owner.

Thus, no further inquiry into the purpose of

the governmental action is necessary. The

temporal character of the invasion is a

relevant consideration, but not controlling.

Steven Blevit, Note, A Tale of Two Amendments:

Property Rights and Takings in the Context of

Environmental Surveillance, 68 S. Cal. L. Rev. 885,

905-06 (1995) (quoting Florida Power Corp. v. FCC,

772 F.2d 1537, 1544 (11th Cir. 1985), rev’d on other

grounds, 480 U.S. 245 (1987)). This understanding of

18

the terms “temporary” and “permanent” is consistent

with this Court’s physical takings cases.

The conclusion that the term “permanent” refers

to the nature of the injury caused by an intrusion is

consistent with the purpose of the Takings Clause,

which is to guarantee compensation when the

government appropriates an interest in property.

Thus, this Court has relied on the permanence of

harm inquiry to distinguish a constitutional claim

from a claim properly characterized as a tort since its

earliest physical takings cases, Pumpelly and Lynah.

Loretto confirmed this point by contrasting a

“permanent physical occupation” from those

“temporary and shifting” conditions that are akin to

an “ordinary traveller [sic], whether on foot or in a

vehicle, pass[ing] to and fro along the streets. . . . The

space he occupies one moment he abandons the next

to be occupied by another traveler,” as opposed to an

invasion that becomes a fixed and stable condition of

the property such that it dispossesses the owner of his

or her rights. Id. at 428-29 (quoting St. Louis v.

Western Union Telegraph Co., 148 U.S. 92, 98-99

(1893)). Only clarification by this Court will dispel the

widespread and deeply entrenched confusion caused

by Loretto’s footnote.

C. Arkansas Game & Fish Did Not

Change the Test Applicable to

Physical Invasion Cases

The California court also refused to analyze

Martins Beach’s claim under this Court’s test for

physical takings based on its misreading of two

passages from Arkansas Game & Fish. Pet. App. 3738. Those passages include, first, this Court’s

observation that, while permanent physical invasions

19

are subject to categorical treatment, “most takings

claims turn on situation-specific factual inquiries”

(Pet. App. 37-38 (quoting Arkansas Game & Fish, 568

U.S. at 31-32)), and second, this Court’s overview of

various regulatory and physical takings inquiries in

which the duration of a government act can be

relevant (but notably not determinative) to a takings

claim. 7 Arkansas Game & Fish, 568 U.S. at 39.

If read in isolation, those passages can be

confusing. But, as Arkansas Game & Fish

admonished, a single passage cannot be read out of

context to create a rule that the Court did not intend:

“the first rule of case law . . . interpretation is: Read

on.” Id. at 36. And when Arkansas Game & Fish is

read in its entirety it is readily apparent that the

Court did not intend to modify any of the established

takings tests. Indeed, the Court expressly limited its

decision to one narrow question, “We rule today,

simply and only, that government-induced flooding

temporary in duration gains no automatic exemption

from Takings Clause inspection.” Id. at 38.

Thus, when speaking to the takings tests

applicable in various circumstances, Arkansas Game

& Fish stated that it remains “incumbent on courts to

7 For example, the Court recites the “intent or foreseeability” test

that is applied as a threshold inquiry to distinguish physical

takings from torts like negligence and trespass. Ridge Line Inc.,

346 F.3d at 1355-56. The Court also references the “reasonable

investment backed expectations” test developed specifically for

ad hoc regulatory takings in Penn Central, 438 U.S. at 124. The

Court next refers to the “severity of the interference” inquiry,

which requires substantially different analyses in the physical

and regulatory contexts. Compare Penn Central, 438 U.S. at 13031, with Portsmouth Harbor Land & Hotel Co. v. United States,

260 U. S. 327, 329-30 (1922).

20

weigh

carefully

the

relevant

factors

and

circumstances in each case, as instructed by our

decisions.” Id. at 36 (emphasis added). And critically,

Arkansas Game & Fish, at 31, relied on Tahoe-Sierra,

in which this Court had recognized that physical

takings and regulatory takings are distinct and

separate legal concepts. Tahoe-Sierra, 535 U.S. at

321-23.

The California court’s interpretation of Arkansas

Game & Fish would radically change federal takings

law—which this Court did not intend—and would and

create conflicts within this Court’s case law.

II

THERE IS NO BASIS FOR THE

CALIFORNIA COURT’S DECISION TO

SUBJECT A PHYSICAL INVASION OF

LIMITED DURATION TO A DIFFERENT TEST

THAN THAT APPLICABLE TO AN INVASION

OF A LONGER DURATION

Review is additionally warranted because the

lower court’s decision to make the duration of a

physical invasion the sole determinative factor when

deciding whether the invasion will be subject to this

Court’s longstanding test for physical takings

undermines the purpose of the Takings Clause, which

bars uncompensated takings without qualification.

U.S. Const. amend. V (“[N]or shall private property be

taken for public use, without just compensation.”); see

also Cress, 243 U.S. at 328.

This Court’s consistent treatment of physical

takings is largely due to the appropriative nature of a

physical invasion or occupation of private property.

21

General Motors, 323 U.S. at 378.; see also Lingle v.

Chevron U.S.A. Inc., 544 U.S. at 539 (A physical

invasion will always effect a taking because it

eviscerates the owner’s right to exclude others from

entering upon and using his or her property, which is

“perhaps the most fundamental of all property

interests.”); Loretto, 458 U.S. at 435 (When the

government invades private property, “[t]he

government does not simply take a single ‘strand’

from the ‘bundle’ of property rights: it chops through

the bundle, taking a slice of every strand.”). Thus, to

the extent the government physically invades or

occupies one’s land, it destroys the owner’s essential

rights thereto and its actions constitute a taking.

Loretto, 458 U.S. at 426, 435; see also Arkansas Game

& Fish, 568 U.S. at 33 (“Once the government’s

actions have worked a taking of property, ‘no

subsequent action by the government can relieve it of

the duty to provide compensation for the period during

which the taking was effective.’”) (quoting First

English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 321 (1987)). And, insofar as

it relates to the character of the government action,

questions regarding the duration of the government

invasion are only meaningful to the resolution of a

takings case if the duration was so fleeting or

temporary that it did not interfere with the owner’s

property rights—a distinction that the lower court

failed to acknowledge. See Portsmouth Harbor Land

& Hotel Co. v. United States, 260 U.S. 327, 329-30

(1922).

Thus, when the terms “temporary” and

“permanent” are employed without regard to the

actual injury suffered by the property owner (as was

22

the case below), the designation may be little more

than a semantic marker, signifying whether the court

believes compensation is warranted on a case-by-case

basis. See, e.g., Robert Meltz, Dwight H. Merriam, &

Richard M. Frank, The Takings Issue 124-25 (1999).

Allowing the terms to be used in that manner,

however, is sanctioning a standardless and arbitrary

approach to the protection of fundamental rights. The

Takings Clause, however, is intended “to preserve

practical and substantial rights” that individuals have

in their property. Dickinson, 331 U.S. at 748-49. That

purpose is not served when the lower courts develop

procedures designed to dispose of otherwise

meritorious takings claims, such as the lower court’s

decision to subject blatant physical invasions to a

multifactor test so ill-suited to the circumstances that

it guarantees failure of every claim. 8 Id. Review is

8 Balancing tests have proven entirely unworkable under this

Court’s regulatory takings doctrine, and for that reason should

be avoided where clear standards are available. See R.S. Radford

& Luke A. Wake, Deciphering and Extrapolating: Making Sense

of Penn Central, 38 Ecology L.Q. 731, 735 (2011) (observing that

the Penn Central balancing test remains shrouded in a “formless,

directionless haze,” and noting the constant calls for further

guidance from courts and commentators). Indeed, in the 32 years

since Penn Central relegated (most) regulatory takings claims to

its multifactor balancing test, that area of takings jurisprudence

has become a veritable jungle of contradictory opinions. See John

D. Echeverria, Making Sense of Penn Central, 23 UCLA J. Envtl.

L. & Pol’y 171, 175 (2005) (arguing that the Penn Central

balancing test serves as nothing more than “legal decoration for

judicial rulings based on intuition”). Penn Central and its

progeny have remained rudderless and commentators invariably

agree that neither property owners nor government regulators

have any way of rationally assessing takings liabilities under

that regime. See Eagle, supra, at 352 (“[E]mphasis on balancing

tests gives . . . no one much predictability.”).

23

necessary to ensure that the guarantees of the

Takings Clause are given real and meaningful effect.

CONCLUSION

For the foregoing reasons, Amici urge this Court

to grant the petition for a writ of certiorari.

DATED: March, 2018.

Respectfully submitted,

BRIAN T. HODGES

Counsel of Record

Pacific Legal Foundation

10940 NE 33rd Place, Suite 210

Bellevue, Washington 98004

Telephone: (425) 576-0484

E-mail: bth@pacificlegal.org

Counsel for Amici Curiae Pacific

Legal Foundation and Western

Manufactured Housing

Communities Association (WMA)