Amicus Curiae Brief — John Fritz, et ux., Petitioners v. Washoe County, Nevada

No. 19-1175

In The

Supreme Court of the United States

____________________

JOHN AND MELISSA FRITZ,

v.

Petitioners,

WASHOE COUNTY, NEVADA,

____________________

Respondent.

On Petition for a Writ of Certiorari to

the Nevada Supreme Court

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

____________________

BRIAN T. HODGES

Counsel of Record

DAVID J. DEERSON

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

BHodges@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

To constitute a taking under the Fifth and Fourteenth

Amendments, must a physical invasion also destroy or

substantially impair an owner’s economically

beneficial uses of property?

ii

Table of Contents

QUESTION PRESENTED .......................................... i

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

INTEREST OF AMICUS ............................................ 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .................................... 2

REASONS WHY THE PETITION

SHOULD BE GRANTED ........................................... 4

I.

THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PHYSICAL

TAKINGS DECISIONS................................. 4

II.

THE DECISION BELOW RELIED

ON AN INAPPLICABLE FACTOR

FROM THE REGULATORY TAKINGS

TEST TO DISMISS THE PHYSICAL

TAKINGS CLAIM ....................................... 10

III.

THE DECISION BELOW PERMITS

THE GOVERNMENT TO TAKE A

FLOWAGE EASEMENT, THUS

DESTROYING THE OWNER’S

RIGHT TO EXCLUDE, WITHOUT

PAYING JUST COMPENSATION............. 13

CONCLUSION.......................................................... 14

iii

Table of Authorities

Page(s)

Cases

Arkansas Game & Fish Comm’n v. United

States, 568 U.S. 23 (2012) ................... 1, 2, 3, 4, 9

Brown v. Legal Foundation of Washington,

538 U.S. 216 (2003) ........................................... 11

Casitas Mun. Water Dist. v. United States,

543 F.3d 1276 (Fed. Cir. 2008) ............................ 7

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) ................... 1

First English Evangelical Lutheran Church

of Glendale v. Cty. of Los Angeles, Cal.,

482 U.S. 304 (1987) ..................................... 11, 12

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) ........................ 5, 6

Horne v. Dep’t of Agric.,

576 U.S. 350, 135 S. Ct. 2419 (2015) ........ 2, 4, 10

Int’l Paper Co. v. United States,

282 U.S. 399 (1931) ............................................. 7

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ......................................... 5, 6

Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470 (1987) .................... 11

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) ................................................. 7

Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162 (2019) ......................................... 1

Koontz v. St. Johns River Water Mgmt.

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

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

544 U.S. 528 (2005) ......................................... 1, 5

iv

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ................... 2–3, 5, 10, 12, 13

Marvin M. Brandt Revocable Tr. v. United

States, 572 U.S. 93 (2014) ................................... 1

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) ......................................... 1

Nollan v. California Coastal Commission,

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

Olson v. United States, 292 U.S. 246 (1934) .......... 10

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 1

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

438 U.S. 104 (1978) ........................................... 11

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ........................................... 11

Portsmouth Harbor Land & Hotel Co. v.

United States,

260 U.S. 327 (1922) ............................................. 9

Pumpelly v. Green Bay Co.,

80 U.S. 166 (1872) ............................... 3, 9, 10, 13

Skip Kirchdorfer, Inc. v. United States,

6 F.3d 1573 (Fed. Cir. 1993)................................ 6

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, 6, 11, 12

United States v. Causby,

328 U.S. 256 (1946) ............................................. 8

United States v. Cress,

243 U.S. 316 (1917) ........................... 9, 10, 12–13

v

United States v. Dickinson,

331 U.S. 745 (1947) ............................................. 9

United States v. General Motors Corp.,

323 U.S. 373 (1945) ....................................... 6, 12

United States v. Lynah, 188 U.S. 445 (1903) ........... 9

United States v. Petty Motor Co.,

327 U.S. 372 (1946) ............................................. 7

United States v. Pewee Coal Co.,

341 U.S. 114 (1951) ............................................. 7

United States v. Virginia Elec. & Power Co.,

365 U.S. 624 (1961) ............................................. 9

Yee v. City of Escondido,

503 U.S. 519 (1992) ........................................... 12

Rule

Supreme Court Rule 37.2(a) ..................................... 1

Other Authorities

Paul, Jeremy, The Hidden Structure of

Takings Law,

64 S. Cal. L. Rev 1393 (1991) .............................. 9

1

INTEREST OF AMICUS

Pursuant to Supreme Court Rule 37.2(a), Pacific

Legal Foundation submits this brief amicus curiae in

support of Petitioners John and Melissa Fritz. 1

Pacific Legal Foundation (PLF) was founded over

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 Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162 (2019); Murr v. Wisconsin, 137 S. Ct.

1933 (2017); Koontz v. St. Johns River Water Mgmt.

Dist., 570 U.S. 595 (2013); 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 Marvin M.

Brandt Revocable Tr. v. United States, 572 U.S. 93

(2014); Arkansas Game & Fish Comm’n v. United

States, 568 U.S. 23 (2012); Lingle v. Chevron U.S.A.,

Inc., 544 U.S. 528 (2005), and City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999);

1 All parties have consented to the filing of this brief. Counsel of

record for all parties received notice at least 10 days prior to the

due date of Amici Curiae’s intention to file 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

Amicus Curiae, its members, or its counsel made a monetary

contribution to this brief’s preparation or submission.

2

and other cases. Because of its history and experience

with regard to issues affecting private property, PLF

believes that its perspective will aid this Court in

considering Mr. and Mrs. Fritz’s petition.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Fritzes’ petition for a writ of certiorari raises

an important question concerning the protections

provided by the Takings Clause of the Fifth

Amendment of the U.S. Constitution. Specifically, it

asks whether a property owner who is subjected to an

actual physical invasion of property by governmentinduced flooding must show that the invasion

deprived the owner of “all economically beneficial use”

before the government will be obligated to pay just

compensation for a taking. App. 36.

The answer is no: “when there has been a physical

appropriation, ‘we do not ask . . . whether it deprives

the owner of all economically valuable use’ of the item

taken.” Horne v. Dep’t of Agric., 576 U.S. 350, 135 S.

Ct. 2419, 2429 (2015) (quoting Tahoe–Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 323 (2002)). Instead, this Court

has consistently held that when the government

causes a physical invasion of private property, it has

a “categorical duty” to compensate the owner for the

full extent of the taking. Arkansas Game & Fish

Comm’n, 568 U.S. at 31 (quoting Tahoe–Sierra Pres.

Council, 535 U.S. at 322). This duty arises whenever

the government invades private property—it is not

contingent upon the degree to which the physical

invasion interferes with the owner’s ability to use

unaffected portions of the property. Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,

3

435 (1982) (requiring compensation where the

government required property owner to install a small

cable box on the property).

In the decision below, however, the Nevada

Supreme Court held that that a physical invasion of

private property will not constitute a compensable

taking without a showing that the invasion resulted

in “substantial injury,” which the court wrongly

defined as a deprivation or impairment of all

economically beneficial use of the land. App. 5, 36.

Based on that conclusion, the Nevada court held that

Washoe County was not obligated to compensate the

Fritzes for having taken a flowage easement over their

property simply because the Fritzes were able to make

use of their home while the property was flooded. App.

5. That conclusion is premised on a fundamental

misunderstanding of takings law and conflicts with

this Court’s many precedents holding that

government-induced

flooding

constitutes

a

substantial injury, e.g., Pumpelly v. Green Bay Co.,

80 U.S. 166, 177–78 (1872), and that the Fifth

Amendment requires compensation to the extent of

the taking—even if the invasion is temporary,

intermittent, or results in minimal damages.

Arkansas Game & Fish Comm’n, 568 U.S. at 31, 38;

Loretto, 458 U.S. at 435.

Amicus urges this Court to grant the Fritzes’

petition to resolve the conflicts created by the Nevada

Supreme Court and to reaffirm the principle that the

Fifth Amendment obligates the government to pay

just compensation for a physical invasion of private

property by the government to the full extent of the

taking. A rule that relieves the government of this

obligation whenever a physical invasion leaves the

4

property owner with some residual use of the property

would turn the Fifth Amendment on its head by

effectively authorizing the very type of physical taking

that this Court has always held to be compensable.

REASONS WHY THE PETITION

SHOULD BE GRANTED

I

THE DECISION BELOW

CONFLICTS WITH THIS COURT’S

PHYSICAL TAKINGS DECISIONS

This Court has repeatedly held that a physical

invasion of private property by the government, even

if temporary in duration, will give rise to a

compensable taking. See, e.g., Arkansas Game & Fish

Comm’n, 568 U.S. at 31, 38; Tahoe–Sierra Pres.

Council, 535 U.S. at 322. Because this rule is

categorical, id., there is no need for the court to

consider the economic impact on the owner when

determining liability. Horne, 135 S. Ct. at 2429;

Tahoe–Sierra Pres. Council, 535 U.S. at 323. Instead,

the physical taking rule holds that the government

has a “categorical duty” to compensate the owner for

the full extent of a physical invasion. Id. In the

decision below, however, the Nevada Supreme Court

adopted a contrary rule of federal takings law that

excused the government of its duty to compensate the

Fritzes for having taken a flowage easement simply

because the government’s actions—which subjected

only a portion of the property to intermittent

flooding—left the owners with some economically

viable use of non-flooded portions of the property. App.

5. That conflict alone warrants review. But there is

more.

5

The rule adopted by the Nevada court also

warrants review because it undermines the rationale

supporting this Court’s physical taking rule. This

Court has explained that its categorical treatment of

physical takings arises from the nature of property: a

physical invasion does not just place limits on an

owner’s interests—it destroys the right to exclude

others, which is one of the most essential attributes of

ownership. Kaiser Aetna v. United States, 444 U.S.

164, 176, 179–80 (1979); see also Lingle, 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 (“The

power to exclude has traditionally been considered

one of the most treasured strands in an owner’s

bundle of property rights.”); Hendler v. United States,

952 F.2d 1364, 1374 (Fed. Cir. 1991) (“In the bundle

of rights we call property, one of the most valued is the

right to sole and exclusive possession—the right to

exclude strangers, or for that matter friends, but

especially the Government.”).

The right to exclude is so central to all of the rights

inherent in property, that this Court has concluded

that a physical invasion “effectively destroys” all

rights therein, including “the rights to possess, use

and dispose of it.” Loretto, 458 U.S. at 435 (quoting

United States v. General Motors Corp., 323 U.S. 373,

378 (1945)). Thus, while the extent of interference

caused by the invasion remains relevant when

measuring the amount of compensation owed, Loretto,

6

458 U.S. at 437–38, 2 the destruction of the right to

exclude is, without more, a constitutional injury for

which compensation must be paid. Kaiser Aetna, 444

U.S. at 180 (finding a taking where government action

in question would result in “actual physical invasion”

rather than in economic devaluation).

This Court’s wartime seizure cases help to

illustrate the irrelevance of the economic impact

inquiry to physical takings liability. In General

Motors, this Court held that the government was

required to pay short-term rental value for taking a

portion of a building that had been leased by an

automobile parts company for a period of one year. 323

U.S. at 375. The fact that the owner retained

possession and use of the unoccupied portion of the

property did not defeat the takings claim. Id. Instead,

this Court reasoned that, although the owner retained

valuable rights in the property, those rights were

irreparably harmed by the government’s occupation

because, once the property was fully restored to the

owner, the owner’s rights were more limited and

circumscribed than they were before the intrusion. Id.

at 378. The Takings Clause, therefore, required just

compensation. Id.; see also Kaiser Aetna, 444 U.S. at

180 (“[E]ven if the Government physically invades

only an easement in property, it must nonetheless pay

just compensation.”); Tahoe–Sierra, 535 U.S. at 322

(“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,

2 See also, e.g., Skip Kirchdorfer, Inc. v. United States, 6 F.3d

1573, 1582–83 (Fed. Cir. 1993) (duration of a taking is only

relevant to the question of how much compensation is due);

Hendler, 952 F.2d at 1376 (duration of a physical invasion is not

relevant to the question whether a taking has occurred).

7

regardless of whether the interest that is taken

constitutes an entire parcel or merely a part thereof.”);

Casitas Mun. Water Dist. v. United States, 543 F.3d

1276, 1292 (Fed. Cir. 2008) (Compensation is required

even when the government “only partially impair[s]”

ownership and possession of property, “in the physical

taking jurisprudence any impairment is sufficient.”).

Similarly, in United States v. Pewee Coal Co., the

federal government “possessed and operated” the

property of a coal mining company for five-and-a-half

months in order to prevent a nationwide miners’

strike in the middle of World War II. 341 U.S. 114, 115

(1951). The Court unanimously agreed that the

government’s temporary seizure was a taking, with no

regard to the fact that the property and all of its use

was restored to the owner in full. Id. (plurality); id. at

119 (Reed, J., concurring); id. at 121–22 (Burton, J.,

dissenting). Reference to the limited nature of the

government’s interference with the owner’s rights was

considered only in the context of the amount of

compensation due to the plaintiff. See, e.g., id. at 117

(plurality). Other wartime seizure cases confirm the

principle that even a temporary interference with an

owner’s rights will constitute 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, 380–81

(1946) (government compensated leaseholders for the

temporary taking of their leaseholds for a period of

over two-and-a-half years); Int’l 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

8

water flow for a period of ten months effected a

physical taking of a paper mill’s water rights

requiring just compensation).

Among the best-known physical invasion cases is

United States v. Causby, in which this Court

concluded that the noise and glare from military

overflights effected a physical taking when they

caused a farmer’s chickens to panic and die. 328 U.S.

256 (1946). In that case, the government was issued a

one-year lease with an option for annual renewals to

use an airport for military purposes. Id. at 258–59.

The term of the lease was for a total of five years

(1942–1947), or until six months after the end of

World War II, whichever was earlier. Id. Operation of

the airport resulted in the frequent overflight of

Causby’s home and chicken farm. Id. at 259. The noise

and glare caused by heavy, four-engine bombers,

transports, and squadrons of fighters so interfered

with chicken farming that this Court held that the

government had physically taken an easement for

which just compensation was due. Id. at 268. The fact

that the government’s flyover of Causby’s property

was of limited duration and did not totally exclude the

owner from his property or from making alternative

uses did not deter this Court from concluding that a

compensable taking had occurred. Id.

Causby explained that, when evaluating a physical

taking claim, “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. The “substantial damage”

inquiry, however, does not authorize the courts to

make a liability determination by balancing the

degree of economic injury against the physical

9

invasion. Instead, it asks the very different question

whether a physical invasion is sufficiently intrusive to

“warrant a finding that a servitude has been

imposed.” Portsmouth Harbor Land & Hotel Co. v.

United States, 260 U.S. 327, 329–30 (1922).

This Court’s flooding cases establish that when the

government causes water to overflow private

property, even if the flooding is only temporary, it

appropriates a flowage easement over the land and its

actions therefore constitute a taking for which

compensation is due. Pumpelly, 80 U.S. at 181

(“[W]here real estate is actually invaded by

superinduced additions of water, earth, sand, or other

material, . . . so as to effectually destroy or impair its

usefulness, it is a taking.”); United States v. Virginia

Elec. & Power Co., 365 U.S. 624, 627 (1961); see also

Jeremy Paul, The Hidden Structure of Takings Law,

64 S. Cal. L. Rev 1393, 1470 (1991) (flooding that

infringes on private property is a classic example of

government action that is appropriative in nature).

This rule applies even where the flooding is

temporary, intermittent, and/or abated. See, e.g.,

Arkansas Game & Fish, 568 U.S. at 34; United States

v. Dickinson, 331 U.S. 745, 750–51 (1947) (flooding for

a limited period of years effected a taking); United

States v. Cress, 243 U.S. 316, 328 (1917) (intermittent

flooding resulted in a taking); United States v. Lynah,

188 U.S. 445, 470 (1903) (flooding resulted in a taking

despite the fact that the floods could be abated and

land reclaimed). The physical takings rule, therefore,

enforces the foundational principle that the

government must compensate a landowner to the

extent that it actually invades private property,

thereby exercising dominion over the landowner’s

rights and inflicting irreparable harm thereto.

10

Pumpelly, 80 U.S. at 177–78; Olson v. United States,

292 U.S. 246, 255 (1934) (the purpose of the just

compensation requirement is to put the claimant “in

as good a position pecuniarily as if his property had

not been taken”).

II

THE DECISION BELOW RELIED

ON AN INAPPLICABLE FACTOR FROM THE

REGULATORY TAKINGS TEST TO DISMISS

THE PHYSICAL TAKINGS CLAIM

The reason why the decision below creates so many

conflicts with this Court’s physical takings precedents

is because the Nevada court relied on an inquiry that

is only applicable to determine liability in a regulatory

taking case. Specifically, in addressing the question

whether the flooding resulted in substantial damage

to the Fritzes’ property, see Pumpelly, 80 U.S. at 181;

Cress, 243 U.S. at 328, the Nevada court held that

Washoe County is not required to compensate the

Fritzes for taking a flowage easement unless the

flooding left them with no economically beneficial use

of the non-flooded portion of their property. App. 5.

That conclusion constitutes an obvious error that has

severe consequences to the Fritzes, who have suffered

an uncompensated physical invasion by the

government, and all property owners in Nevada.

Horne, 135 S. Ct. at 2427–28 (reversing a Ninth

Circuit decision that had relied on a regulatory

takings factor to reject a physical taking claim).

As stated above, the question whether an owner

retains any economically beneficial use of his property

is not part of the liability determination in a physical

takings test. Loretto, 458 U.S. at 435. Instead, that

11

inquiry is part of this Court’s multi-factorial

regulatory takings test, which asks whether a

regulatory restriction on the use of property “goes too

far,” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

415 (1922), by balancing the character of the

government action against the owner’s expectations

and the actual impact to property value and use. Penn

Central Transp. Co. v. New York City, 438 U.S. 104,

124 (1978). Accordingly, this Court has admonished

that “[i]t is ‘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.’” Tahoe–Sierra Preservation

Council, 535 U.S. at 323; Brown v. Legal Foundation

of Washington, 538 U.S. 216, 233 (2003) (“Our

jurisprudence involving condemnations and physical

takings is as old as the Republic and, for the most

part, involves the straightforward application of per se

rules. Our regulatory takings jurisprudence, in

contrast, is of more recent vintage and is

characterized by ‘essentially ad hoc, factual inquiries

. . . . ’”) (quoting Penn Central, 438 U.S. at 124); see

also First English Evangelical Lutheran Church of

Glendale v. Cty. of Los Angeles, Cal., 482 U.S. 304, 329

(1987) (Supreme Court cases “make it clear” that

regulatory and physical takings are “very different” in

several respects) (Stevens, J., dissenting); Keystone

Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,

517 (1987) (“No one, however, would find any need to

employ these analytical tools [the Penn Central

factors] where the government has physically taken

an identifiable segment of property.”) (Rehnquist, J.,

dissenting).

The different tests for physical and regulatory

takings follow from the “longstanding distinction

12

between acquisitions of property for public use, on the

one hand, and regulations prohibiting private uses on

the other.” Tahoe–Sierra Pres. Council, 535 U.S. at

323. While the government has some leeway to

regulate an owner’s use of property for the public

interest before it “goes too far,” this Court has long

recognized that physical intrusions by government

are, by their very nature, “of an unusually serious

character.” Loretto, 458 U.S. at 423, 426; see also First

English, 482 U.S. at 329 (“[V]irtually all physical

invasions are deemed takings.”) (Stevens, J.,

dissenting). For that reason, the physical invasion by

government of an interest in property triggers a

categorical duty to compensate to the extent of the

taking. Tahoe–Sierra, 535 U.S. at 322; Yee v. City of

Escondido,

503

U.S.

519,

522–23

(1992)

(compensation “generally required” for physical

occupations, but regulatory takings cases must

consider other factors such as purpose and economic

impact).

The Nevada court’s terse decision offered no

explanation why it relied on a regulatory takings

analysis to affirm dismissal of the Fritzes’ physical

taking claim. That is because there is no justification

for diluting the physical invasion test. No case outside

the decision below has held that residual use will

defeat a takings claim where property has in fact been

physically invaded by the government. That rationale

would overrule General Motors, Causby, and Cress, in

which the government invasion disturbed only a

portion of the owner’s existing use of the property.

Instead, each case applied the physical takings rule to

find that the government had a duty to compensate

the owner for the invasion. Indeed, Cress directly

refuted such a proposition by holding that the physical

13

takings rule applies even “[i]f any substantial

enjoyment of the land still remains.” 243 U.S. at 328.

III

THE DECISION BELOW PERMITS

THE GOVERNMENT TO TAKE A FLOWAGE

EASEMENT, THUS DESTROYING THE

OWNER’S RIGHT TO EXCLUDE, WITHOUT

PAYING JUST COMPENSATION

This Court’s interest in substantial justice

militates in favor of review. By adopting a rule that

focuses on the economic impact of intermittent

flooding, rather than the invasion itself, the Nevada

Supreme Court upheld an uncompensated physical

appropriation of private property. Even though

Washoe County’s actions resulted in only three floods

to date, the Fritzes’ rights are permanently

diminished because the government’s actions

appropriated a flowage easement over their property.

The Fritzes have no power to exclude the government

from invading their land, and further, have no control

over the timing, extent, or nature of the invasion. See

Loretto, 458 U.S. at 436. This is a severe violation of

their property rights for which they are owed

compensation. See id.; Pumpelly, 80 U.S. at 177–78.

The Nevada court should not be allowed to adopt a

rule that turns the Takings Clause into an

“instrument of oppression rather than protection to

individual rights.” Pumpelly, 80 U.S. at 179.

Rather than backslide from the historic protections

established by this Court’s physical takings decisions,

this Court should confirm them. This Court should

grant review to correct Nevada’s fundamental

misunderstanding of the Court’s physical takings

14

jurisprudence, and thus provide relief to the Fritzes

and to all other property owners in the state who

otherwise may now be subjected to repeated physical

invasions without compensation.

CONCLUSION

For the foregoing reasons, this Court should grant

the Fritzes’ petition in order to reverse the creation of

a rule which belittles the significance of the right to

exclude others from property.

DATED: April 2020.

Respectfully submitted,

BRIAN T. HODGES

Counsel of Record

DAVID J. DEERSON

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

BHodges@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation