Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.

NO. 20-107

In the

Supreme Court of the United States

CEDAR POINT NURSERY,

AND FOWLER PACKING COMPANY, INC.,

Petitioners,

v.

VICTORIA HASSID, IN HER OFFICIAL CAPACITY AS

CHAIR OF THE AGRICULTURAL LABOR RELATIONS BOARD; ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF OKLAHOMA, ARIZONA, ARKANSAS,

KENTUCKY, MISSOURI, NEBRASKA, AND TEXAS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

MARK BRNOVICH

ARIZONA ATTORNEY GENERAL

LESLIE RUTLEDGE

ARKANSAS ATTORNEY GENERAL

DANIEL CAMERON

KENTUCKY ATTORNEY GENERAL

ERIC SCHMITT

MISSOURI ATTORNEY GENERAL

DOUGLAS J. PETERSON

NEBRASKA ATTORNEY GENERAL

KEN PAXTON

TEXAS ATTORNEY GENERAL

SEPTEMBER 2, 2020

MIKE HUNTER

OKLAHOMA ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

BRYAN CLEVELAND

ASST. SOLICITOR GENERAL

COUNSEL OF RECORD

OKLAHOMA OFFICE OF

THE ATTORNEY GENERAL

313 NE TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 521-3921

BRYAN.CLEVELAND@OAG.OK.GOV

COUNSEL FOR AMICI CURIAE

i

QUESTION PRESENTED

California law forces agricultural businesses to

allow labor organizers onto their property three times

a day for 120 days each year. The regulation provides

no mechanism for compensation. A divided panel below

held that, although the regulation takes an uncompensated easement, it does not effect a per se physical

taking of private property because it does not allow

“24 hours a day, 365 days a year” occupation. As an

eight-judge dissent from denial of rehearing en banc

noted, the panel “decision not only contradicts Supreme

Court precedent but also causes a conflict split.”

The question presented is whether the uncompensated appropriation of an easement that is limited in

time effects a per se physical taking under the Fifth

Amendment.

ii

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICI CURIAE.............................. 1

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

ARGUMENT ............................................................... 3

I.

THE NINTH CIRCUIT’S RULING VIOLATES

THIS COURT’S JURISPRUDENCE ......................... 3

II. STATE LAW DEMONSTRATES THAT A CORRECT

LEGAL FRAMEWORK WOULD TREAT THIS

CASE AS A PER SE PHYSICAL TAKINGS CASE ..... 5

A. The Traditional Line Between Per Se

Takings Claims and Regulatory Takings

Claims Is the Ownership of a Cognizable

Interest in Property ..................................... 5

B. State Case Law Confirms That Permanent Easements Can Have Time Limits

in Their Scope ............................................... 7

III. THE COURT SHOULD USE THIS VEHICLE TO

RESOLVE THE ISSUE ......................................... 12

A. The Ninth Circuit’s Decision Harms

Amici States ....................................... 12

B. This Case Presents a Good Vehicle to

Resolve the Question ...............................15

CONCLUSION.......................................................... 16

iii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Agric. Labor Relations Bd. v. Superior Court,

16 Cal. 3d 392 (1976) ......................................... 11

Arkansas Game & Fish Comm’n v.

United States, 568 U.S. 23 (2012) ............ 4, 13, 14

Bixby Hill Cmty. Ass’n, Inc. v. Rancho Los

Alamitos Found., No. B156650,

2002 WL 1767429 (Cal. Ct. App. 2002) ............ 12

Block v. Sexton,

577 N.W.2d 521 (Minn. Ct. App. 1998) .............. 9

Bonner v. Oklahoma Rock Corp.,

863 P.2d 1176 (Okla. 1993) ................................. 8

Burkhart v. Jacob,

976 P.2d 1046 (Okla. 1999) ................................. 8

Callen v. Columbus Edison Elec. Light Co.,

64 N.E. 141 (Ohio 1902) ....................................... 6

Caquelin v. United States,

959 F.3d 1360 (Fed. Cir. 2020) ................ 13, 14, 15

Cote v. Eldeen,

403 A.2d 419 (N.H. 1979) .................................... 10

Edmondson v. Pearce,

91 P.3d 605 (Okla. 2004) ....................................... 7

Grafton v. Moir,

29 N.E. 974 (N.Y. 1892) ...................................... 8

Hayes v. City of Loveland,

651 P.2d 466 (Colo. Ct. App. 1982) ..................... 8

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) .............................................. 5

iv

TABLE OF AUTHORITIES – Continued

Page

In re Forsstrom,

38 P.2d 878 (Ariz. 1934) ...................................... 6

James S. Holden Co. v. Connor,

241 N.W. 915 (Mich. 1932) .................................. 6

Kohl v. United States,

91 U.S. 367 (1875) .............................................. 14

Liddick v. City of Council Bluffs,

5 N.W.2d 361 (Iowa 1942) ..................................... 6

Mattoon v. City of Norman,

617 P.2d 1347 (Okla. 1980) ........................... 1, 7

Morrison v. Thelberg,

350 P.2d 988 (Ariz. 1960) ..................................... 6

Old Colony & F.R.R. Co. v. Inhabitants of

Plymouth Cty., 80 Mass. 155 (1859) ................. 6

Penn Central Transportation Co. v. City of

New York, 438 U.S. 104 (1978) ......................... 15

Phillips Indus., Inc. v. Firkins,

827 P.2d 706 (Idaho Ct. App. 1992) .................. 10

Quinn v. Stone,

270 P.2d 825 (Idaho 1954) .................................. 8

Riverton Farms, Inc. v. Castle,

441 N.W.2d 405 (Iowa Ct. App. 1989) ............ 9, 10

S. Kansas Ry. Co. v. Oklahoma City,

69 P. 1050 (Okla. 1902) ....................................... 6

Scher v. Burke,

192 Cal. Rptr. 3d 704 (Ct. App. 2015) ............. 11

Schuster v. Pennsylvania Tpk. Comm’n,

149 A.2d 447 (Pa. 1959) ...................................... 6

v

TABLE OF AUTHORITIES – Continued

Page

St. Louis & S. F. R. Co. v. Love,

118 P. 259 (Okla. 1911) ........................................ 6

Swan v. Munch,

67 N.W. 1022 (1896) ............................................ 9

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency, 535 U.S. 302

(2002) ............................................................... 3, 4

Wheeler v. Lynch,

445 A.2d 646 (D.C. 1982) ................................... 11

Willard v. First Church of Christ, Scientist,

7 Cal. 3d 473 (1972) ........................................... 11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ............................................... i, 3

STATUTES

Cal. Civ. Code § 806 .................................................. 11

Okla. Stat. tit. 60, § 54 ............................................... 8

JUDICIAL RULES

Sup. Ct. R. 37.4 ........................................................... 1

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Michael H. Schill,

Intergovernmental Takings and Just

Compensation: A Question of Federalism,

137 U. Pa. L. Rev. 829 (1989) ............................. 14

Restatement (Third) of Property (Servitudes)

(2000) ................................................................... 8

William Baude,

Rethinking the Federal Eminent Domain

Power, 122 Yale L.J. 1738 (2013) ...................... 14

1

INTERESTS OF AMICI CURIAE 1

The Amici States have a longstanding commitment

to protecting private property rights. “It is a universal

principle that wherever an individual’s right of ownership of property is recognized in a free government,

other rights become worthless if the government

possesses uncontrollable power over the property of

the individual. The constitutional guaranty of the right

to own and use property is unquestioned.” Mattoon v.

City of Norman, 617 P.2d 1347, 1349 (Okla. 1980)

(citations omitted).

The Amici States want to ensure that the federal

constitution continues to protect our citizens’ property.

While state constitutions provide that protection

against state and local governments, only the federal

constitution can provide protection against the federal

government.

The Amici States also want to protect their own

property rights against the federal government. The

increasing power of the federal government will harm

state property interests directly if the federal Takings

Clause is unmoored from its traditional roots.

1 Amici notified the parties of the intention to file this brief more

than ten days in advance, and Amici submit this brief pursuant

to Sup. Ct. Rule 37.4.

2

SUMMARY OF THE ARGUMENT

I. The Ninth Circuit improperly conflated this

Court’s jurisprudence on physical takings and regulatory takings. As a result, it treated the physical taking

of an easement across two farms as a regulatory taking.

This judgment was errant.

II. The decision below also conflicts with state

court decisions on takings. The facts of this case would

be a per se physical taking under Amici States’ parallel

state constitutional law because it is the physical taking

of a cognizable interest in property. Amici States differentiate between physical and regulatory takings based

on whether non-owners are gaining rights in property

or whether the owner is being restricted in his use of

his own property. Amici States also treat an easement

with time-based restrictions as a cognizable interest in

property that can be physically taken. Thus, Amici

States treat the taking of an easement with time-based

restrictions as a per se physical taking.

III. This Court should resolve this takings issue

in this case. The federal government has advocated

the same extreme position on takings that the Ninth

Circuit upheld here, and Amici States are concerned

that the federal government could use that interpretation to harm us and our citizens. We also agree with

Petitioners that this is a clean vehicle for this Court

to resolve the circuit split on this issue.

3

ARGUMENT

I.

THE NINTH CIRCUIT’S RULING VIOLATES THIS

COURT’S JURISPRUDENCE.

When the government forces farm owners to give

non-employees a right of access to the farm, the

government has taken an easement in those farms.

The actual physical invasion by union employees on

to Petitioners’ farms only confirms that a physical

appropriation occurred here. There was also no compensation for this appropriation even though the

Takings Clause of the U.S. Constitution states: “[N]or

shall private property be taken for public use, without

just compensation.” U.S. Const., amend. V. This is a

classic case of a physical taking that violates the U.S.

Constitution.

Yet the Ninth Circuit ignored the obvious facts

and decided a “regulatory taking” was at issue here. It

even confused the physical and regulatory takings

tests, describing a physical taking as a category of

regulatory taking. Pet. App. A-14.

This legal framework was errant under this

Court’s takings jurisprudence. This Court’s “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.” Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302, 323 (2002). “[W]e do not ask whether a

4

physical appropriation advances a substantial government interest or whether it deprives the owner of

all economically valuable use.” Id. The Ninth Circuit

effectively ignored these instructions, citing caselaw

from both lines of takings jurisprudence to formulate

a rule that a physical invasion is only a taking if it

causes enough interference with the property. Pet. App.

A-18.

The Ninth Circuit’s error was likely caused by

greater familiarity with regulatory takings cases than

physical takings cases. After all, “most takings claims

turn on situation-specific factual inquiries” because

no physical invasion occurred. Arkansas Game & Fish

Comm’n v. United States, 568 U.S. 23, 32 (2012). Some

ambiguity in this Court’s precedent may have encouraged the Ninth Circuit to take the more familiar route,

as it misunderstood whether a physical taking needs

to meet some permanence test in order to be a per se

taking. Compare id. at 31 (describing a per se physical

taking as a “permanent physical occupation”), with id.

at 34 (“a taking need not be permanent to be compensable”).

As sovereign states, Amici are intimately familiar

with both physical and regulatory takings—and are

concerned that the Ninth Circuit is rewriting the rule

on physical takings through its misunderstanding of

the two types of takings. Thus, while we concur in

Petitioners’ further detailed discussion of the federal

takings cases, see Pet. 17-27, we believe a review of

state law on takings would help clarify that Petitioners’

reading of takings jurisprudence is correct—and how

the Ninth Circuit’s interpretation conflicts with state

court decisions across the country interpreting this

bedrock American constitutional guarantee.

5

II. STATE LAW DEMONSTRATES THAT A CORRECT

LEGAL FRAMEWORK WOULD TREAT THIS C ASE

AS A P ER S E P HYSICAL TAKINGS C ASE .

In state courts throughout the country, physical

takings of a citizen’s property are per se takings.

These physical takings occur whenever any cognizable

interest in property is taken, regardless of whether a

fee simple interest, a limited easement, or some other

interest is at issue.

The Ninth Circuit used different analysis because

it misunderstood two legal principles: (1) the invasion

of non-owners onto the property controls the distinction

between physical and regulatory takings and (2) a

permanent easement can have limits on scope. As a

result, it errantly concluded that this case is a regulatory takings case and that the time-limited easement

at issue is not the equivalent of other easements in

takings jurisprudence. Amici States offer their understanding of the two legal principles to help clarify for

this Court how much the Ninth Circuit’s errant conclusions deviate from other courts across the country.

A. The Traditional Line Between Per Se

Takings Claims and Regulatory Takings

Claims Is the Ownership of a Cognizable

Interest in Property.

Properly understood, physical takings cases turn

on whether a cognizable property interest was taken,

not on whether enough property rights were affected. Contra Pet. App. A-18. Like the U.S. Constitution,

state constitutions inherited the English common

law tradition of protecting private property “without

any distinction between different types.” Horne v.

Dep’t of Agric., 576 U.S. 350, 358 (2015). As the

6

Supreme Judicial Court of Massachusetts stated over

150 years ago, the word “property” in a takings

clause “include[s] every valuable interest which can

be enjoyed as property and recognized as such.” Old

Colony & F.R.R. Co. v. Inhabitants of Plymouth Cty.,

80 Mass. 155, 161 (1859). Several states interpreted

their takings clause using that exact same understanding. See, e.g., Schuster v. Pennsylvania Tpk.

Comm’n, 149 A.2d 447, 453 (Pa. 1959); Liddick v.

City of Council Bluffs, 5 N.W.2d 361, 372 (Iowa

1942); In re Forsstrom, 38 P.2d 878, 887 (Ariz. 1934),

overruled in part on other grounds by State ex rel.

Morrison v. Thelberg, 350 P.2d 988 (Ariz. 1960);

James S. Holden Co. v. Connor, 241 N.W. 915, 919

(Mich. 1932); Callen v. Columbus Edison Elec. Light

Co., 64 N.E. 141, 143 (Ohio 1902); S. Kansas Ry. Co.

v. Oklahoma City, 69 P. 1050, 1056 (Okla. 1902).

This rule is distinct from regulatory takings

because those “takings” arise from a different governmental power. As Oklahoma courts have explained, a

takings case must distinguish between the power of

eminent domain and the police power. See St. Louis

& S. F. R. Co. v. Love, 118 P. 259, 262-63 (Okla. 1911).

The power of eminent domain involves altering a

party’s “exclusive right to the occupancy, use, and

control” of its estate by making the party “a tenant in

common with some other person, corporation, or the

public” over part or all of its estate. Id. at 262. In

contrast the police power involves telling “every

property owner” how to “use his own” estate rather

than allowing others to use the estate. Id. at 263. The

former requires just compensation, while the latter

usually does not. See id.

7

A regulatory taking is an aggressive use of the

police power rather than an acquisition of a property

interest. See Edmondson v. Pearce, 91 P.3d 605, 618

(Okla. 2004) (describing this Court’s regulatory takings

case law as “recognizing there are limits to the exercise of the police power in regard to the regulation of

property”). Oklahoma courts test for whether use of

the police power has become a taking by assessing

whether the governmental act “merely impair[s] the

use of the property” or causes “substantial interference

with the use and enjoyment” of the property Mattoon,

617 P.2d at 1349, 1351. The focus in this inquiry is on

the property’s owner’s use of his own property rather

than on another’s use of his property. See id.

Thus, in a takings case under a traditional state

law understanding, the question of whether a case is

a physical takings case or a regulatory takings case

depends on whether the government added users to

the property or restricted the owner’s use of his own

property. The former are per se cases, while the latter

are fact-specific inquiries. The Ninth Circuit missed

this important distinction in how government works

when it described a physical taking as merely a category of regulatory taking. Pet. App. A-14.

B. State Case Law Confirms That Permanent Easements Can Have Time Limits in

Their Scope.

Because the Ninth Circuit treated this case as a

regulatory takings case, it muddled the distinction

between the taking of an easement and substantial

interference with property. An easement does not

cease to be a cognizable interest in property if it falls

below some threshold of the number of property rights

8

affected. Contra Pet. App. A-18. A proper understanding

of easements would help avoid the Ninth Circuit’s

error.

By their very nature, easements are restricted

property rights. “An easement is a right to make use

of another’s land for some definite and limited purpose.”

Bonner v. Oklahoma Rock Corp., 863 P.2d 1176, 1181

(Okla. 1993) (original emphasis omitted). It obligates

the burdened estate “not to interfere with the uses

authorized by the easement.” Restatement (Third) of

Property (Servitudes) § 1.2 (2000). An easement may

have express terms defining the authorized uses and

still be an easement. See, e.g., Okla. Stat. tit. 60, § 54.

Even absent express limitations, all easements

have restrictions because of the concept of reasonable

use. When an easement is granted generally, without

terms, the owner of the easement only has the right

to “make reasonable use of the easement.” Burkhart

v. Jacob, 976 P.2d 1046, 1049 (Okla. 1999); see also,

e.g., Quinn v. Stone, 270 P.2d 825, 827 (Idaho 1954)

(“When the right of way is not bounded in the grant,

the law bounds it by the line of reasonable enjoyment.”

(quoting Grafton v. Moir, 29 N.E. 974, 976 (N.Y.

1892))); Restatement (Third) of Property (Servitudes)

§ 4.10 (2000). An easement owner cannot “unreasonably

overburden the servient estate.” Burkhart, 976 P.2d

at 1049. State courts use several factors to determine

the limits on an easement, including “(1) the purpose

of the easement, (2) the new use compared to the past

use, taking into account the purpose of the land and

the language granting the easement, (3) the physical

character of the easement, [and] (4) the burden on

the servient land.” Id. (citing Hayes v. City of Loveland,

651 P.2d 466, 468 (Colo. Ct. App. 1982)).

9

Easements vary in what their restrictions are,

and there is no bright line about what restrictions

are impermissible for easements. An easement may

be available “24 hours a day, 365 days a year,” Pet.

App. A-18, yet still have other restrictions. An easement

may also be restricted in time and still be an easement.

Several examples from state law show how valid

easements can have time restrictions.

In one Minnesota case, an owner of a rural estate

used a field road across another property in order to

reach the highway. See Block v. Sexton, 577 N.W.2d

521, 523 (Minn. Ct. App. 1998). When a controversy

arose, a trial court found a prescriptive easement to

use that field road “between May and October of each

year,” basing that limit on evidence showing that the

easement owner had used the field road only during

those months. Id. at 523, 526. On appeal, the owner

raised the same theory of easements that the Ninth

Circuit applied in this case—that an easement cannot

be limited in time. See id. at 526. The appellate court

rejected that argument, noting even older precedent

supporting its conclusion that the extent of an easement need not be 365 days per year. See id. (citing

Swan v. Munch, 67 N.W. 1022, 1024 (1896)).

While that case involved a prescriptive easement,

an Iowa case shows how express easements can have

similar limits. See Riverton Farms, Inc. v. Castle, 441

N.W.2d 405, 406 (Iowa Ct. App. 1989). An owner of two

tracts of land purchased easements over an intervening

estate, and the easements specified that they were

“for the purpose of moving cattle and equipment to

and from buyer’s land.” Id. A trial court found that

“equipment” referred to farm equipment. See id. at

407. Based on that finding, it found two further

10

restrictions on the easements were consistent with

the purpose of the easement. See id. at 407-08. It

concluded that equipment and cattle could only use

the easement during “daylight hours” and that equipment could only use the easement during “planting,

cultivating, and harvest seasons.” Id. The appellate

court affirmed that these restrictions were “reasonable”

and “in line with the intent of the parties.” Id.

Easement restrictions can also be more aggressive than a mere time limit. In one New Hampshire

case, a party who had made “occasional” and “noncommercial” use of a road tried to use the road for a

commercial operation removing gravel and wood. See

Cote v. Eldeen, 403 A.2d 419, 420 (N.H. 1979). The court

limited both the hours of commercial operation and

the number of loads that could be hauled over the

road during those hours in order to “limit exercise of

the easement to its proper scope.” Id.

An easement can also include a notice requirement for use. In one Idaho case, a trial court was

tasked with interpreting disputed terms of an ambiguous express easement. See Phillips Indus., Inc. v.

Firkins, 827 P.2d 706, 712 (Idaho Ct. App. 1992). The

court concluded from evidence that the easement

included an implied restriction requiring “no less than

24 hours advance notice when the easement was

going to be used.” Id. The notice also had to include

“an approximate time when to expect the use.” Id.

The appellate court affirmed that substantial evidence

supported the restrictions on the easement. See id.

An easement may even be limited to two hours

in the morning and two hours in the evening. In

one D.C. case, owners of neighboring Georgetown

houses had a three foot passageway between them.

11

See Wheeler v. Lynch, 445 A.2d 646, 647 (D.C. 1982).

The passageway was on both properties, and each

owner had an easement to use the other’s half of

the passageway. See id. When one property owner

planned to build a second building on their lot, the

other owner sought declaratory judgment regarding

the proper use of the easement during construction.

See id. at 648. The trial court concluded several limitations were appropriate, including “[t]hat during the

period of the construction of the building, the use of

the easement for the transportation of materials and

equipment shall be limited to the hours of 9:30 a.m. to

11:30 a.m. and 2:00 p.m. to 4:00 p.m. weekdays.” Id.

The appellate court affirmed that the restrictions on

the easement were reasonable. See id.

Nothing in California property law denies that

these sorts of easements are property interests. California might not construe its state takings clause as

covering every cognizable interest in property, see

Agric. Labor Relations Bd. v. Superior Court, 16 Cal.

3d 392, 403 (1976) (state takings clause does not cover

“laws passed in the promotion of public welfare” like

the access regulations at issue here), but California does

recognize these type of easements as interests in

property. Its civil code expressly contemplates limits

on easements: “The extent of a servitude is determined

by the terms of the grant, or the nature of the enjoyment by which it was acquired.” Cal. Civ. Code § 806.

These express terms can include limits on hours of use.

See, e.g., Willard v. First Church of Christ, Scientist,

7 Cal. 3d 473, 475 (1972) (affirming the validity of an

easement “for automobile parking during church

hours”); Scher v. Burke, 192 Cal. Rptr. 3d 704, 719

(Ct. App. 2015) (noting an easement “limited to day-

12

light hours”), aff’d, 3 Cal. 5th 136 (2017); Bixby Hill

Cmty. Ass’n, Inc. v. Rancho Los Alamitos Found., No.

B156650, 2002 WL 1767429, at *2 (Cal. Ct. App. July

31, 2002) (noting an easement “limited to those hours

when the [historical] Site shall be open to the public”).

Thus, while California’s state takings law may be

different than Amici States’ takings law, its property

law is no different.

In short, easements in California and elsewhere

are best described as Petitioners describe them: “[a]n

easement remains an interest in property even where

it does not permit third-party access to private property

all day, every day—it does not morph into a regulatory

use restriction when limited in time.” Pet. 20.

In states like many of the Amici States, this case

would be a clear taking. Our courts prohibit the taking

of a valuable property interest without just compensation, and a time-limited easement is a valuable

property interest. Thus, if this taking had occurred in

our states, it would require just compensation.

III. THE COURT SHOULD USE THIS VEHICLE

RESOLVE THE ISSUE.

TO

The Court should hear this particular case in order

to resolve this takings issue because (1) this question

of takings law risks grave harm to the States if not

corrected, and (2) this case is a good vehicle to address

the issue.

A. The Ninth Circuit’s Decision Harms Amici

States.

While Amici States and their citizens are not

California residents, the Ninth Circuit’s interpretation

13

of the Takings Clause has implications beyond California. The federal government’s eminent domain

power is controlled by that clause, and the federal

government has previously urged the same reading

of that clause as the Ninth Circuit adopted here. As

the federal government’s power grows, it could use

the Ninth Circuit’s reading of the Takings Clause to

harm Amici States.

The federal government has argued to other courts

that some new multi-factor “permanence” test is

required for physical takings. See Appellant’s Opening

Brief, at 35, Caquelin v. United States, 959 F.3d 1360

(Fed. Cir. 2020) (No. 19-1385) (“The Supreme Court’s

decision in Arkansas Game makes abundantly clear

that temporary physical takings claims require factspecific consideration (rather than treatment as a

taking per se).”). The Federal Circuit rejected this

theory, correctly recognizing that nothing in Arkansas

Game requires treating the taking of an easement as

something less than a per se physical taking. See

Caquelin, 959 F.3d at 1369. It also recognized the

two lines of takings jurisprudence differentiate between

“regulat[ing] the landowner’s conduct on her land”

and “formal legal interest[s] in land.” Id. But the

Ninth Circuit’s decision in this case breathes new life

into the federal government’s position.

Amici States are concerned about the federal

government’s taking power because that power could

directly harm the states. Since 1875, the federal

government has been authorized to take state property

for its own use under the eminent domain power. See

14

Kohl v. United States, 91 U.S. 367, 372 (1875).2 As the

federal regulatory state increases, its impacts on

state property also increase. See Arkansas Game, 568

U.S. at 26 (federal flooding of state-owned land).

Amici States are concerned that other federal circuits

will adopt the Ninth Circuit’s reading of the Takings

Clause, allowing the federal government to take state

property without just compensation by merely adding

a time limit.

This power carries the particular risk of facilitating

federal government coercion of states. If the federal

government can classify taking state property with a

time limit as a mere regulation, it can use those

regulations or threats of those regulations to exact

concessions from states with whom it politically disagrees. See Michael H. Schill, Intergovernmental

Takings and Just Compensation: A Question of Federalism, 137 U. Pa. L. Rev. 829, 861-62 (1989). The issue

may never reach this Court, either, because states have

to weigh the costs of litigating the regulation (and

potentially losing) against the cost of giving the federal

government what it wants.

More than Petitioners’ farms in California will

suffer loss if the federal government continues the

aggressive theory of takings law that it advocated in

Caquelin. This Court should confirm the bright line

between physical and regulatory takings before Amici

States and their citizens are harmed.

2 This case may not be consistent with the original understanding

of the Constitution. See William Baude, Rethinking the Federal

Eminent Domain Power, 122 Yale L.J. 1738, 1741 (2013). Nevertheless, that issue is not before the Court today.

15

B. This Case Presents a Good Vehicle to

Resolve the Question.

In addition to Petitioners’ comments on why this

case is a good vehicle, Pet. 27-31, Amici States offer

two further observations.

First, the Federal Circuit’s statements in Caquelin

confirm that there is a circuit split here. Pet. 13-17.

Some members of the Ninth Circuit disputed the existence of a split, Pet. App. E-8-E-9, but their argument

was based on their false conflation of physical and

regulatory takings—a mistake that the Federal Circuit

does not make. See Caquelin, 959 F.3d at 1369.

Second, Petitioner’s waiver of any regulatory

takings claim under Penn Central Transportation Co.

v. City of New York, 438 U.S. 104, 124 (1978), is a rarity

that makes a better vehicle highly unlikely. Without

such a waiver, courts like the Ninth Circuit are likely

to treat cases like this one as Penn Central regulatory

takings, and may even grant some compensation.

The Ninth Circuit strongly suggested it would have

taken that approach in this case absent the waiver.

Pet. App. A-19–A-20. Such outcomes would deter

appeals to this Court because the question of physical

or regulatory taking would have an unclear effect on

the outcome of the case. The line between physical

and regulatory takings is best resolved in this clean

vehicle.

16

CONCLUSION

For the reasons stated, this Court should grant

Petitioners the writ of certiorari.

Respectfully submitted,

MIKE HUNTER

OKLAHOMA ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

BRYAN CLEVELAND

ASST. SOLICITOR GENERAL

COUNSEL OF RECORD

OKLAHOMA OFFICE OF

THE ATTORNEY GENERAL

313 NE TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 521-3921

BRYAN.CLEVELAND@OAG.OK.GOV

MARK BRNOVICH

ARIZONA ATTORNEY GENERAL

ERIC SCHMITT

MISSOURI ATTORNEY GENERAL

LESLIE RUTLEDGE

ARKANSAS ATTORNEY GENERAL

DOUGLAS J. PETERSON

NEBRASKA ATTORNEY GENERAL

DANIEL CAMERON

KENTUCKY ATTORNEY GENERAL

KEN PAXTON

TEXAS ATTORNEY GENERAL

COUNSEL FOR AMICI CURIAE

SEPTEMBER 2, 2020