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, et al.,

Petitioners,

v.

VICTORIA HASSID, et al.,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

JEFFREY H. REDFERN

Counsel of Record

DANA BERLINER

ROBERT MCNAMARA

KATRIN MARQUEZ

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Ste. 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

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

I. Temporary physical invasions are

subject to a far more stringent level of review

than regulatory actions that

merely restrict an owner’s use of

property ............................................................ 3

A. Regulatory taking doctrine presents

a higher bar for property owners

than physical invasions.............................. 4

B. Temporary physical invasions are

presumptive takings .................................. 6

II. This Court should reaffirm the

categorical difference between physical

invasions and regulations of property

use. ................................................................. 12

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

ii

TABLE OF AUTHORITIES

CASES

Ark. Game & Fish Comm’n v. U.S.,

568 U.S. 23 (2012) ................................... 4, 6, 7, 11

Cal. Dental Ass'n v. FTC,

526 U.S. 756 (1999) ............................................... 8

Caquelin v. United States,

959 F.3d 1360 (Fed. Cir. 2020) ........................... 11

Caquelin v. United States, 140 Fed. Cl. 564

(Fed. Cl. 2018) .................................................... 11

Cedar Point Nursery v. Shiroma,

923 F.3d 524 (9th Cir. 2019) ................................. 3

Cienega Gardens v. United States,

331 F.3d 1319 (Fed. Cir. 2003) ........................... 14

First Eng. Evangelical Church of Glendale v.

County of Los Angeles,

482 U.S. 304 (1987) ..................................... 4, 7, 12

Franklin Mem’l Hosp. v. Harvey,

575 F.3d 121 (1st Cir. 2009) ............................... 13

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) ............... 10, 11, 13

Hilton Washington Corp. v. District of Columbia,

593 F. Supp. 1288 (D.D.C. 1984) .............. 8, 12, 13

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ....................................... 3, 5, 7

Jones v. Phila. Police Dep’t,

57 F. App’x 939 (3d Cir. 2003) ............................ 10

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ............................................... 7

Kelo v. City of New London, 545 U.S. 469

(2005) ..................................................................... 1

iii

TABLE OF AUTHORITIES—continued

Page(s)

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) ......................................... 5

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) ............................................... 7, 8

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

544 U.S. 528 (2005) ..................................... 5, 6, 10

Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982) ................................ 6, 8

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ............................................. 5

Murr v. Wisconsin, 137 S. Ct. 1933 (2017) ................ 5

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ............................................. 11

Norwood v. Horney,

853 N.E.2d 1115 (Ohio 2006) ................................ 1

Penn Cent. Transp. Co. v. City of New York,

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

Penn. Coal Co. v. Mahon,

260 U.S. 393 (1922) ............................................... 5

Piedmont Triad Reg’l Water Auth v. Unger,

572 S.E.2d 832 (N.C. App. 2002) .......................... 6

Portsmouth Harbor Land & Hotel Co. v.

United States, 260 U.S. 327 (1922) .............. 11, 13

Primetime Hosp., Inc. v. Albuquerque, 206

P.3d 112 (N.M. 2009) .......................................... 12

Prop. Reserve, Inc. v. Super. Ct.,

375 P.3d 887 (Cal. 2016) ..................................... 10

iv

TABLE OF AUTHORITIES—continued

Page(s)

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

Reg’l Plan. Agency,

535 U.S. 302 (2002) ..................................... passim

United States v. General Motors Corp.,

323 U.S. 373 (1945) ............................................... 8

William C. Hass & Co. v. City & County of San

Francisco, 605 F.2d 1117 (9th Cir. 1979) ............. 5

YMCA v. United States, 395 U.S. 85 (1969) .............. 9

OTHER AUTHORITIES

Frank I. Michelman, Property, Utility, and

Fairness: Comments on the Ethical

Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165 (1967) .............................. 12

INTEREST OF THE AMICUS CURIAE

Founded in 1991, the Institute for Justice (IJ) is a

nonprofit, public-interest legal center dedicated to defending the essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange of ideas. As part of that

mission, IJ has litigated cases challenging the use of

eminent domain to seize an individual’s private property and give it to other private parties. Among the

cases that IJ has litigated are Kelo v. City of New London, 545 U.S. 469 (2005), in which this Court held that

the U.S. Constitution allows government to take private property and give it to others for purposes of “economic development,” and Norwood v. Horney, 853

N.E.2d 1115 (Ohio 2006), in which the Ohio Supreme

Court expressly rejected Kelo and held that the Ohio

Constitution provides greater protection for private

property than does the U.S. Constitution. IJ continues

to litigate important statutory and constitutional

questions in eminent domain cases around the country, both as amicus and as counsel for property owners. The Institute for Justice has a substantial interest in ensuring that this Court reaffirms the crucial

doctrinal difference between government action that

causes a physical invasion of private property and

government action that merely restricts an owner’s

use of property. The latter is sometimes a taking; the

former is presumptively a taking.1

1 In accordance with Rule 37.6, no counsel for a party authored

this amicus brief in whole or in part and no person other than

the Institute for Justice, its members, or its counsel have made

any monetary contributions intended to fund the preparation or

submission of this brief. Both parties consented to the filing of

this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Farmers in California are required by state law to

allow labor organizers onto their property up to three

times per day, up to 120 days per year. A Ninth Circuit panel below recognized that this law had created

an uncompensated easement of indefinite duration.

Yet, because the easement did not allow for 24-hour

access, 365 days per year, the court held that the easement did not effect a per se taking.

Petitioners persuasively demonstrate that an

easement, even one that is limited to certain times of

the day or week, is a “permanent physical occupation”

within the meaning of this Court’s precedents and

that, accordingly, the California law at issue is a per

se taking. The Institute for Justice submits this brief,

however, to highlight another way that the court below erred. The panel held that if petitioner were unable to establish a per se taking, then the only available

theory was a regulatory taking, which petitioner intentionally did not advance. Yet this Court has consistently recognized that temporary physical invasions are a distinct category of taking, different from

both permanent physical occupations and regulatory

takings. And unlike regulatory takings, which are extremely difficult to prove, temporary physical occupations are usually takings. Only the briefest physical

invasions can escape the Fifth Amendment’s just compensation requirement. This Court should reaffirm

that physical invasions, even if they do not qualify for

per se treatment, are presumptively takings.

3

ARGUMENT

I. Temporary physical invasions are subject to

a far more stringent level of review than regulatory actions that merely restrict an

owner’s use of property.

The Fifth Amendment’s Takings Clause recognizes

two broad categories of government action that can

cause a taking: physical invasions of property and regulations depriving property owners of the uses of their

property. Physical invasions exist on a continuum

from the permanent to the fleeting. Regulations, by

contrast, are analyzed primarily in terms of their economic impact.

The Ninth Circuit erred in this case by treating all

non-permanent physical invasions as simply a subset

of regulatory takings, to be analyzed in terms of economic impact. According to the Ninth Circuit there

are only three types of takings: (1) “permanent physical invasion[s]”, (2) “regulations that completely deprive an owner of all economically beneficial use of her

property,” and (3) “the remainder of regulatory actions.” Cedar Point Nursery v. Shiroma, 923 F.3d 524,

530–31 (9th Cir. 2019) (internal quotation marks

omitted). This error had consequences. By lumping

temporary physical invasions in with regulations that

merely restrict an owner’s use of property, the Ninth

Circuit set the bar far too high. While regulatory takings claims are difficult to prove, physical invasions—

even when temporary—are presumptive takings.

This Court has repeatedly recognized the

“longstanding distinction” between physical invasions

and regulations of property. Horne v. Dep’t of Agric.,

576 U.S. 350, 361 (2015); see also Ark. Game & Fish

Comm’n v. United States, 568 U.S. 23, 33 (2012);

4

Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg’l

Plan. Agency, 535 U.S. 302, 322 (2002); First Eng.

Evangelical Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987).2 Indeed, the difference

is so important that this Court has held that it is “inappropriate to treat cases involving physical takings

as controlling precedents for the evaluation of a claim

that there has been a regulatory taking.” Tahoe-Sierra Preserv. Council, Inc. 535 U.S. at 323. When

bringing a Takings Clause claim under a temporary

physical invasion theory, the property owner need not

meet the more burdensome standard for a regulatory

taking

A. Regulatory taking doctrine presents a

higher bar for property owners than physical invasions.

Prevailing on a regulatory taking claim is difficult

for property owners. Although a variety of factors are

potentially relevant, the determining factor is usually

the diminution of value caused by the regulation at

issue. See Keystone Bituminous Coal Ass’n v.

2 Part of the confusion appears to stem from the fact that Penn

Central Transportation Company v. City of New York, 438 U.S.

104, 124 (1978) (listing factors to consider in determining

whether a regulation effects a taking), is sometimes treated as

synonymous with regulatory takings. Yet Penn Central actually

distinguished between physical invasions and regulations. In addressing the first Penn Central factor, the “character of the government action,” this Court explained that “[a] ‘taking’ may more

readily be found when the interference with property can be

characterized as a physical invasion by government.” Penn Cent.

Transp. Co., 438 U.S. at 124. Subsequent physical invasion cases

have typically not treated Penn Central as setting out a controlling formula, except inasmuch as it indicates that courts should

look to all of the facts and circumstances in takings cases. See

Ark. Game & Fish Comm’n v. U.S., 568 U.S. 23, 38–40 (2012).

5

DeBenedictis, 480 U.S. 470, 497 (1987) (“[O]ur test for

regulatory taking requires us to compare the value

that has been taken from the property with the value

that remains in the property[.]”). In fact, this Court

has even described the diminution of value inquiry as

the “goal” of regulatory takings analysis. Murr v. Wisconsin, 137 S. Ct. 1933, 1944 (2017); see also Penn.

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (“[I]f regulation goes too far it will be recognized as a taking.”).

By contrast, “when there has been a physical appropriation, ‘we do not ask * * * whether it deprives

owner of all economically valuable use’ of the item

taken.” Horne v. Dep’t of Agric., 576 U.S. 350, 362

(2015).

When viewed in this light, this Court’s holding in

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1029 (1992), is inescapable. If a regulation becomes a taking when it goes “too far,” then a regulation that destroys all of a property’s economic value

must obviously be a taking. A regulation can go no further.

This Court has not precisely delineated where the

line must be drawn in regulatory takings cases, but it

is clear that to effect a regulatory taking, a regulation

must be truly “onerous.” Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528, 537 (2005). Lower courts (though not

this Court) have held that even diminutions of 95% of

the property’s value may not constitute a regulatory

taking. See, e.g., William C. Hass & Co. v. City &

County. of San Francisco, 605 F.2d 1117, 1120 (9th

Cir. 1979) (value reduced from $2 million to $100,000).

While lower courts are not in agreement regarding

how great a diminution in value must be shown to establish a regulatory taking, courts do generally recognize that “challenges to regulatory takings are

6

difficult for property owners to mount.” Piedmont

Triad Reg’l Water Auth. v. Unger, 572 S.E.2d 832, 835

(N.C. App. 2002). This Court has justified the high bar

in regulatory takings cases by stating that regulations

often “[do] not interfere with interests that [are] sufficiently bound up with the reasonable expectations of

the claimant to constitute ‘property’ for Fifth Amendment purposes.” Penn Cent. Transp. Co. v. City of New

York, 438 U.S. 104, 125 (1978).

B. Temporary physical invasions are presumptive takings.

Unlike mere regulation of property, government

action that leads to a direct physical invasion of property is “[t]he paradigmatic taking requiring just compensation.” Lingle v. Chevron U.S.A., Inc., 544 U.S.

528, 537 (2005). Indeed, the property interests hindered by physical invasions are of such “an unusually

serious character for purposes of the Takings Clause,”

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 426 (1982), that even slight intrusions, having a minimal economic impact on the property owner,

like placing cables on a rooftop, effect a compensable

taking under the Fifth Amendment. See id. at 441.

Yet notwithstanding this Court’s repeated insistence

that physical invasions are different and far more serious than mere regulations, the Ninth Circuit dismissed the physical character of the government action at issue in this case on the grounds that it was

not “permanent.” That was a mistake.

To be sure, this Court has not extended the per se

rule of Loretto to include temporary physical invasions

of property. See Ark. Game & Fish Commission v.

United States. 568 U.S. 23, 36 (2012); but see, TahoeSierra Preserv. Council, Inc. v. Tahoe Reg’l Plan.

Agency, 535 U.S. 302, 356 (2002) (Thomas, J.,

7

dissenting) (suggesting that at least some temporary

physical invasions are per se takings). But it does not

follow that the physical character of the invasion

therefore becomes irrelevant in the takings analysis.

Quite the contrary.

Perhaps the clearest distinction between a physical invasion and a regulation is that in the invasion

context, a diminution of value analysis is irrelevant to

the question of whether there is a taking. See Kaiser

Aetna v. United States, 444 U.S. 164, 179-80 (1979)

(“And even if the Government physically invades only

an easement in property, it must nonetheless pay just

compensation.”); Horne v. Dep’t of Agric., 576 U.S. 350

(2015) (“[W]hen there has been a physical appropriation, ‘we do not ask * * * whether it deprives owner of

all economically valuable use’ of the item taken.”);

First Eng. Evangelical Church of Glendale v. County

of Los Angeles, 482 U.S. 304, 329-30 (1987) (Stevens,

J., dissenting) (“This diminution of value inquiry is

unique to regulatory takings.”). While the value diminution analysis is generally the determinant in regulatory takings, this Court has said “a more complex

balancing process” is appropriate in cases of temporary physical invasions. Arkansas Game & Fish

Comm’n v. United States, 568 U.S. 23, 36 (2012).

Government-sanctioned physical invasions of private property almost always constitute a taking. For

instance, in Kimball Laundry Co. v. United States,

this Court considered how much compensation was

due to the owner of a commercial laundry that had

been seized for government use during World War II.

338 U.S. 1 (1949). The physical invasion was obviously

temporary, but there was no question that a taking

had occurred. The only dispute was whether the government would be required to pay not only for the use

8

of the property, but also for the resulting damage to

the property owner’s business. The Kimball court held

that the business losses were compensable. Id at 16.;

see also United States v. General Motors Corp., 323

U.S. 373 (1945). Indeed, “a ‘temporary physical invasion’ * * * may be characterized as a ‘presumptive taking,’” even if not a per se taking. Hilton Washington

Corp. v. D.C., 593 F. Supp. 1288, 1291 (D.D.C. 1984),

aff’d, 777 F.2d 47 (D.C. Cir. 1985).3

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency also illustrates the fundamental differences between physical invasions and

regulatory takings. In that case, this Court held that

whether moratoria on development in the Lake Tahoe

Basin effected a taking should be determined under

the Penn Central test for regulatory takings. Id. at

321. This Court distinguishes between physical invasions—where “the government * * * has a categorical

duty to compensate the former owner”—and regulatory takings—where courts engage in ad hoc, factual

inquiries. Id. at 322. There, this Court explicitly rejected the idea that the issue turned on whether the

moratoria were temporary in nature. Id. at 337. Instead, it held that Penn Central applied because the

moratoria were regulatory takings rather than physical invasions. This Court recognized the greater deprivation inherent in physical invasions and explicitly

3 Analogizing to antitrust jurisprudence, as this Court has done

before, see Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 435 n.12 (1982) (“In the antitrust area, similarly, this

Court has not declined to apply a per se rule simply because a

court must, at the boundary of the rule, apply the rule of reason

and engage in a more complex balancing analysis.”), one might

say that temporary physical invasions are subject to the “quick

look” review applied to actions that are usually unlawful. Cal.

Dental Ass’n v. FTC, 526 U.S. 756, 763 (1999).

9

noted that temporariness could not cure such a constitutional violation. Id. at 322 (“[C]ompensation is mandated when a leasehold is taken and the government

occupies the property for its own purposes, even

though that use is temporary.”). Because of the particularly egregious deprivation inherent in a physical invasion, only brief, one-time physical invasions may be

held not to effect a taking.

Typically, courts will always find there has been a

taking in physical invasion cases unless the invasion

was a brief, one-time incursion. For instance, in

YMCA v. United States, 395 U.S. 85 (1969), this Court

held that a “temporary, unplanned occupation” of

property during “the course of battle” did not constitute a taking. Id. at 93.4 Similarly, the California Supreme Court has held that there is no taking when

government agents enter private property for the purpose of one-time groundwater testing. See Prop. Reserve, Inc. v. Super. Ct., 375 P.3d 887, 923 (Cal. 2016).

(However, the installation of groundwater monitoring

equipment on private property, for an indefinite

4 Notably, the Court emphasized that the occupation in that case

actually protected the property owners’ interest because it prevented rioters from damaging the owners’ buildings as much as

other buildings. Id. at 90. It noted that it would turn the purposes

of the Takings Clause on its head for the Government to have to

compensate the property owners when they were “the particular

intended beneficiary of the governmental activity” rather than a

party incurring the costs of benefits to the public. Id. at 92. It

also noted that, under the particular facts of the case, where the

riot prevented any beneficial use of the property, “the buildings

could not have been used by [the owners] in any way.” Id. at 93.

The Court’s focus on these factors may suggest that in a different

factual circumstance even an otherwise-similar occupation may

constitute a temporary physical invasion requiring just compensation.

10

period of time, does effect a taking. See Hendler v.

United States, 952 F.2d 1364, 1371 (Fed. Cir. 1991).)

The Third Circuit has likewise found that there was

no taking when police officers physically occupied a

property for just two hours while conducting a lawful

search. Jones v. Phila. Police Dep’t, 57 F. App’x 939,

942 (3d Cir. 2003).

Such cases are exceptions that illustrate the general principle that physical invasions are presumptive

takings. These invasions’ brevity means they do not

limit the property owners’ ability to possess, use, or

keep others off their property in a meaningful way.

See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539

(2005) (highlighting the importance of the right to exclude). These types of cases were aptly explained by

the Federal Circuit in one of its leading cases on physical invasions. Cases in which physical invasions do

not lead to takings are those in which the:

government’s activity was so short lived as to

be more like the tort of trespass than a taking

of property. The distinction between the government vehicle parked one day on O's land

while the driver eats lunch, on the one hand,

and the entry on O's land by the government

for the purpose of establishing a long term

storage lot for vehicles and equipment, on the

other, is clear enough.

Hendler v. United States, 952 F. 2d 1364, 1371 (Fed.

Cir. 1991).

Beyond such brief incursions, courts generally

find physical invasions to constitute a taking. Indeed,

this Court has established that “while a single act may

not be enough [to turn a physical trespass into a taking], a continuance of them in sufficient number and

11

for sufficient time may prove it.” Portsmouth Harbor

Land & Hotel Co. v. United States, 260 U.S. 327, 329–

30 (1922). “Every successive trespass adds to the force

of the evidence” that the incursions effect a taking.

Ibid.

In a case involving a requirement that beachfront

property owners maintain a pathway on their property for public access to the beach, this Court recognized that where “real property may continuously be

traversed, even though no particular individual is permitted to station himself permanently” there is a taking because of the limitation on the right to exclude

that such a requirement entails. Nollan v. Cal.

Coastal Comm’n, 483 U.S. 825, 832 (1987).

In Caquelin v. United States, 959 F.3d 1360 (Fed.

Cir. 2020), a recent case applying Arkansas Game and

Fish, the Federal Circuit held that a property owner

was entitled to $900.00 as compensation for the government’s extending a private easement over the

owner’s property for 180 days. Such an invasion, the

trial court had noted, was not “the mere ‘parked truck

of the lunchtime visitor.’” Caquelin v. United States,

140 Fed. Cl. 564, 579 (Fed. Cl. 2018) (citing Hendler,

952 F.2d at 1376), aff’d, 959 F.3d 1360 (Fed. Cir.

2020); see also Primetime Hosp., Inc. v. Albuquerque,

206 P.3d 112, 123 (N.M. 2009) (awarding damages for

142 days of temporary physical invasion).

These cases demonstrate that physical invasions

are unlike alleged regulatory takings, where the deck

is stacked against the property owner. Just the opposite. A physical invasion, even a temporary one, “may

be characterized as a presumptive taking.” Hilton

Washington Corp. v. District of Columbia, 593 F.

Supp. 1288, 1291 (D.D.C. 1984), aff’d, 777 F.2d 47

(D.C. Cir. 1985); see also Frank I. Michelman,

12

Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80

Harv. L. Rev. 1165, 1226 (1967) (noting that physical

invasions have “doctrinal potency” in takings analysis).

II. This Court should reaffirm the categorical difference between physical invasions and regulations of property use.

By conflating temporary physical invasions with

regulatory takings, the decision below threatens to reverse the normal presumption that physical invasions

are takings unless they are of especially short duration. Affirming the Ninth Circuit’s decision would inappropriately shift the burden in cases of temporary

physical invasions to the detriment of innocent property owners. Temporary physical invasions should not

be evaluated using the same standard as regulatory

takings because they more closely resemble a permanent physical invasion. See First Eng. Evangelical

Church of Glendale v. County of Los Angeles, 482 U.S.

304, 318 (1987) (“‘[T]emporary’ takings which * * *

deny a landowner all use of his property are not different in kind from permanent takings[.]”); see also

Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg’l

Plan. Agency, 535 U.S. 302, 346–47 (Rehnquist, J.,

dissenting) (“[A] distinction between ‘temporary’ and

‘permanent’ prohibition is tenuous.”); Hendler v.

United States, 952 F.2d 1364, 1376–77 (arguing that

the idea of a temporary taking is “illogical” since “[a]ll

takings are ‘temporary,’ in the sense that the government can always change its mind at a later time”). The

danger of substituting the standard for temporary

physical invasions with the standard for regulatory

takings is not theoretical.

13

Under the Ninth Circuit’s approach, owners

whose properties are subject to actual physical invasions will find themselves without recourse unless

they can prove serious financial harm. This Court

must not allow such a misunderstanding of the doctrine to stand. Other courts have adopted similarly

flawed approaches. For example, in Franklin Mem’l

Hosp. v. Harvey, 575 F.3d 121 (1st Cir. 2009), the First

Circuit denied compensation to an owner whose property was subject to “periodic and intermittent” physical invasions, id. at 126 n.4, in part because the invasion at issue did not pose a “threat to [the owner’s]

economic viability” even though the court

acknowledge that the property owner faced significant

economic harm. Id. at 127. In light of this Court’s reasoning in Portsmouth that multiple intrusions constitute a taking, that holding cannot be correct.

Similarly concerning is the holding Hilton Washington Corp. v. District of Columbia, 777 F.2d 47 (D.C.

Cir. 1985), where the D.C. Circuit also denied compensation in a temporary physical invasion case because

the property owner did not demonstrate that the invasion caused a “significant economic impact.” Id. at

50. And in Cienega Gardens v. United States, 331 F.3d

1319 (Fed. Cir. 2003), the Federal Circuit held that a

property owner subject to a physical invasion was required to show “serious financial loss” from the regulation at issue in order to prove a taking. Id. at 1338,

1340. Fortunately, the court in that case concluded

that the property’s 96% loss in value was sufficient to

establish a taking, but it left open the question

whether 35% would be sufficient. Id. at 1343 n.40.

This Court must reverse the decision of the Ninth

Circuit because, notwithstanding the clarity of this

Court’s precedents, the federal courts are confused

14

about how to analyze temporary physical invasions.

Due to this confusion, property owners are being deprived of compensation due to them under the Fifth

Amendment. In order to ensure the rights of property

owners, it is crucial that this Court explicitly reaffirm

that temporary physical invasions are not evaluated

as regulatory taking, but under a more stringent and

property-protective standard. This Court must reaffirm that temporary physical invasions are presumptive takings. In this case the crucial question is

whether the government action constitutes a physical

invasion. If it does, then it is presumptively a taking,

regardless of whether it can be characterized as a permanent, per se taking.

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the Ninth Circuit and should reaffirm that temporary physical invasions are presumptive takings under the Takings Clause.

15

Respectfully submitted.

JEFFREY H. REDFERN

Counsel of Record

DANA BERLINER

ROBERT MCNAMARA

KATRIN MARQUEZ

Institute for Justice

901 North Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

jredfern@ij.org

JANUARY 2021