Amicus Curiae Brief — Sawtooth Mountain Ranch, LLC, et al., Petitioners v. United States Forest Service, et al.

No. 23-1103

In The

Supreme Court of the United States

____________________

SAWTOOTH MOUNTAIN RANCH, LLC, ET AL.,

Petitioners,

v.

UNITED STATES FOREST SERVICE, ET AL.,

____________________

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION, NFIB LEGAL

CENTER, AND OWNERS’ COUNSEL OF

AMERICA IN SUPPORT OF PETITIONERS

____________________

JEFFREY W. MCCOY

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

JMcCoy@pacificlegal.org

RThomas@pacificlegal.org

DAVID C. MCDONALD

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

DMcDonald@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation, NFIB

Legal Center, and Owners’ Counsel of America

i

QUESTIONS PRESENTED

This amicus curiae brief addresses the first two of

three questions presented by the Petitioners to this

Court:

1. Whether equitable tolling is available for

statutes of limitation, highlighting a conflict between

Boechler, P.C. v. Commissioner, 596 U.S. 199, 209

(2022), holding that such relief is “presumptively”

available, and the earlier decisions in United States v.

Beggerly, 524 U.S. 38, 49 (1998), and Block v. North

Dakota, 461 U.S. 273, 287 (1983), holding that the

statute of limitations must be “strictly” applied.

2. Whether the only remedy for a regulatory

taking is cash payment, a conclusion of the Ninth

Circuit that conflicts with recent decisions of this

Court, like Cedar Point Nursery v. Hassid, 594 U.S.

139 (2021); Nollan v. California Coastal Comm’n, 483

U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374

(1994); and Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005), holding that takings relief is not limited to

compensation but can be declaratory or injunctive,

depending on the circumstances.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iv

IDENTITY AND INTEREST OF

AMICI CURIAE ....................................................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT.................................. 4

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

I.

THIS COURT SHOULD GRANT THE

PETITION TO CLARIFY AND, IF

NECESSARY, OVERTURN THE

HOLDING IN BEGGERLY ............................. 6

A. This Court Should Clarify Its Statement

That the Quiet Title Act “Effectively

Allows for Equitable Tolling” ..................... 6

B. The Ninth Circuit’s Misapplication of

the Quiet Title Act’s Statute of

Limitations Demonstrates Why This

Court Should Overturn Beggerly and

Hold That the Quiet Title Act Allows

for Equitable Tolling ................................... 9

II.

THIS COURT SHOULD GRANT THE

PETITION TO CLARIFY WHAT

REMEDIES ARE AVAILABLE

UNDER THE TAKINGS CLAUSE ............... 13

A. This Court Has Jurisdiction to

Review the Ranchers’ Takings Claim ...... 14

iii

B. This Court Regularly Exercises

Jurisdiction Over Takings Cases

Where No Monetary Relief Has Been

Sought ....................................................... 15

CONCLUSION.......................................................... 19

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas Game and Fish Comm’n

v. United States,

568 U.S. 23 (2012) ................................................. 3

Babbitt v. Youpee,

519 U.S. 234 (1997) ....................................... 13, 16

Block v. North Dakota,

461 U.S. 273 (1983) ......................................... 9–11

Boechler, P.C. v. Commissioner,

596 U.S. 199 (2022) ............................................. 10

Cada v. Baxter Healthcare Corp.,

920 F.2d 446 (7th Cir. 1990) ........................... 8, 10

Callender v. Marsh,

18 Mass. 418 (1823) ............................................. 15

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................... 1, 5, 13, 17

Dep’t of Agric. Rural Dev. Rural

Hous. Serv. v. Kirtz,

601 U.S. 42 (2024) ............................................... 12

Dolan v. City of Tigard,

512 U.S. 374 (1994) ....................................... 13, 16

Duke Power Co. v. Carolina Env.

Study Grp., Inc.,

438 U.S. 60 (1979) ............................... 5, 13, 17–18

v

First English Evangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987) ................................... 5, 17–18

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ....................................... 13, 16

Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) ........................................... 6, 11

Kaiser Aetna v. United States,

444 U.S. 164 (1970) ............................. 5, 13, 16–18

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ....................1, 5, 14–15, 18–19

Koontz v. St. Johns River Water

Mgmt. Dist., 570 U.S. 595 (2013) ...................... 1, 3

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

544 U.S. 528 (2005) ................................... 5, 13, 16

Mowrer v. United States Dep’t of Transp.,

14 F.4th 723 (D.C. Cir. 2021) .............................. 12

Murr v. Wisconsin,

582 U.S. 383 (2017) ............................................... 1

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ................................... 1, 13, 16

Off. of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990) ............................................. 12

Pakdel v. City and Cnty. of San Francisco,

594 U.S. 474 (2021) ............................................... 1

vi

Palazzolo v. Rhode Island,

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

Suitum v. Tahoe Reg’l Plan. Agency,

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

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................. 13

United States v. Beggerly,

524 U.S. 38 (1998) ................................. 4, 6–11, 13

United States v. Clarke,

445 U.S. 253 (1980) ............................................. 14

Wilkins v. United States,

598 U.S. 152 (2023) ........................................... 1, 8

U.S. Constitution

U.S. Const. amend. V................................ 5, 14–16, 18

U.S. Const. art. I, § 9, cl. 7........................................ 12

Statutes

16 U.S.C. § 460aa ...................................................... 15

28 U.S.C. § 1346(f) ...................................................... 4

28 U.S.C. § 1491 .................................................. 14, 16

28 U.S.C. § 2409a .............................................. 4, 6–13

28 U.S.C. § 2409a(a) ................................................... 4

28 U.S.C. § 2409a(g) ................................................... 4

vii

Rules

Sup. Ct. R. 37.2 ........................................................... 1

Sup.Ct. R. 37.6 ............................................................ 1

Other Authorities

54 C.J.S. Limitations of Actions

§ 136 (2023) ........................................................... 4

Ely, James W., The Guardian of Every

Other Right: A Constitutional History

of Property Rights (2d ed. 1998) ............................. 2

Petitioner’s Brief, United States v. Beggerly,

524 U.S. 38 (1998) (No. 97-731) ............................ 7

S. Rep. No. 92-575 (1971) ................................. 4, 7, 11

1

IDENTITY AND INTEREST

OF AMICI CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit, taxexempt corporation organized for the purpose of

litigating matters affecting the public interest in

private property rights, individual liberty, and

economic freedom. Founded 50 years ago, PLF is the

most experienced legal organization of its kind. PLF

attorneys have participated as lead counsel in

numerous landmark United States Supreme Court

cases generally in defense of the right to make

reasonable use of property and the corollary right to

obtain just compensation when that right is infringed.

See, e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139

(2021); Pakdel v. City and Cnty. of San Francisco, 594

U.S. 474 (2021); Knick v. Twp. of Scott, 588 U.S. 180

(2019); Murr v. Wisconsin, 582 U.S. 383 (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 Reg’l Plan. Agency, 520 U.S. 725

(1997); Nollan v. California Coastal Comm’n, 483 U.S.

825 (1987). PLF also represented the Petitioner in

Wilkins v. United States, 598 U.S. 152 (2023), which

involved the Quiet Title Act’s statute of limitations.

National Federation of Independent Business

Small Business Legal Center, Inc. (“NFIB Legal

Center”) is a nonprofit, public interest law firm

1 Pursuant to Rule 37.2, Amici Curiae provided timely notice to

all parties. Pursuant to Rule 37.6, Amici Curiae affirm that no

counsel for any party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund 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

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (NFIB),

which is the nation’s leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members. NFIB Legal Center takes interest in this

case because equitable tolling gives courts muchneeded discretion, preventing agencies from hiding

wrongdoing behind a layer of clerical technicalities. As

a matter of justice, small business owners must have

the chance to bring claims when they discover a legal

injury. Further, monetary damages may be

insufficient given the character of a taking. Small

businesses should be able to have their day in court

and stop the government from despoiling their land.

Owners’ Counsel of America (OCA) is an invitationonly national network of the most experienced eminent

domain and property rights attorneys. They have

joined together to advance, preserve, and defend the

rights of private property owners, and thereby further

the cause of liberty, because the right to own and use

property is “the guardian of every other right,” and the

basis of a free society. See James W. Ely, The Guardian

of Every Other Right: A Constitutional History of

Property Rights (2d ed. 1998). As the lawyers on the

front lines of property law and property rights, OCA

OCA brings unique perspective to this case. OCA is a

nonprofit 501(c)(6) organization sustained solely by its

members. Only one member lawyer is admitted from

each state. Since its founding, OCA has sought to use

3

its members’ combined knowledge and experience as

a resource in the defense of private property

ownership, and OCA member attorneys have been

involved in landmark property law cases in nearly

every jurisdiction nationwide. Additionally, OCA

members and their firms have been counsel for a party

or amicus in many of the property cases this Court has

considered in the past forty years, including most

recently Koontz, 570 U.S. 595, and Arkansas Game

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

OCA members have also authored and edited

treatises, books, and law review articles on property

law and property rights.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Quiet Title Act, 28 U.S.C. §§ 1346(f), 2409a,

allows “citizen[s] involved in a title dispute with the

Government to have [their] day in court . . . .” S. Rep.

No. 92-575, at 2 (1971). To that end, the Quiet Title

Act allows for a property owner to file a suit against

the government “to adjudicate a disputed title to real

property in which the United States claims an interest

. . . .” 28 U.S.C. § 2409a(a).

A quiet title action must be brought within twelve

years after “the plaintiff or his predecessor in interest

knew or should have known of the claim of the United

States.” 28 U.S.C. § 2409a(g). The Quiet Title Act’s

statute of limitations thus incorporates the “discovery

rule.” See 54 C.J.S. Limitations of Actions § 136 (2023)

(explaining discovery rule). The discovery rule is an

equitable doctrine and, in the context of the Quiet

Title Act, “effectively allow[s] for equitable tolling.”

United States v. Beggerly, 524 U.S. 38, 48 (1998).

But here, the Ninth Circuit failed to apply any

equitable considerations in holding that Petitioners

filed their suit out of time. Petitioners’ Appendix (Pet.

App.) at 6. Relying on other language in Beggerly that

“[e]quitable tolling of the already generous statute of

limitations incorporated in the [Quiet Title Act] . . . is

incompatible with the Act,” 524 U.S. at 49, the Ninth

Circuit summarily affirmed the dismissal of

Petitioners’ claims, Pet. App. at 6. This Court should

grant the Petition to address Beggerly’s seemingly

contradictory language about equitable tolling under

the Quiet Title Act.

5

The Petition should also be granted to resolve the

Ninth Circuit’s holding about what relief is available

for a takings claim. This Court has long and

consistently held that just compensation is not the

sole remedy available under the Takings Clause,

asserting so both explicitly, see Duke Power Co. v.

Carolina Env. Study Grp., Inc., 438 U.S. 60, 71 n.15

(1979), and implicitly. See Cedar Point, 594 U.S. at

145. Takings claims can be raised as a defense against

government suit, see Kaiser Aetna v. United States,

444 U.S. 164, 170–71 (1970), or simply as actions for

declaratory and injunctive relief. See Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 533 (2005).

Unfortunately, lack of clarity in some of this Court’s

decisions, namely Knick, 588 U.S. at 195, and First

English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 321 (1987), has resulted in

decisions like the one below, where the Ninth Circuit

dismissed the Ranchers’ inverse condemnation claim

because it thought monetary just compensation is the

only remedy available under the Takings Clause. This

misunderstanding of this Court’s takings and

standing precedents is in dire need of correction if

Americans are to be secure in their property.

6

ARGUMENT

I.

THIS COURT SHOULD GRANT THE

PETITION TO CLARIFY AND, IF

NECESSARY,

OVERTURN

THE

HOLDING IN BEGGERLY

A. This

Court

Should

Clarify

Its

Statement That the Quiet Title Act

“Effectively Allows for Equitable

Tolling”

In United States v. Beggerly, this Court stated that

“the [Quiet Title Act], by providing that the statute of

limitations will not begin to run until the plaintiff

‘knew or should have known of the claim of the United

States,’ has already effectively allowed for equitable

tolling.” 524 U.S. at 48. In support of that statement,

this Court cited Irwin v. Department of Veterans

Affairs for the proposition that this Court has allowed

equitable tolling in situations “where the claimant has

actively pursued his judicial remedies by filing a

defective pleading during the statutory period, or

where the complainant has been induced or tricked by

his adversary’s misconduct into allowing the filing

deadline to pass.” Beggerly, 524 U.S. at 48 (citing

Irwin, 498 U.S. 89, 96 (1990).

Given that the Quiet Title Act “effectively allow[s]

for equitable tolling,” the Court held that “extension

of the statutory period by additional equitable tolling

would be unwarranted.” Beggerly, 528 U.S. at 49. In

short, this Court recognized that courts should apply

equitable considerations when determining whether a

7

Quiet Title Act claim is timely, but recognized that

there were limits to that consideration. 2

But here, the Ninth Circuit focused only on the

latter language in Beggerly and applied no equitable

considerations when determining when the statute of

limitations began to run. Pet. App. at 6. The Ninth

Circuit focused solely on when the property owners

knew that the federal government had a right to

construct a public trail within the conservation

easement at issue. Id. But that is not the issue in this

case, and that was not the dispute that led the

property owners claim to accrue.

The landowners here allege that through its words,

policies, and actions, the federal government implied

that it would allow the public to use a preexisting

hiking trail within the easement boundary. Pet. for

Writ of Cert. at 4–7. And until 2014, the federal

government never expressed any intent to build—or

any belief that it had the right to build—a paved

commuter route along the conservation easement. Id.

This is the type of situation where a court should

apply equitable considerations to decide when a quiet

title claim accrued. The purpose of the Quiet Title Act

is to allow property owners to resolve disputes with

the federal government. S. Rep. No. 92-575, at 2

(1971) (recommending passing the Quiet Title Act

because it will allow “citizen[s] involved in a title

dispute with the Government to have [their] day in

2 Indeed, in its briefing in Beggerly, the government recognized

the equitable nature of the Quiet Title Act’s statute of

limitations. Pet’r’s Br. at 28, United States v. Beggerly, 524 U.S.

38 (1998) (No. 97-731) (“The QTA’s statute of limitations

therefore has an express ‘discovery rule’ that already

incorporates equitable considerations.”).

8

court . . . .”). The Quiet Title Act’s statute of

limitations was not intended to allow the government

to pull a bait-and-switch to avoid litigating whether it

got more than it bargained for. See Beggerly, 524 U.S.

at 48; see also id. at 49–50 (Stevens, J., concurring).

The line between the Quiet Title Act’s discovery

rule and equitable tolling is murky. Cf. Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 450–51 (7th Cir. 1990)

(explaining the difference between when a claim

accrues under the discovery rule and when it is tolled

by equitable tolling). Indeed, courts often confuse the

discovery rule, equitable tolling, and equitable

estoppel, id. at 451—the latter of which this Court has

said might apply to the Quiet Title Act’s statute of

limitations, Wilkins, 598 U.S. at 164. But that

confusion highlights the need for this Court to clarify

the holding in Beggerly.

For most other statutes of limitations, the

differences between these doctrines will have little

practical effect on whether a claim can move forward.

In other cases, courts do not need to parse which

equitable doctrine applies to the facts of each case, and

can allow a case to move forward when equitable

considerations counsel the court to reach a decision on

the merits.

But because of Beggerly, courts are required in

Quiet Title Act cases to parse the various equitable

doctrines that apply to the statute of limitations. And,

as with the Ninth Circuit here, courts will often read

Beggerly to require them to not consider any of the

equities when determining whether a claim was

timely filed.

9

But Beggerly itself recognized that equitable

considerations play a role in determining when a

Quiet Title Act claim accrues. 524 U.S. at 48. And for

good reason. When a court dismisses a Quiet Title Act

case under statute of limitations grounds, no title is

quieted. Block v. N. Dakota ex rel. Bd. of Univ. & Sch.

Lands, 461 U.S. 273, 291 (1983). Instead, the property

dispute continues, but can only be resolved through

some other process. Id. at 291–92.

In the interest of resolving property disputes, this

Court should grant the Petition to clarify its holding

in Beggerly. Specifically, this Court should clarify that

Beggerly does not hold that courts are not allowed to

consider any equities when determining whether a

Quiet Title Act case was timely filed.

B. The Ninth Circuit’s Misapplication of

the Quiet Title Act’s Statute of

Limitations Demonstrates Why This

Court Should Overturn Beggerly and

Hold That the Quiet Title Act Allows for

Equitable Tolling

Moreover, to avoid further confusion about the

Quiet Title Act’s statute of limitations, this Court

should go beyond just clarifying Beggerly’s holding

and grant the Petition to overturn it. The Beggerly

court’s analysis of whether equitable tolling is

available was relatively short and it overlooked

important aspects of the Quiet Title Act and statutes

of limitations generally. In short, the Court’s

statement that the Quiet Title Act’s text overcomes

the presumption in favor of equitable tolling was

incorrect, inconsistent with this Court’s other Quiet

Title Act cases, and—as demonstrated above—has

10

caused needless confusion that prevents property

owners from vindicating their rights.

The first rationale Beggerly stated for not allowing

equitable tolling was that the Quiet Title Act “has

already effectively allowed for equitable tolling.” 524

U.S. at 48. But, as stated above, the discovery rule is

a different concept from equitable tolling, and statutes

often allow for both (as well as equitable estoppel).

Cada, 920 F.2d at 450–51. The various doctrines are

“background principle[s] against which Congress

drafts limitations periods” and this Court

“understand[s]” that Congress does not “alter that

backdrop lightly[.]” Boechler, P.C. v. Comm’r of

Internal Revenue, 596 U.S. 199, 209 (2022). But in

Beggerly, this Court did assume Congress altered the

background principles lightly, and held that Congress

eliminated one equitable doctrine because it allowed

another in the statute of limitations.

Beggerly’s second rationale was that the Quiet

Title Act “deals with ownership of land” and thus “[i]t

is of special importance that landowners know with

certainty what their rights are, and the period during

which those rights may be subject to challenge.” 524

U.S. at 49. But this statement is directly contradicted

by a previous case. Block, 461 U.S. at 291.

As this Court said in Block, “[t]he statute [of

limitations] limits the time in which a quiet title suit

against the United States can be filed; but . . . [it] does

not purport to effectuate a transfer of title.” 461 U.S.

at 291. Thus, a dismissal under the statute of

limitations “does not quiet title to the property in the

United States” and “[n]othing prevents the claimant

from continuing to assert his title, in hope of inducing

the United States to file its own quiet title suit,

11

in which the matter would finally be put to rest on the

merits.” Id. at 291–92.

Contrary to Beggerly’s statement, certainty of title

suggests that equitable tolling should be allowed.

Prematurely dismissing a quiet title case does not give

landowners certainty of what their rights are and

instead “[t]he title dispute remains unresolved.”

Block, 461 U.S. at 291. Allowing a case to be resolved

on the merits is the only way to ensure certainty.

Beggerly’s rationale was based on an incorrect

premise that warrants revisiting the holding.

Finally, sovereign immunity does not provide a

justification to hold that the Quiet Title Act does not

allow for equitable tolling. As this Court said in Irwin,

“[o]nce Congress has made such a waiver” of sovereign

immunity, “we think that making the rule of equitable

tolling applicable to suits against the Government, in

the same way that it is applicable to private suits,

amounts to little, if any, broadening of the

congressional waiver.” 498 U.S. at 95.

Indeed, the concept of sovereign immunity itself is

at odds with the Quiet Title Act’s purpose, which

Congress enacted to allow citizens to resolve title

disputes with the government. S. Rep. No. 92-575, at

2 (1971). As the Senate Committee on Interior and

Insular Affairs stated when it recommended passing

the Quiet Title Act, “[s]overeign immunity or the

infallibility of the Crown, so to speak, became

imbedded in the common law of England and so came

into our American law,” but “this principle is not

appropriate where the courts are established . . . to

serve the people.” Id. at 1. Thus, instead of

interpreting the Quiet Title Act’s waiver of sovereign

immunity strictly against property owners, this Court

12

should interpret the Quiet Title Act in a manner that

furthers Congress’s intention that courts serve the

people by giving them their day in court.

Moreover, this Court has stated that sovereign

immunity considerations are at their greatest when

they involve suits for money damages. See, e.g., Dep’t

of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601

U.S. 42, 48 (2024) (“The United States, as sovereign,

is generally immune from suits seeking money

damages.”). This is understandable because suits for

money damages are the only suits that arguably have

a textual basis in the Constitution, as the

Appropriations Clause gives Congress the power to

expend funds. Off. of Pers. Mgmt. v. Richmond, 496

U.S. 414, 424 (1990) (“For the particular type of claim

at issue here, a claim for money from the Federal

Treasury, the Clause provides an explicit rule of

decision. Money may be paid out only through an

appropriation made by law.”); see also Mowrer v.

United States Dep’t of Transp., 14 F.4th 723, 747 (D.C.

Cir. 2021) (Randolph, J., concurring) (“As to federal

sovereign immunity, the Constitution says nothing.”).

But the Quiet Title Act involves no transfer of

money or property from the federal government. The

very nature of a quiet title claim is that the claimant

already owns the property, and the federal

government is unlawfully asserting its right over it. If

one succeeds in a quiet title suit, the government does

not transfer property to that person. Instead, the court

merely recognizes the rightful owner of the property

at issue. Therefore, the concerns with waiving

sovereign immunity for suits for money damages are

not present with quiet title actions.

13

Beggerly’s holding was based on incorrect premises

and prevents property disputes from being resolved.

This Court should grant the Petition to overturn

Beggerly and hold that the Quiet Title Act’s statute of

limitations can be equitably tolled.

II.

THIS COURT SHOULD GRANT THE

PETITION

TO

CLARIFY

WHAT

REMEDIES ARE AVAILABLE UNDER

THE TAKINGS CLAUSE

A federal court has a “virtually unflagging”

“obligation to hear and decide cases within its

jurisdiction.” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 167 (2014). The Ninth Circuit neglected that

obligation when it refused to exercise jurisdiction over

Sawtooth’s takings claim for lack of a request for

monetary compensation, despite the unavailability of

an adequate monetary remedy and decades of

precedent from this Court accepting jurisdiction over

non-monetary takings claims. This Court has

consistently exercised jurisdiction over takings cases

where the plaintiffs sought only injunctive or

declaratory relief. See, e.g., Kaiser Aetna, 444 U.S.

164; Duke Power, 438 U.S. 60; Nollan, 483 U.S. 825;

Dolan v. City of Tigard, 512 U.S. 374 (1994); Babbitt

v. Youpee, 519 U.S. 234 (1997); Lingle, 544 U.S. 528;

Horne v. Dep’t of Agric., 576 U.S. 350 (2015) (Horne

II); Cedar Point, 594 U.S.139.

It has generally done so without controversy or

even comment. But see Duke Power, 438 U.S. at 95–96

(Rehnquist, J., concurring in the judgment).

Nevertheless, the status of non-monetary takings

claims in the lower courts remains murky, as can be

seen here with the Ninth Circuit incorrectly asserting

that injunctive and declaratory relief are never

14

appropriate remedies under the Takings Clause and

that only monetary claims for just compensation

confer federal courts with jurisdiction. Intervention by

this Court is necessary.

A. This Court Has Jurisdiction to Review

the Ranchers’ Takings Claim

Just compensation in the form of monetary

damages via a Tucker Act claim in the Court of

Federal Claims is certainly the usual form of relief for

federal takings, and the kind courts are most

comfortable with providing. But it is not, and has

never been, the sole remedy available under the

Takings Clause. The right to not have one’s property

taken by the government without just compensation—

like those others protected in the Bill of Rights—is

“self-executing,” United States v. Clarke, 445 U.S. 253,

257 (1980), and thus cannot be limited by a mere

statute like the Tucker Act. To the extent that

monetary relief is inadequate or otherwise

unavailable and injunctive or declaratory relief are

necessary to prevent an uncompensated taking, they

are and should be available.

Indeed, declaratory and injunctive relief for federal

takings predate the availability of monetary just

compensation by decades. As this Court explained in

Knick, 588 U.S. at 200, legislation providing a cause

of action for monetary compensation of a federal

taking of private property for public use did not exist

prior to the 1870s (the Tucker Act, 28 U.S.C. § 1491,

was not enacted until 1887). “Antebellum courts,

which had no means of compensating a property

owner for his loss, had no way to redress the violation

of an owner’s Fifth Amendment rights other than

ordering the government to give him back his

15

property.” Id. at 200 (citing Callender v. Marsh, 18

Mass. 418, 430–31 (1823) (“[I]f by virtue of any

legislative act the land of any citizen should be

occupied by the public . . . , without any means

provided to indemnify the owner of the property, . . .

because such a statute would be directly contrary to

the [Massachusetts Takings Clause]; and as no action

can be maintained against the public for damages, the

only way to secure the party in his constitutional

rights would be to declare void the public

appropriation.”)). For roughly the Republic’s entire

first century, injunctions were not only a type of

remedy available under the Takings Clause, they

were essentially the only remedy available.

Here, the Ranchers are challenging the USFS’s

actions as unconstitutional, and the government can

choose to either pay just compensation for what was

taken, or it can acknowledge the unconstitutional

character of what it was attempting to do and return

the property that was taken. Both outcomes make the

Ranchers whole under the Takings Clause, in theory,

but only injunctive and declaratory relief can protect

the (potentially uncompensable) conservation value of

the local environment as protected in the Sawtooth

Mountain Recreation Act, 16 U.S.C. § 460aa et seq.

B. This

Court

Regularly

Exercises

Jurisdiction Over Takings Cases

Where No Monetary Relief Has Been

Sought

Cases implicating the Takings Clause but where

the plaintiff never asserted a monetary claim for just

compensation come before this Court on a fairly

regular basis, and rarely does the question of

jurisdiction even merit discussion, let alone

16

controversy. The Court exercised jurisdiction over

non-monetary takings claims without comment in

several notable and highly precedential cases. See,

e.g., Kaiser Aetna, 444 U.S. 164 (finding a taking when

takings claim was raised as defense to suit against

property owner by Army Corps of Engineers, where

property owner only sought an injunction prohibiting

the government from allowing public access); Nollan,

483 U.S. 825 (finding a taking even though the

property owners did not seek damages or even file

inverse condemnation claim, but instead brought an

action for a writ of mandate against the California

Coastal Commission asking the court to strike

unconstitutional

conditions inserted

by

the

Commission into the property owner’s building

permit); Dolan, 512 U.S. 374 (finding a taking under

similar circumstances as in Nollan, where property

owner only sought injunction reversing variance

decision, not monetary damages); Babbitt, 519 U.S. at

242 (finding a taking where property owner filed

taking claim requesting only declaratory and

injunctive relief). The Court even did so unanimously

in Lingle, 544 U.S. 528 (finding a taking in case where

property owner brought suit seeking a declaration

that a rent cap ordinance was an unconstitutional

taking and an injunction against application of the

cap to its property); Horne II, 576 U.S. at 367–68

(ruling in favor of appellant property owners, stating

that they could “raise a takings-based defense to the

fine levied against them” and disclaiming the

argument that only a suit for just compensation under

the Tucker Act is sufficient to state a claim under the

Takings Clause).

And it is clear that this is no accident or a mere

product of ignoring issues not explicitly raised by

17

parties who would prefer a decision on the merits

rather than a dissatisfying dismissal on standing

grounds, but a deliberate choice on this Court’s part to

accept takings cases raising claims other than for

money

damages.

Dissenting

Justices

have

occasionally broached the topic, but rarely with much

support and never with any particular enthusiasm.

See Cedar Point, 594 U.S. at 179 (“[T]ouch[ing] briefly

on the remedies, which the majority does not address,”

Justice Breyer acknowledged that the plaintiffs

sought “only injunctive and declaratory relief.” He

brought this up not to disclaim jurisdiction, however,

but merely to state that he thought California should

be able to foreclose injunctive relief on remand by

providing compensation.); Duke Power, 438 U.S. at 71

n.15 (responding to Justice Rehnquist’s assertion in

his concurrence that the Court lacked jurisdiction

because the federal takings suit did not originate in

the Court of Federal Claims by stating that Court of

Federal Claims has exclusive jurisdiction over

monetary claims against the federal government, not

takings claims per se. The Court then reaffirmed the

right of property owners threatened with a taking “to

seek a declaration of the constitutionality of the

disputed governmental action before potentially

uncompensable damages are sustained.”).

Unfortunately, while this Court has consistently—

and largely silently—exercised its jurisdiction over

non-monetary takings claims, it has sometimes failed

to speak with clarity on the occasions where it has

addressed the issue explicitly, allowing lower courts to

misinterpret its finality jurisprudence.

For example, in First English, 482 U.S. at 321, this

Court reaffirmed the position it had outlined in Kaiser

18

Aetna and Duke Power that the federal district courts

have jurisdiction over takings claims seeking

declaratory or injunctive relief as well as those claims

seeking just compensation, while also expanding on

the unconstitutionality of a government attempting to

“relieve it[self] of the duty to provide compensation for

the period during which the taking was effective.”

There, the government attempted to argue that, since

the offending ordinance had been invalidated, it was

relieved of the responsibility of paying just

compensation. The Court responded that a temporary

taking is still a taking, and that “[i]nvalidation of the

ordinance . . . is not a sufficient remedy to meet the

demands of the Just Compensation Clause,” id. at

319, affirming by implication that it is a remedy

available. Unfortunately, the Ninth Circuit below

appears to have twisted this language—originally a

check on government power intended to expand

availability of takings remedies to injured property

owners—to mean that just compensation is the only

remedy available under the Takings Clause.

The Court’s lack of clarity in Knick v. Township of

Scott is similarly problematic. In Knick, this Court

stated that “[e]quitable relief is not available to enjoin

an alleged taking of private property for a public use,

duly authorized by law, when a suit for compensation

can be brought against the sovereign subsequent to

the taking,” Knick, 588 U.S. at 195, while also

rejecting the argument that, just because a fully

compensated plaintiff no longer has a takings claim

does not mean that no taking took place. Id. The first

half of the quoted statement has been warmly

received by courts such as the Ninth Circuit, but the

second half is often ignored. But the Takings Clause

does not only require just compensation for public

19

takings. As this Court recognized in Knick, it is also

an active prohibition placed on the government from

taking any property in the first place that is not “duly

authorized by law” and that it has not paid for. Knick

also specifies that equitable relief is only unavailable

when adequate monetary relief is. Here, no amount of

financial compensation, even if available, would

adequately compensate the Ranchers for the loss of

the unique conservation values of their property.

CONCLUSION

This Court should grant the petition.

DATED: May 2024.

Respectfully submitted,

JEFFREY W. MCCOY

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

JMcCoy@pacificlegal.org

RThomas@pacificlegal.org

DAVID C. MCDONALD

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

DMcDonald@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

NFIB Legal Center, and Owners’ Counsel of America