Amicus Curiae Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

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September 12 mam) oe

No. 00-1167 SEP 12 2001

Supreme Court of the Anite

TAHOE-SIERRA PRESERVATION COUNCIL, INC.,

Petitioner,

Vv.

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION,

CALIFORNIA FARM BUREAU FEDERATION AND

THE NEVADA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER

NANCY MCDONOUGH JOHN J. RADEMACHER

General Counsel Counsel of Record

HENRY E. RODEGERDTS MICHAEL J. STIENTJES

CALIFORNIA FARM BUREAU AMERICAN FARM BUREAU

2300 River Plaza Drive FEDERATION

Sacramento, CA 95833 225 Touhy Avenue

(916) 561-5500 Park Ridge, IL 60068

(847) 685-8600

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

-f

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

THE FIFTH AMENDMENT GUARANTEES

THAT ALL TAKINGS, REGARDLESS OF

THEIR LENGTH, WILL BE COMPENSATED...

THE NINTH CIRCUIT’S DECISION HAS

SEVERE, WIDE REACHING IMPLICATIONS

FOR LANDOWNERS

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

Armstrong v. United States, 364 U.S. 40 (1960)... 6,8

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995).......... 3

City of Monterey v. Del Monte Dunes, Ltd., 526

Se Se TIE irtcnerceicneccnatiinpuinscieniensenepeseeccenscorn 3

Dolan v. City of Tigard, 512 U.S. 374 (1994) ....... 3,4

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 3004

eaten hesahsdiaddidnanenasanmenencnnsnensesnsesees 2, 4, 5, 9, 10

Keystone Bituminous Coal Ass'n v. DeBene-

dictis, 480 U.S. 470 (1987) ........ccccceseeeeeseeeeeeees 6

Lucas v. South Carolina Coastal Council, 505

| _____EEEITnOe evant e ne D OEE CEE 3, 5, 10

Palazzolo v. Rhode Island, 533 U.S. __ (2001)... 3

Monongahela Navigation Co. v. United States,

SEIT ANID ansnlenedeiuvenditebamsieiucsenqnecevceatscconeenseneee 8

Nollan v. California Coastal Comm’n Penn

Central Transp. Co. v. City of New York, 438

ie Se iceciaidcnnpeniitdicccocnianasneiimmsteemnestpnetensies 8

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

ST CITT nciccenenidcninsianepshbasanensiocnenenmen 8

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

SU TaIT ticiasisdlasinichohsatietnininnicshienbeneibeinentenecgnammansnemees 6, 8

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621, 661, f0.26 (1981) oo...ccccccccceeseees 10

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531

| 3, 11

Suitum v. Tahoe Regional Planning Agency, 520

Se 3,4

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 216 F.3d 764 (9th

EE: GI cennertnnensentimmmenimnennssts 2,9

iii

TABLE OF AUTHORITIES—Continued

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

MISCELLANEOUS

The Federalist (C. Rossiter ed. 1961)

No. 10 (James Madison) ...............cccseeeeeeeeees

No. 54 (James Madison) ...............c.0seeeseeeees

J. Nedelsky, Private Property and the Limits of

American Constitutionalism 9, (1990)...............

J. Story, Commentaries on the Constitution of the

United States (R. Rotunda & J. Nowak eds.

M. McConnell, Contract Rights and Property

Rights: A Case Study in the Relationship

Between Individual Liberties and Constitu-

tional Structure, 76 Cal. L. Rev. (1988)............

W. Stoebuck, A General Theory of Emincnt

Domain, 47 Wash. L. Rev. 553 (1972)............+.

IN THE

Supreme Court of the United States

No. 00-1167

TAHOE-SIERRA PRESERVATION COUNCIL, INC.,

Petitioner,

Vv.

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION,

CALIFORNIA FARM BUREAU FEDERATION AND

THE NEVADA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER

With the joint written consent of the parties given and filed

with the Clerk of the Court, the American Farm Bureau

Federation, California Farm Bureau Federation, and the

Nevada Farm Bureau Federation respectfully submit this brief

as amici curiae.'

' Counsel for amici curiae have authored this brief in whole and no

other person or entity other than amici, their members or counsel! have

made a monetary contribution to the preparation or submissions of the

brief.

INTEREST OF THE AMICI CURIAE

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit Corpo-

ration Act of the State of Illinois. AFBF was founded to

protect, promote, and represent the business, economic, social

and educational interests of American farmers and ranchers.

AFBF has member organizations in all 50 states and Puerto

Rico, representing more than 5 million member families.

Amici California Farm Bureau Federation and Nevada Farm

Bureau Federation are constituent members of AFBF,

representing the interests of farmers and ranchers in the States

of California and Nevada, where the property at issue in this

case is located.

Amici American Farm Bureau Federation, California Farm

Bureau Federation and the Nevada Farm Bureau Federation

have a direct stake in the outcome of this case. The decision

of the U.S. Circuit Court for the Ninth Circuit in Tahoe-

Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 216 F.3d 764 (9th Cir. 2000) ignores, if not attempts

to reverse,’ this Court’s decision in First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987), which held that a temporary regulatory taking of

private property requires compensation under the Fifth

Amendment Takings Clause.

Amici’s farmer and rancher members own and lease

significant amounts of land on which they depend for their

livelihoods and upon which all Americans rely for food and

? A Petition for Rehearing was denied along with a suggestion for

Rehearing En Banc on October 20, 2000. Five Circuit Judges dissented

on the grounds that the panel opinion was in direct conflict with the

decision of this Court in First English. As the dissent authored by Judge

Kozinski notes, “The panel does not like the Supreme Court’s Takings

Clause jurisprudence very much, so it reverses First English... .”

228 F.3d at 999.

other basic necessities. Because that land is subject to

increasingly onerous regulation from all levels of government

that impair the ability to farm, and, in some instances,

eliminate that ability altogether, AFBF and its members are

vitally interested in the legal rules establishing the availability

of compensation under the Takings Clause. Accordingly,

AFBF, often together with one or more of its member state

Farm Bureaus, has participated as amicus in this Court in

support of landowners in takings cases such as Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992), Dolan v.

City of Tigard, 512 U.S. 374 (1994), Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997), City of

Monterey v. Del Monte Dunes, Lid, 526 U.S. 687 (1999), and

Palazzolo v. Rhode Island, 533 U.S. __ (2001), as well as in

cases concerning the permissible scope of land use regulation

such as Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995), and Solid Waste Agency

of Northern Cook County v. United States Army Corps of

Engineers, 531 U.S. 159 (2001).

In recent times, federal, state and local governments

experienced monumental budget problems. In the face of

diminishing program funds, federal, state and local regulators

began to satisfy their public purpose land needs, particularly

those for environmental protection and restoration, through

regulatory controls, procedures, and other means that attempt

to avoid compensatory expenditures. The remote and

sparsely developed lands of farmers and ranchers have been

particularly vulnerable to such taking efforts. The creative

efforts of government regulators to restrict farmers and

ranchers in the economically viable use of their land without

just compensation continues today, particularly in the areas of

wetland preservation and endangered species habitat

protection.

American farmers and ranchers need the protection of the

Fifth Amendment and the federal courts if they are to find

economically feasible ways to use their land and remain in

the agricultural business. They began to sense some relief

and assurance of their ability to remain viable when this

Court, in Dolan, sent a strong signal that the constitutional

tide was turning in favor of private property rights. As Chief

Justice Rehnquist declared in the majority opinion, “We see

no reason why the Takings Clause of the Fifth Amendment,

as much a part of the Bill of Rights as the First Amendment

or the Fourth Amendment, should be relegated to the status of

a poor relation.” 512 U.S. at 2320. Dolan followed a recent

trend of rulings strengthening the position of property owners

under the takings clause of the Fifth Amendment in the face

of increased government regulation, particularly in the area of

environmental protection and restoration. That trend began in

1987 with this Court’s decision in First English. )

Amici AFBF, California Farm Bureau Federation and

Nevada Farm Bureau Federation have a vital interest in this

Court reversing the decision of the Ninth Circuit and

affirming that a// takings—permanent or temporary, require

compensation.

BACKGROUND

This case involves approximately 450 owners of residen-

tially zoned and improved lots near Lake Tahoe who sued for

compensation when the Tahoe Regional Planning Agency

(TRPA), through a rolling series of moratoriums and

ordinances, blocked them from building homes on their lands

as part of an regulatory scheme to protect the water quality of

the lake. At issue on this appeal is a moratorium on

development that required the landowners to leave their land

idle for almost three years.’ After a bench trial, the district

* The moratorium at issue is but one in a series of rolling moratoriums

and ordinances over the last twenty years that still block the landowner-

petitioners from building on their properties; the same absolute

prohibitions on development that this Court reviewed in Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997).

court, following the takings jurisprudence of this Court set

forth in First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992), held that

the landowners were entitled to compensation for the three

year period. The Ninth Circuit reversed, holding that a

planning moratorium or temporary regulation can not result in

a compensable taking. The Ninth Circuit refused to follow

the decision of the majority of this Court in First English. As

noted by Judge Kozinski .s his dissent from the order denying

rehearing, the Ninth Circuit chose instead to rewrite Supreme

Court precedent. 228 F.3d 998, at 999.

ARGUMENT

Amici’s position in this appeal is straightforward and the

same as the landowner-petitioners. In Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992), this Court

held that a taking occurs when a land use regulation prevents

all economically beneficial or productive use of property. In

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987), this Court held that there is no

difference between a temporary taking and a permanent

taking. Seemingly, this Court could not have made itself

more clear on the matter that the constitutional guarantees of

the Fifth Amendment Takings Clause protect against all

uncompensated takings—even where the public use behind

the regulation is for environmental protection and is

temporary.

For the framers of our Constitution, private property

supplied the “clear, compelling, even defining instance of the

limits that private rights place on legitimate government.”

J. Nedelsky, Private Property and the Limits of American

Constitutionalism 9 (1990). The Framers understood the

protection of property rights—trights in land in particular—as

“the first object of government.” The Federalist No. 10, at 78

(James Madison) (C. Rossiter ed., 1961).

The Takings Clause lies at the heart of the constitutional

scheme to protect private property rights from the grasp of

transient political majorities; it was carefully crafted “to bar

Government from forcing some people alone to bear burdens

which, in all fairness, should be borne by the public as a

whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

Although the Constitution grants government the power to

deprive a person of property for a public purpose, the exercise

of that power is strictly conditioned upon the payment of just

compensation.

To permit governments to deprive private citizens of their

property without compensation simply to “advance legitimate

State interests” would strip the Takings Clause of its central

purpose of preventing redistribution of private property by

transient political majorities. It is indisputable that “such a

justification can be formulated in practically every case.”

Lucas, 505 U.S. 1003, 1025 n. 12 (1992); see also Keyston

Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 513

(1987) (Rehnquist, C.J., dissenting) (“nearly every action the

government takes can be characterized as preventing some

grave public harm”). As a practical matter, scrutiny of gov-

ernment action to see if it is rationally related to a legitimate

State interest is tantamount to no scrutiny at all. Justice

Holmes warned of this result in Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922):

When th[e] seemingly absolute protection [of the Just

Compensation Clause] is found to be qualified by the

police power, the natural tendency of human nature is to

extend the qualification more and more until at last

private property disappears. But that cannot be

accomplished in this way under the Constitution of the

United States.

The text, history and central constitutional role of the

Takings Clause demand much more exacting scrutiny of land-

use regulations. That provision unambiguously states that

“private property [shall not] be taken for public use, without

_—_-— —_—_—_—

—_—— _

just compensation.” For the common good, government may

deprive a person of property, but only upon payment of just

compensaion. To hold that the requirement of just com-

pensation does not apply where a taking serves a legitimate

public purpose would effectively repeal the Takings Clause,

for that Clause presumes that the government is taking

property “for a public purpose.”

The history of the Takings Clause confirms that it is

suppose to have more teeth. The payment of compensation

when government took property for the common good was “a

principle of the common law * * * of immemorial usage” (W.

Stoebuck, A General Theory of Eminent Domain, 47 Wash.

L. Rev. 533, 583 (1972), and continued “protection of private

p.operty was a nearly unanimous intention among the

founding generation.” M McConnell, Contract Rights and

Property Rights: A Case Study in the Relationship Between

Individual Liberties and Constitutional Structure, 76 Cal. L.

Rev. 267, 270 (1988). See generally J. Story, Commentaries

on the Constitution of the United States 510-511 (R. Rotunda

& J. Nowak eds. 1987). There is no indication that the

Framers thought a broad swathe cut through the middle of

this principle entitled government to take property without

compensation where it could conjure up some arguments that

the exaction was “reasonable.” To the contrary, the Framers

regarded protection of the individual property rights as a

central goal of government. “Government,” wrote James

Madison, “is instituted no less for the protection of the

property than of the persons of individuals.” The Federalist

No 54, at 339 (C. Rossiter ed. 1961).

The Takings Clause disciplines government by forcing it to

weigh the benefits to the community of depriving a person of

his property against the constitutionally mandated compen-

sation that would have to be paid for the taking. Property can

always be taken for the common good, provided the

government is willing to pay the bill. Hence the distrust

of government underlying our constitutional structure of

separated powers and checks and balances and our Bill of

Rights can clearly be seen at work in the Takings Clause,

which imposes a taxpayer burden to check excessive zeal of

regulatory bodies. The takings clause, moreover, requires the

government treat individuals with dignity by ensuring that, if

government takes their property, it compensates them for that

intrusion.

Finding “‘no warrant in the laws or practices of our

ancestors’” for government “‘authority [to] inva[de] private

right under the pretext of the public good’”” (United States v.

Lynah, 188 U.S. 445, 470 (1903), this Court has long

recognized that the Takings Clause is designed to shield

individual rights from government action that would convert

one person’s property to community use. See Armstrong, 364

U.S. at 49; Monongahela Navigation Co. v. United States,

148 U.S. 312, 325 (1893) (the Clause “prevents the public

from loading upon one individual more than his just share of

the burdens of government”). The teachings of the Takings

Clause is that where public benefits are achieved by depriving

individuals of property, the costs “must be borne by all [of a

community’s] taxpayers [and not] imposed entirely on the

owners of individual properties.” Penn Central Transp. Co.

v. City of New York, 438 U.S. 104, 139 (1978) (Rehnquist, J.,

dissenting). The cardinal principle that should guide its

interpretation is that government may not sacrifice the

interests of some to benefit others: “a strong public desire to

improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitutional

way of paying for the change.” Pennsylvania Coal, 2600

U.S. at 416; see also Nollan v. California Coastal Comm'n,

483 U.S. 825, 841-842 (1987).

THE FIFTH AMENDMENT GUARANTEES THAT

ALL TAKINGS, REGARDLESS OF THEIR LENGTH,

WILL BE COMPENSATED

In 1987 this Court issued its landmark decision in First

English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987). The Court held that the Fifth

Amendment means exactly what it says: the government must

compensate the owners of private property taken for public

purposes. The Court concluded that the Fifth Amendment

dealt with all takings, regulatory as well as physical, and,

critical to this case, temporary as well as permanent.

Applying First English, the district court in Tahoe-Sierra

found there to be a compensable taking. On appeal, the Ninth

Circuit, chose to ignore this Court’s First English pronounce-

ments. The Ninth Circuit ruled that a temporary regulation

can never be a regulatory taking. Rather than dealing with

the landowners’ constitutional guarantees, the Ninth Circuit

engaged in a rescue operation to shield regulators from

shouldering the financial consequences of their actions. It

actually saw the landowners’ pursuit of their constitutional

guarantees under the Takings Clause as an effort to

“penalize” the regulators and the regulatory process. The

Ninth Circuit viewed the landowners as those who would turn

the Takings Clause “into a weapon to be used indiscrim-

inately to penalize local communities for attempting to

protect the public interest.” 216 F.3d at 782.

But the Takings Clause and takings litigation are not about

penalizing regulators. Instead, the Takings Clause disciplines

regulators by forcing them to weigh the benefits to the

community of depriving a person of his property against the

constitutionally mandated compensation that would have to

be paid for the taking. Takings litigation accepts the general

validity of the regulation, it does not seek to strike it down.

Takings litigation is only another instance of “protect[ing] the

public interest” by requiring obedience to the Constitution.

As Justice Brennan put it, “After all, if a policeman must

know the Constitution, then why not a planner?” See San

Diego Gas, 450 U.S. 621, 661, n.26 (1981) (dissenting).

Most land-use regulations do not result in a taking and do

not call for compensation. A regulation effects a taking only

when it denies an owner of “all economically beneficial or

productive use of land.” Lucas, 505 U.S. 1003, 1015 (1992).

As indicated by Judge Kozinski in his dissent, “The only

difference between this case and Lucas is that the regulation

here had a finite duration . . . So the question is whether there

is something special about a finite moratorium that relieves

the government from its duty to compensate.” Tahoe-Sierra,

228 F.3d 998, 999-1000. And, of course, this Court had

answered that question in First English, when it said that

““temporary’ takings which, as here, deny a landowner all use

of his property, are not different in kind from permanent

takings, for which the Constitution clearly requires

compensation.” First English, 482 U.S. 304, 318 (1987).

Thus, the Ninth Circuit got it wrong in Tahoe-Sierra. The

Fifth Amendment means exactly what it says: “private

property [shall not] be taken for public use, without just

compensation.” That means all takings, regardless of their

length, purpose, or manner of implementation.

THE NINTH CIRCUIT’S DECISION HAS SEVERE,

WIDE REACHING IMPLICATIONS

FOR LANDOWNERS

This Court’s landmark decision in First English concluded

that the Fifth Amendment not only dealt with physical

takings, but also regulatory takings, and, critical to amici,

temporary as well as permanent regulatory takings, including

planning moratoriums. The matter of temporary takings is of

great practical importance to landowners, farmers and

ranchers especially, because many takings are only temporary

in nature. For example, the wetlands restrictions that were set

aside by this Court in Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 531 U.S.

159 (2001) were “temporary” since they have now been

struck down; development moratoria are commonplace while

rezoning issues are being considered by government; long

delays in making decisions on permit applications, such as

Clean Water Act Section 404 permits to fill wetlands, are, in

effect, “temporary” restrictions on the use of land; and

Endangered Species Act habitat restrictions may be “tem-

porary” to the extent that a protected species of plant or

animal continues to exist on private property thus preventing

its use for any purpose. If federal, state and local govern-

ments can freely restrict land use without paying compen-

sation, so long as the regulatory restriction is “temporary,”

landowners, especially farmers and ranchers, can expect to

see a lot more use of planning delays, rolling moratoria, and

“temporary “ regulations impairing their economical viable

use of their lands.

CONCLUSION

For the foregoing reasons, the decision of the U.S. Court of

Appeals for the Ninth Circuit should be reversed.

Respectfully Submitted,