Opposition Brief — Seiber v. Oregon (No. 07-48)

OFFICE OF THE CL

SUPREME COURT, us

Supreme Court of the United States

MARSHA SEIBER and ALVIN

SEIBER,

Petitioners,

Vv.

STATE OF OREGON, by and through

the OREGON STATE BOARD OF

FORESTRY,

Respondent.

Petition for Writ of Certiorari to the Oregon

Court of Appeals

BRIEF FOR RESPONDENT STATE OF

OREGON IN OPPOSITION

HARDY MYERS

Attorney General of Oregon

PETER SHEPHERD

Deputy Attorney General

*MARY H. WILLIAMS

Solicitor General

JANET A. METCALF

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

Counsel for Respondent

State of Oregon

*Counsel of Record

TF

Wicson-EPes PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTIONS PRESENTED

In this case, the Oregon Court of Appeals analyzed

petitioners’ regulatory takings claim that was

brought under Penn Central Transportation Co. v.

City of New York, 438 U.S. 104 (1978), by using the

“whole parcel” rule that this Court employed in that

case and that the Court subsequently has reaffirmed.

Although petitioners suggest that there is some con-

flict between what the state appellate court did and

this Court’s post-Penn Central case law, in fact there

is no conflict. Petitioners also do not identify any con-

flict between the state appellate court’s “whole par-

cel” analysis and the analysis employed in Penn Cen-

tral cases by any federal appellate court or state su-

preme court. In addition, petitioners misstate some of

the facts on which ther base their argument. More-

over, it is not clear that the state appellate court

would have reached a different result even if that

court had not utilized the whole parcel rule.

In sum, this Court already has held that the

“whole parcel’ rule applies in analyzing Penn Central

claims; there is no conflict for this Court to resolve;

and this case involves nothing more than the case-

specific application of settled law to a particular set of

facts.

(1) Under these circumstances, should this Court

grant certiorari to review the issue of whether the

“whole parcel” rule applies when analyzing Penn Cen-

tral claims? A subsidiary question is whether this

case is a poor vehicle to use to reexamine the validity

of the whole parcel rule where petitioners base their

arguments on facts that they skew in their favor, and

where the state court might well have reached the

same result in any event even without applying the

whole parcel rule.

Petitioners had a jury trial in state court. Special

verdicts were returned by the jury. The state appel-

late court determined that some of those verdicts

were not controlling on the court because they did not

consider the parcel as a whole, but rather focused on

only a part of it. The court also concluded that some

of the verdicts represented legal conclusions or find-

ings of ultimate fact, rather than findings of histori-

cal fact.

(2) In this situation, should this Court grant cer-

tiorari to consider whether the state appellate court

erred in its treatment of the particular, and in some

respects rather unusual, jury verdicts returned in

this case and, if so, whether that interfered with any

federal constitutional right to a jury trial that peti-

tioners may have in this inverse condemnation case?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..........:sccccsocororsssssssssssssovesssseees i

er I MT ciickardisrrcccobvnceicnintonecstraserconerrooseceosenenens 1

STATEMENT OF THE CASE .....0......:c:cscscscsssscosessseesesees 1

REASONS FOR DENYING THE PETITION.............. 3

A. The state appellate court’s use of the whole

parcel rule when analyzing petitioners’ Penn

Central claim is consistent with this Court’s

decisions, and creates no conflict. .............00::::0:00+: 4

B. In any event, petitioners misstate or skew some

of the facts on which they rely, and this case

would be a poor vehicle for review. ..................+ 15

C. Petitioners were not denied any right to a jury

RE tl ties eieviskssiconis case tones borhailndssceiceeenasdeieshcieibiamesosnleie 19

IMRT TIT cscssshcsisniid datdasiabcabiicitnscnsonicapaatistiatgabemeaslidicsdl 26

lil

TABLE OF AUTHORITIES

Page

Cases Cited

Agins v. Tiburon,

EF IE cxsiicscusicinnssnscciniemnnniiisdiaanieasinies 21

Andrus v. Allard,

BF ee TID ici: veseccnnceiensdisvantasakssadesdiinawaael 8,18

Animas Valley Sand & Gravel, Inc. v. Bd. Comm.

Plata Cp.,

Se ee Rs ID vicecnsoveivassvvadiusesvesssdoctencvenstess 12

Armour and Co. v. Inver Grove Heights,

BB FIG Cir. FRG in cccceccissoesccecesnsnsessonvecseesss 12

Bauer v. Waste Management,

234 Conn. 221, 662 A.2d 1179 (1995)..................4 12

Brunelle v. Town of South Kingston,

A ae FEF CRE BT Piceesteccccnsscnccsuvereosectoccneceees 13

Buckley v. Cal. Coastal Com.,

68 Cal. App. 4” 178,

80 Cal. Rptr. 2d 562, 572 (1998),

cert. denied 528 U.S. 816 (1999) .............cccceeceseeeees 12

Cheyenne Airport Bd. v. Rogers,

707 P.2d 717 (Wyo. 1985),

appeal dismissed 476 U.S. 1110 (1986)................. 14

City of Annapolis v. Waterman,

357 Md. 484, 745 A.2d 1000 (2000) ...................000 13

City of Coeur D’Alene v. Simpson,

142 Idaho 839, 136 P.3d 310 (2006).................... 12

Clajon Production Corp. v. Petera,

TO FO SOG CIO Ce. TD icc sctocesccescovecensevaninoass 12

IV ,

Coalition for Gov. Procurement v. Federal Prison

Industries,

Be BOO CO CAF, BOGE) nnn ccevicecivciccccccveceesccesonees 12

Coast Range Conifers v. Board of Forestry,

339 Or. 136, 117 P.3d 990 (2005)..............c006 18, 24

Concrete Pipe & Products of Cal, Inc. v. Construction

Laborers Pension Trust for Southern Cal.,

SE Ses EN GRIND sciersinnessvateorsvostonedisovarcecesoreeeceoeves 7

Concrete Pipe & Products of Cal., Inc. v. Construction

Laborers Pension Trust for Southern Cal.,

a sroneemennneneenecetnies 9

Corn v. City of Lauderdale Lakes,

95 F.3d 1066 (11 Cir. 1996),

cert. denied 522 U.S. 981 (1997) ..........s.sesseseeseesees 12

Dept. of Natural Resources v. Indiana Coal Council,

Inc.,

542 N.E.2d 1000 (Ind. 1989),

cert. denied 493 U.S. 1078 (1990) ..............cceeeeeeee 13

Dist. Intown Properties Ltd. Partnership v. Dist. Col.,

339 U.S. App. D.C. 127, 198 F.3d 874 (1999),

cert. denied 531 U.S. 812 (2000) ............ ee eeeee 11

Fitzgarrald v. Iowa City,

492 N.W.2d 659 (Iowa 1992),

cert. denied 508 U.S. 911 (1993) .............ccceeeeseeeeees 13

Giovanella v. Conservation Comm. of Ashland,

447 Mass. 720, 857 N.E.2d 451 (2006),

cert. denied 127 S. Ct. 1826 (2007)................... 11,13

Greater Atlanta Homebuilders Ass’n v. DeKalb

County,

277 Ga. 295, 588 S.E.2d 694 (2003).................200000 12

In re Interim Bylaw, Waitsfield,

170 Vt. 541, 742 A.2d 742 (1999)..............cccccccceeeee 14

Johnson v. City of Minneapolis,

667 N.W.2d 109 (Minn. 20038)................::cccccceeeeeeee 13

K & K Construction, Inc. v. Dep’t Natural Resources,

456 Mich. 570, 575 N.W.2d 531, .

cert. denied 525 U.S. 819 (1998) ..............sccccccceeees 13

Kelly v. Tahoe Regional Planning Agency,

109 Nev. 638, 855 P.2d 1027 (1993) ..................0008 13

Keystone Bituminous Coal Assn. v. DeBenedictis,

I A Re ED detibetrcvianisnidiinncicsiatninpenisiatervoes 7,9

LaSalle National Bank v. City of Highland Park,

344 Ill. App. 3d 259, 799 N.E.2d 781 (2003),

appeal denied 208 Ill.2d 539, 809 N.E.2d 1287,

cert. denied 543 U.S. 984 (2004)... eeeseseeeeeee 13

Leon County v. Gluesenkamp,

873 So.2d 460 (Fla CA 2004)................csssesssssseeseeee 12

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

Se ele I eidciiiintiseiicitceinioenteoniisencs 9, 10, 21

Lucas [v. South Carolina Coastal Council,

Be ls I A IE thtericetivienicemcccintcioninsin 7,10, 11, 24

Machipongo Land & Coal Co. v. Commonwealth,

569 Pa. 3, 799A.2d 751, 768,

cert. denied 537 U.S. 1002 (2002) ............. ee eeeeeee 11

Machipongo Land & Coal Co. v. Dept. of Envtl. Prot.,

569 Pa. 3, 799 A.2d 751,

cert. denied 537 U.S. 1002 (2002) .................seeeeeeee 13

MacLeod v. Santa Clara County,

749 F.2d 541 (9* Cir. 1984),

cert. denied 472 U.S. 1009 (1985) ............:cccccessseees 12

McPherson Landfill, Inc. v. Board of County

Comm’s.,

274 Kan. 303, 49 P.3d 522, 540 (2002).................. 13

Montgomery v. Del Monte Dunes,

ar, re 6 ib iinkiincdbcthensscsssdcnticecicens 19, 23

Naegele Outdoor Advertising, Inc. v. City of Durham,

BAG FB TEBE GAP. TG) vrccicescccsccesecvcsccssnertovescns 12

Palazzolo v. Rhode Island,

ae is I eiketrinccsscdinscenesicsscscnsennnions 7, 10,11

Paullus v. Yarbrough,

219 Or 611, 347 P2d 620 (1959)...............sseeeeeeeeeeee 18

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

438 UB. 106 COTS) wevcsicesviescocsseccses seeee dy 4, 5, 6, 8, 9,

10, 11, 12, 14, 17, 22, 24, 25

Presbytery of Seattle v. King Co.,

114Wn.2d 320, 787 P.2d 907,

cert. denied 498 U.S. 911 (1990) ................cccecceveee 14

Quirk v. Town of New Boston,

140 N.H. 124, 663 A.2d 1328 (1995)......... eee 13

R.W. Docks & Slips v. State,

244 Wis.2d 497, 628 N.W.2d 781,

cert. denied 534 U.S. 1041 (2001) ............. ce seen 14

Vii

Sea Cabins on the Ocean v. City of N. Myrtle Beach,

345 S.C. 418, 548 S.E.2d 595 (2001).............sseseeee 13

Seiber v. State of Oregon,

219 Or. App. 215. 149 P.3d 1243 (2006).................. 1

Seiber uv. State of Oregon,

342 Or. 633, 157 P.3d 788 (2007)...........ccsccceeereeeees 1

Seven Islands Land Co. v. Maine Land Use Reg.

Comm.,

et EE CR BER cccccnccscoccccescccesncscosceversececse 13

Smith Inv. Co. v. Sandy City,

958 P.2d 245 (Utah App. 1998)............... cc eceeeeseeeeee 13

Smith v. Mendon,

4 N.Y.3d 1, 822 N.E.2d 1214 (2004) ............0000.... 13

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency,

BBG U.S. BOS CROOB) ......cccccccccccccccesscesees 7, 8, 9, 14, 18

United States v. Causby,

I a cealamianllial 6

United States v. Central Eureka Mining Co.,

sc omdnnobsinnnnbecnenenicinn 5

Walcek v. United States,

303 F.3d 1349 (Fed. Cir. 2002) ....................ceceeeeees 12

Wild Rice River Estates. Inc. v. City of Fargo,

705 N.W.2d 850 (N.D. 2005),

cert. denied 126 S. Ct. 2039 (2006) ...................0008 13

Wonders v. Pima County,

207 Ariz. 576, 89 P.3d 810 (2004)... eee 12

Vili

Constitutional and Statutory Provisions

Ce, Tar. ae, BST OED eiccncccenscersepeosotuticontieciuiionnte 22

SIE PANIED sen biiicncrndindcsveccnitnccbcnsninecssntetnseaseitclinns 18

rs SE III. asic ccctinaséncectinitctittennnstisotanenpatoindmaniins 19

ES | ee ee eae 19

ix

OPINIONS BELOW

The decision of the Oregon Court of Appeals is re-

ported. Seiber v. State of Oregon, 219 Or. App. 215.

149 P.3d 1243 (2006). The Oregon Supreme Court’s

order denying review can be found at Seiber v. State

of Oregon, 342 Or. 633, 157 P.3d 788 (2007).

STATEMENT OF THE CASE

Petitioners own and live on a property of about

200 acres, much of which contains commercial tim-

ber. (Tr. 189).! The property was inherited in 1986.

(Tr. 189). The timber on the property is second-

growth. The property was clear cut in the 1930s or

1940s. (Tr. 190, 269). In 1970, the federal government

listed the Northern spotted owl as a threatened spe-

cies. (Tr. 79-80). In 1990 and 1991 respectively, the

state Board of Forestry adopted first temporary and

then permanent rules requiring that a 70-acre area

be protected around a spotted owl nest site. (Tr. 81-

83). A 70-acre area is needed to protect young owls

because they often jump out of the nest before they

can fly, and hop and move around on the ground,

where they are vulnerable to predators such as great

horned owls. (Tr. 162-63). The state has retained that

70-acre requirement because there is no research in-

dicating that a smaller area will suffice to protect the

owls. (Tr. 93).

An owl pair began nesting on a neighboring prop-

erty in 1992. (Tr. 141). The owls nested on that

1 The citation is to the transcript of the state court

proceedings.

2

neighboring property in 1994. (Tr. 141). They were

heard in the area in 1995 and 1996, although not in

1997, but they did not nest again. (Tr. 142). In 2000,

the female owl was seen in the area, about two miles

away. (Tr. 143).

In 1994, Mrs. Seiber had a conversation with a

state forestry official. At that time, she wanted to log

about 40 to 50 acres on her property, but she was told

that she would not be able to do that because of the

presence of the spotted owls. (Tr. 194-95). She did not

submit any formal notification of her intent to log the

area, however. (Tr. 208-09). If she had submitted an

application or notification, it would have been denied.

(Tr. 109-10). In 1998, she submitted an application to

log within the so-called “core area” designed to pro-

tect the owls (Tr. 111, 125). It was denied. (Tr. 126).

In August 2001, petitioners were told that they

could log in the 40-acre area in which logging had

been denied. (Tr. 205). The restriction on logging can

be lifted once owls have not been seen for five years,

and that time had passed. As of Feb: uary 2003, how-

ever, petitioners had not removed downed trees from

the 40-acre area. (Tr. 395). Throughout the period

from January 1994 until August 2001, petitioners

harvested timber from other portions of their prop-

erty. (Tr. 120-24, 154-56, 379-82).?

? Additional facts will be set out in the discussion

post.

3

REASONS FOR DENYING THE PETITION

Petitioners assert that this Court should grant

certiorari because the case presents “an important

question of federal law that has not been, but should

be, settled by this Court, or has decided a federal

question in a way that conflicts with applicable deci-

sions of this Court.” (Pet. Cert. 8). With regard to the

question of whether the “whole parcel rule” applies to

claims brought under Penn Central Transportation

Co. v. City of New York, 438 U.S. 104 (1978), petition-

ers suggest that this Court has not settled that issue,

and that the state appellate court’s conclusion that

the rule applies when analyzing Penn Central claims

is contrary to this Court’s decisions. On the contrary,

however, this Court repeatedly has held that the

whole parcel rule applies when evaluating regulatory

takings claims under the Penn Central framework. In

reaching that same conclusion in this case, the state

appellate court followed this Court’s settled prece-

dent.

Petitioners do not even attempt to show any con-

flict between the state appellate court’s whole parcel

analysis and the decisions of any federal court of ap-

peals or any state supreme court. At one point, they

note that a factor that may weigh in the decision

whether to grant certiorari is whether “a state court

of last resort has decided a federal question in a way

that conflicts with the decision of a federal court of

appeals.” (Pet. Cert. 8, citing Rule 10(b)). But peti-

tioners never purport to identify any decision of any

federal court of appeals that is contrary to the state

appellate court’s decision in this case.

4

Because, with respect to petitioners’ attack on the

whole parcel rule, the state appellate court simply

applied settled law to the facts of this case, there is

no reason for this Court to grant the petition. In addi-

tion, petitioners misrepresent (or at least skew) some

of the facts on which they rely. Furthermore, the

state appellate court might have reached the same

result even if it had not applied the whole parcel rule.

Petitioners also complain that they were denied

their right to a jury trial in state court in this inverse

condemnation case. (Pet. Cert. 16). While it is not

clear that they have such a federal right in state

court, in fact they had a jury trial. Their real com-

plaint is that they disagree with the state appellate

court that certain special verdicts returned by the

state court jury represent legal conclusions or, at the

most, findings of ultimate fact, rather than findings

of historical fact. This Court’s treatment of similar

questions indicates that the state appellate court did

not err. Furthermore, the special verdicts submitted

to the jury in this case are at least in some respects

unusual and idiosyncratic. Thus, the jury-verdict is-

sue as presented in this case is not apt to have broad

effect.

A. The state appellate court’s use of the whole

parcel rule when analyzing petitioners’ Penn

Central claim is consistent with this Court’s

decisions, and creates no conflict.

In this case, the state Court of Appeals relied on

the “whole parcel” rule when considering petitioners’

regulatory takings claim based on Penn Central. (Pet.

Cert., App. C 9a-13a). Petitioners contend that the

5

state court erred because, according to them, “the

‘whole parcel’ rule does not apply to a claim under the

Penn Central line of cases.” (Pet. Cert. 9) (initial capi-

tals and boldface omitted). Petitioners grudgingly

admit that Penn Central itself seems to adopt that

rule, although they describe that aspect of this

Court’s decision as “dicta.” (Pet. Cert. 10). But they

argue that “this Court’s cases following Penn Central

indicate that the ‘whole parcel’ rule does not apply to

claims under Penn Central.” (Pet. Cert. 11). This

Court’s case law, however, refutes their contention.

In Penn Central, this Court acknowledged that

“whether a particular restriction will be rendered in-

valid by the government’s failure to pay for any losses

proximately caused by it depends largely ‘upon the

particular circumstances [in that] case,” and involves

“essentially ad hoc, factual inquiries[.]” 438 U.S. at

124, quoting United States v. Central Eureka Mining

Co., 357 U.S. 155, 168 (1958) (bracketed material in

Penn Central). Nevertheless, the Court outlined some

of the “factors that have particular significance” when

analyzing what has come to be known as a Penn Cen-

tral regulatory-takings claim.

The economic impact of the regulation

on the claimant and, particularly the ex-

tent to which the regulation has inter-

fered with distinct investment-backed

expectutions are, of course, relevant con-

siderations. * * * So, too, is the character

of the governmental action. A “taking”

may more readily be found when the in-

terference with property can be charac-

6

terized as a physical invasion by gov-

ernment, see, e.g., United States uv.

Causby, 328 U.S. 256 (1946), than when

interference arises from some public

program adjusting the benefits and bur-

dens of economic life to promote the

common good.

Penn Central, 438 U.S. at 124 (additional citation

omitted).

Later in its opinion, this Court embraced the

whole parcel rule.

“Taking” jurisprudence does not divide a

single parcel into discrete segments and

attempt to determine whether rights in

a particular segment have been entirely

abrogated. In deciding whether a par-

ticular governmental action has effected

a taking, this Court focuses rather both

on the character of the action and on the

nature and extent of the interference

with rights in the parcel as a whole —

[there] the city tax block designated as

the “landmark site.”

Id. at 130-31 (emphasis added). The whole parcel rule

is based, at least in part, on the recognition that “[t]o

the extent tH&t any portion of property is taken, that

portion is always taken in its entirety; the relevant

question, however, is whether the property taken is

all, or only a portion of, the parcel in question.” Con-

crete Pipe & Products of Cal, Inc. v. Construction La-

7

borers Pension Trust for Southern Cal., 508 U.S. 602,

644 (1993).

And this Court’s language adopting the whole par-

cel rule is not “dicta,” as petitioners contend. This

Court was rejecting Penn Central’s claim that the

loss of its “air right’ above” Grand Central Terminal

should be considered separately. Instead of that nar-

row focus, when considering whether a taking had

been effected this Court considered the parcel as a

whole, that is, “the city block designated as the

‘landmark site” by the city. Jd. at 131.

It is true that subsequently in Palazzolo v. Rhode

Island, 533 U.S. 606, 631 (2001), this Court expressed

some uncertainty about the whole parcel rule. The

Court observed that:

Some of our cases indicate that the ex-

tent of deprivation effected by a regula-

tory action is measured against the

value of the parcel as a whole, see, e.g.,

Keystone Bituminous Coal Assn. v. De-

Benedictis, 480 U.S. 470, 497 (1987); but

we have at times expressed discomfort

with the logic of this rule, see Lucas [v.

South Carolina Coastal Council, 505

U.S. 1003,] 1016-17 n. 7 [(1992)] * * *.

Palazzolo, 533 U.S. at 631 (other citations omitted).

But that observation is merely dictum. The Court

did “not explore the point” any further in that case.

Id. And, later in Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency, 535 U.S. 302

(2002), this Court unambiguously reaffirmed the cen-

8

tral role of the whole parcel rule when analyzing a

Penn Central claim. In Tahoe-Sierra, the Court noted

that

Justice Brennan’s opinion for the Court

in Penn Central did * * * make it clear.

that even though multiple factors are

relevant in the analysis of regulatory

takings claims, in such cases we must fo-

cus on “ the parcel as a whole[.}”

Tahoe-Sierra, 535 U.S. at 326-27 (emphasis added;

quotation from Penn Central and citation omitted). In

other words, this Court requires “that the aggregate

must be viewed in its entirety[.]” Jd. at 327 (internal

quotation marks omitted). Based on that same prin-

ciple, it is not enough to effect a regulatory taking if

one stick out of the bundle of property rights is af-

fected or impaired by a regulation. The Court has af-

firmed that “where an owner possesses a full ‘bundle’

of property rights, the destruction of one ‘strand’ of

the bundle is not a taking.” Jd., quoting Andrus uv.

Allard, 444 U.S. 51, 65-66 (1979).

In Tahoe-Sierra, petitioners argued that a com-

pensable taking had occurred, relying on a temporal

segmentation of their property and focusing on time

periods when moratoria on development were in ef-

fect. This Court rejected that approach, reaffirming

Penn Central’s whole parcel approach.

Petitioners’ “conceptual severance” ar-

gument is unavailing because it ignores

Penn Central’s admonition that in regu-

latory takings cases we must focus on

9

“the parcel as a whole.” 438 U.S. at 130-

31. We have consistently rejected such

an approach to the “denominator” ques-

tion. See Keystone, 480 U.S. at 497. See

also Concrete Pipe & Products of Cal.,

Inc. v. Construction Laborers Pension

Trust for Southern Cal., 508 U.S. 602,

644 (1993) (“To the extent that any por-

tion of property is taken, that portion is

always taken in its entirety; the relevant

question, however, is whether the prop-

erty taken is all, or only a portion of, the

parcel in question”).

535 U.S. at 331 (emphasis added).

Thus, contrary to petitioners’ assertion that “this

Court’s cases following Penn Central indicate that the

‘whole parcel’ rule does not apply t claims under

Penn Central” (Pet. Cert. 11), this Court’s decisions,

and in particular its decision in Tahoe-Sierra, point in

precisely the opposite direction. The Court repeatedly

and consistently has applied the whole parcel rule in

Penn Central cases. Petitioners, in effect, ask this

Court to upset and overturn long-settled law.

In arguing that the whole parcel rule is somehow

inconsistent with this Court’s takings jurisprudence,

petitioners also rely on decisions from this Court that

they claim “make clear that Penn Central provides a

distinct theory of recovery that does not require a

plaintiff to prove that his or her ‘whole parcel’ of

property was affected by government regulation.”

(Pet. Cert. 10). For that proposition, petitioners rely

on Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005),

10

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

1003 (1992), and Palazzolo. (Pet. Cert. 10-11).

There is no doubt that Chevron, Lucas, and Palaz-

zolo, as well as other decisions, including Penn Cen-

tral, make it clear that Penn Central “provides a dis-

tinct theory of recovery,” as petitioners put it. But

that a theory of recovery is “distinct” hardly demon-

strates what the components of that theory are. And

none of those decisions, or any other decision of which

the State is aware, holds, as a matter of federal law

at least, that a Penn Central claim does “not require a

plaintiff to prove that his or her ‘whole parcel’ of

property was affected by government regulation,” to

again quote petitioners.®

As it came before this Court, Lingle did not in-

volve a Penn Central claim. The Court remanded so

that claim, as well as others, might be considered by

lower courts. 544 U.S. at 548. Lingle says nothing

that indicates that whole parcel analysis does not ap-

ply to Penn Central claims. In the footnote in Lucas,

on which petitioners rely (Pet. Cert. 10), this Court

simply recognized that a Penn Central claim is a pos-

sible alternative to a Lucas claim that a regulation

3 Actually, petitioners’ assertion is a bit off the

mark in another respect as well. The issue is not

whether a plaintiff must prove that her whole parcel

was affected by government regulation, but rather

whether, when the whole parcel is considered in the

calculus, a Penn Central regulatory taking has oc-

curred.

1]

has deprived the claimant of all economically benefi-

cial use of his property. 505 U.S. at 1019 n. 8. Noth-

ing in that observation undermines or calls into ques-

’ tion the whole parcel rule. Finally, in Palazzolo the

Court did not hold “that the plaintiff could proceed

under a Penn Central theory, even though he was

only prohibited from developing a portion of his prop-

erty,” as petitioners contend. (Pet. Cert. 10). Instead,

the Court merely recognized again that a Penn Cen-

tral claim proceeds on a theory different from that

which applies to a Lucas claim. 533 U.S. at 617. And,

as noted above, although this Court mentioned the

“denominator” question in passing in its opinion in

Lucas, ultimately the Court did not explore the point.

Id. at 631.

Despite their initial intimation that there might

be a case-law conflict (Pet. Cert. 8), petitioners do not

cite a single case from any state or federal court that

they contend rejects the whole parcel rule in the con-

text of a Penn Central regulatory takings case. And,

although it sometimes may be difficult to identify.

which parcel is the relevant “whole” one,‘ there ap-

* See, e.g., Dist. Intown Properties Ltd. Partnership

v. Dist. Col., 339 U.S. App. D.C. 127, 198 F.3d 874,

880 (1999), cert. denied 531 U.S. 812 (2000); Gio-

vanella v. Conservation Comm. of Ashland, 447 Mass.

720, 857 N.E.2d 451, 456-58 (2006), cert. denied 127

S. Ct. 1826 (2007); Machipongo Land & Coal Co. uv.

Commonwealth, 569 Pa. 3, 799A.2d 751, 768, cert.

denied 537 U.S. 100242002). That problem is not pre-

sent in this case. Petitioners never have contended

that the 40-acre parcel is a property separate from

12

pears to be no conflict between the state appellate

court’s whole parcel analysis in this case and the de-

cision of any federal court of appeal or state supreme

court. See, e.g. , federal cases: Walcek v. United

States, 303 F.3d 1349, 1356 (Fed. Cir. 2002); Naegele

Outdoor Advertising, Inc. v. City of Durham, 844 F.2d

172, 176 (4" Cir. 1988); Coalition for Gov. Procure-

ment v. Federal Prison Industries, 365 F.3d 435, 483

(6" Cir. 2002); Armour and Co. v. Inver Grove

Heights, 2 F.3d 276, 278 (8 Cir. 1993); MacLeod v.

Santa Clara County, 749 F.2d 541, 546-47 (9" Cir.

1984), cert. denied 472 U.S. 1009 (1985); Clajon Pro-

duction Corp. v. Petera, 70 F.3d 1566, 1577 (10" Cir.

1995); Corn v. City of Lauderdale Lakes, 95 F.3d

1066, 1079 (11 Cir. 1996), cert. denied 522 U.S. 981

(1997). See also state decisions: Wonders v. Pima

County, 207 Ariz. 576, 89 P.3d 810, 815 (2004); Buck-

ley v. Cal. Coastal Com., 68 Cal. App. 4" 178, 80 Cal.

Rptr. 2d 562, 572 (1998), cert. denied 528 U.S. 816

(1999); Animas Valley Sand & Gravel, Inc. v. Bd.

Comm. Plata Cp., 38 P.3d 59, 67, 69 (Col. 2001);

Bauer v. Waste Management, 234 Conn. 221, 662 A.2d

1179, 1197 (1995); Leon County v. Gluesenkamp, 873

So.2d 460, 466 (Fla CA 2004); Greater Atlanta Home-

builders Ass’n v. DeKalb County, 277 Ga. 295, 588

S.E.2d 694 (2003); City of Coeur D’Alene v. Simpson,

142 Idaho 839, 136 P.3d 310, 319-20 (2006); Dept. of

the remainder of their property and that the 40 acres

is the whole parcel. Instead, their claim is that the

whole parcel rule does not apply in Penn Central

cases.

13

Natural Resources v. Indiana Coal Council, Inc., 542

N.E.2d 1000, 1003 (Ind. 1989), cert. denied 493 U.S.

1078 (1990); LaSalle National Bank v. City of High-

land Park, 344 Ill. App. 3d 259, 799 N.E.2d 781, 792

(2003), appeal denied 208 I11.2d 539, 809 N.E.2d 1287,

cert. denied 543 U.S. 984 (2004); Fitzgarrald v. Iowa

City, 492 N.W.2d 659, 665-66 (Iowa 1992), cert. de-

nied 508 U.S. 911 (1993); McPherson Landfill, Inc. v.

Board of County Comm’rs., 274 Kan. 303, 49 P.3d

522, 540 (2002); Seven Islands Land Co. v. Maine

Land Use Reg. Comm., 450 A.2d 475, 482 (Me. 1982);

City of Annapolis v. Waterman, 357 Md. 484, 745

A.2d 1000, 1022-23 (2000); Giovanella v. Conservation

Comm. of Ashland, 447 Mass. 720, 857 N.E.2d 451,

456-58 (2006), cert. denied 127 S. Ct. 1826 (2007); K

& K Construction, Inc. v. Dep’t Natural Resources,

456 Mich. 570, 575 N.W.2d 531, 536, cert. denied 525

U.S. 819 (1998); Johnson v. City of Minneapolis, 667

N.W.2d 109, 114-15 (Minn. 2003); Kelly v. Tahoe Re-

gional Planning Agency, 109 Nev. 638, 855 P.2d 1027,

1035 (1993); Quirk v. Town of New Boston, 140 N.H.

124, 663 A.2d 1328, 1332-33 (1995); Smith v. Mendon,

4 N.Y.3d 1, 822 N.E.2d 1214, 1221 (2004); Machi-

pongo Land & Coal Co. v. Dept. of Envtl. Prot., 569

Pa. 3, 799 A.2d 751, 768, cert. denied 537 U.S. 1002

(2002); Wild Rice River Estates. Inc. v. City of Fargo,

705 N.W.2d 850, 855-56 (N.D. 2005), cert. denied 126

S. Ct. 2039 (2006); Brunelle v. Town of South King-

ston, 700 A.2d 1075, 1082 (R.I. 1997); Sea Cabins on

the Ocean v. City of N. Myrtle Beach, 345 S.C. 418,

548 S.E.2d 595, 603 (2001); Smith Inv. Co. v. Sandy

City, 958 P.2d 245, 256 n. 16 (Utah App. 1998); In re

Interim Bylaw, Waitsfield, 170 Vt. 541, 742 A.2d 742,

14

744 (1999); Presbytery of Seattle v. King Co.,

114Wn.2d 320, 787 P.2d 907, 915, cert. denied 498

U.S. 911 (1990); R.W. Docks & Slips v. State, 244

Wis.2d 497, 628 N.W.2d 781, 789, cert. denied 534

U.S. 1041 (2001); Cheyenne Airport Bd. v. Rogers, 707

P.2d 717, 730-31 (Wyo. 1985), appeal dismissed 476

U.S. 1110 (1986).

Thus, there is no case law conflict for this Court to

resolve. Petitioners in reality ask this Court to grant

certiorari to review the application of settled case law

to a particular set of facts.

In sum, in claiming that this Court’s decisions un-

dermine the Penn Central whole parcel rule, petition-

ers seek to minimize the decisions that are flatly in-

consistent with their position, rely on dictum, and at-

tempt to derive from the unremarkable observation

that a Penn Central claim is distinct from other regu-

latory takings theories the unprecedented rule that

the whole parcel doctrine does not apply to such

claims. In Penn Central and Tahoe Sierra (and in

other decisions), this Court already has resolved the

legal issue petitioners present to the Court. The

Court has held that the whole parcel rule applies to

Penn Central claims. Petitioners have identified no

unresolved issue that warrants this Court’s attention,

and there is no conflict amongst the decisions of this

Court or between the decision of the state Court of

Appeals and that of any other court, state or federal.

This Court should deny the petition.

15

B. In any event, petitioners misstate or skew

some of the facts on which they rely, and this

case would be a poor vehicle for review.

Petitioners contend that “[t]he record in this case

provides a sound foundation upon which the Court

can clarify the law.” (Pet. Cert. 12). They also assert

that “[t]he Oregon Court of Appeals’ result would

have been different if it had used the correct stan-

dard.” (Pet. Cert. 13). The accuracy of both of those

assertions is doubtful.

Petitioners’ contentions are grounded on certain

factual claims: (1) “they lost significant income be-

cause many of the trees in the protected area became

infected with root rot that caused them to blow down

during the seven years that the logging ban was in

effect” (Pet. Cert. 13); (2) although the state appellate

court believed petitioners “were free to sell future

contingent logging interests,’ 149 P.3d at 1247,” in

actuality there was no such market (Pet. Cert. 13);

and (3) “the subject regulation singles Petitioners out

to bear a burden that is not imposed upon many of

their neighbors who own commercial timberlands.”

(Pet. Cert. 13). In support of that last claim, petition-

ers note, accurately, that spotted owls generally pre-

fer old-growth forest, and they intimate, incorrectly,

that they have been “singled out” because they have

such forests, while their neighbors have been free to

cut their timber and escape spotted-owl regulation.

(Pet. Cert. 15-16).

At best for petitioners, each of those claims is

questionable. To take the last one first, at trial every-

ene agreed that petitioners do not have old-growth

16

timber on their land. (Tr 54, 190). Instead, the timber

was clear cut in the 1930s or 1940s. And, thus, there

is nothing about the age of petitioners’ timber that

sets them apart from neighboring landowners (not

that the record reveals anything about when any of

them may have cut their timber). And there is noth-

ing to show that petitioners have been “singled out.”

After all, in this case the ow] nest site was not on pe-

titioners’ land, but on the land of a neighboring land-

owner, who also was subject to the temporary restric-

tion on logging in the affected area. The record does

not indicate how many other landowners in the area

may have been subject to similar restrictions (al-

though petitioners cite an Oregon atlas indicating

that owl populations within the western Oregon Cas-

cades spotted owl “province” are “moderately high”).

(Pet. Cert. 14 n. 2, quoting Atlas of Oregon 51 (2d ed.

2001)).

And petitioners exaggerate both the extent of the

blow-down problem in the “core area” on their prop-

erty that was protected for the owls and their eager-

ness to address that problem. At trial, expert plant

pathologists testified that there was relatively little

evidence of laminated root rot in that area of peti-

tioners’ property. (Tr. 560-61, 564-65, 584-85). The

infestation spreads very slowly. (Tr. 562). In addition,

petitioners have known about the root rot since 1988,

but had not managed to clean out the affected trees

before 1994, when they first were told they could not

log in the affected area. (Tr. 214-15). As noted, the

logging restriction was lifted in August 2001. Yet, as

of February 2003, petitioners had not removed the

rotted trees from the area. (Tr. 395). Thus, the impact

17

of the regulation on even this limited portion of their

property is less than they suggest, and it is not clear

that it was the regulation, as opposed to petitioners’

own delay, that prevented them from removing any

diseased logs earlier.

Finally, it is not clear that the state appellate

court erred in suggesting that petitioners “were free

to sell future contingent logging interests.” 149 P.3d

at 1247. Without any record citation, they contend

that they “presented evidence that there was no mar-

ket for future interests from such a small parcel.”

(Pet. Cert. 13). But the State presented evidence that

such a market might exist. (Tr. 462, 503).

In sum, it is not clear that the state appellate

court’s decision “would have been different if it had

used the [purportedly] correct standard” (Pet. Cert.

13), by which petitioners mean if the court had con-

sidered not the whole parcel, but the approximately

40 acres subject to the temporary limitation on log-

ging. Even looking solely at that limited portion of

petitioners’ property it is not at all clear that a Penn

Central taking was effected. That uncertainty coun-

sels against a grant of the petition in this case. If the

state court would have reached the same result even

under petitioners’ proposed standard, there is no need

to consider the broader legal question pressed by peti-

tioners in this Court, which becomes merely abstract.

A final point remains with respect to whether this

is the right case in which to consider petitioners’ ar-

guments. Petitioners’ arguments are based, at least

in part, on the assertion that “the whole parcel rule

should not apply in this instance, when the taking

18

involves, not the land as a whole; but a distinct and

separate natural resource on the land.” (Pet. Cert.

11). Petitioners suggest that they had a separate

property right in their uncut timber. Even if that

were true, as noted above this Court has held that

“where an owner possesses a full ‘bundle’ of property

rights, the destruction of one ‘strand’ of the bundle is

not a taking.” Tahoe-Sierra, 535 U.S. at 327, quoting

Andrus, 444 U.S. at 65-66. In any event,

[uJnder Oregon law, * * * timber is part

of the underlying real property unless it

is subject to a contract to be cut.

ORS 71.1070(2); see Paullus v.

Yarbrough, 219 Or 611, 637, 347 P2d

620 (1959) (timber constitutes goods un-

der Uniform Sales Act when agreement

to sever timber exists). In this case, no

contract to cut the timber existed, and

no basis exists, as a matter of state

property law, for viewing plaintiffs

property interest in the timber as sepa-

rate from its interest in the real prop-

erty.

Coast Range Conifers v. Board of Forestry, 339 Or.

136, 150-51, 117 P.3d 990 (2005) (footnotes omitted).

Thus, as a matter of state property law, petition-

ers do not have a separate and distinct property in-

terest in their uncut timber, which, during the perti-

nent time period, was not the subject of any contract

to cut it. Once again, a premise that underlies peti-

tioners’ arguments is false. Even if this Court were

inclined to grant the petition to reexamine the whole

19

parcel rule, this case would be a poor vehicle to use to

undertake that reexamination.

C. Petitioners were not denied any right to a

jury trial.

Petitioners contend that they have a federal con-

stitutional right to a jury trial in a takings case in

state court. (Pet. Cert. 16). Although they admit that

they have no Seventh Amendment right to a jury trial

in an inverse condemnation case in state court (Pet.

Cert. 16), see Montgomery v. Del Monte Dunes, 526

U.S. 687, 719 (1999) (Seventh Amendment does not

apply to suits brought in state court), they attempt to

cobble together such a right from “the Seventh

Amendment, together with the Fifth Amendment(.]”

(Pet. Cert. 16). It may be doubtful whether that al-

chemy creates any federal constitutional right to a

jury trial in a state court case such as this one. Peti-

tioners cite no case recognizing such a right.

But, in any event, the question is of nothing more~

than academic interest in this case because petition-

ers had a jury trial in state court. Their complaint,

more accurately, is that the state Court of Appeals

disagreed with them about whether certain special

verdicts returned by the state court jury amount to

findings of fact.

The special verdicts in this case consisted of the

following questions and answers.

Question 1: Were the plaintiffs denied

all economically viable or productive use

of the subject 40 acres of timber while

the ban on harvesting it was in effect?

20

Answer: Yes.

Question 2: Did the subject regulation

advance a legitimate state interest:

(a) In that regard, did it single out

the plaintiffs to bear a burden that

should be borne by the public as a

whole?

Answer: Yes.

(b) Did it require plaintiffs to provide

nesting habitat if they were not the

cause of the spotted owl being listed as a

species threatened with extinction?

Answer: Yes.

Question 3: When compared with the

plaintiffs’ right to make economic pro-

ductive use of the property, including

their reasonable investment-backed ex-

pectations, was it necessary for the State

to prevent them from harvesting 40

acres of their timber for a period of seven

years in order to ensure the survival of

the spotted owl as a species?

Answer: No.

Question 4: What was the fair market

value of the subject 40 acres of timber in

January 1994?

Answer: $333,000.

21

Question 5: What was the fair market

value of the subject 40 acres of timber in

August 2001?

Answer: $258,000.

(Pet. Cert. 6-7, App. M).

The Oregon Court of Appeals determined that

“(t]he jury’s answers to questions 1, 4, and 5 are, in-

deed, findings of historical fact that are supported by

evidence in the record.” (Pet. Cert., App. C 11a). “In

light of the ‘whole parcel” rule, however, the answers

to those questions are of limited relevance because

they do not call on the jury to consider the use of the

40 acres, or its loss of value, in the context of plain-

tiffs’ entire 200 acres.” (Pet. Cert., App. C 11la-12a).

“Question 2, by its phrasing, applies to plaintiffs’

Agins [v. Tiburon, 447 U.S. 255 (1980),] claim, which,

{the court had] decided, cannot survive Lingle.” (Pet.

Cert., App. C 12a).

In any event, part (a) of question 2 does

not ask for a determination of historical

fact. By asking whether plaintiffs’ bur-

den “should” have been borne by the

public, the question asks for a legal con-

clusion or, at the most, a finding of ulti-

mate (as opposed to historical) fact. Part

(b) of question 2 is, of course, indisput-

able: nobody ever asserted that plaintiffs

are responsible for the endangered

status of the spotted owl. Question 3,

like question 2(a), does not call for a

finding of historical fact; rather, it re-

22

quires the jury to weigh the plaintiffs

economic harm, including their invest-

ment-backed expectations, against the

public benefit to be derived from the

‘survival of the spotted owl as a species.

That is precisely the legal issue that the

court must decide based on undisputed

historical facts. Coast Range Conifers,

339 Or at 155.

(Pet. Cert., App. C 12a) (emphasis added).

_ The court then turned to that ultimate issue. The

court concluded that the regulation did not effect a

physical appropriation of petitioners’ property, and

that it was “part of a regulatory plan developed to en-

sure maintenance of forestland ‘consistent with sound

management of * * * wildlife resources and scenic re-

sources * * * and to ensure the continuous benefits of

those resources for future generations of Orego-

nians.” (Pet. Cert., App. C 12a, quoting Or. Rev. Stat.

§ 527.630(1)) (ellipses in Court of Appeals opinion).

“Therefore, the character of the government actions

does not weigh heavily in plaintiffs’ favor.” (Pet.

Cert., App. C 12a, citing Penn Central, 438 U.S. at

124). “On the facts presented, viewed in light of the

‘whole parcel’ rule that is now the governing principle

in both Oregon and federal takings cases,” the court

“conclude[d] that the temporary deprivation of log-

ging rights to 20 percent of plaintiffs’ property, pur-

suant to a statutory and regulatory plan to preserve

resources for ‘future generations of Oregonians,’ was

not a taking.” (Pet. Cert., App C 12a-13a).

23

In arguing that the state Court of Appeals erred in

its treatment of the special verdicts, petitioners’ ap-

proach generally is to distort what the court did. Ac-

cording to petitioners, the state appellate court “ig-

nored the jury’s findings and determined for itself

whether Petitioners had been deprived of all eco-

nomically viable use of their property.” (Pet. Cert. 17-

18). And “the court [supposedly] rejected the jury’s

findings on Questions 1, 4, and 5[.]” (Pet. Cert. 18).

The court, “in a feat of legal legerdemain, then pro-

ceeded to determine for itself that the parcel as a

whole was not denied all economically viable or pro-

ductive use. When it made that determination, the

court usurped the jury’s function and denied Petition-

ers their constitutional right to a jury trial as to that

factual issue.” (Pet. Cert. 18).

Of course, that is not what the state appellate

court did. It did not “ignore” or “reject” any of the

jury’s answers to the special verdict questions. The

court simply observed, correctly, that because ques-

tions 1, 4, and 5 all focused solely on the 40-acre par-

cel, they were “of limited relevance because they [did]

not call on the jury to consider the use of the 40 acres,

or its loss of value, in the context of plaintiffs’ entire

200 acres.” (Pet. Cert., App. © 11la-12a). That is, they

deviated from the whole parcel rule. The jury simply

made no finding regarding whether petitioners had

been deprived of all beneficial economic value in their

whole 200 acre parcel. Thus, contrary to petitioners’

suggestion (Pet. Cert. 17), the state appellate court’s

decision is not contrary to this Court’s decision in Del

Monte Dunes, in which this Court held that the issue

of “whether a landowner has been deprived of all eco-

24

nomically viable use of his property,” although a

mixed question of law and fact, “is a predominantly

factual question” to be decided by a jury. 526 U.S. at

720. In this case, the jury had not answered the cor-

rect question.®

In any event, it is somewhat outrageous for peti-

tioners to accuse the state appellate court of, “in a

feat of legal legerdemain, then proceed[ing] to deter-

mine for itself that the parcel was a whole was not

denied all economically viable or productive use.”

(Pet. Cert. 18). Near the close of trial, petitioners’ at-

torney agreed to “stipulate that they [that is, peti-

tioners] were not denied all economic value of 200

acres. That’s not an issue. We’ve got all kinds of evi-

dence of that.” (Tr. 685) (emphasis added). Further-

more, that is not what the state appellate court de-

cided. It was resolving a Penn Central claim, not a

Lucas claim. Instead, the state court decided, apply-

ing the Penn Central factors, that petitioners had

failed to prove a Penn Central claim.

And, as the state appellate court correctly decided,

that is a legal issue for the court. As the Oregon Su-

preme Court recognized in its Coast Range Conifers

decision, “[iJn determining whether a regulatory tak-

ing had occurred, the Penn Central Court weighed

those factors [it identified] and other factors based on

the historical facts that the state court had found.

The Court did not remand the case so that a trier of

5 In addition, petitioners do not pursue their Lucas

claim in this Court.

25

fact could weigh those factors.” 339 Or. at 155 (em-

phasis added). “Penn Central makes clear that the

question whether the undisputed facts establish that

a challenged regulation effects a taking presents a

question of law for the court.” Id.

Furthermore, even if the state court had erred,

this case would be a poor vehicle to use to consider

petitioners’ jury trial claim. To put it mildly, at least

some of the jury questions submitted in this case are

idiosyncratic and not apt to appear in other cases. For

example, the jury was asked whether petitioners had

been required to provide nesting habitat for owls “if

they were not a cause of the spotted owl being listed

as a species threatened with extinction[.]” Why peti-

tioners should have to be such a “cause” is unclear.

The jury also was asked, “[w]hen compared with the

plaintiffs’ right to make economic productive use of

the property, including their reasonable investment-

backed expectations, was it necessary for the State to

prevent them from harvesting 40 acres of their tim-

ber for a period of seven years in order to ensure the

survival of the spotted owl as a species[.]” (Emphasis

added). Again, why, in order not to effect a taking,

the regulation must be “necessary” to prevent the

owls’ extinction is not clear. The unusual jury inter-

rogatories submitted in this case make it a poor vehi-

cle for review of the broader jury-trial claim pre-

sented by petitioners.

26

CONCLUSION

For the reasons given above, this Court should not —

grant the petition for a writ of certiorari.

Respectfully submitted,

HARDY MYERS

Attorney General of Oregon

PETER SHEPHERD

Deputy Attorney General

MARY H. WILLIAMS

Solicitor General

JANET A. METCALF

Assistant Attorney General

Counsel for Respondent

October 29, 2007