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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1179%3A2. Public record. Not legal advice.