Opposition Brief — Madison v. Graham

No. 02-1421 APR 283 2003

In The OBSECT OF TE CL BRK

Supreme Court of the Gnited States

4

HARVEY AND DORIS MADISON, CHARLES AND

ELENA D’AUTREMONT, and HARRISON SAUNDERS,

Petitioners,

V.

PATRICK J. GRAHAM, Director, Montana Department of

Fish, Wildlife & Parks; STAN MEYER, DAVID SIMPSON,

CHARLES DECKER, DARLYNE DASCHER, and TIM

MULLIGAN, Commissioners, Montana Fish, Wildlife and

Parks Commission; MONTANA COALITION FOR

STREAM ACCESS; MONTANA WILDLIFE

FEDERATION; MONTANA CHAPTER OF TROUT

UNLIMITED; and FISHING OUTFITTERS

ASSOCIATION OF MONTANA,

Respondents.

ry

-

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF FOR THE RESPONDENTS, MONTANA

COALITION FOR STREAM ACCESS; MONTANA

WILDLIFE FEDERATION; MONTANA CHAPTER OF

TROUT UNLIMITED; AND FISHING OUTFITTERS

ASSOCIATION OF MONTANA, IN OPPOSITION

o

JAMES H. GOETZ

Counsel of Record

GOETZ, GALLIK, BALDWIN &

DOLAN, PC

35 North Grand

P.O. Box 6580

Bozeman, Montana 59771-6580

(406) 587-0618

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Landowners may pursue their claim

based on a Fourteenth Amendment substantive due

process theory where explicit textual protection is avail-

able under the Takings and Just Compensation Clauses of

the Fifth Amendment.

il

TABLE OF CONTENTS

Page

QUEST IGN FUG 6? sesccresenscosenctnnianteremcintaeiaanen i

TABLAS ALTER ED tccscxserisvniareeamieem ili

OP Te AIG ovninssrsnceninniieommnnanamamaaa 1

FUE EN crinrsesnincrniiieeenienmaee 1

TALE PR Re E o0000s0+s000vemsersesaeestanmnane el 1

AIG UREIREE svnisssnmierniimmniacnnneae 6

1. THE NINTH CIRCUIT PROPERLY DE-

CLINED TO APPLY SUBSTANTIVE DUE

PROCESS ANALYSIS BECAUSE THE TAK-

INGS CLAUSE PROVIDES AN EXPLICIT

TEXTUAL SOURCE OF CONSTITUTIONAL

PRT Es BIS corssinnssaninctinnnsunipaaies 6

2. THE DECISION OF THE NINTH CIRCUIT

IS NOT IN CONFLICT WITH DECISIONS

OF TES CRIES Cnn sinetinainsncscieiumismtinimmendantn 9

3. ALTHOUGH SEVERAL CIRCUITS HAVE

APPROACHED THE TAKINGS/SUBSTANTIVE

DUE PROCESS ISSUE SOMEWHAT DIFFER-

ENTLY FROM THE NINTH CIRCUIT, THERE

IS NO DIRECT CONFLICT .........ccsesccssssoserees 12

COT LAF IG soccsnsnssvincsedieiereenmneth nenaiinaaaaemnaaa 17

iil

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980) ........ eee 9

Albright v. Oliver, 510 U.S. 266 (1994)........... ccc ceeeeceeeeeeeee 8

Armendariz v. Penman, 75 F.3d 1311 (9th Cir.

ERECT ERE RT oo eer ER Saaeidaieid passim

Collins v. Harker Heights, 503 U.S. 115 (1992)....... 8, 10, 11

County of Sacramento v. Lewis, 523 U.S. 833 (1998)........ 10

Daniels v. Williams, 474 U.S. 327 (1986) ..............ccccceeeeeee 10

Del-Rio Drilling Programs, Inc. v. United States,

146 F.3d 1358 (Ped. Cir. 1998)............ccssssscrsssscssvessesesees 16

Dolan v. City of Tigard, 512 U.S. 374 (1994)... 6,17

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)......... 9,10

Esplanade Properties, LLC v. City of Seattle, 307

EE EE GE PIED cvssccsentsesseseronnsasnsssesevtiovenetnerooseses 7

Graham v. Connor, 490 U.S. 386 (1989).................66 passim

Iowa Coal Min. Co. v. Monroe County, Iowa, 257

IE ME, SIE Dic cc ndnhsrsnsisssateastencvscesonsdavetoscessssess 16

John Corp. v. City of Houston, 214 F.3d 573 (5th

ST antici adi sbsiicohenisannepaaeedoteninhiannionvaints 9,14, 15

Kaluczky v. City of White Plains, 57 F.3d 202 (2nd

a ae als ia sip wihesenndichesheeaniobenees 16

Loretto v. Teleprompter, Manhattan CATV Corp.,

458 EE rcs oahbsadaneeenepnisentaekanntahasnianinannnies 7

Macri v. King County, 126 F.3d 1125 (9th Cir.

AEE SESS SD SS oa 5, 6, 7, 15

Madison v. Graham, 316 F.3d 867 (9th Cir. 2002).... passim

iv

TABLE OF AUTHORITIES — Continued

Page

Madison v. Graham,126 F.Supp.2d 1320 (D. Mont.

STII i scighncitieriesaolehasaelsadelgietadieniintiunialeundadaalasimaseeiavonsaitaaetareuen 1

Miller v. Campbell County, 945 F.2d 348 (10th Cir.

SUITE ic siiichacrunduibien delvenicehsvensueeaulnsamenniaiataaieenmtadasenenecaaaiiio 12

Montgomery v. Carter County, Tenn., 226 F.3d 758

Bee ee SEED suissuiiernineusatdbaicensseiaienernniniianemenaanaesnnne 14

Nollan v. California Coastal Commission, 483 U.S.

Be MEP EIT Riccessiscaipasiicsstiniubunnatinadetanvegpaiiancmpianiiainianinnnianpaiinnn 6

Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th

Fy II sss hniesasihorskianintnbtinantideinineinbiteecenmuiesdioens 13, 14

Sameric Corp. v. City of Philadelphia, 142 F.3d 582

GE A Se icalshscsesssnpiectnsspenicesscandnnenincnaneseenbeninneiidatesmianss 16

Simi Inv. Co., Inc. v. Harris County, Texas, 236 F.3d

BP GE TR I eintieesatarinciitatancnesneninmmiiehantsdetmasiinnins 14

Sinclair Oil v. County of Santa Barbara, 96 F.3d

Re Ce Sy EE teitincreaai i isteininntendnaanteieianelanniacinente 5

Soldal v. Cook County, Illinois, 506 U.S. 56 (1992).....11, 12

South County Sand & Gravel Co., Inc. v. Town of

South Kingstown, 160 F.3d 834 (1st Cir. 1998) ....12, 13, 15

Villas of Lake Jackson v. Leon County, 121 F.3d 610

AER SIT Diclaicdetecanionsntiitecincnieascidlaubuccdmes 9, 13, 16, 17

Williamson County Regional Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985)...........ccccccceseeeeeeeeee 9

STATE CASES

Adjudication of the Existing Rights to the Use of All

the Water, 2002 MT 216, 311 Mont. 327, 55 P.3d

TABLE OF AUTHORITIES — Continued

Page

Galt v. State Dept. of Fish, Wildlife & Parks (Galt

I), 225 Mont. 142, 731 P.2d 912 (1987)................ 2, 3, 4, 5

Galt, et al. v. State Dept. of Fish, Wildlife & Parks

(Galt II), 230 Mont. 327, 749 P.2d 1049 (1988)............... 4

Gibson v. Kelly, 15 Mont. 417, 39 P. 517 (1895).................. 1

Montana Coalition for Stream Access v. Curran,

210 Mont. 38, 682 P.2d 163 (1984)............. eee eeeeeee i, 2, &

Montana Coalition for Stream Access v. Hildreth,

211 Mont. 29, 684 P.2d 1068 (1984) ...........c<scescressosssrrenee 1

CONSTITUTIONAL PROVISIONS

U.S. Constitution, First Amentment..................ccccsseeeeeeees 16

U.S. Constitution, Fourth Amendment....... 8, 11, 12, 15, 17

U.S. Constitution, Fifth Amendment................ 4, 5, 6, 7, 14

U.S. Constitution, Fourteenth Amendment.......... 4,5, 6, 16

Montana Constitution, Art. IT, § 29.0.0... cece eeeeeeeeeeeeee 4

Montana Constitution, Art. IX, § 3(3) ...... eee eee 1,5

FEDERAL STATUTES

OE TIGR 5 BE heeriesiinnnionionnsamuniaams 1

OE TEs. Bi rdisicnsnivituanemmantiidinmaaaianan 10, 11

StaTE STATUTES

Mont. Code Ann. § 23-2-301, et Seq. .............:cecccceeeeseeeeee 2,5

1

OPINIONS BELOW

The Opinion of the Court of Appeals (Pet. App. 1-11) is

reported at 316 F.3d 867 (9th Cir. 2002). The Opinion and

Order of the United States District Court for the District

of Montana (Pet. App. 12-27) is reported at 126 FSupp.2d

1320 (D. Mont. 2001).

,

.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

,%

vv

STATEMENT

Since before Montana’s statehood in 1889, the lands of

Montana’s riparian landowners have been impressed with

a public servitude allowing navigational and recreational

use by the public. In Gibson v. Kelly, 15 Mont. 417, 423, 39

P. 517 (1895). The Court said:

It is true that while the abutting owner owns to

the low-water mark on navigable rivers, still the

public have certain rights of navigation and fish-

ery upon the rivers and upon the strip in ques-

tion...

The issue of stream access in Montana was addressed

in 1984 by the seminal companion cases, Montana Coali-

tion for Stream Access v. Curran, 210 Mont. 38, 682 P.2d

163 (1984), and Montana Coalition for Stream Access uv.

Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984). Relying on

the public trust doctrine found in Article IX, § 3(3) of the

Montana Constitution, the Court found that the state

2

owns the waters for the benefit of the people and held that

the public’s right to use the waters includes the right of

use of the bed and banks up te the high-water mark. The

holdings were broad. In Curran, the Court summarized its

holding as follows:

In sum, we hold that, under the public trust doc-

trine and the 1972 Montana Constitution, any

surface waters that are capable of recreational

use may be so used by the public without regard

to stream bed ownership or navigability for non-

recreational purposes.

210 Mont. at 53, 682 P.2d at 171 (emphasis added).’

In response to the Coalition decisions, the Montana

Legislature passed HB 265 in 1985. HB 265 is now codi-

fied as § 23-2-301 et seq., MCA.

The stream access legislation was the product of a

compromise between recreationists and landowners. A

judicial characterization of that process is found in Justice

Hunt’s dissenting opinion in Galt v. State Dept. of Fish,

Wildlife & Parks, 225 Mont. 142, 731 P.2d 912 (1987)

(“Galt I’), a constitutional challenge to HB 265 filed

shortly after its enactment. Justice Hunt noted the goal of

the subcommittee which generated HB 265 was to keep

the legislation “... within the bounds of the Supreme

‘This holding was followed in Adjudication of the Existing Rights to

the Use of All the Water, 2002 MT 216, 311 Mont. 327, 55 P.3d 396, 427

(Recognizing that public recreational use and fishing may make a

stream navigable for “use” as opposed to title, and rejecting the old,

narrow test of navigability). Adjudication of the Existing Rights was

decided September 24, 2002, after the District Court’s decision in this

case but prior to the Circuit Court’s decision.

3

Court decisions and to express the Legislature’s desire to

tie down and define the areas that were left very broad in

those decisions.” 225 Mont. at 153.

That legislation had the support of all of Montana’s

mainstream agricultural groups. The written testimony of

the lobbyist for the Montana Stockgrowers Association is

quoted at length by Justice Hunt in Galt J. The lobbyist

noted that the Coalition decisions were “.. . broad, sweep-

ing decisions which allowed the public the right to use all

state waters for any recreational and incidental uses.” Id.

The lobbyist stated that:

All groups agreed that it was critical to pass leg-

islation this session, both to define areas left un-

clear by the Supreme Court of Montana’s decisions,

to allay the fears of landowners and recreational-

ists, and to avoid conflict as the newly won rights

were tested and applied to specific streams other

than the streams subject to the litigation.

Id. The lobbyist noted that, “while the results reached in

those [Coalition] decisions were not to the liking of most

landowners, it is irresponsible to ignore those decisions or

to propose legislation which is not cognizant of the opin-

ions of the Court.” Id. at 155.

Even though the Montana Stream Access Law was the

product of a unique alliance, and even though all of the

responsible Montana agricultural groups supported it, it

was challenged on constitutional grounds by Galt and

others, including Harrison Saunders, who is a Plaintiff in

4

the present action.’ The Galt plaintiffs were successful in

setting aside several minor aspects of the Stream Access

Law, but, in the main, the Montana Supreme Court upheld

the statute. Galt I.

After Galt I, the law, as it applied to stream access,

remained settled in Montana until 2000.

The present lawsuit was filed May 31, 2000, by three

sets of Landowners, claiming that their Fourteenth

Amendment rights to substantive due process of law are

violated. This action was filed sixteen years after the

Coalition decisions, fifteen years after the Stream Access

Law was enacted, and thirteen years after the Galt deci-

sions.

The Landowners claim that when they acquired their

property they paid taxes on the property beneath the non-

navigable stream on their land. This is not true. County

Tax Assessors in Montana do not allocate real property

taxes based on whether or not streams exist on property.

Landowners’ Statement of Facts also contains bald state-

ments such as the Landowners have been “robbed” of their

privacy, that their lands have been subjected to “commercial

*The Galt plaintiffs based their complaint on state and federal

constitutional issues. The Galt plaintiffs: .

[Slought an order declaring HB 265, the “Stream Access

Bill”, § 23-2-301, et seg. MCA (1985), unconstitutional as a

taking of private property without just compensation in vio-

lation of the Fifth Amendment and Fourteenth Amendment

to the United States Constitution and Article II, § 29 of the

Montana Constitution.

Galt, et al. v. State Dept. of Fish, Wildlife & Parks (Galt II), 230 Mont.

327, 328, 749 P.2d 1049 (1988) (emphasis added).

5

exploitation”, and that the Stream Access Law has ~.. .

despoiled the pristine beauty of the land they love.” Pet.

for Cert., p. 4.

After hearing, the District Court dismissed the Land-

owners’ Complaint with prejudice. The District Court first

addressed the history of stream access in the state of

Montana, addressing the 1972 Montana Constitution,

which contains the following provision:

All surface, underground, flood, and atmospheric

waters within the boundaries of the state are the

property of the state for the use of its people and

are subject to appropriation for beneficial uses as

provided by law.

Article IX, § 3(3), E.R., p. 022. The Court then discussed

the two seminal Montana cases, Montana Coalition for

Stream Access v. Curran, supra, (the Dearborn River Case)

and Montana Coalition for Stream Access v. Hildreth,

supra (the Beaverhead River Case). The Court also dis-

cussed the enactment in 1985, “after much political com-

promise,” of the Montana Stream Access Law §§ 23-2-301,

et seq., MCA. The Court then discussed Galt I, finding

that, while certain minor provisions of the Stream Access

Bill were found to be unconstitutional, the balance of the

statutory scheme accords with the Constitution. The

District Court found it significant that the plaintiffs in

Galt I failed to appeal.

The District Court determined that the Landowners’

first claim is properly viewed as a Fifth Amendment

takings claim rather than a Fourteenth Amendment

substantive due process claim. Armendariz v. Penman, 75

F.3d 1311 (9th Cir. 1996) (en banc); Macri v. King County,

126 F.3d 1125 (9th Cir. 1997); Sinclair Oil v. County of

6

Santa Barbara, 96 F.3d 401 (9th Cir. 1996). 126 FSupp.2d

at 1324 (App. 18). The Court held that, even if construed

as a “takings claim”, the Supreme Court precedents of

Nollan v. California Coastal Commission, 483 U.S. 825,

834 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994)

do not support their argument. Jd. at 1324-38 (App. 18-20).

The Circuit Court affirmed the decision of the District

Court based on the Ninth Circuit’s decision in Armendariz,

holding that Landowners’ claims alleging governmental

interference with property must be brought under the

Takings Clause of the Fifth Amendment, rather than the

Due Process Clause of the Fourteenth Amendment. 316

F.3d at 870, App. 9. The Circuit Court also affirmed the

District Court’s rejection of the Landowners’ void for

vagueness claim on the basis that it was not adequately

pled and that, in any event, there was nothing vague

about the statute. Jd. at 871 (App. 9, 10).

¢

ARGUMENT

1. THE NINTH CIRCUIT PROPERLY DECLINED

TO APPLY SUBSTANTIVE DUE PROCESS

ANALYSIS BECAUSE THE TAKINGS CLAUSE

PROVIDES AN EXPLICIT TEXTUAL SOURCE

OF CONSTITUTIONAL PROTECTION.

The Ninth Circuit determined in the Opinion below,

after a close inspection of the Complaint, that the harms

allegedly caused by the Montana Stream Access Law “...

result from the Appellants’ inability under the law to

exclude others from their property.” 316 F.3d at 869 (App.

5). In particular, the Ninth Circuit noted that the Plaintiff-

Landowners’ alleged right to exclude others from their

property represents “. .. one of the most essential sticks in

the bundle of rights that are commonly characterized as

property ....” citing Loretto v. Teleprompter, Manhattan

CATV Corp., 458 U.S. 419, 433 (1982). The Circuit Court

pointed out that Appellants recognize this well-established

principle, citing the Complaint’s language that, “[T]he

power to exclude others is the hallmark of a private

property interest, an essential component of private

property rights.” Jd. (App. 6).

Thus, the Circuit Court found that the dispositive

issue is whether the Landowners’ claims must be analyzed

under the Fifth Amendment’s Takings Clause, “... or

whether the analysis falls under the more generalized

notions of substantive due process.” Id.

The Ninth Circuit’s opinion followed its previous

opinion in Armendariz in holding that the Landowners’

Complaint is governed by the more explicit constitutional

provisions of the Takings Clause rather than the more

generalized notion of substantive due process. Armen-

dariz, in turn, was based on this Court’s decision in

Graham v. Connor, 490 U.S. 386 (1989).

The Ninth Circuit’s decision is manifestly correct.

First, it faithfully followed its precedents — not only

Armendariz, but other Ninth Circuit precedents to the

same effect. See, e.g., Esplanade Properties, LLC v. City of

Seattle, 307 F.3d 978 (9th Cir. 2002) (affirming dismissal of

federal substantive due process claim); Macri v. King

County, 126 F.3d 1125, 1129 (9th Cir. 1997) (stating that

Appellants cannot side-step Armendariz by re-characterizing

their claim as lying solely in substantive due process).

These Ninth Circuit precedents, in turn, faithfully

applied this Court’s holding in Graham v. Connor, 490

8

U.S. 386, 395 (1989) (“Because the Fourth Amendment

provides an explicit textual source of constitutional protec-

tion against this sort of physically intrusive governmental

conduct, that Amendment, not the more generalized notion

of ‘substantive due process,’ must be the guide for analyz-

ing these claims.”)

This Court, in Albright v. Oliver, 510 U.S. 266, 271

(1994), anchored the Graham principle in holding that an

arrest without probable cause is more properly analyzed

under the Fourth Amendment’s “seizure” rubric and did

not constitute a violation of the arrestee’s substantive due

process rights:

We begin analysis of petitioner’s claim by repeat-

ing our observation in Collins v. Harker Heights,

503 U.S. 115, 125... (1992). “As a general mat-

ter, the Court has always been reluctant to ex-

pand the concept of substantive due process

because the guideposts for responsible decision-

making in this unchartered area are scarce and

open-ended.” The protections of substantive due

process have for the most part been accorded to

matters relating to marriage, family, procreation,

and the right to bodily integrity. See, eg.,

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833, 847-849 ... (1992) (describing

cases in which substantive due process rights

have been recognized). Petitioners’ claim to be

free from prosecution except on the basis of prob-

able cause is markedly different from those rec-

ognized in this group of cases.

In short, the Ninth Circuit’s refusal to allow Land-

owners to side-step the Takings Clause was manifestly

correct.

9

2. THE DECISION OF THE NINTH CIRCUIT IS

NOT IN CONFLICT WITH DECISIONS OF

THIS COURT.

The Landowners incorrectly argue that this Court has

maintained a clear distinction between a substantive due

process claim and a takings claim. Pet. for Cert., p. 7. To

the contrary, language inserting principles of due process

into takings jurisprudence is quite common. See, e.g.,

Eastern Enterprises v. Apfel, 524 U.S. 498, 537 (1998)

(plurality Opinion) (O’Connor, J.) (concluding that “the

governmental action [at issue in the case] implicates

fundamental principles of fairness underlying the Takings

Clause”); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)

(holding that zoning ordinance constitutes a taking if it

does not “substantially advance a legitimate government

interest”).

Numerous Circuit Courts, in addition to the Ninth

Circuit’s decision in Armendariz, blur the distinction

between takings and substantive due process, in the land-

use context. See, e.g., John Corp. v. City of Houston, 214

F.3d 573, 584 (5th Cir. 2000), referring to the Williamson

County Regional Planning Comm’n v. Hamilton Bank, 473

U.S. 172 (1985) finality requirement in relation to the

“‘due process takings’ claim described in that case”; see

also Villas of Lake Jackson v. Leon County, 121 F.3d 610,

612 (11th Cir. 1997) (characterizing the main claim as a

“due process takings” claim).

Landowners further argue that this Court’s Opinion

in Apfel, 524 U.S. 498, 537-38 (1998) (plurality Opinion)

“preserved” a person’s substantive due process claim regard-

ing his property, even when he also asserted a takings claim.

Pet. for Cert., p. 8. In fact, only Justice Kennedy’s concur-

rence was based on substantive due process. The four

10

Justice plurality Opinion simply states that “... We need

not address Eastern’s due process claim ... .” because

they determined that the Act’s allocation scheme violates

the Takings Clause. 524 U.S. 538. Moreover, Justice

Kennedy’s concurrence finds the Takings Clause inapt

because the Coal Act there challenged “... does not oper-

ate upon or alter an identified property interest, and is not

applicable to or measured by a property interest.” Id. at

540. Instead it “... imposes a staggering financial burden

on the petitioner, Eastern Enterprises, but it regulates the

former mine owner without regard to property.” Jd. Unlike

Apfel, the present case involves a claim that the chal-

lenged Montana statute deprives the Landowners of a

property right — a classic “takings” claim.

Landowners’ reliance on Collins v. City of Harker

Heights, 503 U.S. 115 and County of Sacramento v. Lewis,

523 U.S. 833, 845 (1998), Pet. for Cert., p. 8, is misplaced.

Neither case involved land-use issues or classic regulatory

takings issues. Harker Heights simply rejected a claim

under 42 U.S.C. § 1983 that a city’s failure to train or

warn its employees about known hazards in the work

place did not violate the Due Process Clause and that the

Du2 Process Clause “... does not purport to supplant

traditional tort law in laying down rules of conduct to

regulate liability for injuries that attend living together in

society.” Citing Daniels v. Williams, 474 U.S. 327, 332

(1986); 503 U.S. 115. Likewise, in County of Sacramento,

the Court rejected a § 1983 claim against County Depu-

ties, finding that an allegation of deliberate indifference to

life in pursuing a high speed chase of a suspect was

insufficient to state a substantive due process claim.

11

In Harker Heights, the Court observed:

As a general matter, the Court has always been

reluctant to expand the concept of substantive

due process because guideposts for responsible

decisionmaking in this unchartered area are

scarce and open-ended.

503 U.S. 125. The Court continued that the doctrine of

judicial self-restraint requires the Court to exercise the

utmost care whenever it is asked to break new ground in

this field. Id.

In attempting to avoid this Court’s holding in Graham

v. Connor, 490 U.S. 386 (1989), Landowners cite dicta from

Soldal v. Cook County, Illinois, 506 U.S. 56, 70 (1992). Pet.

for Cert., p. 11. In Soldal, the plaintiffs’ mobile home was

removed and towed from a trailer park premises, under

the observation of County Deputies, who were sued under

§ 1983. The Court of Appeals determined that, under

Graham v. Connor, it should look at the “dominant charac-

ter of the conduct challenged,” and concluded that Soldal’s

claim was more akin to a challenge against the depriva-

tion of property without due process of law than against

an unreasonable seizure... .” Jd. at 68. The Circuit Court

concluded, therefore, that Soldal should not be allowed to

bring his suit under the guise of the Fourth Amendment.

In reversing, this Court held that the removal of the

mobile home was a classic “seizure” implicating the Fourth

Amendment. It cited Graham for the proposition that

where several constitutional provisions target the same

sort of governmental conduct, the Court will choose the

more “explicit textual source of constitutional protection”

over the “more generalized notion of ‘substantive due

process’”. 506 U.S. at 70. For that reason, this Court said:

“Surely, Graham does not bar resort in this case to the

12

Fourth Amendment’s specific protection ... rather than

the general protection of property in the Due Process

Clause.” Id.

In sum, the Petition for Certiorari cites no holding of

this Court which is in conflict with the Ninth Circuit’s

application of Armendariz to this case.

3. ALTHOUGH SEVERAL CIRCUITS HAVE

APPROACHED THE TAKINGS/SUBSTANTIVE

DUE PROCESS ISSUE SOMEWHAT DIFFER-

ENTLY FROM THE NINTH CIRCUIT, THERE

IS NO DIRECT CONFLICT.

The Landowners argue that there is a significant

“direct” conflict among the Circuits and that “... The

Ninth Circuit stands alone,” in its application of takings

analysis to substantive due process claims. Pet. for Cert.,

pp. 11-15. First, the Ninth Circuit does not “stand alone”

on this issue. Second, a careful reading of the cases cited

reveals that, although there are some differences between

the Ninth Circuit’s approach and the approaches of several

other Circuits, such differences are largely nuances in

application in cases that are largely driven by their facts.

See, e.g., Miller v. Campbell County, 945 F.2d 348, 353 n.6

(10th Cir. 1991) (“We need not address whether a taking

might ever violate substantive or procedural due process

without violating the Just Compensation Clause. We hold

only that there is nothing in this record that would war-

rant a separate due process analysis over and above the

consideration of the plaintiffs’ more precise claims based

on the Just Compensation Clause.”).

The First Circuit, in South County Sand & Gravel Co.,

Inc. v. Town of South Kingstown, 160 F.3d 834 (1st Cir.

ei nar Pashto

es

13

1998), considered an appeal of a challenge to a local ordi-

nance regulating horizontal expansion of extractive indus-

tries. As a threshold question, the Court addressed whether

the claim was properly classified as a substantive due

process challenge or a takings claim. Referencing Graham

v. Connor, supra, the Court stated:

Because SCS’s lament, at bottom, is a garden-

variety regulatory takings claim, the Takings

Clause, and not substantive due process, would

seem to supply the proper decisional framework.

(Citing Villas of Lake Jackson, Ltd. v. Leon

County, 121 F.3d 610, 612-14 [11th Cir. 1997] and

Armendariz).

Id. at 835. The Court, however, noted that in the context of

that case, the differences were “largely a matter of seman-

tics”, id. at 836, and that there “is no need to submit to a

tyranny of labels”, concluding:

Thus, although the substantive limits of the Tak-

ings Clause may not necessarily coincide with

the substantive limits of the Due Process Clause

in every imaginable context ... the limits are

congruent in this instance.

Id.

The primary differences between the Ninth Circuit’s

approach and that of other Circuits is found in the ap-

proach of the Fifth and Sixth Circuits. The Intervenors

acknowledge that the Sixth Circuit, in Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1214 (6th Cir. 1992), did

reject the rationale that all Federal zoning cases should be

treated as “takings” on the basis that, “While it has the

undoubted salutary advantage of minimizing the involve-

ment of federal courts in local zoning[, it] cannot be

14

reconciled with current controlling precedent.” The vitality

of this holding is in doubt, however, based on the subse-

quent Sixth Circuit case Montgomery v. Carter County,

Tenn., 226 F.3d 758, 768-770 (6th Cir. 2000). Montgomery

acknowledged, based on Pearson, that the Sixth Circuit’s

“precedents” permit (plaintiff) to assert “substantive due

process ... claims as well [as takings claims].” However,

the Court went on to observe: “[I]t is not clear why the

concept of substantive due process should have any place

in takings cases.” It then reviewed the analysis in Armen-

dariz in a favorable way, but saw no need to resolve the

issue, stating that:

In any event, whatever the applicability of the

concepts of procedural and substantive due proc-

ess to takings claims, we agree that these con-

cepts may not be used in order to mount an end

run around the ripeness requirements of Wil-

liamson County.

The Landowners cite two Fifth Circuit cases, Simi

Inv. Co., Inc. v. Harris County, Texas, 236 F.3d 240, 247

(5th Cir. 2000) and John Corp. v. City of Houston, 214 F.3d

573, 581 (5th Cir. 2000), for the proposition that, in the

Fifth Circuit, the property owner’s substantive due process

claim is not subsumed by its Fifth Amendment takings

claim. Simi, however, emphasized the limited nature of

their holdings:

Our limited holding in John Corp. is similarly

limited here; we find only that when a state in-

terferes with property interests, a substantive

due process claim may survive a takings analysis

and, therefore, provide jurisdiction for a federal

court.

236 F.3d 249.

——

15

In John, the Court carefully reviewed the effect of

Graham and noted that a number of Circuit Courts have

used Graham “... to support considering a substantive

due process claim as invoking the Takings Clause’s pretec-

tions (citing South County Sand & Gravel Co., Inc. v. Town

of South Kingstown, 160 F.3d 834, 835 (1st Cir. 1998))

(applying Graham to facial due process challenge to

ordinance); Macri v. King County, 126 F.3d 1125, 1129 (9th

Cir. 1997) (holding that substantive due process claim

alleging no legitimate public purpose was based on con-

duct that implicated the Takings Clause). 214 F.3d 582,

583. After examining these approaches, the John Court

concluded that a “blanket rule” which applies Graham so

that “the Takings Clause subsumes any substantive due

process claim relating to a deprivation of property... .” is

inconsistent with precedents in the Fifth Circuit and with

the approach taken by a majority of other Circuits. 214

F.3d 583. “Instead, a careful analysis must be undertaken

to assess the extent to which a plaintiff’s substantive due

process claim rests on protections that are also afforded by

the Takings Clause, and, in the proper case, by the Fourth

Amendment.” Jd. The Court then proceeded with a rather

complicated and fact-driven analysis which, although

different from the approach of the Ninth Circuit, is not in

direct conflict.

Unlike John, the Landowners’ theory in the present

case falls squarely within the takings rubric because of the

Landowners’ allegation that they were deprived of the

property right to exclude others. Thus, while there are

differences between the Ninth Circuit and the Fifth

Circuit in the application of Graham v. Connor, these

differences are not material to the issues here presented

by the Landowners.

16

The other Circuits cited by Landowners as “in conflict”

— the Second, Third, Fourth and Eighth - are not.’ In

Sameric Corp. v. City of Philadelphia, 142 F.3d 582 (3rd

Cir. 1998), there was no analysis of the Takings Clause at

all — it was a straight substantive due process case. The

Second Circuit’s decision in Kaluczky v. City of White

Plains, 57 F.3d 202 (2nd Cir. 1995) did not involve a land-

use issue at all, or remctely implicate the Takings Clause.

It involved a 1983 claim by a city personnel officer who

alleged that the Mayor was of an adverse political party,

and reduced his duties and harassed him in violation of

the First and Fourteenth Amendments. In Jowa Coal Min.

Co. v. Monroe County, Iowa, 257 F.3d 846, 853 (8th Cir.

2001), the Court simply addressed the substantive due

process claim in connection with denial of a non-

confirming use certificate, without addressing Graham.

Finally, Landowners cite two cases in which, they

claim, the Courts held specifically that a person’s property

is protected by both the Due Process Clause and the

Takings Clause, Del-Rio Drilling Programs, Inc. v. United

States, 146 F.3d 1358 (Fed. Cir. 1998) and Villas of Lake

Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir.

1997). Pet. for Cert., pp. 11-13. Although the Court in Del-

Rio did determine that a party could seek just compensa-

tion for a “taking” or, ir the alternative, seek to invalidate

wrongful governmental conduct, id. at 1363, the Opinion

does not use the term “substantive due process” at all in

characterizing the potential claim.

* Landowners acknowledge that the Seventh and Tenth Circuits are

not in direct conflict. See Pet. for Cert., p. 15, n.1.

17

The Eleventh Circuit, in Villas of Lake Jackson, is

even less useful in establishing a direct conflict. That case

involved a suit against the County rezoning property to

prohibit high-density apartment complexes. The Court’s

main analysis is under a rubric that it refers to as a “due

process takings” claim. 121 F.3d at 612-614. Citing Dolan

v. City Tigard, 512 U.S. 374, 384 n.5, the Court said,

“There is no separate cause of action under the Due

Process Clause of the Constitution.”

4

v

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

JAMES H. GOETZ

GOETZ, GALLIK, BALDWIN &

DOLAN, P.C.

35 North Grand — 59715

P. O. Box 6580

Bozeman, MT 59771-6580

Telephone: (406) 587-0618

Attorneys for Respondents

Dated: April, 2003

‘The Court did, however, briefly address a separate substantive

due process argument, which it referred to as “arbitrary and capricious

due process”, finding that the undisputed evidence included a finding

that the rezoning was arbitrary and capricious. Jd. at 614-615.