Opposition Brief — Madison v. Graham

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Suereme Court, ¥-

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No. 02-1421 ryt F

WR 25 OES

In The

Supreme Court of the Ayited States

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HARVEY AND DORIS MADISON, CHARLES AND

ELENA D’AUTREMONT and HARRISON SAUNDERS,

Petitioners,

v.

PATRICK J. GRAHAM, DIRECTOR, Montana

Department of Fish, Wildlife, and 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; and FISHING

OUTFITTERS ASSOCIATION OF MONTANA,

Respondents.

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:

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

,

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RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

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MIKE MCGRATH

Attorney General ~

BRIAN M. Morris*

Solicitor

P.O. Box 201401

Helena, MT 59620-1401

406-444-2026

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

ISSUE PRESENTED

Whether a party suffering an alleged permanent

physical occupation of private property without just

compensation may overcome procedural bars to the tak-

ings claim by refashioning their claim as an alleged

arbitrary state interference with their private property

protected by the substantive provisions of the Due Process

Clause of the Fourteenth Amendment.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............... ssessasscssessresssess

STAT MEE 2 CIF SEER CAI seve vixivccvssesevcesatessereseees

REASONS FOR DENYING THE WRIT....................

I.

IT.

THE NINTH CIRCUIT CORRECTLY DIS-

MISSED PETITIONERS’ SUBSTANTIVE

DUE PROCESS CLAIM WHERE THE PE-

TITIONERS ALLEGED INJURY TO PROP-

ERTY RIGHTS SPECIFICALLY PROTECTED

BY THE TAKINGS CLAUSE ...............ccssessseees

A. Montana’s Stream Access Law Author-

~ izes a Permanent Physical Occupation by

the General Public of what Petitioners

Allege to be Their Private Property and

Their Challenge to the Law Must be

Grounded in the Takings Clause.............

B. Petitioners’ Complaint Confirms That

They Seek to Vindicate Their Right to

Exclude -Members of the Public From

SEE FI vo vcrckinsctecinciiicticemesvsigeaves

THE NINTH CIRCUITS DECISION TO

DISMISS PETITIONERS’ SUBSTANTIVE

DUE PROCESS CLAIM COMPORTS WITH

THE DECISIONS OF OTHER CIRCUITS

TO REQUIRE ACCURACY IN PLEADING...

A. The Circuit Courts Have Permitted Sub-

stantive Due Process Claims Alleging

Deprivations of Property Rights to Pro-

ceed Under Limited Circumstances Not

a ___, NENTS nO Lee eee

ili

TABLE OF CONTENTS — Continued

Page

B. The Court Should Await a Better Vehicle

to Resolve Any Split Among the Circuit

Courts Regarding the' Relationship Be-

tween Substantive Due Process Claims

I RD IID vansiisssisccscescccesccsoseveses 13

INIT oc Atcnienhivndssbcestonesesnstiosnettinnnbiiiusatbedaiasns 15

iv

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994)... eee 11, 13

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

Sapa ics csthinilvscvsiiesceihbiaeaiaitieanisieamtbiadaalinaaiiiaaiaiiianie 2, 12,13

County of Sacramento v. Lewis, 523 U.S. 833 (1998)......... 7

First Evangelical Lutheran Church v. Los Angeles

Comet, GEE Ue. TG (IBGE) ccsevesececesenscecevscressonnecssscesevece 7

Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir.

SUPT hcibitchinsicseicesnicanclildipiatioalaldgdatbasiainibanldndabemiauibeaiiiapeaiibicansin 14

Galt v. State Dept. of Fish, Wildlife & Parks, 731

cas ee COs BOTS CIE Fo cee lcninccnisnnesnresserarsisnnnnsacints 5

Galt v. State Dept. of Fish, Wildlife & Parks, 749

P.2d 1089 (Mont. 1988) (Galt ID)..............ssscccccssssssceeeseees 5

Graham v. Connor, 490 U.S. 386 (1989).................. 8, 10, 13

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

CF Se iacicincsirescsicsizcedeteneainaeibaesesatiaeabiiaanaceeasesiaiaenpeaichitaniiniaiai 10

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...... 6,14

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

IY: SEE atiocunsastn-onishicisaieticaiienasauameliabaatininveseiaadiicsaacaibiadesnis 11

Levald, Inc. v. City of Palm Desert, 998 F.2d 680

Ce EG I reedicicecueietasch hich Aibisteaainieciadendaistainialamesabloiainiiads 6

Loretto v. Teleprompter Manhattan CATV Corp.,

I Ca ieerinientesscctiipinniiiapinesanatnihinianens 7

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

Se ee init sibectcienslanihcceheniiteciiniieactecaabaicelin Giisaiiaeiaaia 13

Montana Coalition for Stream Access v. Curran,

FE a Se CIs RP iriipicivacnsssctinneerbsniannilasiiniaiasanetad 3, 4

Vv

TABLE OF AUTHORITIES - Continued

Page

Montana Coalition for Stream Access v. Hildreth,

GED Fee BO Is Be iescccicceerennntnsonsctisinsesnnsnacalioinnsts 4

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

GE NE SEE ictslericusaneiincssccnsamectecmeeaiein iasaadaanol: 12

Parella v. Retirement Board of the Rhode. Island

Employees’ Retirement System, 173 F.3d 58 (1st

AIS TIENT cs censsncienepecsoniieningnnnstebeananabeueiinialecadadiaaanetcatien 13

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

GE I dsenncinsictnavnnrinncnisennsitispiansnandasnabirnatelasadiiad miaaaieeian 12

Sandy Creek Investors, Ltd. v. City of Jonestown,

2003 U.S. App. LEXIS 5651 (5th Cir. Mar. 23,

STUD ivcnisseccchepncitinveniatauntadinaidieaaimauiamiammms aay 11

Signature Properties Intern., Ltd. Partnership uv.

City of Edmond, 310 F.3d 1258 (10th Cir. 2002)........... 14

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

CR Ce ID anciiesssuesiinniissasinenbinsinsiantaibienisaduadeeatnaiel cae 10

Simi Inv. Co., Inc. v. Harris County, 256 F.3d 323

CEE SE BD setuisscnipusinaueniicesanansteimiceruaaiiidaccemmas 11

Soldal v. Cook County, 506 U.S. 56 (1992)..........cccccceceseeees 8

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

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

Villas of Lake Jackson, Ltd. v. Leon County, 121

a ee AS ST Piss ticetradniipinceinlheiciasaecsasiionpaamiesaniasine 12

Williamson County Reg. Planning Commn. uv.

Hamilton Bank, 473 U.S. 172 (1985).....0........cccceeeee iene

vi

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

United States Constitution

RIE, BF est eninsvisecttisnvtiieceensiicaaaniaamaiaials 8

RE. FS cccsiserisvnicanciniiarnsiinnninidiianiaaaeiidiamaalai 2

ROR: TBY vnittiiminiintmnnninedl 1, 4,6, 7, 11

United States Code

BR. BR, G Bi cissssctsncitacviisimasinccmmnmaliaaa 1

Montana Code Annotated

© ee ics acesnstaccunesisinccinssiieniinanhaamaansmaen 3

OF SII scsi scciisessnesceetneunthaoesseerniconueaaniaueumnaanioaiann 1

Oe SE 00 IR siceiscccscinsisenssencisnciccibernsabeuenelemmanaanl 3

FMI os ssscccncabidnun nishcliaaean 3

OD IIE ssaccocstvsccisnsstsatincussnineguaedsenaieaelensaaaanal: 7

De scincsivnnssitscsesiinstanaestneseasaeateanaeaaee 7

FOIE AIE ..nissrncsirsidicnmeeuenniane sidan 7

1

STATEMENT OF THE CASE

Petitioners, a group of private landowners in Mon-

tana, filed a Complaint on May 23, 2000, that challenged

the constitutionality of the Montana Stream Access Law,

Mont. Code Ann. § 23-2-301, et seg. Petitioners assert that

the Stream Access Law violates the substantive due

: process clause of the Fourteenth Amendment of the United

States Constitution in that it regulates private property

for public use without being narrowly-tailored or ration-

ally-related to any compelling or legitimate governmental

purpose. In the alternative, Petitioners suggest that to

enforce the Stream Access Law requires the Director of the

Montana Department of Fish, Wildlife and Parks and the

individuals serving on the Montana Fish Wildlife and

Parks Commission, acting under the color of state law, to

violate their private property rights in violation of 42

U.S.C. § 1983.

Respondents, the Director of the Montana Depart-

:

ment of Fish, Wildlife and Parks and the individuals

serving on the Montana Fish Wildlife and Parks Commis-

sion, filed a motion to dismiss the entire Complaint on

August 3, 2000. Respondents-Intervenors, several local

Montana sportsmen and wildlife groups, including the

Montana Coalition for Stream Access, the Montana Chap-

ter of Trout Unlimited, Fishing Outfitters Association of

Montana, and the Montana Wildlife Federation, filed a

separate motion on November 30, 2000, to dismiss the

Petitioners’ Complaint. The district court, the Honorable

Charles C. Lovell presiding, issued its Opinion and Order

on January 4, 2001, in which it granted in their entirety

the motions to dismiss Petitioners’ Complaint. 126

F. Supp. 2d 1320 (D. Mont. 2001); App. 12-27. Petitioners

ke

2

filed a notice of appeal of the district court’s Opinion and

Order on February 5, 2001.

The Ninth Circuit affirmed the district court. 316 F.3d

867 (9th Cir. 2002) (App. 1-11). The Ninth Circuit deter-

mined that the harms alleged by Petitioners stemmed

from the Petitioners’ inability to exclude others from their

property. (App. 5.) As a result, the Ninth Circuit addressed

“whether a claim that a statute precludes private property

owners from excluding others from their property must be

analyzed under the Fifth Amendment’s Takings Clause, or

whether the analysis falls under the more generalized

notions of substantive due process.” (App. 6.) The Ninth

Circuit reasoned that the right to exclude others repre-

sents a property right and, therefore, Petitioners have

alleged harms addressed exclusively by the Fifth Amend-

ment’s Takings Clause. (App.9.) The Takings Clause

provides an explicit textual source of constitutional protec-

tion of private property, thus the Ninth Circuit concluded

that “the Fifth Amendment (as incorporated by the Four-

teenth), not the more generalized noticia of substantive

due process, must be the guide in reviewing the [Petition-

ers’] claim.” (App. 9) quoting Armendariz v. Penman,

75 F.3d 1311, 1324 (9th Cir. 1996) (en banc).

+

——

3

REASONS FOR DENYING THE WRIT

I. THE NINTH CIRCUIT CORRECTLY DIS-

MISSED PETITIONERS’ SUBSTANTIVE DUE

PROCESS CLAIM WHERE THE PETITION-

ERS ALLEGED INJURY TO PROPERTY

RIGHTS SPECIFICALLY PROTECTED BY

THE TAKINGS CLAUSE.

A. Montana’s Stream Access Law Authorizes

a Permanent Physical Occupation by the

General Public of what Petitioners Allege

to be Their Private Property and Their

Challenge to the Law Must be Grounded

in the Takings Clause.

The 1985 Montana Legislature enacted the Stream

Access Law (Mont. Code Ann. §§ 23-2-301 to -322). In

general terms, the Stream Access Law authorizes recrea-

tional use by the public of all navigable streams in Mon-

tana, up to the ordinary high-water mark, including the

bed and banks, without regard to the ownership of the

land underlying the waters. Mont. Code Ann. § 23-2-302.

Unlike the federal navigation test that determines navi-

gability based on the commercial use of the waterway, the

Stream Access Law applies to all surface waters “that are

capable of recreational use.” Jd. “Recreational use” in-

cludes “fishing, hunting, swimming, floating in small craft

or other floatation devices, boating in motorized craft [or]

craft propelled by oar or paddle.” Jd. at § 23-1-301(10).

The Stream Access Law came on the heels of two

decisions by the Montana Supreme Court. First, in Mon-

tana Coalition for Stream Access v. Curran, 682 P.2d 163

(Mont. 1984), the court relied upon the Montana Constitu-

tion to determine that the public’s right to use the water-

ways of Montana includes all recreational purposes within

ee |

4

the ordinary high-water marks. Curran, 682 P.2d at 167-

70. The court found that those waterways in Montana

imbued with the public trust included all those susceptible

to public use. Jd. at 169-70. This type of “[nJavagibility for

use,” according to the court, stands separate and apart

from the federal question of determining “navigability for

title purposes.” Jd. at 170. The court concluded, therefore,

that “any surface waters that are capable of recreational

use may be so used by the public without regard to

streambed ownership or navigability for nonrecreational

purposes.” Jd. at 171. Similarly, in Montana Coalition for

Stream Access v. Hildreth, 684 P.2d 1088, 1091 (Mont.

1984), the court held that state law governs navigability

for use and that under Montana’s Constitution, “the only

possible limitation of use can be the characteristics of the

water themselves.”

Thus, the Stream Access Law represents a codification

of some portions of the decisions of the Montana Supreme

Court in Curran and Hildreth. It creates a public thor-

oughfare, with limited exceptions, on all surface waters in

Montana that are susceptible to recreational use. The

public thoroughfare created by the Stream Access Law '

clearly authorizes a permanent physical occupation by the F

general public up te the ordinary high-water mark on

these Montana waterways. The Stream Access Law raises

the question, however, of whether it constitutes a taking of

private property for public use without the payment of just

compensation. No doubt exists that any taking effected by

the Stream Access Law satisfies the public use require-

ment of the Fourteenth Amendment as it authorizes any

member of the general public to use this statutorily-

created thoroughfare. The only question remains as to

5

whether Montana should have been required to pay just

compensation for this alleged taking of private property.

A group of riparian landowners, including Petitioner

Harrison Saunders, sought to answer that question when

they filed an action in which they alleged, among other

matters, that the Stream Access Law constituted “a taking

of private property without just compensation in violation

of the Fifth and Fourteenth Amendments to the United

States Constitution.” Galt v. State Dept. of Fish, Wildlife &

Parks, 749 P.2d 1089, 1090 (Mont. 1988) (Galt ID). The

Montana Supreme Court upheld the Stream Access Law,

with a few minor exceptions, to the broad constitutional

challenge in Galt v. State Dept. of Fish, Wildlife & Parks,

731 P.2d 912 (Mont. 1987) (Galt I). The court in Galt I

confirmed that property owners in Montana through

whose property a water course flows “have their fee

impressed with a dominant estate in favor of the public.”

Galt I, 731 P.2d at 916. The court concluded that the

Stream Access Law had worked no taking of private

property and as a result no compensation to any riparian

landowners would be required. Jd. at 916. The plaintiffs in

Galt I did not seek review by this Court of the decision of

the Montana Supreme Court. (App. 16.)

B. Petitioners’ Complaint Confirms That

They Seek to Vindicatie Their Right to Ex-

clude Members of the Public From Their

Property.

In 2000, nearly fifteen years after Galt I, Petitioners

filed this action in federal district court. Rather than

simply reasserting the takings claim advanced in Galt I,

the Petitioners fashioned their claim as being grounded in

alleged violations of the substantive due process provisions

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6

of the Fourteenth Amendment. (Compl. {{ 34-44; Respt.

' App. at 10-11.) The Petitioners’ effort to seek relief under

the general provisions of the substantive due process

clause comes as no surprise when viewed in light of the

Petitioners’ failure to seek redress through any state

administrative proceedings, state court proceedings, or |

other state tribunals, before filing this federal action.

(App. 18.)

A review of Petitioners’ complaint confirms that they

seek to vindicate the right to exclude others from their

property — a right clearly protected by the Takings Clause

of the Fourteenth Amendment. For example, Petitioners

allege that they “may ot exclude others from their prop-

erty nor prevent others from recreating on their property.”

(Compl. J 24; Respt. App. 8.) See Kaiser Aetna v. United

States, 444 U.S. 164, 176 (1979) (recognizing the right to

exclude others as an essential element of property). This

inability to exclude others from the surface waters flowing

through their property has caused them to “suffer[] and

continue to suffer a loss of privacy as a result of the

Stream Access Law.” (Compl. 7 22; Respt. App. 7.) Peti- |

tioners further allege that their inability to exclude others

from the surface waters flowing through their property

has caused them “to suffer impaired property values,”

particularly with respect to the recreational values of the |

property adjoining the waterways. (Compl. { 23; Respt. |

App. 7-8.) See, e.g., Levald, Inc. v. City of Palm Desert, 998 |

F.2d 680, 684 (9th Cir. 1993) (“A regulatory taking occurs

when the value or usefulness of private property is dimin-

ished by a regulatory action that does not involve a physi-

cal invasion of the property.”). |

Other attendant harms arising from Petitioners’ |

inability to exclude the public from their property include

7

“frequent and repeated trespasses on their property,” as

well as “disturbance of livestock,” “garbage,” “harassment”

and “urination and other acts of defecation.” (Compl. { 26;

Respt. App. 8.)' As these facts indicate, Petitioners have

alleged injuries — the right to exclude others and atten-

dant harms — that sound in takings. See Loretto v. Tele-

prompter Manhattan CATV Corp., 458 U.S. 419, 433

(1982) (recognizing the right to exclude others as “one of

the most essential sticks in the bundle-of rights that are

commonly characterized as property”). The Takings Clause

explicitly secures compensation to private parties in the

event of a taking of private property by government of the

kind alleged by Petitioners. See First Evangelical Lu-

theran Church v. Los Angeles County, 482 U.S. 304, 315

(1987). The Montana legislature surely has the power to

take private property for public use. First Evangelical

Lutheran Church, 482 U.S. at 315. Through the Stream

Access Law, the Montana legislature properly exercised its

power to take private property for public use.

By contrast, this Court has found that the substantive

provisions of the Due Process Clause of the Fourteenth

Amendment are designed to protect individuals “against

arbitrary action of government.” Petr. Br. at 8, quoting

County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).

Nothing arbitrary results from the Montana legislature

deciding to exercise its power to condemn private property

* Petitioners’ Complaint fails to state whether these alleged

attendant harms take place within the high-water marks of the public

waterways flowing through their property. Any harms taking place

above the high-water marks would constitute a trespass and would

subject the transgressor to potential criminal prosecution under

Montana law. See Mont. Code Ann. §§ 45-6-201, -203, and 87-1-204.

|

8

to create a public highway. In the same manner, nothing

arbitrary results from the Montana legislature deciding to

exercise its power to condemn private property to create a

public thoroughfare on the surface of waterways in Mon-

tana up to the high-water marks

Petitioners incorrectly rely on Soldal v. Cook County,

506 U.S. 56 (1992), to argue that the Court’s decision in

Graham v. Connor, 490 U.S. 386 (1989), does not foreclose

their substantive due process claim. Soldal simply con-

firmed that the Fourth Amendment protects against all

types of seizures of property by government officials, not

just those that stem from searches conducted by govern-

ment officials. Law enforcement officers, called at the

request of a trailer park owner, assisted the owner in

towing away a private party’s mobile home for alleged

nonpayment of rent. Soldal, 506 U.S. at 61.

The Seventh Circuit rejected the mobile home owner’s

claim grounded in the Fourth Amendment on the basis

that Graham required it to look to the “dominant charac-

ter of the conduct challenged” and, therefore, determined

that Soldal’s claim more closely resembled a challenge

against an alleged “deprivation of property without due

process of law than against an unreasonable seizure.” Id.

at 70. Accordingly, the Seventh Circuit concluded that the

mobile home owner could not bring an action grounded in

the Fourth Amendment. Jd. This Court reversed, noting

that the conduct at issue constituted a “classic seizure” of

the type protected by the Fourth Amendment: “Surely,

Graham does not bar resort in this case to the Fourth

Amendment’s specific protection for ‘houses, papers, and

effects’ rather than the general protection of property in

the Due Process Clause.” Jd. at 70-71.

9

In this case, the Takings Clause provides the specific

constitutional protection for Petitioners’ claim of the loss of

the ability to exclude others from their property and

attendant harms stemming from this inability to exclude

others, rather than the more general provisions of the

substantive component of the Due Process Clause. The

Ninth Circuit properly dismissed Petitioners’ substantive

due process claim.

II. THE NINTH CIRCUIT’S DECISION TO DIS-

MISS PETITIONERS’ SUBSTANTIVE DUE

PROCESS CLAIM COMPORTS WITH THE

DECISIONS OF OTHER CIRCUITS TO RE-

QUIRE ACCURACY IN PLEADING.

Petitioners correctly note confusion among the circuit

courts regarding the correct relationship between the

protections afforded by the Takings Clause and those

provided by the substantive component of the Due Process

Clause. Petitioners fail to discuss, however, that the recent

trend points to more uniformity in circuit courts in reject-

ing substantive due process claims that properly should

have been pleaded as takings claims. And regardless of

any split among the circuit courts, the Petitioners here

have alleged a violation of the property right to exclude

members of the public — a clear violation of the Takings

Clause. The Court’s resolution of the alleged split among

the circuit courts would have no effect on the Petitioners’

attempt to dress up its garden-variety takings claim as a

substantive due process claim. The Court should await a

better vehicle to address any split among the circuit courts

regarding the proper relationship between takings claims

and substantive due process claims.

10

A. The Circuit Courts Have Permitted Substan-

tive Due Process Claims Alleging Depriva-

tions of Property Rights to Proceed Under

Limited Circumstances Not Present Here.

Petitioners contend that “[s]even Circuits have recog-

nized that a person’s property is protected by both the Due

Process Clause and the Takings Clause.” (Petr. Br. at 13.)

An analysis of decisions from the Fifth, Sixth, and First

Circuits demonstrate, however, a prevailing trend away

from analyzing such claims under the more generalized

protections of the substantive component of the Due

Process Clause and toward the more specific protections of

the Takings Clause.

Petitioners point to decisions from the Fifth Circuit in

Simi Inv. Co., Inc. v. Harris County, 236 F.3d 240, 247 (5th

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

573, 581 (5th Cir. 2000). (Petr. Br. at 13.) In John Corp.,

the Fifth Circuit rejected the blanket rule that, under

Graham, the Takings Clause subsumes any substantive

due process claim relating to deprivation of property, and

ruled, instead that “a careful analysis must be undertaken

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

process claim rests on protections afforded by the Takings

Clause.” John Corp., 214 F.3d at 583. The court in Simi

Inv. Co., relying largely on John Corp., also refused to

dismiss a substantive due process 'claim where the plain-

tiff alleged that Harris County arbitrarily interfered with

its property rights, not that Harris County authorized any

physical occupation of their property. Simi Inv. Co., 236

F.3d at 247.

These decisions tell only part of the story in the Fifth

Circuit. Petitioners fail to inform the Court that in its

order denying en banc review, the court in Simi Inv. Co.,

11

addressed the concern raised by Harris County as to the

-scope of the substantive due process holding. The court

recognized that “[iJn the majority of cases involving

landowner complaints, substantive due process is not the

appropriate avenue of relief.” Simi Inv. Co., Inc. v. Harris

County, 256 F.3d 323, 323 (5th Cir. 2001). In particular,

the court stated that “artful pleading” of substantive due

process claims cannot circumvent the court’s Takings

Clause jurisprudence. Jd. And more recently, the court in

Sandy Creek Investors, Ltd. v. City of Jonestown, 2003

U.S. App. LEXIS 5651 (5th Cir. Mar. 23, 2003), rejected an

attempt to avoid Takings Clause analysis through such

“artful pleading.”

In Sandy Creek, the plaintiffs alleged that the City of

Jonestown’s actions in refusing to approve their land

development permit despite the fact that the permit met

all requirements of state and local law “were arbitrary,

unreasonable, capricious, and lacking a_ substantial

relation to any valid legislative/governmental objective.”

Sandy Creek at *4. The plaintiffs sought damages equal to

the value of the property that they could not develop. Id.

The court rejected this attempt to evade takings analysis

and its exhaustion requirement. Although the Takings

Clause does not necessarily subsume all substantive due

process claims alleging deprivations of property, the court

concluded that the plaintiffs’ complaint that the City of

Jonestown had violated the Fourteenth Amendment “was

framed only as a takings claim’ and, therefore, the plain-

tiffs’ failure to exhaust state remedies deprived the federal

court of jurisdiction over the claim. Jd. at *7. See also

Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.

1995) (relying on Albright v. Oliver, 510 U.S. 266 (1994), in

dismissing substantive due process claim).

12

A similar narrowing took place in the Sixth Circuit. In

Pearson v. City of Grand Blanc, 961 F.2d 1211, 1214 (6th

Cir. 1992), the court rejected the notion that all federal

constitutional challenges to unlawful zoning must be

analyzed as potential takings claims. The court recognized

that although such an approach “has the undoubted

salutary advantage of minimizing the involvement of

federal courts in local zoning, [it] cannot be reconciled with

current controlling precedent.” Pearson, 961 F.2d at 1214:

A more recent decision in Montgomery v. Carter County,

Tenn., 226 F.3d 758, 768-70 (6th Cir. 2000), challenges this

conclusion. The court in Montgomery acknowledged, based

on Pearson, that the Sixth Circuit’s “precedents” permit a

party to assert a substantive due process claim along with

the takings claim. The court questioned, however, “why

the concept of substantive due process should have any

place in takings cases.” Jd. at 770.

The trend continues in the First Circuit. In South

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

160 F.3d 834, 835 (1st Cir. 1998), the court alleged that a

local ordinance limiting expansion of gravel pits violated

their procedural and substantive due process rights. After

reviewing the complaint, the court noted that “[bJecause

[plaintiffs’] lament, at bottom, is a garden-variety regula-

tory takings claim, the Takings Clause, not substantive

due process, would seem to supply the proper decisional

framework.” South County Sand & Gravel, 160 F.3d at

835, citing Villas of Lake Jackson, Lid. v. Leon County, 121

F.3d 610, 612-14 (11th Cir. 1997); Armendariz v. Penman,

75 F.3d 1311, 1325-26 (9th Cir. 1996) (en banc). Although

the court recognized that the substantive limits of the

Takings Clause may not always coincide with the subsian-

tive limits of the Due Process Clause in every conceivable

13

context, it explained that the “legal trend” had shifted

away from allowing plaintiffs to assert generalized sub-

stantive due process violations. Jd. at 835 n.2, citing

Albright, 510 U.S. at 273; Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1017-19 (1992) (concluding that a

regulation that deprives land owner of economic value is a

compensable taking). More recently in [arella v. Retire-

ment Board of the Rhode Island Employees’ Retirement

System, 173 F.3d 58 (1st Cir. 1999), the First Circuit noted

that “other recent decisions suggest that when faced with

multiple, potentially relevant constitutional provisions,

courts should invoke the provision that treats most di-

rectly the right asserted.” Id. at 58, citing Graham uv.

Connor, 490 U.S. at 395; Armendariz v. Penman, 75 F.3d

at 1324. The circuit courts’ efforts to resolve any differ-

ences regarding their approaches to substantive due

process/takings claims obviates the need for the Court to

intervene at this point.

B. The Court Should Await a Better Vehicle

to Resolve Any Split Among the Circuit

Courts Regarding the Relationship Be-

tween Substantive Due Process Claims

and Takings Claims.

Even if the Court determines that a split exists among

| the circuit courts regarding the proper relationship be-

tween a takings claim and a substantive due process

claim, the Court should wait for a better vehicle to resolve

| any split. No doubt exists that Petitioners’ object to the

Stream Access Law due to the constraints that it imposes

on their ability to exclude the public from portions of their

property. (Compl. 7 24, 39, 53; App. 8, 11, 13.) The ability

to exclude others represents “the hallmark of a private

iim i

14

property interest.” Id. at 13. See also Kaiser Aetna uv.

United States, 444 U.S. at 176 (recognizing the right to

exclude others as an essential element of property). Al-

though the Stream Access Law permits the public to use

portions of their property, Petitioners allege that it was

enacted for an improper purpose and thereby violates their

substantive due process rights. (Apps. 11, 13.)

In Forseth v. Village of Sussex, 199 F.3d 363 (7th. Cir.

2000), the court noted that physical occupations under-

taken for an improper purpose, such as wholly private

uses, should be reviewed pursuant to a takings analysis

rather than under a substantive due process analysis. Id.

at 369 n.8 (citations omitted). Takings analysis, of course,

requires a party to exhaust its available state remedies.

Williamson County Reg. Planning Commn. v. Hamilton

Bank, 473 U.S. 172, 193-94 (1985). Many courts have

imposed the same exhaustion of available state remedies

requirement in order to sustain a substantive due process

claim. See, e.g., Signature Properties Intern., Ltd. Partner-

ship v. City of Edmond, 310 F.3d 1258, 1267-68 (10th Cir.

2002) (refusing to excuse exhaustion requirement for

alleged substantive due process violation). Petitioners

_ have not availed themselves of any potential state reme-

dies. This failure to exhaust potential state remedies

imposes insuperable barriers to Petitioners’ claim regard-

less whether it be viewed as a takings claim or a substan-

tive due process claim. The Court should wait for a case in

which resolution of the substantive due process/takings

analysis would alter the outcome of the underlying claim.

,

v

15

CONCLUSION

For the foregoing reasons, Respondents respectfully

request that the Court deny the Petition for Writ of Certio-

! rari.

Respectfully submitted,

MIKE MCGRATH

Attorney General

BRIAN M. Morris*

Solicitor

P.O. Box 201401

Helena, MT 59620-1401

406-444-2026

*Counsel of Record

April 2003

App. 1

Dale R. Cockrell

Christensen, Moore, Cockrell,

Cummings & Axelberg, P.C.

160 Heritage Way

Kalispell, MT 59901

(406) 751-6000

(406) 756-6522 fax

William Perry Pendley

S. Amanda Koehler

MOUNTAIN STATES LEGAL FOUNDATION

707 Seventh Street, Suite 3030

Denver, Colorado 82020-3408

(303) 292-2021

(303) 292-1980 fax

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HARVEY AND DORIS MADISON,

CHARLES AND ELENA

-D’AUTREMONT, AND HARRISON

SAUNDERS,

Plaintiffs,

v.

MONTANA DEPARTMENT OF

FISH, WILDLIFE & PARKS;

PATRICK J. GRAHAM, DIRECTOR,

MONTANA DEPARTMENT OF

FISH, WILDLIFE & PARKS;

MONTANA FISH, WILDLIFE

& PARKS COMMISSION; AND

STAN MYER, DAVID SIMPSON,

CHARLES DECKER, DARLYNE

DASCHER, AND TIM MULLIGAN,

COMMISSIONERS,

Defendants.

)

ee eee ee

Civil Action No.

CV-00-18-H-CCL

COMPLAINT

(Filed

May 31, 2000)

App. 2

INTRODUCTION

Plaintiffs, by and through their attorney, Mountain

States Legal Foundation, file this Complaint against

Defendants, Montana Department of Fish, Wildlife &

Parks; Patrick J. Graham, Director, Montana Department

of Fish, Wildlife & Parks, in his individual and official

capacity; Montana Fish, Wildlife & Parks Commission;

and Stan Meyer, David Simpson, Charles Decker, Darlyne

Dascher, and Tim Mulligan, Commissioners, in their

individual and official capacities, and allege the following:

JURISDICTION AND VENUE

1. The jurisdiction of this Court is invoked, pursuant

to 28 U.S.C. § 1331, because the matter in controversy

arises under the Constitution and/or laws of the United

States.

2. Venue rests properly in this Court, pursuant to 28

U.S.C. §§1391(b), because Defendants reside in this

judicial district.

PARTIES

3. Plaintiffs Harvey and Doris Madison are residents

of Absarokee, Montana. In 1905, a one thousand-acre

ranch on the Stillwater River in Stillwater County, Mon-

tana, was homesteaded by Mr. Madison’s grandfather,

Mathew Madison. Since 1978, the Madisons have owned

the ranch pursuant to inheritance of the Desert Lands

homestead patent issued by the United States to Mathew

Madison in 1905. Their property encloses approximately

one mile of the Stillwater River, which is not, and histori-

cally has never been, commercially navigable.

App. 3

4. Plaintiffs Charles and Elena d’Autremont main-

tain a residence in Alder, Montana. Since 1978, the

d’Autremonts have owned a 275-acre ranch on the Upper

Ruby River in Madison County, Montana. Their property

encloses approximately one and one half miles of the Ruby

River, which is not, and historically has never been,

commercially navigable.

5. Plaintiff Harrison Saunders is a resident of Ennis,

Montana. Since 1876, a ranch of approximately 100 acres

on O’Dell Creek in Madison County, Montana, has been

owned and controlled by the Saunders family. Since the

1950s, Mr. Saunders has owned an interest in the ranch,

and today he retains a life estate in the property, with the

remainder deeded to his son and daughters. His property

encloses approximately three-quarters of a mile of O’Dell

Creek, which is not, and historically has never been,

commercially navigable.

6. Defendants Montana Department of Fish, Wildlife

& Parks is the state agency responsible for management of

fish, wildlife, parks, and recreational resources. Defendant

Patrick J. Graham is the Director of the Montana De-

partment of Fish, Wildlife & Parks and is the official

primarily responsible for the Department’s fulfillment of

its obligations. Defendants Stan Meyer, David Simpson,

Charlie Decker, Darlyne Dascher, and Tim Mulligan form

the Defendant Montana Fish, Wildlife & Parks Commis-

sion. The Commission sets fish and wildlife regulations,

approves property acquisitions, and approves rules and

activities of the Department as provided by Montana

statute.

App. 4

FACTUAL BACKGROUND

7. Montana Code Annotated, Section 70-1-202,

provides:

The state is the owner of:

(1) all land below the water of a navigable lake

or stream;

(2) all property lawfully appropriated by it to

its own use...

8. Montana Code Annotated, Section 70-16-201,

provides:

Except where the grant under which the land is

held indicates a different intent, the owner of the

land, when it borders upon a navigable lake or

stream, takes to the edge of the lake or stream at

low-water mark; when it borders upon any other

water, the owner takes to the middle of the lake

or stream.

9. The streambed and banks underlying the portion

of the Stillwater River flowing through Plaintiff Madisons’

property are privately owned by the Madisons, because

that portion of the Stillwater is not, and has never been,

commercially navigable. The Madisons own title to and

pay taxes on the streambed and banks underlying the

Stillwater River on their property.

10. The Stillwater River flows within approximately

300 yards of the Madison’s home and within approxi-

mately 50 feet of a barn on their property. The Madisons

keep cattle and horses on their property near the river

banks.

App. 5

11. The streambed and banks underlying the portion

of the Ruby River flowing through Plaintiff d’Autremonts’

property are privately owned by the d’Autremonts, be-

cause that portion of the Ruby River is not, and has never

been, commercially navigable. The d’Autremonts own title

to and pay taxes on the streambed and banks underlying

the Ruby River on their property.

12. The Ruby River flows within 150 feet of the front

door of the d’Autremont’s dwelling on their property.

13. The d’Autremonts purchased their Montana

property after a two-year search that took as far as British

Columbia and Alberta, Canada. After a number of years in

the whitewater outfitting business in Wyoming and Utah,

they were specifically looking for a remote and private

place to raise a family.

14. After purchasing their Montana property, the

d’Autremonts ejected a steady stream of trespassers for

several years and saw a corresponding improvement in the

fishing on their property. All of their neighbors followed

the same practice, under the belief that since they held

title to and paid taxes on the land under the stream, they

were entitled to choose who stood on it.

15. The streambed and banks underlying the portion

of O’Dell Creek flowing through Plaintiff Saunders prop-

erty are privately owned by Mr. Saunders, because that

portion of O’Dell Creek is not, and has never been, com-

mercially navigable. Mr. Saunders owns title to and pays

taxes on the streambed and banks underlying O’Dell

Creek on his property.

16. O’Dell Creek flows within approximately one-

quarter mile of Mr. Saunders’ home on his property. Mr.

App. 6

Saunders has used rip-rap on the stream banks to protect

the stream against erosion and has restricted grazing to

horses only for over 30 years in order to protect the stream

bank and encourage a more productive fish habitat.

17. The Montana Stream Access Law, judicially

created in 1984 and subsequently codified in 1985, pro-

vides that all surface waters in the state capable of recrea-

tional use may be so used by the public without regard to

the ownership of the land underlying the waters. The Law

allows recreational us* up to the ordinary high-water

mark of rivers and streams. The public is also given the

right to “portage” around barriers or obstructions in the

water when necessary by going above the high-water mark

onto the landowner’s property. Recreational uses that are

permitted include fishing, hunting, swimming, camping,

floating, use of motorized watercraft, building fires below

the high-water mark, and “related unavoidable or inciden-

tal uses.” Mont. Code Ann. §§ 23-2-301, et seq.

18. Montana Code Annotated, Section 23-2-301(12),

provides:

“Surface water” means, for the purpose of deter-

mining the public’s access for recreational use, a

natural water body, its bed, and its banks up to

the ordinary high-water mark.

19. Montana Code Annotated, Section 23-2-302(1),

provides:

[A]ll surface waters that are capable of recrea-

tional use may be so used by the public without

regard to the ownership of the land underlying

the waters.

App. 7

20. Montana Code Annotated, Section 23-2-308,

provides:

The provisions of this part and the recreational uses

permitted by 23-2-302 do not affect the title or ownership

of the surface waters, the beds, and the banks of any

navigable or nonnavigable waters or the portage routes

within this state.

21. Montana Code Annotated, Section 23-2-311(1),

provides:

A member of the public making recreational use

of surface waters may, above the ordinary high-

water mark, portage around barriers in the least

intrusive manner possible, avoiding damage to

the landowner’s land and violation of his rights.

Section 23-2-311(4) provides that such portage around

natural barriers, such as waterfalls, rocks, and fallen

trees, is neither “lawful [nJor unlawful.”

22. Plaintiffs have suffered and continue to suffer

loss of privacy as a result of the Stream Access Law. They

have lost the right to privacy as guaranteed by Article II,

Section 10 of the Montana Constitution. Since the passage

of the Montana Stream Access Law, the d’Autremonts

have lost the very privacy for which they purchased their

property, and all plaintiffs have lost the privacy that they

have treasured on their land for decades.

23. Plaintiffs have suffered and continue to suffer

from impaired property values as a result of the Stream

Access Law. Seven years before passage of the Stream

Access Law, the d’Autremonts paid a substantial recrea-

tional, not agricultural, price for their property. As a

result of the Stream Access Law, the recreational value of

App. 8

the property is impaired. For more than 25 years, prior to

the passage of the Stream Access Law, Mr. Saunders and

his family leased the right to use the stream and the

streambed on his property for $4000 up to $11,500 per

year. As a result of the Stream Access Law, Mr. Saunders

is no longer able to earn this substantial amount toward

his retirement from use of his property by others.

24. Plaintiffs may not exclude others from their

property nor prevent others from recreating on their

property near their home, buildings, and livestock as a

result of the Stream Access Law.

25. Plaintiffs have lost the inalienable right to

acquire, possess, and protect property as guaranteed by

Article II, Section 3 of the Montana Constitution as a

result of the Stream Access Law.

26. Plaintiffs have been and continue to be subject to

frequent and repeated trespasses on their properties,

which the State is unable to stop or to prevent due to the

remote nature of the properties. Plaintiffs have also

suffered and continue to suffer, among other harms,

disturbance of livestock, garbage left on the property,

harassment or interference with Plaintiffs’ attempts to use

their own property, and urination and other acts of defeca-

tion on the property as a result of the public access permit-

ted by the Stream Access Law. In addition, stream users

build campfires and prepare meals, subjecting Plaintiffs

private property to the risk of forest and grass fires.

27. The boundaries of public access are not clearly

defined. The “high-water mark” can be difficult to ascer-

tain, leaving Plaintiffs, the recreating public, and even the

Department of Fish, Wildlife & Parks, uncertain of this

mark and the precise limits of public access.

4

,

x

;

App. 9

28. The Stream Access Law also explicitly fails to

define the legality of portage around natural barriers in a

stream, creating much uncertainty not only for Plaintiffs

and other property owners subject to the Stream Access

Law, but for all involved in use and enforcement of the

Law.

29. Outfitting businesses target high-quality proper-

ties and build their businesses on use of Plaintiffs’ proper-

ties as a result- of the Stream Access Law. The

d’Autremonts’ property has been and continues to be the

‘subject of advertisement and profit for a neighboring

outfitter. Outfitting businesses and others regularly

benefit financially from use of the Madisons’ and Mr.

Saunders’ properties.

30. In 1987, the Montana Supreme Court upheld the

Stream Access Law, asserting the public trust doctrine,

against a property owner’s challenge. See Galt v. State

Dept. of Fish, Wildlife & Parks, 731 P.2d 912 (1987). With

the exception of a few auxiliary provisions, the Law was

upheld as conforming to the requirements of the Montana

Constitution. The public trust doctrine was asserted by the

Montana Supreme Court as the original basis for public

stream access in Montana Coalition For Stream Access v.

Curran, 682 P.2d 163 (Mont. 1984), and Montana Coali-

tion For Stream Access v. Hildreth, 684 P.2d 1088 (Mont.

1984).

31. The “public trust” provision of the Montana

Constitution, Article IX, Section 3(3), provides:

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

App. 10

subject to appropriation for beneficial uses as

provided by law.

FIRST CLAIM FOR RELIEF

32. Plaintiffs reallage Paragraphs 1 through 31.

33. The Fourteenth Amendment to the United States

Constitution provides, in relevant part:

[NJor shall any State deprive any person of life,

liberty, or property, without due process of law.

34. The Due Process Clause of the Fourteenth

Amendment contains a substantive component that

protects individual liberty against certain government

actions, regardless of the fairness of the procedures used

to implement them.

35. The Due Process Clause provides heightened

protection against governmental interference with funda-

mental rights and liberty interests.

36. Where a state law infringes upon a fundamental

right, that state law must be narrowly tailored to serve a

compelling state interest in order to comport with sub-

stantive due process.

37. Where a state law infringes upon a non-

fundamental right, that state law must substantially

advance a legitimate state interest in order to comport

with substantive due process.

38. The right to own and use private property is a

fundamental right and liberty, deeply rooted in this

Nation’s history and tradition and implicit in the concept

of ordered liberty.

App. 11

39. The power to exclude others is the hallmark of a

private property interest, an essential component of

private property rights.

40. There is no public trust in private property. The

public trust doctrine does not extend, and has not histori-

cally extended, to recreational use of historically non-

navigable waters. Thus, the Montana Stream Access Law

was enacted for purposes completely unrelated to the

public trust doctrine and its purposes.

41. There is neither a compelling nor a legitimate

state interest in regulating private property for public use

under the public trust doctrine.

42. The Montana Stream Access Law is not narrowly

tailored to any compelling or legitimate state interest in

regulating private property for public use under the public

trust doctrine.

_ 43. The Montana Stream Access Law does not

substantially advance a legitimate state interest in regu-

lating private property for public use under the public

trust doctrine.

44. The Montana Stream Access Law constitutes a

violation of the substantive due process guaranteed by the

Fourteen Amendment to the United States Constitution.

ALTERNATIVE FIRST CLAIM FOR RELIEF

45. Plaintiffs reallege paragraphs 1 through 31.

46. Title 42, Section 1983 of the United States Code

provides, in relevant part:

App. 12

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any

State ... subjects, or causes to be subjected, any

citizen of the United States ... to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in eq-

uity, or other proper proceeding for redress.

47. The Fourteenth Amendment to the United States

Constitution provides, in relevant part:

[NJor shall any State deprive any person of life,

liberty, or property, without due process of law.

48. The Due Process Clause of the Fourteenth

Amendment contains a substantive component that

protects individual liberty against certain government

actions, regardless of the fairness of the procedures used

to implement them.

49. The Due Process Clause provides heightened

protection against governmental interference with funda-

mental rights and liberty interests.

50. Where a state law infringes upon a fundamental

right, that state law must be narrowly tailored to serve a

compelling state interest in order to comport with sub-

stantive due process.

51. Where a state law infringes upon a non-

fundamental right, that state law must substantially

advance a legitimate state interest in order to comport

with substantive due process.

52. The right to own and use private property is a

fundamental right and liberty, deeply rooted in this

App. 13

Nation’s history and tradition and implicit in the concept

of ordered liberty.

53. The power to exclude others is the hallmark of a

private property interest, an essential component of

private property rights.

54. There is no public trust in private property. The

public trust doctrine does not extend, and has not histori-

cally extended, to recreational use of historically non-

navigable waters. Thus, the Montana Stream Access Law

was enacted for purposes completely unrelated to the

public trust doctrine and its purposes.

55. There is neither a compelling nor a legitimate

state interest in regulating private property for public use

under the public trust doctrine.

56. The Montana Stream Access Law is not narrowly

tailored to any compelling or legitimate state interest in

regulating private property for public use under the public

trust doctrine.

57. The Montana Stream Access Law does not

substantially advance a legitimate state interest in regu-

lating private property for public use under the public

trust doctrine.

58. The Montana Stream Access Law constitutes a

violation of the substantive due process guaranteed by the

Fourteen Amendment to the United States Constitution.

59. Under color of the Montana Stream Access Law,

Defendants Patrick J. Graham, Stan Meyer, Davis Simp-

son, Charles Decker, Darlyne Dascher, and Tim Mulligan

have subjected Plaintiffs or caused Plaintiffs to be subjected

to the deprivation of rights, privileges, or immunities

App. 14

secured by the Constitution and laws of the United States,

and these Defendants continue to subject Plaintiffs to such

deprivation, and these Defendants are liable therefore.

SECOND CLAIM FOR RELIEF

60. Plaintiffs reallage paragraphs 1 through 59.

61. Adequate notice of what conduct is permitted

and what conduct is proscribed is a component of a stat-

ute’s conformity with due process.

62. The Montana Stream Access Law fails to provide

adequate notice as to what conduct is permitted and what

conduct is proscribed with regard to portage around

natural barriers in a stream and with regard to streams in

which the high water mark is not readily ascertainable.

63. The Stream Access Law is unconstitutionally

vague and void for vagueness.

WHEREFORE, Plaintiffs respectfully request that

this Court:

(1) Declare and adjudge the Montana Stream Access

Law to be in violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

(2) Enjoin Defendants permanently from enforcing

the Montana Stream Access Law with regard to privately

owned streambeds and banks underlying historically non-

navigable waters in the State of Montana.

(3) Award Plaintiffs costs and attorneys’ fees.

(4) Award Plaintiffs such further relief as is just and

equitable.

App. 15

DATED this 26th day of May, 2000.

Respectfully submitted,

/s/ S. Amanda Koehler

William Perry Pendley

S. Amanda Koehler

Mountain States Legal Foundation

707 Seventeenth Street, Suite 3030

Denver, Colorado 80202-3408

(303) 292-2021

(303) 292-1980 fax

/s/ Dale R. Cockrell

Dale R. Cockrell

Christensen, Moore, Cockrell,

Cummings & Axelberg, P.C.

160 Heritage Way

Kalispell, MT 5£901

(406) 751-6000

(406) 756-6522 fax