# Opposition Brief — Madison v. Graham

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1355%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1058

## Text

y

Pee,

Suereme Court, ¥-
a Dp

No. 02-1421 ryt F
WR 25 OES

In The

Supreme Court of the Ayited States

v

\

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.

yy
:

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

,
v

RESPONSE TO PETITION FOR
WRIT OF CERTIORARI

‘a
Vv

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

|

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1355%3A3. Public record. Not legal advice.