Opposition Brief — Mining and Minerals Division of the New Mexico Energy Minerals and Natural Resources Department v. Manning (No. 06-242)

No. 06-242

au The

~ Supreme Court of the United States

°

MINING AND MINERALS DIVISION OF THE

NEW MEXICO ENERGY MINERALS ANT)

NATURAL RESOURCES DEPARTMENT, et al.,

Petitioners,

Vv.

EDWINA MANNING, et al.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of New Mexico

BRIEF IN OPPOSITION

JEANNE CAMERON WASHBURN, ESQ.

DOMENICI LAW FIRM, P.C.

320 Gold SW, Suite 1000

Albuquerque, New Mexico 87102

505-883-6250

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO (800) 225-4964

OR CALL COLLECT €502) 342 2831

QUESTION PRESENTED

Whether Petitioners have presented compelling reasons to

grant the Petition, where the decision of the New Mexico

Supreme Court does not conflict with this Court’s Takings

Clause jurisprudence, with this Court’s decision in Alden

v. Maine, 527 U.S. 706 (1999) or with any decisions of

another state court of last resort or of the United States

Court of Appeals.

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TABLE OF CONTENTS

Page

SOU RL BOS incctnenncenininkinmemcininideaaninal 1

DUTT T vncviisiciecitceninnadieiniliamsatiiaentialiitiiiaiiaaia aia 2

I. The New Mexico Supreme Court’s decision is

II.

iif.

consistent with the self-executing nature of the

Takings Clause and does not conflict with deci-

sions of this Court or other state courts ............

The New Mexico Supreme Court’s decision

does not conflict with this Court’s decision in

TER Bi: FI vincciictetanaiineiipiaditinantiniccidiiraiaiaiintaiats

The position advocated by the Petitioners

would leave the citizens of the State of New

Mexico without the right to sue the State for

just compensation for regulatory takings, in

direct violation of the rights guaranteed by the

OIG oncccstnccisicnnteniinnnsdunisiitinbiastinmetinatmiiii

COU Ae crewwennecreninstsertnsnonnnmnmenunenans

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TABLE OF AUTHORITIES

Page

UNITED STATES SUPREME COURT DECISIONS

Alden v. Maine, 527 U.S. 706 (1999)............cceeseesee sees passim

Brown v. Legal Foundation of Washington, 123 S.Ct.

TD srsiasabieiitschresiicicteasassesdeoieeselibehascacabtinaeminieneubaamenitiiae 6

Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226

aI hiasscodiciebidisasesisipheslinadisaduniiaiaandemneantinnaliaedtadmpeaceiuedt 2, 6, 10

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ........ 3, 4, 5,6

Lucas v. South Carolina Coastal Council, 112 S.Ct.

er TTTEIITTET ineiinischasieteeishcnkantdeh dhephctleneeonieatciessesideeieieidaineasiatlonsoneediin 6

Nollan v. California Coastal Comm’n, 483 U.S. 825

AREER a ee eS ER ET CR RCN ETT ETE TO 6

Palazzolo v. Rhode Island, 533 U.S. 606

reset isssccveiiecidehetiahiteandasnnesheciasieimibintiicsbceialsbieinieiia 3, 6, 10, 11, 12

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) ............ 3

San Diego Gas & Electric Co. v. San Diego, 450

ns EN a UIT Uhceiiciviieiecesininbicessnnieaniciaidacidaiaiatickatiniennaniembniet 4,7

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 122 S.Ct. 1465 (2002) ......... 6

Williamson Planning Comm’n v. Hamilton Bank,

a aes ee 1 incdcinesndiisiscinacipdeonicnenlesbiuisaddincamieiaiaieinhenedeicuets 3

UNITED STATES COURT OF APPEALS

DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d

I aa aiel 5,12

Hendler v. United States, 952 F.21i 1364 (Fed.Cir.

TTI i faceaoleadideieiesetdemit ah celitclaadbatebatieclaadileieetianiediesideiniidetaenbosominaliedi 5

TABLE OF AUTHORITIES — Continued

OTHER JURISDICTIONS

Alper v. Clark County, 571 P.2d 810 (Nev. 1977)

Avenal v. State, 886 So.2d 1085 (La. 2004)

Bell Atlantic-Virginia, Inc. v. Arlington County, 486

S.E.2d 297 (Va. 1997)

Benson v. State, 710 N.W.2d 131 (S.D. 2006)

Boise Cascade Corp. v. State, 991 P.2d 563

(Ore.Ct.App. 1999)

Heughs Land, L.L.C. v. Holladay City, 113 P.3d

1024 (Utah 2005)

SDDS, Inc. v. State, 650 N.W.2d 1(S.D. 2002)

Sibson v. State, 282 A.2d 664 (N.H. 1971)

Tamm v. Burns, 610 A.2d 590 (Conn. 1992)

Wisconsin Retired Teachers v. Wisconsin Educ.

Assoc., 558 N.W.2d 83 (Wis. 1997)

CONSTITUTIONAL PROVISIONS AND RULES

U.S. Constitution Article I

U.S. Constitution Fifth Amendment

U.S. Constitution Fourteenth Amendment

U.S. Supreme Court Rule 10

INTRODUCTION

The Petitioners have requested this Court to review a

decision by the New Mexico Supreme Court that recog-

nizes the right of private citizens to sue the State in state

court for just compensation when the State takes private

property for public use. The Court below held that the

State cannot invoke the doctrine of sovereign immunity to

prevent private citizens from bringing such suits because

the right of just compensation is guaranteed by the Tak-

ings Clause of the Fifth Amendment of the United States _

Constitution, as applied to the States by the Fourteenth

Amendment. The Petitioners, who are regulatory agencies

of the State of New Mexico, argue that the decision below

is contrary to this Court’s decision in Alden v. Maine, 527

U.S. 706 (1999) and that the doctrine of sovereign immu-

nity acts as a bar against claims for just compensation

against the State in the state courts. After reviewing this

Court’s Takings Clause precedent, the Alden decision and

other court decisions addressing the same question, the

New Mexico Supreme Court held that “the Takings Clause

creates a cause of action against a state which is action-

able in state court and to which the state may not assert

immunity” and that the Alden decision does not change

the historical application of the Takings Clause to the

States. (Petitioners Appendix (App.) 17, 32 and 20, 437).

The New Mexico Supreme Court’s decision recognized

the State’s obligation, under the Fifth and Fourteenth

Amendments, to pay just compensation for the taking of

private property, which is a long-standing requirement

established by this Court. Other state courts which have

addressed the relationship between the just compensation

requirement and state sovereign immunity have also

found that sovereign immunity is not a bar to a takings

claim brought in state court. State courts in Oregon and

South Dakota, as well as the Sixth Circuit Court of Ap-

peals, have directly addressed the effect of the Alden

decision on state sovereign immunity for just compensa-

tion claims. All three courts determined, as did the New

Mexico Supreme Court, that Alden does not extend a

State’s sovereign immunity to bar claims for just compen-

sation brought pursuant to the Fifth and Fourteenth

Amendments. The New Mexico Supreme Court’s decision

is not in conflict with decisions from Federal or state

courts or any decisions of this Court.

The Petitioners have failed to demonstrate that the

decision of the New Mexico Supreme Court conflicts with

any decisions of another state court of last resort or of the

United States Court of Appeals or with any United States

Supreme Court precedent. See Sup. Ct. R. 10. Petitioners

have presented no “compelling reasons” for granting their

Petition for Writ of Certiorari and the Petition should be

denied.

ARGUMENT

The New Mexico Supreme Court’s decision is

consistent with the self-executing nature of

the Takings Clause and does not conflict with

decisions of this Court or other state courts.

The Mannings sued the Petitioners in state district

court for regulatory takings pursuant to the Takings

Clause of the Fifth Amendment. It has long been estab-

lished that the Takings Clause is “applicable to the States

through the Fourteenth Amendment, Chicago, B. & Q. R.

Co. v. Chicago, 166 U.S. 226 (1897) [and] prohibits the

3

government from taking private property for public use

without just compensation.”. Palazzolo v. Rhode Island,

533 U.S. 606, 617 (2001). This Court has also long recog-

nized that, in addition to physical occupation, a takings

may occur through state regulatory action. As Justice

Holmes stated, “while property may be regulated to a

certain extent, if a regulation goes too far it will be recog-

nized as a taking.” Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415 (1922).

The Takings Clause creates an individual right to the

remedy of just compensation and the States are required

to provide “reasonable, certain and adequate provision for

obtaining compensation.” Williamson Planning Comm’n v.

Hamilton Bank, 473 U.S. 172, 194 (1985) (quoted author-

ity omitted); First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 321 (1987). The

purpose of the Takings Clause is to ensure that, in the

event private property is taken by the government for

public use, the property owner will be provided just

compensation for the property so taken. The payment of

just compensation is a Constitutional remedy that is

fundamental to the protection of private property rights

and is a specific limitation on governmental power. As

explained in First English, the Takings Clause

does not prohibit the taking of private property,

but instead places a condition on the exercise

of that power. This basic understanding of the

Amendment makes it clear that it is designed not

to limit the government interference with prop-

erty rights per se, but rather to secure compensa-

tion in the event of otherwise proper interference

amounting to a taking. Thus, government action

that works a taking of property rights necessarily

4

implicates a constitutional obligation to pay just

compensation.

482 US. at 314-15.

The Takings Clause is self-executing and the right to

claim just compensation does not require the passage of -

any type of legislation, either by Congress or by the States,

in order for it to be enforceable. Once a taking occurs, the

government entity that took the property, whether it be

local, state or federal, is required by the Constitution to

pay just compensation. As explained by Justice Brennan,

[ajs soon a private property has been taken,

whether through formal condemnation proceed-

ings, physical invasion, or regulation, the land-

owner has already suffered a constitutional

violation, and the self-executing character of the

constitutional provision with respect to compen-

sation is triggered ... This Court has consis-

tently recognized that the just compensation

requirement of the Fifth Amendment is not pre-

catory: once there is a ‘taking,’ compensation

must be awarded.

San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621,

654 (1981) (Brennan dissenting). Justice Brennan ex-

plained that, although the Constitution “does not embody

any specific procedure or form of remedy that the States™

must adopt,” it does require “that the landowner must be

able meaningfully to challenge a regulation that allegedly

effects a ‘taking,’ and recover just compensation if it does

so. He may not be forced to resort to piecemeal litigation or

otherwise unfair procedures in order to receive his due.”

Id. at 660 (citations omitted).

5

The Court in First English followed Justice Brennan’s

dissent and found that the Takings Clause is self-

executing and just compensation is required if a taking

occurs. The Court explained that it has long been recog-

nized “that a landowner is entitled to bring an action in

inverse condemnation as a result of the self-executing

character of the constitutional provision with respect to

compensation ... [T]he Court has frequently repeated the

view that, in the event of a taking, the compensation

remedy is required by the Constitution.” 482 U.S. at 315-

16.

Because the just compensation clause is self-

executing, an individual may sue the government for just

compensation, sovereign immunity notwithstanding. See

First English, 482 U.S. at 316 n.9 (rejecting the United

States government’s argument that sovereign immunity

principles compel the conclusion that the Takings Clause

does not provide a damages remedy); Hendler v. United

States, 952 F.2d 1364, 1371 (Fed.Cir. 1991) (noting that

because a federal takings suit is “based upon the constitu-

tional provision protecting property rights, and the provi-

sion was considered to be self-executing with respect to

compensation, it escaped the problems of sovereign immu-

nity”); DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d

511, 527 (6th Cir. 2004) (First English makes clear that

the Fifth Amendment Takings clause is a self-executing

remedy, notwithstanding sovereign immunit;’). In the DLX

decision, the Sixth Circuit cited to numerous authorities

that have found “that the Fifth Amendment’s requirement

for just compensation forces the states to provide a judicial

remedy in their own courts, the sovereign immunity States

traditionally enjoy in their own courts notwithstanding.”

Id. As the First English Court explained, “many provisions

6

of the Constitution are designed to limit the flexibility and

freedom of governmental authorities, and the Just Com-

pensation Clause of the Fifth Amendment is one of them.”

482 U.S. at 321.

Since determining, in First English, that the Takings

Clause is self-executing, the Court has heard just compen-

sation claims directed against a State or state entity.

Palazzolo v. Rhode Island, 533 U.S. 606 (2000); Brown v.

Legal Foundation of Washington, 123 S.Ct. 1406 (2003);

Nollan v. California Coastal Comm’n, 483 U.S. 825, 829

(1987); Lucas v. South Carolina Coastal Council, 112 S.Ct.

2886 (1992); Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002). In

Palazzolo, Brown, and Tahoe-Sierra, all decided after

Alden, the Court specifically stated that the Takings

Clause applies to the States through the Fourteenth

Amendment, thus reinforcing the conclusion that incorpo-

ration of the self-executing Takings Clause in the Four-

teenth Amendment waived the states’ sovereign immunity.

Palazzolo, 533 U.S. at 617; Tahoe-Sierra, 122 S.Ct. at ftnt

1; Brown, 123 S.Ct. at ftnt 6 (each citing to Chicago B. &

Q. R. Co.). There are no Supreme Court decisions, either

before or after Alden, that indicate that the doctrine of

sovereign immunity bars claims for just compensation

brought against a State in state court.

The decision below, by recognizing the right of the

Mannings to bring a claim of just compensation against

the State in state court, is consistent with the Constitu-

tional requiremeuts and with the precedent of this Court.

By holding that sovereign immunity does not act as a bar

to claims for just compensation, the Court’s decision

provides the Mannings, and other similarly situated

parties in New Mexico, the “opportunity to challenge a

regulation that allegedly effects a taking, and recover just

compensation if it does so,” as required by the decisions of

this Court. San Diego Gas & Electric Co., 450 U.S. at 660.

The Court correctly recognized that, if the Petitioners

were allowed to invoke the doctrine of sovereign immunity

to bar claims for just compensation, “then the private

individual is without a remedy in state court, even though

both the State and Federal Constitutions obligate the

State to pay.” (Petitioners App. 10, 720). Rather than

creating a “new constitutional damages remedy,” as

alleged by the Petitioners, the decision below ensures that

private citizens have a means to pursue just compensation

for the taking of private property by the State, which is

exactly the remedy provided by the Constitution.

Other state courts that have addressed the question of

whether sovereign immunity prohibits takings claims

against the State in state court have reached the same

conclusion as the New Mexico Supreme Court. The courts

of Oregon, South Dakota, Nevada, Connecticut, Utah,

Louisiana, Virginia, Wisconsin and New Hampshire have

all held that sovereign immunity is not a defense to

takings claims, based either on the Takings Clause or on

similar state constitutional provisions, brought against the

State in state court. Boise Cascade Corp. v. State, 991 P.2d

563 (Ore. 1999); SDDS, Inc. v. State, 650 N.W.2d 1 (S.D.

2002); Benson v. State, 710 N.W.2d 131 (S.D. 2006); Alper

v. Clark County, 571 P.2d 810 (Nev. 1977) (Takings Clause

is self-executing against the state); Tamm vu. Burns, 610

A.2d 590 (Conn. 1992) (sovereign immunity not a defense

to claims for just compensation arising under the state

constitution); Heughs Land, L.L.C. v. Holladay City, 113

P.3d 1024 (Utah 2005) (state constitutional requirement

of just compensation for a taking is self-executing and

~

therefore not barred by state sovereign immunity); Avenal

v. State, 886 So.2d 1085 (La. 2004) (same); Bell Atlantic-

Virginia, Inc. v. Arlington County, 486 S.E.2d 297 (Va.

1997) (same); Wisconsin Retired Teachers v. Wisconsin

Educ. Assoc., 558 N.W.2d 83 (Wis. 1997) (same); Sibson v.

State, 282 A.2d 664 (N.H. 1971) (same). The decision of the

New Mexico Supreme Court is consistent with the deci-

sions of other state courts that allow private parties to sue

the State for just compensation in state court.

II. The New Mexico Supreme Court’s decision

does not conflict with this Court’s decision in

Alden v. Maine.

The New Mexico Supreme Court’s conclusion that

Alden “did not alter the historical practice of applying the

Takings Clause to the states, and nothing in that opinion

permits a state to bar a claim for ‘just compensation’ from

its courts” (Petitioners App.17, [32) is consistent with both

the Alden decision itself and with decisions from Oregon,

South Dakota and the Sixth Circuit, which have addressed

the same issue.

The Alden decision concerned the authority of Con-

gress, pursuant to its powers under Article I of the Consti-

tution, to subject the States to private suits in state court.

527 U.S. at 710 (“We hold that the powers delegated to

Congress under Article I of the United States Constitution

do not include the power to subject nonconsenting States

to private suits for damages in state court”). The Court in

Alden acknowledged the difference between claims as-

serted against a State under a Congressional statute and

claims asserted based on obligations arising under the

Constitution. Jd. at 740. While state constitutional sover-

eignty is a right the States “retain today,” that right can be

9

“altered by the plan of the Convention or certain constitu-

tional amendments.” Jd. at 713. In addressing the scope of

a State’s sovereign immunity, the Alden Court stated:

The constitutional privilege of a State to assert

its sovereign immunity in its own courts does not

confer upon the State a concomitant right to dis-

regard the Constitution or valid federal law. The

States and their officers are bound by the obliga-

tions imposed by the Constitution and by federal

statutes that comport with constitutional design

' ... Sovereign immunity, moreover, does not bar

all judicial review of state compliance with the

Constitution and valid federal law. Rather, cer-

tain limits are implicit in the constitutional prin-

ciple of state sovereign immunity.

Id. at 754-55. The Fourteenth Amendment, through which

the Takings Clause is made applicable to the States,

“required the States to surrender a portion of the sover-

eignty that had been preserved to them by the original

Constitution ... By imposing explicit limits on the powers

of the States and granting Congress power to enforce

them, the Amendment fundamentally altered the balance

of state and federal power struck by the Constitution.” Jd.

at 756. This Court, in Alden, recognized that the Four-

teenth Amendment is a specific limitation on state author-

ity. As already discussed, the self-executing nature of the

Takings Clause means that Congressional action is not

required to enable private parties to sue to enforce the

right to just compensation. The discussion in Alden sup-

ports the conclusion that, based on the specific limitations

of state power imposed by the Fourteenth Amendment, a

State may be sued in state court for just compensation.

10

In Palazzolo, decided two years after Alden v. Maine,

the property owner sued the State of Rhode Island for the

taking of his property without just compensation in

violation of the Fifth Amendment to the United States

- Constitution. While there were a number of concurring

and dissenting decisions, all of the Justices agreed that, if

the State of Rhode Island took Mr. Palazzolo’s property

without paying him compensation, his remedy was to sue

the State for _a takings under the Fifth Amendment.

Justice Kennedy, delivering the Opinion of the Court,

stated that “(t]he Takings Clause of the Fifth Amendment,

applicable to the States through the Fourteenth Amend-

ment, Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

(1897), prohibits the government from taking private

property for public use without just compensation.” 533

U.S. at 617. Throughout the opinion, the Court discusses

the application of the Takings Clause to States and state

agencies. For example, the Court explained that the

“Takings Clause ... in certain circumstances allows a

landowner to assert that a particular exercise of the

State’s regulatory power is so unreasonable or onerous as

to compel compensation.” Jd, at 627. Justice O’Conn»z,

concurring, discussed the takings issue in terms of state

power over property rights. Jd. at 632. Justice Stevens

stated that, “[t]hough States and local governments have

broad powers to adopt regulations limiting land usage,

those powers are constrained by the Constitution and by

other provisions of state law ... A taking is a discrete

event, a government acquisition of private property for

which the state is required to provide just compensation.”

Id. at 638.

In an attempt to circumvent or limit its duty to pay

just compensation under the Takings Clause, the State of

11

Rhode Island argued that a current property owner could

not bring a takings claim based on a regulatory enactment

that had been passed before he acquired the property. Id.

at 626. The Court rejected the State’s argument, finding

that, under the State’s reasoning, “the postenactment

transfer of title would absolve the State of its obligation to

defend any action restricting land use, no matter how

extreme or unreasonable. A State would be allowed, in

effect, to put an expiration date on the Takings Clause.

This ought not to be the rule. Future generations, too,

have a right to challenge unreasonable limitations on the

use and value of land.” Jd. at 627. Explaining that the

State may not “secure a windfall for itself” by avoiding a

takings claim, the Court quoted an earlier decision in

which it was held that a state, based on its interpretation

of the law, “may not transform private property into public

property without compensation.” Jd. (Citing to Webb’s

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164

(1980). The Court also stated that “[a]ssuming a taking is

otherwise established, a State may not evade a duty to

compensate on the premise that the landowner is left with

a token interest.” Jd. at 631. The Supreme Court un-

equivocally rejected the attempt by the State of Rhode

Island to limit its duty to pay just compensation under the

Fifth Amendment.

The decision of the New Mexico Supreme Court below

is consistent with this Court’s recognition in Alden that

sovereign immunity “does not bar all judicial review of

state compliance with the Constitution and valid federal

law” and that specific provisions of the Constitution, such

as the Fourteenth Amendment, impose certain limits on

state action and state sovereign immunity. 527 U.S. at

754. The decision is also consistent with this Court’s

12

statements in Palazzolo that a State may not take private

property without paying just compensation and may not

limit its duty to pay just compensation under the Fifth

Amendment.

The Oregon and South Dakota state courts and the

Sixth Circuit Court of Appeals have also concluded that

Alden does not bar claims for just compensation against a

State in state court. The Sixth Circuit found that “a close

reading of Alden reveals that it would present no bar” to

takings claims against States in their own courts. DLX,

381 F.3d at 527. Sovereign immunity is not a bar to claims

against the State because the Constitution requires the

State to provide the remedy of just compensation in its

ewn courts. Jd. The Oregon Court of Appeals concluded

that “Alden should not be read so broadly as to dictate that

states may not be sued in state courts on federal takings

claims unless they have-specifically waived their sovereign

immunity.” Boise Cascade Corp. v. State, 991 P.2d at 568.

Based on the self-executing nature of the Fifth Amend-

ment, as applied to the States through the Fourteenth

Amendment, the Oregon Court held, as did the New

Mexico Supreme Court, that “a state may be sued in state

court for takings in violation of the federal constitution.”

Id. In 2002, the South Dakota Supreme Court reached the

same conclusion, which it reiterated in 2006. SDDS, Inc. v.

State, 650 N.W.2d at 8-9; Benson v. State, 710 N.W.2d 131.

The New Mexico Supreme Court’s determination that

the decision in Alden does not change the applicability of

the Takings Clause to the States and that nothing in the

opinion allows the States to rely on the doctrine of sover-

eign immunity to bar claims for just compensation in state

courts is consistent with both this Court’s discussion in

13

Alden and with decisions of other state and federal courts

which have addressed the issue.

III. The position advocated by the Petitioners

would leave the citizens of the State of New

Mexico without the right to sue the State for

just compensation for regulatory takings, in

direct violation of the rights guaranteed by

the Constitution.

Hf the position taken by the Petitioners were to pre-

vail, there would be serious impacts on both the citizens of

the State and potentially the State itself. The result of

the such a decision would be to leave the citizens of

New Mexico without constitutional protection against the

uncompensated taking of private property, which is one of

the fundamental rights guaranteed by the United States

Constitution. Additionally, because the Supreme Court has

held that a State must provide just compensation when

private property is taken, if the State cannot be sued for

just compensation for regulatory takings, and thus does

not provide a remedy, there is a risk that the legislature

will be prevented from enacting statutes that impact

private property rights.

As recognized by the New Mexico Supreme Court, the

position taken by the Petitioners creates an untenable

paradox. (Petitioners App. 10, 920). Under existing New

Mexico law, the State can be sued for just compensation

when private property is taken pursuant to the power of

eminent domain. (Jd., J19). In the proceedings below, the

Petitioners acknowledged that, if an agency with the

power of eminent domain takes private property for public

use, the State must pay just compensation. However, the

Petitioners would deny private individuals, who are

14

subject to regulatory takings by agencies that do not have

the power of eminent domain, the right to sue the State in

state court for just compensation, even though the Consti-

tution obligates the State to pay. Recognizing the potential

effect of the Petitioners position, the New Mexico Supreme

Court stated:

If we were to relieve the state from paying for

takings when agencies do not have statutory

eminent domain authority, then paradoxically we

would bar practically every regulatory taking

claim against a state agency. A regulatory tak-

ings claim, by definition, does not invoke emi-

nent domain powers because the state claims

only to regulate the use of land and not to con-

demn its title. But the protections of the Fifth

Amendment do not rest on such formalistic dis-

tinctions. A regulatory taking can be just as dev-

astating to property rights as a taking by

eminent domain, and the right of the landowner

to compensation is just as central to the promise

of the Bill of Rights in either instance.

(Petitioners App. 11, 922). The Court’s decision allowing

private citizens to sue the State in state court for just

compensation pursuant to the Fifth and Fourteenth

Amendments ensures that the property rights of all

citizens of the State of New Mexico will be afforded the

protection promised by the United States Constitution.

«

CONCLUSION

The Petitioners have failed to establish any compel-

ling reasons for this Court to grant the Petition for Writ of

Certiorari. The decision below does not conflict with any

15

decisions of this Court, or with any decisions of a Federal

Court of Appeals or a state court of last resort. Therefore,

Respondents respectfully request that the Petition be

denied.

Respectfully submitted,

JEANNE CAMERON WASHBURN, ESQ.

DOMENIC! LAW FIRM, P.C.

320 Gold SW, Suite 1000

Albuquerque, New Mexico 87102

505-883-6250

Counsel for Respondents