# Opposition Brief — Allegretti & Co. v. Imperial County (No. 06-581) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1658%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2006 ## Text ee ee ee FILED No. 06-581 : \ NOV +7 2006 | OFFICE OF THE CLERK Jn The _ SUPREME CQUAT, U.S _ Supreme Court of the Gnited States ALLEGRETTI & COMPANY, Petitioner, V. COUNTY OF IMPERIAL, CALIFORNIA, Respondent. On Petition For Writ Of Certiorari To The Court Of Appeal Of The State Of California, Fourth Appellate District, Division One ¢ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI . IMPERIAL COUNTY COUNSEL. ROSSMANN AND MOORE RALPH CORDOVA ANTONIO ROSSMANN* 940 West Main Street. ROGER B. MOORE Suite 205 DAVID R. OWEN El Centro, CA 92243 380 Haves Street (760) 482-4400 San Francisco, CA 94102 (415) 861-1401 “Counsel of Record Attorneys for Respondent Oe KER LAW BRIEF PRINTING CO) sem. 905 aoe) fC ALE COLLECT: per2. 542 285) QUESTIONS PRESENTED The real questions presented by this case already have been answered in the negative in prior decisions of * this Court: | 1. Should a court use a physical takings analy- sis when considering whether purely regulatory actions (specifically, a county attempting to com- plete environmental review prior to issuing a well drilling permit, and then offering a modified permit that never actually took effect) created a taking? 2. Should a plaintiff prevail on a categorical regulatory taking claim when that plaintiff con- tinues to profitably use the allegedly taken prop- erty? 3. Should a plaintiff prevail on a Penn Central regulatory taking claim when it has demon- strated neither the scope of its investment- backed expettations nor that those expectations were reasonable; and also has not shown the ex- - tent of any interference with those expectations? TABLE OF CONTENTS Page IY PIII soa. s,s seebinbbouedeessvonsvesonnecsrvneessvens i ENDS LESLIE LEELA RT 1 SPRROURNERE OF GERD COND ccccccsecccsccvscevercecesevesererenerevconeooonses 1 Discussion ...........:0000008 ichiisahepiitibacaliiebisaaedotaiincantieneneets 4 I. The California Court of Appeal Followed Established Principles in Rejecting Allegretti’s EE DIINT R RII nc vatcacenvocroessonevcatdeendieccess 4 I]. The California Court of Appeal Followed Established Principles in Rejecting Allegretti’s Categorical Regulatory Taking Claim................ 6 III. The California Court of Appeal Followed Established Principles in Rejecting Allegretti’s Penn Central Regulatory Taking Claim............. 7 EES EEE TROL AS ARR RE ER AR SET EE ie) TABLE OF AUTHORITIES Page CASES Baldwin v. County of Tehama, 31 Cal.App.4th 166 Eis clatnivncssatesastelecicadich-caubicheds ebamaniiddiaecaniigsiib pe Geicaiiasaediaetaohiane 8 City of Barstow v. Mojave Water Agency, 23 Cal.4th Fe I cesistsssiigniicinstinieapvsaheghabtendinciinaditicTbalee guiniebinekianinatanan 8 Ton Fe Bbe , BID Ck. Re CABG) cevicecnscitiviesncetctinencvertionitecinens 8 Klamath Irrigation District v. United States, 67 Fs See I CIID Acdacishasnicitd vpnedcicatescsldiceenespeeinenintbnceuetedn 6 Lingle v. Chevron USA, 544 U.S. 528 (2005)..........ccccccceeees 1 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).............. iscbaitaiaeediaiadanchedisinbdigpiobiakdiicciucdsiti 1 Lucas v. South Carolina Coastal Council, 505 U.S. BGT CRED aclthediininialntncnctinnbinsseatids ich tgliecpeninteddivinelaluics 1,5,6 Pasadena v. Alhambra, 33 Cal.2d 908 (1949) ............ce00e 8 _ Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)........:ccccccceceees icsicbaaas 1,6,7,9 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)............ 8 Tahoe-Sierra Preservation Council v. Tahoe Re- gional Planning Agency, 535 U.S. 302 (2002) .....1, 5, 6, 7 Tulare Lake Basin Water Storage Dist. v. United me OB RB | errata 6 United States v. California State Water Resources Control Board, 182 Cal.App.3d 82 (1986)...............ccc00 8 Yee v. City of Escondido, 503 U.S. 519 (1992)................000 5 iv TABLE OF AUTHORITIES — Continued Page CONSTITUTIONAL PROVISIONS Cs a i occas ul gdidile 8 STATUTES Cal Pub. Resources Code §§ 21000, et seq............::ccceseeeees 3 Cal. Public Resources Code § 21080 .............cccccesssssssesseereee 2 RULES I TING BNE BEF icisccchtnseteinccscotentareridaencecteitammtctighns 4,9 1 INTRODUCTION In rejecting Allegretti and Company’s inverse con- demnation claim, the California Court of Appeal adhered carefully to the settled principles articulated by this Court in Lingle v. Chevron USA, 544 U.S. 528 (2005), Tahoe- Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992), Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), and many other cases. That adherence to settled takings law creates no need for further review, and Allegretti’s arguments to the contrary are based largely on distortions of both the facts of the case and the legal questions raised. , vv _— STATEMENT OF THE CASE This action arose because Allegretti & Company (Allegretti) applied for a permit to install a new groundwa- ter well on its property, but declined to cooperate in the environmental review procedure that under California state and local law must precede issuance of such permits. Allegretti owns land in Imperial County, one of the United States’ hottest and driest areas. Allegretti leases that land to a tenant farmer, who actively farms the land. That tenant irrigates his crops by pumping groundwater from four on-site groundwater wells. Those wells draw their water from a regional aquifer. The County never has limited the amount of water those four wells are able to pump. Nor has the County ever 2 drawn water from the aquifer. Throughout the period that Allegretti identified as the time of the alleged taking, Allegretti’s tenant continued to pump water. Allegretti also received rent payments from the tenant and participated in the tenant’s profit-sharing plan, which Michael Alle- gretti described as “very profitable.” Respondent’s Appen- dix (in the California Court of Appeal) at 386. In 1994, Allegretti applied for a conditional use permit to install and operate a fifth well. The County’s well drilling ordinance defines approval of a well-drilling permit as a discretionary act and requires the County to comply with the California Environmental Quality Act (CEQA, Cal. Pub. Res. Code, §§ 21000, et seg.)’ before issuing an approval. The County therefore asked Allegretti to cooperate (by providing information about planned pumping levels and existing hydrologic conditions) in the preparation of environmental review. Allegretti declined to cooperate, and later sued the County (unsuccessfully; the case was dismissed) when the County decided to prepare a full environmental impact report. To resolve the conflict, the County offered Allegretti a compromise: it would issue a permit, but that permit would limit overall levels of pumping from Allegretti’s five * Like the National Environmental Policy Act, on which it is partly modeled, CEQA requires state and local government agencies to review the envi tal consequences of government actions that may significantly affect the environment, and to do so before those actions are taken. See Cal. Pub. Res. Code § 21080(d) (stating that an environ- mental impact report must be prepared before approving a project that may have significant environmental effects). 3 wells. The proposed limit — 12,000 acre-feet’ per year on a 2,400 acre parcel — exceeded the total amount Allegretti claimed to need or want. Allegretti refused to record the vermit, which therefore never took effect. Allegretti instead filed this inverse condemnation action against the County. | The County filed a demurrer, alleging that Allegretti was obliged to proceed with a mandamus action rather thaa an inverse condemnation claim. The trial court sustained the demurrer, but the California Court of Appeal reversed.-It held that the County’s well-driiling ordinance did not facially recite sufficient standards to allow the County to include pumping limitations in a permit, and remanded for proof beyond the pleadings on that issue. The court also held, however, that California law sup- ported the County’s general authority to regulate ground- water. The Court of Appeal did not exempt the County from complying with CEQA prior to issuing a permit, and thus its holding did not empower the County to approve Allegretti’s permit application without first completing environmental review. The case then proceeded to trial, and the trial court rejected Allegretti’s inverse condemnation claims, holding that “plaintiff's evidence failed to show that the conditions placed on issuance of the permit would have any economic impact at all.” Allegretti’s App. at 46. In unanimous decisions, the California Court of Appeal affirmed, and the California Supreme Court denied Allegretti’s petition for review. - + ? An acre-foot of water is enough water ¢o flood one acre of land to a depth of one foot. Thus, Allegretti still would have had enough water to annually flood its entire property five feet deep. 4 DISCUSSION In its petition for certiorari, Allegretti asserts no conflict among the decisions of the United States Courts of Appeals; no conflict between a federal appellate court and a state court of last resort; no departure “from the ac- cepted and usual course of judicial proceedings”; no con- flict among state courts of last resort; and no conflict between state court decisions and the decisions of this Court. See Supreme Court Rule 10. Nor could it, for no such conflicts exist. Allegretti instead rests its request for certiorari entirely on a contention that the court of appeal “decided an important question of federal law that has not been, but should be” settled by this Court. See id. That contention is groundless. As discussed below, and as evinced by its carefully written opinion, the court of appeal carefully adhered to well-established legal princi- ples. I. The California Court of Appeal Followed Estab- lished Principles in Rejecting Allegretti’s Physical Takings Claim Allegretti’s first asserted basis for review — its request for the Court to reject “the simplistic conclusion that takings claims are either ‘regulatory’ or ‘physical,’” — ignores the well-settled principles that led the California courts to reject Allegretti’s physical taking claim.’ * Allegretti’s framing of the question - “when property owners’ right of access to water beneath their land is substantially abrogated by a government agency, is the resulting taking measured ... ” — also assumes several unsupportable factual and legal premises. See Petition at 1. Allegretti never actually showed that its right of access to water (Continued on following page) 5 In Tahoe-Sierra Preservation Council, the Court cautioned that the difference between physical and regula- tory takings “makes it inappropriate to treat cases involv- ing physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice versa.” 535 U.S. at 323-24; see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (using a regulatory takings analysis to evaluate a regulation that denied a plaintiff all economically viable use of his entire property, and noting that physical takings fell into a separate “discrete categorly]”); Yee v. City of Escondido, 503 U.S. 519, 527 (1992) (“The government effects a physical taking only where it requires the land- owner to submit to the physical occupation of his land.”) (emphasis in original). That distinction is particularly important here, for the County has never done anything that fits within the traditional definition of a physical occupation or invasion. It has not appropriated Allegretti’s water, physically occupied or invaded the aquifer, established any physical presence on Allegretti’s property, or enabled a third party to do so. Its actions were classically regulatory restrictions on use; it required Allegretti to obtain a permit and then offered a modified permit in response to Allegretti’s unwill- ingness to cooperate in environmental review. No authori- tative federal or state decision supports Allegretti’s attempt to treat those routine regulatory actions as beneath its land was “substantially abrogated.” See Part III, infra. Nor did it ever demonstrate the existence of a “resulting taking.” 6 physical takings, and the court of appeal followed settled law in rejecting that attempt.* II. The California Court of Appeal Followed Estab- lished Principles in Rejecting Allegretti’s Cate- gorical Regulatory Taking Claim Allegretti next asserts that the Court must assess whether Allegretti, which continued to profitably use the supposedly taken property, suffered a categorical regula- tory taking. But in rejecting that theory, the Court of Appeal again followed well-established law. Only in those rare circumstances where a regulation permanently denies a property owner “all economically beneficial or productive use” of its property may the regulation effect a categorical taking. Lucas, 505 U.S. at 1015 (emphasis added). The Court’s use of the word “all” is not coincidental; it has cautioned that “l[a]nything less than a ‘complete elimination of value,’ or a ‘total loss,’... would require the kind of analysis applied in Penn Cen- tral” rather than application of the Lucas categorical test. Tahoe Sierra Preservation Council, 535 U.S. at 330 (quot- ing Lucas, 505 U.S. at 1017, 1019-20 & n.8). Consequently, * Allegretti attempts to manufacture a cert-worthy conflict out of one anomalous decision of the Federal Court of Claims, see Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001), but that decision has no precedential value and thus is incapable of creating any conflict of authority. The Court of Claims itself has neutralized that decision by rejecting its analysis. See Klamath Irrigation District v. United States, 67 Fed. Cl. 504, 538-40 (2005). But Allegretti’s petition, though it repeatedly cites and heavily relies upon Tulare Lake, incongruously fails even to mention Klamath Irrigation District. a categorical regulatory taking arises only in an “extraor- dinary circumstance.” Id. This case presented no such extraordinary circum- stance. Allegretti received both profit-sharing and rent payments throughout the period of the alleged taking. it has always had access to as much water as its four exist- ing wells could pump. To hold, under such circumstances, that Allegretti was denied “all economically viable use” of its property would render that phrase meaningless. Ill. The California Court of Appeal Followed Estab- lished Principles in Rejecting Allegretti’s Penn Central Regulatory Taking Claim In challenging the California court’s Penn Central analysis, Allegretti contends that the Supreme Court should use this case to refine the meaning of the phrase “investment-backed expectations.” But even if one as- sumes, arguendo, that such refinement is needed, this is not the case to provide it. Allegretti failed to demonstrate what its investment-backed expectations were, whether its expectations were reasonable, and the extent, if any, to which the County’s actions interfered with those expecta-—= tions. Accordingly, the Court of Appeal’s application of the second prong of the Penn Central analysis was also en- tirely consistent with settled law. Allegretti never clarified the scope of its expectations. Instead, as the Court of Appeal explained, “Joe Allegretti’s testimony was only that he purchased the farm having been given lots of reassurances that it could be a viable farming operation.” Allegretti’s App. at 21 (emphasis in original). At the trial itself, Michae] Allegretti specifically testified that when asked how much water Allegretti 8 expected to use, “I told different amounts at different times.” Reporter’s Transcript at 240:13-15. Accordingly, _ the court of appeal’s demand for more specific evidence simply applied traditional legal standards and requires no correction from this Court. See Allegretti’s App. at 21 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005- 06 (1984)). Nor did Allegretti demonstrate that its unspecified, inchoate expectations were reasonable. Based on Alle- gretti’s subsequent litigation posture, and on its failure to even attempt to prove the scope of its groundwater use rights, Allegretti may have expected to pump without any regulatory constraint. But because of both long- established law and the realities of an arid and variable climate, all California water use rights are necessarily “limited and uncertain.” United States v. California State Water Resources Control Board, 182 Cal.App.3d 82, 104 (1986); Cal. Const. art. X § 2 (limiting rights to uses that are “reasonable”). Growndwater use rights are further constrained by the requirement that no user can take more than its “proportionate fair share” of the waters in a shared aquifer, City of Barstow v. Mojave Water Agency, 23 Cal.4th 1224, 1253 (2000). California counties may also impose limits designed to protect scarce groundwater resources. In re Maas, 219 Cal. 422, 424-25 (1933); Bald- win v. County of Tehama, 31 Cal.App.4th 166 (1994). For those reasons, Allegretti could not reasonably anticipate limitless pumping from a shared desert aquifer — particu- larly where, as Allegretti’s own consultant acknowledged, water levels in that aquifer were steadily declining. See Respondent’s Appendix at 257-58 (documenting the draw- down); Pasadena v. Alhambra, 33 Cal.2d 908 (1949) 9 (holding that a user may be enjoined from taking more than an aquifer’s safe yield). Having demonstrated neither what its expectations were nor why they were reasonable, Allegretti failed to establish any interference with reasonable investment- backed expectations. The 12,000 acre-feet per year limita- tion the County proposed never actually took effect, and even if it had, that limitation would have exceeded Alle- gretti’s claimed water needs. See Allegretti’s App. at 4-5 (explaining that Allegretti sought only a modest increase in its farming acreage). Similarly, directing Allegretti to comply with standard permitting requirements could not interfere with reasonable expectations, for Allegretti could not reasonably assume the County would grant a permit without first complying with the mandates of applicable law. This case therefore creates no need for the Court to reject the court of appeal’s routine application of the Penn Central standard, or to revisit the meaning of “reasonable investment-backed expectations.” Under any plausible interpretation and application of that phrase, the court of appeal’s decision was correct, and indeed was compelled by the facts of this case. ¢ CONCLUSION Supreme Court Rule 10 cautions that “[a] petition for writ of certiorari is rarely granted when the asserted error consists of ... the misapplication of a properly stated rule of law.” Yet those are the types of claims Allegretti’s petition asserts, and its contentions of misapplication, like its factual assertions, lack foundation. The California 10 courts carefully adhered to settled legal standards and correctly applied those standards to facts that could not, under any reasonable analysis, sustain a takings claim. That adherence to settled law creates no need for this Court’s review. Respectfully submitted, ANTONIO ROSSMANN Counsel of Record ROSSMANN AND MOORE 380 Hayes Street San Francisco, CA 94102 (415) 861-1401 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1658%3A2. Public record. Not legal advice.