# Petition for Writ of Certiorari — Wallace v. Montana (No. 08-1395) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0510%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text \H W No. Desa ry eo. . urge Oa US 081395 may 11 2009 Bn The OFFICE OF THE CLERK Supreme Court of the Anited States LEN WALLACE, et al., Petitioners, STATE OF MONTANA, et al., Respondents. On Petition For Writ Of Certiorari To The Montana Supreme Court PETITION FOR WRIT OF CERTIORARI AND APPENDIX VOLUME I RICHARD M. STEPHENS* *Counsel of Record JOHN M. GROEN SAMUEL A, RODABOUGH BRIAN D. AMSBARY GROEN STEPHENS & KLINGE LLP 11100 NE 8th St., Ste. 750 Bellevue, Washington 98004 Telephone: (425) 453-6206 ARTHUR V. WITTICH WITTICH LAW OFFICES, P.-C 602 Ferguson Ave., Ste. 5 Bozeman, Montana 59718 Telephone: (406) 585-5598 Attorneys for Wallace, et al. JOHN E. BLOOMQUIST DONEY CROWLEY BLOOMQUIST PAYNE UDA P.C. 44 West 6th Ave. P.O. Box 1185 Helena, Montana 59624-1185 Telephone: (406) 443-2211 Attorney for Kafka, et al. WARD E. 'TALEFF TALEFF LAW OFFICE, P.C. P.O. Box 609 Great Falls, Montana 59403-0609 Telephone: (406) 791-9400 Attorney for Bridgewater, et al. Attornevs for Petitioners COCKI.E LAW BRIEF PRINT OR CALL COLLECT QUESTIONS PRESENTED FOR REVIEW 1. When evaluating a regulatory taking under the Court’s Penn Central factors, does presence in a highly regulated industry preclude the reasonable- ness of investment-backed expectations as a matter of law? 2. For the purpose of determining whether a regulatory taking has occurred under the Penn Central factors, what considerations are included in the “character of the governmental action” fa:tor? 3. Is the “character of the governmenta: action” factor merely a rephrasing of the “economic impact” factor and limited to a consideration of the intru- siveness of the regulation? 4. Where state law allows a business to con- tinue to provide its customers with a particular service, but new legislation limits the fees the busi- ness can charge to $0.00, thereby resulting in com- plete destruction of the business, is there a taking under this Court’s Penn Central jurisprudence? il PARTIES TO THE PROCEEDING This proceeding involves two Montana Supreme Court actions. Petitioners include the Plaintiffs in the first proceeding, Len and Pamela Wallace and their business, Big Velvet Ranch. Co-plaintiffs Bruce and Shirley Buhmann and Circle Eagle Game Farm are not Petitioners to this Court. Petitioners also include the Plaintiffs from the second proceeding, Kim J. Kafka and Cindy R. Kafka as husband and wife and as members of the Diamond K. Ranch Enterprises L.L.C. Petitioners also include Plaintiff-Intervenors in the second proceeding, Jack Bridgewater and Myra Bridgewater as husband and wife and as members of Phantom Bull Elk Ranch, L.L.C. Other Plaintiff- Intervenors, namely Jim and Barbara Bouma, are not Petitioners before this Court. Respondents include the Defendants below in both proceedings, namely the State of Montana; the State’s Attorney General, Mike McGrath; the Director of the State’s Department of Fish, Wildlife and Parks (DFWP), Jeff Hegener; and the DFWP itself. Respon- dents also include Defendant-Intervenors from both cases below, Sportsmen for 1-143 and Montana Wildlife Federation. The only parent companies or wholly owned subsidiaries are the two limited liability companies identified above. Petitioners are unaware of whether there are any parent companies or wholly owned subsidiaries of the Defendants or Defendant- Intervenors. ili TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW. ........ PARTIES TO THE PROCEEDING ..................... li CT ENE TY 656i ciséssavadscnceeasecterncaeseieveasannns 1 Pe Pe vis isiniedsiciceeec 1 CONSTITUTIONAL AND STATUTORY PRO- Fee I BO genic denise scecccesecncceectasecness 2 STATEMENT OF THE CAGE.............. eeceeeaeeteakas 2 Factual Background Common to All................ 2 Factual Background Regarding the Wallaces.... 5 Factual Background Regarding the Kafkas..... 7 Factual Background Regarding the Bridge- Proceedings before the Montana _ District I cscs see see ceca ee eee 10 Proceedings before the Montana Supreme Covi dics winivicea nateaceueedecaee nae een on een 10 REASONS FOR GRANTING THE WRIT ........... 16 I. REVIEW SHOULD BE GRANTED TO RESOLVE A SIGNIFICANT CONFLICT AMONG STATE AND FEDERAL COURTS ON WHETPER BUSINESS OWNERS OP- ERATING IN A HIGHLY REGULATED INDUSTRY CAN EVER HAVE REASON- ABLE INVESTMENT-BACKED EXPEC- TATIONS UNDER PENN CENTRAL. ........ 19 lv TABLE OF CONTENTS —- Continued Page il. THE PETITION SHOULD BE GRANTED TO ADDRESS CONFLICTS AMONG LOWER COURTS REGARDING PENN CENTRAL'S “CHARACTER OF THE GOV- ERNMENTAL ACTION” FACTOR ............. 26 Sn ee en oa baa aineeieaees 31 APPENDICES Volume I Buhmann, et al. v. State of Montana, et al., Montana Supreme Court, No. 05-478............. App. 1 Kafka, et al. v. The Montana Department of Fish Wildlife and Parks, et al., Montana Supreme Court, No. 05-146.........0..0..0.00...... App. 123 Volume II Findings of Fact, Conclusions of Law and Order in Buhmann, et al. v. State of Montana, et al., Montana First Judicial District Court, Cause No. ADV-2002-555.... App. 293 Findings of Fact, Conclusions of Law, and Decree Regarding Taking Liability in Kafka, et al. v. The Montana Department of Fish Wildlife and Parks, et al., Montana Twelfth Judicial District Court, Cause No. DV-02-059 ...................006 App. 335 Order Denying Rehearing in Buhkmann, Supreme SIS BU, Ce avid hevacn cis iesicathceceensesecscnades App. 397 TABLE OF CONTENTS — Continued Page Order Denying Rehearing in Kafka, Supreme pe I I sioroe sca cc seveadpxciniadaicnvisesenieerss App. 399 The Complete Text of Initiative No. 143 (I-143) from 2000 Voter Information Pamphlet — Pages 77-79, published by the Montana CTY OE IO ois cca sccsescsecccsccesspessesevens App. 402 v1 TABLE OF AUTHORITIES FEDERAL CASES Allied-General Nuclear Services, Inc. v. United States, 839 F.2d 1572 (Fed. Cir. 1988).................... 22 Armstrong v. United States, 364 U.S. 40 (1960) ....18, 26 Boston Chamber of Commerce v. Boston, 217 IE ss os 5 occ dea panasiinens baanobeaukdesianbaaweneosceens 29 Cienega Gardens v. United States, 331 F.3d Re A, i INE xn su anacencvecercvusvesaesssiverenvexscvessoes 22 Cienega Gardens v. United States, 503 F.3d BN i EP viknscsyetcssasscnrsascsessacsnhisvsrenses since Covington & Lexington Turnpike Road Co. v. BANGIOG, 166 U.S. STS (IGG) .....00sceccssscescosoveesesss 25 Duquesne Light Co. v. Barasch, 488 U.S. 299 re Ca sn ba cua donadapaeneunen 25 Esposito v. South Carolina Coastal Council, ee ee BO CREE CIT, TLD voc sccsensscscccscssccsceccsvecnsss 18 In re: Chicago, Milwaukee, St. Paul and Pacific st. Co., 799 F.2a 317 (7th Cir. 1966) ....................... 29 Kimball Laundry Co. v. United States, 338 U.S. aoe glass oy cea cgay uSeidodnuckenseieabectes 29 Lingle v. Chevron USA, Inc., 544 U.S. 528 tate Ll occas beal ecunuvennuesere ieexweraucnsuneee passim Pennsylvania Central Transportation Co. ov. City of New York, 438 U.S. 104 (1978) ........... passim Pennsylvania Coal Coa. v. Mahon, 260 U.S. 393 NG, ce cztacecnc seks ch caaeunistucthiacksbeladvecvelonten 16, 17, 30, 31 Vil TABLE OF AUTHORITIES — Continued Page Rose Acre Farms, Inc. v. United States, 559 ee ee Ce Oe vices cn puneccncanbasccnncwoseens 22, 27 Ruckelshaus v. Monsanto Co., 467 U.S. 986 PR oS ae 19, 20, 22 Stone v. Farmers’ Loan & Trust Co. (Railroad Commission Cases), 116 U.S. 307 (1886) Tennessee Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442 (6th Cir. 2009) United Nuclear Corp. v. United States, 912 F.2d ee ee IN es visa cancesjaccsacauensaauesccrsstenvaceesn, aa Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990) STATE CASES Buhmann v. Montana, 201 P.3d 70, 348 Mont. 205 (2008) passim Department of Agriculture v. Mid-Florida Growers, Inc., 521 So.2d 101 (Fla. 1988) In re Marriage of Hull, 712 P.2d 1317 (Mont. 1986) Kafka v. Montana Department of Fish, Wildlife & Parks, 201 P.3d 8, 348 Mont. 80 (2008) passim Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623 (Minn. 2007) V11) TABLE OF AUTHORITIES — Continued Page FEDERAL STATUTES - Ra ED |: SaRUA EROS NIE ROSIER Awe Rn PC Se 2 STATE STATUTES BOTT WOU. Li WE, GH. 17, 6 OS ovccecetincccecccccsecscsccvcocccsee 2 Mont. Code Ann. § 70-1-104(4).......... eee eee Moma 29 Mont. Code Ann. § 87-4-406(1).................c eee RRR R RE RoE 3 Mont. Code Amn. § 87-46-46 14(7)........cccccccccccccescescccccescsseetd Mont. Code Ann. § 87-4-419(1)............ ccc cece ee esc eee neces 3 BEOMG. COGS AMT), F BF RoESL occccccccescccesscccccccscccveccosecceess 4 CONSTITUTIONAL PROVISIONS U.S. Const., amend. XIV, § 1.............. SPN eer cep eee ETE 2 MF ey 6 ic I sa ccacecccuvasetsdsdunedenenexeonceciees passim OTHER AUTHORITIES E. R. Claeys, The Penn Central Test and Tenstons in Liberal Property Theory, 30 HARV. ENVTL. Li. REV. SSO (ZO0G) ......cerceseseserecresesees 17 OPINIONS BELOW The decision of the Montana Supreme Court in the Wallace matter is entitled Buhmann v. Montana and is reported at 201 P.3d 70, 348 Mont. 205 (2008), reproduced at Appendix (App.) 1-122. The decision of the Montana Supreme Court denying Petitioners’ petition for rehearing was issued on February 10, 2009, and is reproduced at App. 397-398. The trial court’s Findings of Fact and Conclusions of Law and Order is reproduced at App. 293-334. The decision of the Montana Supreme Court in Kafka v. Montana Department of Fish, Wildlife & Parks is reported at 201 P.3d 8, 348 Mont. 80 (2008), and is reproduced at App. 123-292. The decision of the Montana Supreme Court denying Petitioners’ petition for rehearing was issued on February 10, 2009, and is reproduced at App. 399-401. The trial court’s Findings of Fact, Conclusions of Law and Decree is reproduced at App. 335-396. o-— JURISDICTION The decisions of the Montana Supreme Court denying rehearing were entered on February 10, 2009. App. 397-398; 399-401. These cases draw into question the validity of a state statutc, enacted by initiative as I-143 (appended as App. 402-410), on the ground that it is repugnant to the Constitution and laws of the United States. Therefore, this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1257. CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE This case involves the takings clause of the Fifth Amendment to the United States Constitution: Nor shall private property be taken for pub- lic use, without just compensation. ld. This case also involves Section 1 of the Four- teenth Amendment to the United States Constitution: Nor shall any state deprive any person of life, liberty, or property without due process of law. Id STATEMENT OF THE CASE Factual Background Common to All From 1917 to this day, the State of Montana declares that game farm animals are private proper- ty. App. 296. Moreover, Montana law provides that the acquisition, breeding, harvest and sale of game farm animals is a lawful “business or occupation.” 1917 Mont. Laws, ch. 173, § 84, cited in App. 188, { 103. Game farm animals such as elk are also 3 termed “alternative livestock.” Mont. Code Ann. § 87- 4-406(1). The primary purpose of acquiring and breeding elk is to sell to customers the right to enter the pri- vate ranch to hunt and shoot a trophy elk. This was the business of the Petitioners. Because the Petitioners’ game farms were ex- tremely large, the shooting of game farm elk was similar to a hunting experience in the wild. However, Montana law remains very clear that laws applicable to hunting wild game animals do not apply to alter- native livestock. See Mont. Code Ann. § 87-4-414(7). In short, roaming these large ranches looking for an opportunity to shoot privately owned elk is not consid- ered “hunting” under Montana law. For decades, Montana regulation of alternative livestock ranching consisted of requiring licenses, fencing, and recordkeeping of animals. Privately- owned elk must be maintained in captivity. See Mont. Code Ann. § 87-4-419(1). To prevent the transfer of disease between private elk and their wild counter- parts, the state has established various reporting, testing, fencing, and transport regulations. App. 193, q 109. Until 2000, the state had never regulated the price one could charge for the shooting of privately owned elk at an alternative livestock ranch. Nor did the state even require alternative livestock ranches to obtain permission before charging fees for the 4 shooting of game on these ranches. That right was inherent in the private ownership of the animals. The fee charged to shoot trophy elk was the primary source of income for alternative livestock ranches. Some ranches raised elk to supply herds to other ranches which sold the opportunity to shoot the game farm animals, thereby making fees charged for the shooting of elk the basis for their income as well. Against this background, Montana voters in November of 2000 enacted Initiative No. 143 (1-143). This initiative was unabashedly intended to destroy the alternative livestock industry, but in a “carefully crafted” way so as to potentially avoid liability for a regulatory taking under the Fifth Amendment.’ I-143 (App. 402) made the following changes to Montana law. First, 1-143 repealed Mont. Code Ann. § 87-4-431, which previously encouraged development of alternative livestock ranches. App. 409.° Second, it banned the transfer of game farm licenses. Third, and most importantly, it prohibited game farm ranches from charging a fee to customers who seek the oppor- tunity to shoot privately owned elk. Although the ‘ Justice Nelson, in his dissenting opinion in Kafka, quotes the argument of counsel for the Defendant-Intervenors who drafted 1-143. App. 197, J 114 * Former Mont. Code Ann. 87-4-431 stated: “the production of alternative livestock provides a viable economic opportunity for any private property owner as well as the traditional live- stock producers who are interested in diversifying their ranch productivity.” privately owned elk can still be shot, the owner cannot receive payment for providing that opportuni- ty. The results of I-143 were as they were intended — a complete obliteration of the game farm industry. Factual Background Regarding the Wallaces Len and Pamela Wallace (hereinafter “the Wal- laces”) moved to Ravalli County, Montana in 1991, and purchased 3,800 acres. App. 299. Thereafter, the Wallaces established a private elk ranch on the property, which they later named the Big Velvet Ranch. Big Velvet Ranch began in 1992 after the Wal- laces obtained a state game farm license. They then purchased material and equipment to build enclo- sures and facilities, removed all wild deer and elk from their property, installed fenced enclosures, imported elk purchased from elsewhere, and con- structed a lodge on additional property they pur- chased to accommodate their customers. App. 299. In order to keep elk within their property, the Wallaces constructed more than 25 miles of fencing (e.g., nine-foot fences with eight-foot high tensile mesh, as well as an electrified perimeter fence). App. 300. The state required game farms to have special- ized handling facilities designed specifically for elk which were not useful in the handling of any other animals. 6 The Wallaces also purchased innovative tractor and truck equipment to install and maintain the fences. The Wallaces installed solar powered auto- mated gates, and handling facilities and chutes. They also designed and developed a prototype feed truck that allowed one employee to deliver feed to more than 900 animals in a single day. Elk are susceptible to tuberculosis and brucello- sis. After a three-year testing process, Big Velvet Ranch was granted tuberculosis and brucellosis free certifications. App. 299. Elk are also susceptible to Chronic Wasting Disease (CWD). There is no known method of testing jive animals for CWD. App. 297. Accordingly, no herd could be certified as being CWD-free. Nevertheless, the Wallaces began voluntarily testing al] dead ani- mals on the ranch for CWD in 1998, before it became mandatory to do so. For four years thereafter, the Wallaces tested over 700 animals for CWD, all with negative results. Big Velvet Ranch retained the services of veteri- narians to care for the elk. Every elk on the ranch was inspected, wormed, blood tested, and assessed on an annual basis. A computer software system was developed specifically to chart and track the health conditions of each animal, and to comply with all state and federal regulations. Guests of Big Velvet Ranch paid the Wallaces differing amounts depending on the sex of the elk and the size of the antlers, resulting in an average of 7 $7,000 for shooting a mature bull elk (e.g., over 5 years old). These customer payments for mature bull elk comprised the majority of Big Velvet Ranch reve- nues. Between 1995 and 2000, Big Velvet Ranch hosted more than 600 clients. From 1997 through 1999, the Wallaces annually harvested over 100 mature bulls on average. On November 7, 2000, the date I-143 was enacted, the Wallaces owned over 850 elk. The fair market value of these elk was over $5.5 million dollars. App. 301. However, I-143 prohibited the Wallaces from selling their animals to clients for shooting. Faced with the high maintenance and feeding costs and no ongoing revenue stream, the best the Wallaces could do was salvage some of the elk for $238,000. App. 301. The Wallaces have been denied any public compensation. App. 297. Factual Background Regarding the Kafkas The Kafkas are long-time farmers and ranchers who own and lease real property in Hill County, Montana. App. 337. The Kafkas’ farm and ranch operations at the time of passage of I-143 consisted of raising grain and beef cattie, and breeding and rais- ing alternative livestock, primarily privately owned elk. App. 339. Prior to applying for an alternative livestock ranching license, the Kafkas conducted extensive research into the alternative livestock industry, available markets for privately owned elk, and the 8 statutory and regulatory requirements then in effect for raising privately owned elk in Montana. Like the Wallaces, the Kafkas invested signifi- cant capital to acquire privately owned elk, fences, licenses and facilities necessary to begin the alterna- tive livestock operation. The Kafkas’ business was specifically structured towards marketing animals to members of the public for shooting their elk. App. 340. In 1999, the State issued a license to the Kafkas. Upon receiving the license, the Kafkas began to market their alternative livestock animals, mainly privately owned bull elk, for shooting at the Diamond K. Ranch. Prior to the passage of I-143, these animals were worth $5,000 to $6,000 each. App. 349. Their value in any limited out of state market was $1,700 to $1,800. App. 349. The Kafkas’ elk shooting operation was economi- cally successful. The Kafkas were able to meet their short-term debt obligations with their bank, regain capital from the significant outlay for fencing expen- ditures, acquire additional animals for fee shooting purposes, and continue to expand their marketing efforts after only two years of selling elk shooting opportunities. Upon passage of I-143, the Kafkas’ previously legal and economically successful use of their alterna- tive livestock animals was deemed illegal as the Kafkas could no longer receive a fee or any other remuneration for the shooting harvest of privately 9 owned elk on their property. In addition, as a result of I-143, any transfer of Kafkas’ alternative livestock ranch licenses was prohibited. As a result of I-143, Kafkas’ game farm business has no value whatsoever. Factual Background Regarding the Bridgewaters Jack and Myra Bridgewater operate an alterna- tive game farm in Broadwater County, Montana. They operate under the name “Phantom Bull Elk Ranch, LLC.” The Bridgewaters first became involved in the alternative game farm business in the early 1990s. App. 355. Similar to the other Petitioners, the Bridge- waters received a state license to operate a game farm. App. 355. Their focus in the alternative game farm business was the development of trophy bull elk for shooting purposes. Prior to I-143’s enactment, the Bridgewaters received an average of $8,000.00 to $9,000.00 per bull elk. Following adoption of I-143, there is no Montana market for the animals. Although the Bridgewaters were able to find an out-of-state buyer for some of their animals, the price they obtained did not cover the cost of raising and caring for the animals. App. 177, 7 85. As with the other Petitioners, the Bridgewaters invested significant capital in making improvements to their property which were unique to a game farm. 10 As a result of I-143, their business has been de- stroyed. Proceedings before the Mcntana District Courts In the Wallaces’ case, the district court denied their request for a jury trial and bifurcated the labil- ity and damages portion of the case. A bench trial was held from November 30, 2004 to December 2, 2004. The district court entered its decision that I-143 did not cause a taking of the Wallaces’ property interests under either the Montana Constitution or the Fifth Amendment. App. 334. The Wallaces appealed to the Montana Supreme Court. Montana does not have an intermediate court of appeals. The Kafkas brought an action in another county seeking compensation for the taking of their business. The Bridgewaters subseguently intervened. After a bench trial, the district court rejected their Fifth Amendment claims. See App. 396. The Kafkas and Bridgewaters appealed to the Montana Supreme Court. Proceedings before the Montana Supreme Court Hearings in the two cases were held on the same day, September 13, 2006. The court issued its deci- sions on the same day, December 31, 2008. In both cases, an identical four to three majority of the court held that no taking had occurred as a result of 1-143. 11 The court’s decisions both hinged on whether takings occurred based on the test announced by this Court in Pennsylvania Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). In Penn Cen- tral, this Court identified “several factors that have particular significance” in conducting the “essentially ad hoc, factual inquir[y]” into whether a particular governmental action constitutes a taking. 438 US. at 124. These factors include: “[t]he economic impact of the regulation on the claimant,” “the extent to which the regulation has interfered with distinct investment-backed expectations,” and “the character of the governmental action.” Id. Regarding the investment-backed expectation factor, the Montana Supreme Court held that the Petitioners’ expectations could net be reasonable as a matter of law. For instance, in the Kafka decision, the court initially recognized that Petitioners had investment-backed expectations that they could charge a fee to shoot elk. Indeed, such expectations formed the basis of investing “significant financial resources on their respective operations to begin with.” App. 179, 7 89. Nevertheless, the court found that these expectations could not be reasonable. According to the majority, it was unreasonable to invest money expecting to be able to charge a fee for shooting elk because the state never assured appellants they would always be permitted to charge a fee to shoot livestock. App. 182, J 92. 12 The court in the Wallaces’ case reached the same conclusion. After citing cases involving highly regu- lated industries, the court concluded that “claimants operating in such [highly regulated] fields should expect that the government can effectively regulate them out of business.” App. 52-53, 7 84. By contrast, the dissent in Kafka reasoned: Here, the Ranchers’ investment-backed ex- pectations certainly included the expectation that the regulatory scheme would be ad- justed over time, as had been the case over the preceding 75 years. However, I-143 did not “adjust” the regulatory scheme; rather it rendered the scheme’s existence entirely pointless, since none of the businesses in the industry can survive after I-143. I cannot agree with the Court’s fanciful suggestion that the Ranchers should have expected the passage of such a regulation, i.e., one that would render all of the other existing regula- tions moot. App. 263, 4] 203; App. 266, {J 206. The dissent continued its diametrically opposed view to the majority: The Court points out that “the State never assured [the Ranchers] they would always be permitted to charge a fee to shoot alternative livestock in Montana.” Opinion, ¥ 92. With all due respect, the foregoing prop- osition 1s preposterous. The right to receive remuneration, in one form or another, for 13 one’s lawful goods and services has always been a part of this country’s economic sys- tem. It is one thing to regulate the prices at which goods and services may be sold, but it is quite another to impose a price ceiling of $0.00. No business would, or should, ever ex- pect that the State may require it to offer its goods and services for free. App. 283, at | {230-31 (emphasis in original, cita- tions omitted). The Montana Supreme Court also wrestled with what the “character of the governmental action” factor entailed. The court concluded that it referred only to the degree of intrusiveness of the government regulation. Thus, under the “character of the govern- mental action” prong courts should inquire concerning the magnitude or character of the burden imposed by the regulation, and determine whether it is functionally compa- rable to governmental appropriation or inva- sion of private property. App. 170, q 71. More revealing is the court’s application of that factor. In Kafka, the court concluded: (T]he type of intrusion upon the alternative livestock embodied by I-143 is minimal. The animals have not been seized by virtue of I-143 — they still belong to the appellants. Moreover, Appellants may still sell their an- imals to out-of-state markets for any usage, 14 and may even allow others to shoot them in Montana, so long as no fee is charged. It is well-established that regulations which im- pair or significantly decrease the profit- able use of property do not amount to a taking. App. 178, { 87 (emphasis added). The dissent notes the contradictory nature of describing the intrusion as “minimal” and claiming that the Ranchers “should have reasonably anticipated that the Game Farm industry might be phased out.” ... “Phasing out” an entire industry is cer- tainly not the result one would reasonably anticipate from a regulation whose intrusion on property interests is “slight” and “mini- mally intrusive.” App. 201, 7 119 (quoting App. 182, { 93). Similarly, in the Wallaces’ case, the court con- cluded: (T]hus, from the perspective of regulatory takings law, the character of the government action embodied in J-143 had a minimally in- trusive effect on appellants’ bundle of proper- ty rights in the alternative livestock. App. 57, 7 91. Regarding the economic impact factor, the trial court found and the Montana Supreme Court agreed that the economic impact on the Wallaces was signifi- cant. App. 323; see also App. 301 (97% reduction in value to the alternative livestock). In Kafka, the trial court found that the economic impact was not “se- vere,” but was nonetheless “substantial.” App. 171-72, at { 74. The ranchers had invested their income into development of the ranches and, therefore, had not yet shown a profit on their income taxes. The Mon- tana Supreme Court, however, held: [W]e agree with appellants that the District Court underestimated the economic impact that I-143 had on their alternative livestock. Unlike their real estate interests, appellants’ (sic) have demonstrated that their alterna- tive livestock suffered a significant devalua- tion as a result of I-143. App. 171-72, { 84 (recognizing that the Kafkas’ ani- mals suffered a devaluation of 70% and the Bridge- waters suffered a devaluation of 95%). Nevertheless, the majority found no taking occurred. The Dissent concluded that regulations may incidentally impact the value of busi- nesses in the industry, they are not even re- motely in the same league as [-143, which did not “regulate” alternative livestock ranches in the usual sense, but instead delib- erately wiped out the economic viability of these businesses. App. 264, { 204. Ilence, the dissent concluded that the economic impact factor “weighs very heavily in favor of the Ranchers’ claims.” App. 277, 4 221 (em- phasis in original). 16 Petitioners filed separate petitions for rehearing two weeks later pursuant to Montana Supreme Court Rule 20. Chief Justice Karla Gray had retired at the time the Montana Supreme Court’s decisions were issued. The petitions for rehearing were denied on February 10, 2009 by an evenly divided court, three to three, with no replacement for Chief Justice Gray to break the tie. App. 397, 400. As evidenced by the Montana Supreme Court opinions in these cases, the federal question as to whether Petitioners had experienced an uncompen- sated taking under the Fifth Amendment originated with the original complaints they filed in state court and ended with the Montana Supreme Court’s rejec- tion of the claims. App. 8-9, {| 10; App. 131, { 9. ¢ REASONS FOR GRANTING THE WRIT The Montana Supreme Court has decided impor- tant federal questions involving the Fifth Amend- ment’s protection of rights in property. These decisions, however, conflict with precedents of other state and federal courts. This Court’s regulatory takings jurisprudence is often considered to have begun with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), although some would argue that it significantly predates 1922." See App. 214, 9] 140-47 (Nelson, J. dissenting) 17 Nevertheless, Mahon recognizes that regulation is a modern necessity but still warns that regulation can go “too far” and result in a taking. /d. at 414-15. Fifty-six years later, in Penn Central, the Court gave a framework for deciding whether regulation of private property goes “too far.” That framework involves consideration of at least three factors.’ The strength of the multi-factor Penn Central test is its flexibility, borne out of the recognition that regulations come in a variety of shapes, sizes and intensity and apply to a variety of property interests which are correspondingly diverse. Hence, the analy- sis requires an “ad hoc factual inquiry.” Penn Central, 438 U.S. at 124. While the strength of the Penn Central multi- factor test may be its flexibility, that flexibility may also be its weakness. Its flexibility can be stretched so far out of shape that its application leads to no recog- nizable degree of predictability. While the ability to take into account a wide variety of facts is important, the Penn Central test must have enough clarity to lead to somewhat predictable results. Otherwise, Legal scholars have argued that the Penn Central factors were not intended to be rigid categories, but rather “serve a modest, argument-framing function. Namely, the factors act more or less as placeholders, which help lawyers and judges to focus their arguments on a few considerations that everyone can understand.” FE. R. Claeys, The Pern Central Test and Tensions in Liberal Property Theory, 30 Harv. ENvTL. L. REV. 339, 343 (2006) 18 injustice results if one’s constitutional rights depend completely upon the subjectivity of the decision-maker. Judge Hall expressed a similar concern in Esposi- to v. South Carolina Coastal Council, 939 F.2d 165 (4th Cir. 1991): It is all too easy in a takings case to become enmeshed in the various tests, factors, and doctrines the Supreme Court has applied through the years... . The Court’s “tests” are not rigid, unforgiving yardsticks to be slav- ishly applied notwithstanding a draconian result. On the contrary, the tests are guide- lines for resolving the question at the bottom of every case: whether the claimant has been “forci[ed] ... alone to bear [a] public burden [| which, in all fairness and justice, should be borne by the public as a whole.” Id. at 172 (Hall, J. dissenting) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). Here, the complete destruction of businesses is a draconian result. A well-fashioned test for the protection of consti- tutional rights must have some degree of predictabili- ty in order to ensure that one’s rights are not completely at the mercy of the decision-maker. Here, the factual impacts of I-143 are not disputed, yet the justices on the Montana Supreme Court had widely differing views on whether the Fifth Amendment provides protection to Petitioners. Of course, nuances in constitutional theory may often be the subject of differing views. However, the result of I-143 was 19 unmistakable — obliteration of Petitioners’ businesses in a completely unprecedented fashion. Nevertheless, a sharply divided court, using the same Fifth Amendment precedents, cannot come anywhere close to agreement on the constitutional implications. Further clarity in the Penn Central test is sorely needed, clarity which can only come from this Court. This case presents an opportunity for the Court to provide the needed guidance and increased clarity to ensure justice — that one’s rights do not depend completely upon the subjective views of the decision- maker who will decide one’s rights. i. REVIEW SHOULD BE GRANTED TO RESOLVE A SIGNIFICANT CONFLICT AMONG STATE AND FEDERAL COURTS ON WHETHER BUSINESS OWNERS OPERATING IN A HIGHLY REGULATED INDUSTRY CAN EVER HAVE REASONABLE INVESTMENT-BACKED EXPECTATIONS UNDER PENN CENTRAL The Montana Supreme Court concluded that Petitioners’ investment-backed expectations could not be reasonable because they operated in a highly regu- lated industry. App. 180. This conclusion is completely at odds with several decisions of this Court and others. For instance, Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), makes clear that the reasonableness of one’s investment-backed expectations is influenced most by the nature of the regulations, not by a 20 superficial characterization of one’s business as being within a “highly regulated” category of endeavors. In Ruckelshaus, the Court was considering whether trade secrets were taken by an EPA regula- tion that mandated disclosure of pesticide formulas. Monsanto had claimed a taking of its trade secrets under regulations during two different time periods. This Court found that at the time the regulatory framework put Monsanto on notice that its trade secrets might be disclosed, the company had no reasonable investment-backed expectation of non- disclosure. Hence, no taking occurred during that regulatory timeframe. Conversely, when trade se- crets were submitted to the EPA under a regulatory framework where confidentiality could be expected to be maintained, the owner had a reasonable investment-backed expectation that the trade se- crets would remain just that — secret. Significantly, this Court also found that the interference with investment-backed expectations in the latter category was so significant that a taking was found without regard to the other Penn Central factors, even though the pesticide manufacturing industry was undoubtedly highly-regulated. Ruckel- shaus, 467 U.S. at 1005, 1013-14. The Montana Supreme Court decisions also stand in direct conflict with cases decided by the Court of Appeals for the Federal Circuit, the first of which appears to be on all fours with the Petitioners’ 21 situation — Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990). In Yancey, turkey farmers sought compensation under the Fifth Amendment after a federally-imposed quarantine, premised upon disease prevention, pro- hibited the interstate shipment of turkeys. Several significant facts parallel the facts in the present cases. First, the Yanceys’ turkeys were not diseased. Id. at 1536. Neither were Petitioners’ elk. Second, the cost of keeping the turkeys alive was cost prohibitive, so the Yanceys sold the turkeys for slaughter and received $20,887 for the stock. Id. The Petitioners’ elk quickly became a financial burden in that their value was less than the cost of maintaining them. App. 177, q 85. In deciding the taking question, the Yancey court reiied on Department of Agriculture v. Mid-Florida Growers, Inc., 521 So.2d 101 (Fla. 1988) (destruction of healthy citrus trees to avoid spread of disease was a compensable taking). Yancey, 915 F.2d at 1540. The opinion below in the Wallaces’ case at- tempted to distinguish Yancey by claiming that the Yanceys had “no reason to expect that a healthy flock of turkeys would have to be suddenly destroyed.” App. 62, { 98. This statement is simply incorrect. A month before the Yanceys bought their flock, there was a serious outbreak of Avian Influenza in the region. 915 F.2d at 1536. Moreover, the federal government’s authority to impose quarantines to contro] Avian 22 Influenza dated as far back as 1962. Id. at i538. Clearly, the possibility of disease outbreaks was known to both the Yanceys and the Petitioners. However, when government regulation significantly devalues healthy animals, the Fifth Amendment applies differently in the Federal Circuit than in Montana. The conflict among courts as to whether presence in a highly regulated field precludes a regulatory taking is also evident from the recent Federal Circuit decision in Rose Acre Farms, Inc. v. United States, 559 F.3d 1260 ‘Fed. Cir. 2009). In Rose Acre, the Federal Circuit found no taking of eggs which had been quarantined, primarily be- cause the diminution in value was merely 10%. However, in addressing the reasonable investment- backed expectations factor, the Court held Rose Acre had reasonable investment-backed expectations even though it operated in a highly regulated industry because the new regulations supposedly causing the taking were “unprecedented.” /d. at 1276. This deci- sion is consistent with Ruckelshaus, but contrary to the approach used by the Montana Supreme Court.’ * Other decisions follow the same path of reviewing the nature of regulations. Cienega Gardens v. United States, 331 F.3d 1319, 1350-51 (Fed. Cir. 2003); United Nuclear Corp. uv. United States, 912 F.2d 1432, 1436 (Fed. Cir. 1990). Although the Court distinguished United Nuclear from its earlier decisicn in Allied-General Nuclear Services, Inc. v. United States, 839 F.2d 1572 (Fed. Cir. 1988), the resolution of (Continued on following page) 23 In the present case, it is undisputed that prior to passage of I-143, Montana had never regulated the fees for shooting privately owned elk. Nevertheless, the Montana Supreme Court concluded that game farms had become controversial, therefore, Petition- ers should have known that the state could “outlaw Game Farms entirely.” App. 182, 9 92. Of course, many businesses are controversial. That does not mean they can be effectively regulated out of exis- tence without compensation. The dissent in Kafka warned of the absurd and unfair result of the court’s reasoning in other busi- ness endeavors, such as insurance, coal-fired electri- cal plants, gasoline, banks, and grain farmers. App. 264-65, J 204. The potential list is unending. Additionally, the Montana court’s conclusion that there can be no regulatory taking under the Fifth Amendment when the industry is highly regulated conflicts with a long history of decisions recognizing that takings can occur when government regulates the prices charged by businesses, even in highly regulated industries. At its essence, I-143 is a price control. It does not prohibit owning game farm animals. It does not takings cases in highly regulated fields appears to be all over the doctrinal map, leaving lower courts, regulators and property owners without paths to follow, let alone boundaries between broadly defined areas where the Fifth Amendment provides protection and where there is none 24 prohibit keeping them in captivity. In fact, the re- quirement that game farm animals be kept separate from the State’s free-roaming wild elk remains. It does not prohibit the shooting of game farm animals. Instead, it regulates the price which can be charged for shooting private elk and dictates that the dollar price be $0.00. For over a century, this Court and others have recognized that price regulations may be lawful, but they can result in an uncompensated taking: This power to regulate is not a power to de- stroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of pri- vate property for public use without just compensation, or without due process of law. Stone v. Farmers’ Loan & Trust Co. (Railroad Com- mission Cases), 116 U.S. 307, 331 (1886). More recently, the Seventh Circuit has explained: The argument that because railroads are heavily regulated their owners must put up with diminutions in value fares no better. Regulation may diminish the value of prop- erty without “taking” it. Railroads have long been subject to regulation that diminishes their profitability. But it does not follow that diminution by all means is permitted. 25 In re: Chicago, Milwaukee, St. Paul and Pacific R. Co., 799 F.2d 317, 325 (7th Cir. 1986) (citations omit- ted); see also Duquesne Light Co. v. Barasch, 488 U.S. 299, 307-08 (1989) (“A rate is too low if it is ‘so unjust as to destroy the value of [the] property for all the purposes for which it was acquired,’ and in so doing ‘practically deprive[s] the owner of property without due process of law.’” (quoting Covington & Lexington Turnpike Road Co. v. Sandford, 164 U.S. 578, 597 (1896))). The Montana Supreme Court’s explanation of how Penn Central’s reasonable investment-backed expectations factor applies in highly regulated indus- tries is completely contrary to the way this and other courts have historically analyzed the issue. The Court should grant the Petition to provide a more cohesive understanding of the role this factor plays in the analysis of takings claims to assist property owners, regulators and courts nationwide. If this Petition were granted, Petitioners would argue that presence in a highly regulated industry does not preclude reasonable investment-backed expectations as a matter of law. Here, Petitioners’ expectations were objectively reasonable because the regulation of prices was completely unprecedented and the state had explicitly encouraged the develop- ment of the industry I-143 destroyed. 26 IT. THE PETITION SHOULD BE GRANTED TO ADDRESS CONFLICTS AMONG LOWER COURTS REGARDING PENN CENTRAL’S “CHARACTER OF THE GOVERNMENTAL ACTION” FACTOR In Penn Central, it appears that this Court’s reference to the “character of the governmental action” may have originally involved looking to see whether the governmental action was a _ physical invasion or whether it was a regulatory burden. See Lingle v. Chevron USA, Inc., 544 U.S. 528, 539 (2005) (quoting Penn Central, 438 U.S. at 124). However, Penn Central also recognized that a regulatory taking involved essentially “ad hoc, factual inquiries” and suggested that the three factors were not exclusive. 438 U.S. at 124. Courts should accordingly consider any facts which help one determine whether a particu- lar burden “in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U.S. at 48. The Montana Supreme Court’s cenclusion that the “character of the governmental action” factor is simply a reference to the degree of intrusion in prop- erty rights conflicts with the analysis of other courts. As with the Court’s descriptor of regulations that go “too far,” the phrase “character of the government- al action” has left the courts, property owners and regulators with little understanding of what can and should be considered in determining whether just compensation must be paid. 27 The trial courts in these cases found the “charac- ter of the governmental action” factor to weigh against finding a taking because the regulation substantially advanced a legitimate governmental interest. App. 53, 7 85; App. 138, 4 21. The Montana Supreme Court recognized that approach was no longer valid after Lingle. App. 13, { 16, n.2; App. 53, q 85,n.5; App. 168-69, 7] 70-71. Nevertheless, other courts, even after Lingle, still inquire whether the regulation substantially ad- vances a legitimate governmental interest. For in- stance, in Rose Acre Farms, 559 F.3d 1260, the Federal Circuit concluded that “character of the governmental action” referred to the purpose and importance of the governmental regulation Jd. at 1278-81; see also Cienega Gardens v. United States, 503 F.3d 1266, 1279 (Fed. Cir. 2007) (referring to the strength of the governmental interest in the context of assessing the character of the governmental ac- tion); Tennessee Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442 (6th Cir. 2009) (“character of the gov- ernmental action” analysis involved consideration of the importance of the regulation’s purpose). If the effectiveness of a regulation in achieving an important governmental interest is outside the scope of deciding takings claims as Lingle indicates, then “character of the governmental action” factor cannot still involve review of the importance of the governmental purpose. Otherwise, the government could merely assert an extremely important, i.e., 28 lifesaving, purpose to immunize its regulations from the Takings Clause. Uncertainty of what constitutes the “character of the governmental action” factor unfortunately abounds. For instance, California and Minnesota courts appear to focus on the way in which the bur- dens are distributed as part of the “character of the governmental action” inquiry. We believe that the appropriate focus of the character inquiry should be on “the nature rather than the merit of the governmental action.” Small Prop. Owners of San Francts- co v. City & County of San Francisco, 141 Cal.App.4th 1388, 47 Cal.Rptr.3d 121, 136 (2006). Although the relevant considerations may vary depending on the circumstances of the case, an important consideration involves whether the regulation is general in applica- tion or whether the burden of the regulation falls disproportionately on relatively few property owners. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 639 (Minn. 2007) (emphasis in original). Petitioners agree that these considerations should be included in any takings inquiry. Of course, the Montana Supreme Court did not include mean- ingful consideration that I-143 singled out a particu- lar business with relatively few participants and placed the entire economic burden of the new policy on their shoulders. 29 In the absence of direction from this Court, courts have developed widely different views on what the “character of the governmental action” inquiry actually involves. While the Montana Supreme Court purports to emphasize the impact on the property owner, its narrow focus precludes consideration of other facts which naturally influence common under- standings of fairness and justice. Additionally, by focusing on the degree of intrusiveness alone, the “character of the governmental” action factor is relegated to a mere redundancy to the economic impact factor.° * The conclusion that [-143 had a minimal intrusive effect on Petitioners is inconsistent with the Montana Court’s recogni- tion that the economic impact was significant or substantial. App. 323; App. 71-72, at {| 74. However, the Court attempted to characterize the economic impact as being less severe by assert- ing that one’s property rights in intangible business assets are entitled to no protection from the Fifth Amendment in the regulatory taking context, even though “intangible business assets are statutorily recognized forms of property in Montana.” App. 157, 755 (citing Mont. Code Ann. § 70-1-104(4); In re Marriage of Hull, 712 P.2d 1317, 1820-21 (Mont. 1986)). The only circumstance in which intangible assets would be protected by the Montana judiciary is if the government acted “with the intent of operating a similar business.” App. 158, at 9 56. This conflicts with this Court’s oft-repeated maxim that the focus of the Fifth Amendment is not on what the government has gained, but on what the property owner lost. Kimball Laundry v. United States, 338 U.S. 1, 13 (1949) (citing Boston Chamber of Com- merce v. Boston, 217 U.S. 189, 195 (1910)). The State’s intent should have no bearing on whether these assets are compensa- ble. See dissent, App. 272-73, 4 214 30 If review is granted, Petitioners will argue that the “character of the governmental action” factor should include a variety of considerations. For in- stance, typical zoning regulations limit land use in a way which both enhances and restricts properties’ values. See Pennsylvania Coal, 260 U.S. at 415 (not- ing that an “average reciprocity of advantage” was deemed to justify many laws). I-143 provided no benefits to game farmers — only a fatal financial burden that was imposed on them and them alone. Petitioners will contend that the “character of the governmental action” involves review of any fact which tends to show that fairness and justice dictate that the cost of the regulation should be borne by the public as a whole. The “character of the governmental action” factor does not simply consist of the degree of intrusiveness, nor is it a review of the importance of its purpose. Rather, this factor calls for a review of what the regulation actually does. As noted above, I-143 does not regulate the operation of game farms in any way other than prohibiting the transfer of the licenses and prohibiting the payment of money for shooting pri- vately owned elk. This is what I-143 does. The regu- lation of fees to $0.00 supports the conclusion that Petitioners should be compensated for the destruction of their businesses. —————__—____——. @¢ ——_______—__—- 31 CONCLUSION Despite this Court’s admonition that the primary factor among the Penn Central factors is the economic impact to the property owner, Lingle, 544 U.S. 539- 40, the Montana Supreme Court has ignored this fundamental principle which comes from the very purpose of the takings clause. Instead, the Montana Supreme Court attempts to justify the devastating impact of I-143 on Petitioners by applying the other factors in ways which conflict with the approach of this, and other, Courts. I-143 is not a regulation that raises the concern that “Government hardly could go on” if just compen- sation were required. Mahon, 260 U.S. at 413. As noted by the dissent in the Wallaces’ case, It is one thing to strengthen fencing, testing, and reporting requirements through “addi- tional restrictions,” as the Legislature did over the years. But it is quite another to re- quire alternative livestock ranchers to oper- ate with no income through the expedient of prohibiting remuneration for the key eco- nomic activity on which their businesses de- pended: fee shooting. App. 73, { 116. No amount of stretching or constrict- ing the other Penn Central factors should lead to the results adopted in Montana. Petitioners urge the Court to grant this Petition so that the Court may 39 Va add clarity and provide guidance on how the Penn Central factors are to be applied. DATED: May 11, 2009 Respectfully submitted, RICHARD M. STEPHENS* *Counsel of Record GROEN STEPHENS & KLINGE LLP 11100 NE 8th St., Ste. 750 Bellevue, Washington 98004 Telephone: (425) 453-6206 ARTHUR V. WITTICH WITTICH LAW OFFICES, PC 602 Ferguson Ave., Ste. 5 Bozeman, Montana 59718 Telephone: (406) 585-5598 JOHN E. BLOOMQUIST DONEY CROWLEY BLOOMQUIST PAYNE UDA P.C. 44 West Sixth Avenue P.O. Box 1185 felena, Montana 59624-1185 Telephone: (406) 443-2211 WARD E. TALEFF TALEFF LAW OFFICE, P.C P.O. Box 609 Great Falls, Montana 59403-0609 Telephone: (406) 791-9400 Attorneys for Petitioners App. 1 348 Mont. 205, 201 P.3d 70 (2008) Supreme Court of Montana. Bruce BUHMANN, Shirley Buhmann, Circle Eagle Game Farm, Len Wallace, Pamela Wallace, and Big Velvet Ranch, Plaintiffs and Appellants, v. STATE of Montana, Mike McGrath, and Jeff Hagener, Defendants and Appellees, Sportsmen for I-143, Montana Wildlife Federation, Defendant-Intervenors and Appellees. No. 05-473. Argued Sept. 13, 2006. Submitted June 20, 2007. Decided Dec. 31, 2008. Rehearing Denied Feb. 10, 2009. Background: Owners and operators of alternative livestock game farms brought an action against the State alleging that initiative measure which pro- hibited fee-shooting on alternative livestock game farms and prohibited the transfer of alternative livestock licenses constituted a taking of their private property. After the Blaine County District Court granted State’s motion for change in venue, following a bench trial the District Court of the First Judicial District, County of Lewis and Clark, Dorothy Mc- Carter, P.J., entered judgment for the State. Owners appealed. Holdings: The Supreme Court, Patricia O. Cotter, J., held that: App. 2 (1) State was entitled to change venue of action from county in which it was brought to county containing State capital; (2) as a matter of first impression, owners were not entitled to a jury trial on issue of whether initiative measure consti- tuted a regulatory or categorical taking; (3) Montana Constitution did not pro- vide any greater constitutional protection against the regulatory taking of private property than the Fifth Amendment to the United States Constitution; (4) even if their categorical taking claims were cognizable, initiative measure did not result in a categorical taking of owners alternative livestock and related equipment; (5) economic impact factor of regula- tory taking analysis weighed in favor of a finding of a compensable taking; but (6) character of government action fac- tor of regulatory taking analysis weighed against a finding of a regulatory taking; and (7) reasonable investment-backed ex- pectaticns factor of regulatory taking analy- sis weighed against a finding of a regulatory taking. Affirmed. Jim Rice, J., concurred in part and dissented in part, and filed opinion. App. 3 James C. Nelson, J., dissented and filed opinion, in which Wm. Nels Swandal, J., joined. Wm. Nels Swandal, J., dissented and filed opinion. See also 309 Mont. 473, 47 P.3d 847. For Appellants: Arthur V. Wittich (argued), Wittich Law Firm, P.C., Bozeman, Montana, Richard M. Stephens (argued), Groen, Stephens & Klinge, LLP, Bellevue, Washington. For Appellees: Hon. Mike McGrath, Montana Attorney General, Chris D. Tweeten, (argued), Assistant Attorney General, Helena, Montana. For Defendant-Intervenors and Appellees: Jack R. Tubolske (argued), Tuholske Law Office, P.C., Sarah K. McMillan, Attorney at Law, Missoula, Montana. Justice PATRICIA O. COTTER delivered the Opinion of the Court. {11 Bruce and Shirley Buhmann (Buhmanns), owners and operators of the Circle Eagle Game Farm, and Len and Pamela Wallace (Wallaces), owners and operators of the Big Velvet Ranch, appeal an order of the First Judicial District Court which denied their takings claims under the Fifth Amendment to the U.S. Constitution and Article II, Section 29 of the Montana Constitution. These claims alleged that the enactment and enforcement of initiative measure no. 143 (1-143), which was approved by the citizens of Montana on November 7, 2000, constituted a taking App. 4 of their private property and that they were entitled to just compensation for this taking. For the reasons set forth below, we affirm the District Court. FACTUAL AND PROCEDURAL BACKGROUND {2 The case at bar involves takings claims very similar to claims we recently addressed in Kafka uv. Mont. Dept. of Fish, Wildlife and Parks, 2008 MT 460, 348 Mont. 80, 74 P.3d 8, 2008 WL 5413504. Insofar as the background information and our decision and reasoning in Kafka applies to the case at bar, we will refer to that case. Where the arguments and issues raised by the present appellants are distinct from those raised by the parties in Kafka, we will address their merits accordingly. {3 The appellants in this case were owners and operators of alternative livestock game farms (Game Farms) within the state of Montana. The Game Farm industry is premised on the notion that individuals are willing to pay significant amounts of money to shoot captive animals, primarily elk, within the confines of a Game Farm. Since 1917, it has been lawful for individuals to own alternative livestock, such as elk, and keep them in captivity. Game Farms are heavily regulated by the Montana Department of Fish, Wildlife, and Parks (FWP) because of the threat posed by chronic wasting disease (CWD), a fatal disease of the central nervous system of captive and free-ranging animals such as mule deer, white-tailed App. 5 deer, and Rocky Mountain elk. Kafka, { 2. To operate a Game Farm, the owner/operator must possess an alternative Game Farm license and comply with the rigorous and extensive licensing requirements set forth in Title 87, chapter 4, part 4, MCA. See Kafka, Tq 2, 8. {4 On November 7, 2000, the voters of Montana passed I-143, which made two significant changes to the regulation of Game Farms in Montana. See Kafka, {4 6-9. First, it prohibited fee- shooting on Game Farms in Montana. Second, I-143 prohibited licensees from transferring their alterna- tive livestock licenses to others. These changes had a significant impact on the Game Farm industry in Montana because the vitality of the Game Farm industry was premised upon the profits derived from fee-shooting. The ban on the transfer of licenses was significant because it essentially prohibited Game Farm owners from selling those Game Farms to others, since a Game Farm could not operate without a valid license. I-143 did not, however, eliminate all uses of alternative livestock as it still permitted Game Farm operators to own herds, harvest the animals for their meat or antlers, or sell them in out- of-state markets where fee-shooting was legal. Kafka, q{ 7-8. (5 The enactment and enforcement of I-143 led to several lawsuits in both state and federal court in Montana. At the time of this suit, the Buhmanns resided in Blaine County, Montana, and owned and operated the Circle Eagle Game Farm, a twenty-nine App. 6 acre game farm which was regulated by FWP. The Buhmanns began the Circle Eagle Ranch in 1997 after applying for and receiving a loan from the state of Montana’s Department of Commerce. The Buhmanns’ loan application included a business plan describing an elk-breeding program they planned to institute. This plan included the annual selling of wholesale mature bulls to shooting operations, and the selling of retail mature cows to other breeding operations. The Buhmanns and the Circle Eagle Ranch received an alternative livestock license through FWP which allowed them to keep sixty elk. They began selling elk in 1999. In addition to selling elk, the Buhmanns also sold a mineral supplement for captive deer and elk called Sweet Pro. 46 The Wallaces started the Big Velvet Ranch in Ravalli County, Montana, after obtaining a Game Farm license in 1992. The Big Velvet Ranch eventu- ally encompassed roughly 2000 acres. In the course of developing their ranch, the Wallaces purchased mate- rial for fencing and other infrastructure, constructed a lodge on the property, removed the native deer and elk, and then imported alternative livestock (elk) from other locations. The Wallaces raised captive elk, and provided opportunities for the fee-shooting of elk on the Big Velvet Ranch. Under this service, clients would come and stay on the Big Velvet Ranch and be guaranteed to shoot an elk within the confines of the ranch. Additionally, the Wallaces bred captive elk for other Game Farms. App. 7 { 7 According to the factual assertions in their complaint, the Wallaces invested millions of dollars in developing the Big Velvet Ranch, and took a number of measures to ensure that their alternative livestock was of the highest quality and was disease-free. In 1999, after a three-year testing process, the Big Velvet Ranch was certified as tuberculosis-free, and in 2001 certified as brucellosis-free. Additionally, the Wallaces tested roughly 700 animals from the Big Velvet Ranch for CWD, and all those tests came back negative. The Wallaces also claim they developed prototype feed trucks, and appropriate facility modifications which would allow them to maintain a high nutritional level of the elk, at a cost of over $600,000. The Wallaces further stated that they took other measures, including the hiring of a veterinarian and the development of extensive monitoring systems, to ensure that their operation established a reputation as one of the most successful private elk ranches in the United States. 78 From 1997 through 1999, the Wallaces claim to have harvested over 100 mature bulls and earned gross revenues of over $1 million per year. The Wallaces allege that their ranch guests would pay on average $7,000 for hunting mature bull elk, and that this comprised the majority of the ranch’s revenues. Between 1995 and 2000, the Wallaces hosted more than 600 clients. 719 After the passage of I-143, and its inter- pretation by the Attorney General’s office and FWP, the Wallaces claim that their existing and prospective App. 8 customers cancelled their plans to visit the Big Velvet Ranch, and that many demanded refunds on their deposits. Similarly, there was a cancellation of promised purchases of animals and feed from the Circle Eagle Ranch. The Wallaces claim that in order to stem the financial hemorrhaging at the ranch, they contacted various Indian tribes in Montana to assess their interest in receiving approximately 500 animals from the Big Velvet Ranch. After obtaining the appropriate permits, the Wallaces thereafter entered into an agreement with the Crow Indian Tribe to transfer some of their animals. After the first shipment of 67 elk, the Wallaces were enjoined in the First Judicial District Court from transferring any more of their alternative livestock to the Crow Indian Reservation to be released in an unfenced area. The Wallaces appealed the issuance of this injunction to this Court, and it was upheld in Hagener v. Wallace, 2002 MT 109, 309 Mont. 473, 47 P.3d 847. The Wailaces also sought injunctions against the enforcement of I[-143 in Ravalli County District Court, as well as separately in the federal district of Montana, both of which were denied. Moreover, Len Wallace was tried and convicted in Justice Court for violating I-143’s ban on fee-shooting. 710 On June 6, 2002, the Wallaces and Buhmanns filed a joint action against the state of Montana, Attorney General Mike McGrath, and FWP Director Jeff Hagener in the Seventeenth Judicial District Court, Blaine County, seeking damages for the taking of their private property under the Fifth App. 9 Amendment and Article II, Section 29 of the Montana Constitution. The Wallaces and Buhmanns alleged that [-143 violated the Fifth Amendment’s prohibition on the taking of private property without just compensation, as well as Article II, Section 29’s prohibition on a damaging of their property. The Wallaces and Buhmanns alleged that I-143 affected a taking of their private property rights without just coripensation “by specifically taking the only viable source of profitability (i.e., shooting animals for a fee), and thereby destroying the Montana breed stock sale market, and prohibiting the transfer of licenses.” The Wallaces and Buhmanns alleged that the State enforced 1-143 to the detriment of their property rights and that this enforcement imposed new retroactive liabilities on them, damaging their vested property rights as well. Additionally, the Wallaces and Buhmanns alleged that by prohibiting the transfer of their licenses and the value of their investments in their Game Farms to others, the State took not only their “property rights and licenses, but also the profitable use of the land, and the increased value of the land as a result of the prior issued licenses.” The Buhmanns and Wallaces also alleged that McGrath and Hagener violated their constitutional rights by enforcing I-143 against them, and brought a claim for relief under 42 U.S.C. § 1983.’ 1 At the close of appellants’ case-in-chief, the District Court granted the State’s motion to dismiss the § 1983 claim for failure (Continued on following page) App. 10 { 11 The precise nature of the Buhmanns’ and Wallaces’ claims differed slightly. Because the Buh- manns did not provide fee-shooting services, their business operations were not directly affected by I- 143. However, by eliminating the in-state market fer fee-shooting, I-143 had a significant economic impact on the profitability of their breeder operation and their marketing of Sweet Pro. The Wallaces, on the other hand, were directly affected since the Big Velvet Ranch provided fee-shooting services. {12 On July 22, 2002, the State filed a motion to change the venue of the case from Blaine County to the First Judicial District, Lewis and Clark County, pursuant to § 25-2-116, MCA. On August 16, 2002, the Wallaces and Buhmanns filed a motion to sever the parties, pursuant to M.R. Civ. P. 21. In the mo- tion, the Buhmanns argued that their action should remain in Blaine County, while the Wallaces argued that they should be able to pursue their cause of action in Ravalli County under a complaint they filed there on August 6, 2002. On August 28, 2002, the Blaine County District Court denied the motion to sever and granted the State’s motion to change the venue of the case to Lewis and Clark County. 4¥ 13 On September 17, 2002, the First Judicial District Court, Judge Dorothy McCarter presiding, assumed jurisdiction over the appellants’ suit. On to proof. Appellants did not object at the time, and do not challenge the dismissal of this claim on appeal. App. 11 October 10, 2002, the District Court granted a motion filed by appellees Sportsmen for I-143 and Montana Wildlife Federation to intervene in this matter. Initially, the District Court set a jury trial to hear appellants’ claims. However, the State subsequently filed a motion to bifurcate the proceedings, arguing that the issue of whether the State was liable for a taking should be decided solely by the District Court. If the State was found liable, then the issue of damages would be submitted to a jury. The appellants resisted the State’s motion, asserting that they were entitled to a jury trial on the issue of takings liability. 914 The State also filed a motion seeking summary judgment on appellants’ takings claims. One aspect of the State’s motion dealt with the issue of whether appellants could assert a categorical takings claim with respect to their personal property (e.g., alternative livestock, and Game Farm equipment). The State argued that under the authority of Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), a categorical taking claim may be asserted only for claims regarding a taking of land, and not for a taking of personal property or other property interests. See Kafka, 67-69 (noting the distinction between categorical and regulatory takings claims). Since the appellants’ land all retained significant value in spite of the passage of I- 143, a categorical taking claim would fail in this case. Additionally, the State argued that it was further entitled to summary judgment on appellants’ regula- tory takings claims. App. 12 {15 After holding a hearing on these motions on October 6, 2004, the District Court granted a portion of the State’s motion, concluding that the question of whether there had been a_ taking presented a question of law to be determined by the District Court without a jury. If a taking was found by the District Court, it would submit the issue of damages to a jury. Additionally, while the District Court ultimately denied the State’s summary judgment mction and concluded that it would hold a bench trial on appellants’ takings claims, it agreed with the State that under Lucas, personal property could not form the basis for a categorical takings claim. Moreover, the District Court agreed with a legal argument raised in the State’s brief that the same analysis, based on federal law, applied to takings claim, whether brought under Article II, Section 29 of the Montana Constitution or the Fifth Amendment to the U.S. Constitution. {16 Beginning on November 30, 2004, the District Court held a three-day bench trial on appellants’ takings claims. The District Court heard testimony from Bruce Buhmann, Len Wallace, Dr. Peter Nickerson (Dr. Nickerson), an economist and expert witness for appellants, as well as other witnesses for both parties. The District Court also received a number of exhibits into evidence. Based on this evidence and testimony, the District Court made a number of factual findings with respect to the App. 13 Wallaces’ and Buhmanns’ operations and property interests.” 4 17 With respect to the Wallaces, the District Court found that they had complied with the licensing requirements set forth by FWP in the operation of the Big Velvet Ranch. The District Court noted that as the Wallaces sought to expand their operation over the years, they had applied with FWP for the necessary expansion permits. In 1997, the Wallaces were denied an expansion request by FWP which would have added approximately 1000 acres to the then-existing roughly 2000 acre ranch. After this denial, the Wallaces decided to sell their property out of a concern that they would not have enough grazing land for their elk. They subsequently acquired a Game Farm in Wisconsin to provide grazing land for their animals, but were prevented from shipping the * In this connection, we note that much of the analysis by the District Court and argument by the partics during the bench trial, focused on the purposes and objectives of I-143, and whether it accomplished the goals of preventing outbreaks of CWD, preserving Montana’s “fair chase” hunting heritage, and preventing the privatization or commercialization of wildlife. However, as we observed in Kafka, recent United States Supreme Court jurisprudence has foreclosed an inquiry into the efficacy or purposes of a regulatory change (which are best considered as “due process” concerns) in the realm of regulatory or categorical takings analysis. See Kafka, J] 70-71 (discussing Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)). In other words, for purposes of the takings analysis in this case, it is immaterial whether or not 1-143 is effective in achieving any of the objectives or concerns it was designed to address. App. 14 animals back and forth due to outbreaks of CWD on Game Farms in several states, including Montana. Additionally, the District Court found that prior to I- 143, the Wallaces had difficulty marketing their elk outside of Montana because of a moratorium on interstate elk shipments from Montana as a result of a CWD outbreak on a Montana Game Farm in 1997. The District Court further found that an outbreak of CWD on another Game Farm impacted the ability of the Wallaces to sell their property and that it was still on the market at the time I-143 went into effect. {18 The District Court found that after the passage of I-143, the Wallaces began selling off their elk and Game Farm equipment at a “substantial loss” compared with their pre-I-143 value. Between 1997 and 1999, the Wallaces spent approximately $666,166 to purchase elk. Len Wallace testified that the value of his elk herd prior to I-143 was roughly $5.5 million. After I-143, he liquidated the herd for approximately $238,000, and in some cases simply donated his elk to various organizations. Additionally, the Wallaces sold some of their specialized equipment, which cost approximately $600,000 to purchase, for $150,000. The District Court found that the net income from the Big Velvet Ranch for the four-year period prior to I- 143 was $1,480,452. Financial records prepared by Dr. Nickerson demonstrated that the Wallaces had a basis of $4,595,123 in their business. Between 1994 and 2003, the records indicated numerous sales of parcels of land ranging between ten and forty acres, totaling more than $1 million dollars, as well as two App. 15 sales of property to another ranch for more than $5 million dollars. 4 19 In total, the District Court concluded that the Wallaces suffered a significant, but not complete, loss of value to their Game Farm business as a result of I-143. The District Court quantified this loss as a fifty percent reduction in the value of their business. This figure apparently took into account the fact that while the Wallaces’ elk suffered a _ significant devaluation, the real estate associated with the Big Velvet Ranch had in fact appreciated. The District Court further found that while the market for alternative livestock elk had declined, alternative livestock could still be bred and sold to Game Farms in other states. {20 With respect to the Buhmanns, the District Court found that when they initially purchased the land on which the Circle Eagle Game Farm is located in the mid-1980’s, they had no intention of operating a Game Farm but chose that course much later. The District Court found that the Buhmanns purchased all of their elk in 1997 for $29,500, and began selling them in 1999. Their total sales receipts through 2000 were $8,948, and they received $11,963 from elk sales in 2001 and 2002. They anticipated selling approx- imately 10 calves a year for about $30,000. With respect to their sales of Sweet Pro, the District Court found they had gross sales for this product of approximately $68,000 between 2000 and 2002. For the overall period of their business from 1997 to 2002, they had a net business loss of $41,325. With respect App. 16 to the impact on their business from I[-143, the District Court found that no aspect of that business was prohibited because they did not operate a fee- shooting operation. However, I-143 did affect the market for both their alternative livestock and Sweet Pro. The District Court concluded that the Buhmanns suffered a net loss of $22,000 as a result of I-143. {21 In its conclusions of law, the District Court began by restating its determination that the same legal analysis, based upon federal law, applied to claims whether brought under the Fifth Amendment or Article Il, Section 29. Moreover, the District Court stated that a categorical takings claim did not lie in this case under Lucas because categorical takings apply only to takings of land. The District Court then went on to reject appellants’ claims for a regulatory taking under the analytical framework set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). See Kafka, {41 67-73 (discussing Penn Central regulatory takings analysis). The reasoning and analysis of the District Court will be discussed in greater detail below. {22 ‘The Wallaces and Buhmanns now appeal the denial of their takings claims by the District Court. They present the following issues on appeal: {23 Issue One: Did the District Court err in changing the venue of the proceedings to Lewis and Clark County and denying appellants’ motion to sever the Wallaces’ claims? App. 17 {24 Issue Two: Did the District Court err in concluding that liability for appellants’ takings claims would be decided by the court instead of a jury? {25 Issue Three: Did the District Court err in concluding that Article II, Section 29 of the Montana Constitution does not provide any greater’ constitutional protection against the taking of private property than the Fifth Amendment to the U.S. Constitution, and that the same legal analysts applies to takings claims brought under the Fifth Amendment to the U.S. Constitution and Article II, Section 29 of the Montana Constitution? {26 Issue Four: Did the District Court err in denying appellants’ claim that I 143 affected a categorical taking of their personal property? { 27 Issue Five: Did the District Court err in concluding that I-143 did not affect a regulatory taking of appellants’ private property? STANDARD OF REVIEW 728 We review a district court’s findings of fact under the clearly erroneous standard, and _ its conclusions of law for correctness. Roe Family, L.L.C. u. Lincoln Co. Bd. ef Commrs., 2008 MT 70, J 12, 342 Mont. 108, 7 12, 179 P.3d 514, 4] 12. A finding of fact is clearly erroneous if it is not supported by App. 18 substantial evidence, if the trial court misappre- hended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. Roe Family, { 12. DISCUSSION | 29 Issue One: Did the District Court err in changing the venue of the proceedings to Lewis and Clark County and denying appellants’ motion to sever the Wallaces’ claims? {730 The Seventeenth Judicial District Court, Blaine County, granted the State’s motion to transfer the case to Lewis and Clark County where the merits of appellants’ takings claims were ultimately decided. The appellants argue that the District Court erred in granting the change of venue. In its order, the Blaine County District Court found that a change of venue was proper under § 25-2-116, MCA, which reads as follows: 25-2-116. Multiple claims. In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure. 731 Although the Wallaces’ and Buhmanns’ complaint asserted only two counts, the District App. 19 Court determined that they asserted more than two claims for purposes of the statute because the specific allegations and relief sought by the Buhmanns was sufficiently distinct from the specific allegations and relief sought by the Wallaces. The District Court observed that it is the nature of the rights asserted and demand for relief sought that determines the number of claims, rather than a formal designation in the complaint itself. The District Court noted that the Wallaces and Buhmanns each uetailed different locations and businesses which were differently affected by I-143, and that the damages in each case differed based not only on these different locations but also on the duration of the effect, the type of the business, and the extent of the respective parties’ investments. {32 The District Court also noted that because their claims were brought against the state of Montana, the proper venue for the claims, pursuant to § 25-2-126, MCA, would be either the county of the plaintiffs’ respective residences or Lewis and Clark County. That statute reads in pertinent part as follows: The proper place of trial for an action against the state is in the county in which the claim arose or in Lewis and Clark County. In an action brought by a resident of the state, the county of the plaint ‘f’s residence is also a proper place of trial. Section 25-2-126(1), MCA. App. 20 {33 Here, the parties resided in different counties. The Buhmanns resided in Blaine County, while the Wallaces resided in Ravalli County. Therefore, while Blaine County would be a proper venue under the statute for the Buhmanns, it would not be proper for the Wallaces. Thus, under § 25-2- 126(1), MCA, Lewis and Clark County would be the only appropriate venue for all parties. Since the State was entitled to a change of venue under § 25-2-116, MCA, by virtue of the presence of multiple claims, the Blaine County District Court concluded that a change of venue to Lewis and Clark County was appropriate. { 34 Additionally, the District Court denied a motion filed by the appellants to keep the Buhmanns’ claims in Blaine County, and allow the Wallaces to sever their claims and pursue a newly-filed complaint in Ravalli County. On the one hand, the District Court concluded that the Buhmanns had failed to show good cause under M.R. Civ. P. 42(b), to separate the claims, and further failed to demonstrate how their access to court in Lewis and Clark County would be impractical or expensive. With respect to the Wallaces’ motion to sever, the District Court denied that motion under the authority of Emery v. Federated Foods, Inc., 262 Mont. 83, 863 P.2d 426 (1993), for the simple reason that the motion to sever had yet not been filed at the time the State filed its motion for change of venue. 135 On appeal, the Wallaces and Buhmanns maintain the District Court erred in its application and interpretation of these statutes, and assert that App. 21 they simply do not cover scenarios involving multiple plainti.fs. They maintain that tne District Court’s inte » vation unfairly deprives them of their right to che venue. They argue that the intent of these ste ites is to prevent plaintiffs from adding spurious claims to prevent defendants from obtaining a favorable venue, a concern not present in this case. {| 36 With respect to the denial of the motion to sever, the appellants argue that the District Court’s decision not to consider the motion due to its timing directly contravenes the holdings in both DML, Inc. v. Fulbright, 2005 MT 204, 328 Mont. 212, 119 P.3d 93, and Emery. Appellants argue that the doctrine that propriety of venue is determined as of time of the complaint, applies only in situations where the composition of the parties changes, and was not intended to freeze in time all activities occurring in a case — including the motion to sever which was filed here. Accordingly, they argue that the motion to sever should have been considered and granted by the District Court. {37 The State maintains that DML controls and demonstrates that the District Court correctly permitted a change of venue to Lewis and Clark County. With respect to the motion to sever, the State points out that the decision of whether to sever claims lies within the District Court’s discretion under § 25-2-116, MCA, and M.R. Civ. P. 42(b), in furtherance of convenience and to avoid prejudice. Here, the District Court explicitly found that the appellants failed to make a showing justifying the App. 22 invocation of M.R. Civ. P. 42(b). The State asserts that appellants have not challenged this finding on appeal. {38 “The determination of whether a county is the proper place for trial is a question of law involving the application of the venue statutes to pleaded facts.” DML, 47. Our review of such decisions is plenary, meaning we determine whether the district court’s ruling was legally correct. DML, 97. We conclude that the Blaine County District Court did not err in permitting the State to change the venue of appellants’ cause of action to Lewis and Clark County. q 39 In DML, this Court interpreted § 25-2-116, MCA, as follows: By the words of § 25-2-116, MCA, “a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action.” This statute con- templates a multiple claim situation in which the county where the plaintiff files is proper for one claim but not for one or more of the others. As recognized by the Evidence Commission Comments to § 25-2-116, MCA, this Court has ruled consistently that a defendant entitled to a change of venue on one claim should have it on the entire action. DML, { 16. 740 Here, it is patent that venue in Lewis and Clark is proper with respect to the Buhmanns’ claims by virtue of § 25-2-126(1), MCA. Because the Wallaces App. 23 reside in Ravalli County, venue is appropriate there, or in Lewis and Clark County. Under DML, therefore, the State is entitled to a change of venue with respect to the entire action. See DML, 727 (Gray, C.J., concurring) (concluding that change of venue is appropriate under § 25-2-116, MCA, when action consists of multiple claims, venue statutes designate more than one county for one or more claims, and action is brought in a county which is proper for one, but not all, of those claims). Since Lewis and Clark County is an appropriate venue for all parties in this case, the District Court did not err in aliowing the change of venue. {41 With respect to the Blaine County District Court’s refusal to consider the motion to sever, we agree with the State that the District Court acted within its discretion in denying such motion. Decisions as to trial administration matters, such as a motion to bifurcate or sever, are within the “broad discretion” of the district court. Jarvenpaa v. Glacier Elec. Cooperative, Inc., 1998 MT 306, { 12, 292 Mon‘. 118, J 12, 970 P.2d 84, { 12. In this case, regardless ot whether the District Court could or should have considered the merits of the motion to sever, it stated clearly in its order that appellants had failed to demonstrate good cause to sever, as required under M.R. Civ. P. 42(b). Appellants do not challenge this finding. Thus, we affirm the Blaine County District Court’s decisions as to venue and severance. App. 24 { 42 Issue Two: Did the District Court err in concluding that liability for appellants’ takings claims would be decided by the court instead of a jury? {143 In its October 22, 2004 Decision and Order, the Lewis and Clark County District Court granted a motion filed by the State to bifurcate the liability and damages phases of these proceedings, allowing the former to be determined solely by the District Court, while the latter would be heard by a jury if the District Court determined the State was liable for an uncompensated taking. The District Court concluded that the question of whether there was a taking is a question of law, and that a property owner’s right toa jury trial was limited to the issue of damages. {44 The District Court determined that its position was consistent with City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) — a case relied upon by appellants for their argument that they were entitled to a jury trial on the issue of takings liability. The District Court considered whether the issues of damages and liability were intertwined, or were distinct and should be presented separately, and concluded there was no practical reason to subject jurors to evidence unrelated to the issue of damages. Additionally, the District Court determined that it needed adequate time to consider liability before proceeding with a trial on damages — an exercise that would be moot if liability was decided in favor of the State. App. 25 {45 Appellants maintain that the District Court erred and wrongfully denied them their right to a jury trial on the issue of takings liability. Citing to Howard v. State, 198 Mont. 470, 647 P.2d 828 (1982) and Butte Country Club v. Metro. Sanitary and Storm Sewer Dist. No. 1, 164 Mont. 74, 519 P.2d 408 (1974), appellants maintain that individuals asserting inverse condemnation claims have historically been entitled to jury trials. Citing to Matter of C.L.A., 211 Mont. 393, 685 P.2d 931 (1984), they further argue that under Article II, Section 26 of Montana Constitution, their fundamental right to a trial by jury is guaranteed as to all class of cases in which the right was enjoyed when the Montana Constitution was adopted in 1889. Appellants argue that this class of cases extends beyond those common-law actions recognized in 1889, and includes modern-day actions that involve rights and remedies of the _ sort traditionally enforced in an “action at law,” such as the takings claims they presented here. 7 46 Under the authority of Del Monte Dunes, appellants argue that their suit for an uncom- pensated taking of their property is an action at law, and that the reasoning in Del Monte Dunes is supported by Montana cases, including Solberg uv. Sunburst Oil & Gas Co., 70 Mont. 177, 225 P. 612 (1924) and Chessman v. Hale, 31 Mont. 577, 79 PB. 254 (1905). See Del Monte Dunes, 526 U.S. at 709-10, 119 S.Ct. at 1638 (action sounding in tort and seeking legal relief is an action at law); see also Little v. Little, 127 Mont. 152, 155-56, 259 P.2d 343, 344 (1953) App. 26 (actions at law include actions to recover specific personal property with damages). Appellants main- tain that the Lucas and Penn Central tests for analyzing takings claims are factual inquiries which are properly allocated to a jury. They therefore argue that the District Court erred in concluding that the determination as to whether a taking has occurred is a question of law, and maintain instead that it is a question of fact. {47 The State maintains that because there is no established tradition of trials by jury in regulatory takings cases in Montana, this Court decides this issue on a “clean slate.” The State then asserts that appellants’ reliance on Del Monte Dunes is misplaced because that case involved solely the question of whether a plaintiff was entitled to a jury trial under the Seventh Amendment to the United States Constitution for an action brought under 42 U.S.C. § 1983. The State maintains that Del Monte Dunes did not address the question of whether plaintiffs are generally entitled to a jury trial on the issue of liability in takings cases. The State notes that other jurisdictions, such as California, have generally held that the issue of liability in a takings claim is a question of law for the court, with a right to a jury trial available on the issue of damages. Accordingly, the State urges affirmance of the District Court on the grounds that the question of whether a taking has occurred is primarily a legal question to which no right to jury trial exists. App. 2 41/48 Whether an individual is entitled to a jury trial presents a question of law which we review de novo for correctness. Supola v. Mont. Dept. of Justice, Drivers License Bureau, 278 Mont. 421, 423, 925 P.2d 480, 481 (1996). As an initial matter, we agree with the State that the question before the Court is one of first impression in the state of Montana. Appellants are correct in observing that in both Howard and Butte Country Club, the trial courts apparently afforded claimants jury trials in inverse con- demnation cases. See Howard, 198 Mont. at 472, 647 P.2d at 829; Butte Country Club, 164 Mont. at 76, 519 P2d at 409. However, neither case provides any analysis or discussion which would bear on the issue of whether appellants’ categorical and regulatory takings claims should be submitted to a jury, and neither case has ever been cited as authority on this point of law. {49 We therefore turn to Del Monte Dunes, upon which the State and the appellants rely for their opposite positions. In that case, a property owner (Del Monte Dunes) brought an action against the city of Monterey under 42 U.S.C. § 1983 based on its repeated denial of Del Monte Dunes’ request for a development permit. Each time Del Monte Dunes submitted a development request, the city of Monterey denied it and imposed more rigorous demands on Del Monte Dunes. Del Monte Dunes, 526 U.S. at 694, 119 S.Ct. at 1631. Eventually, Del Monte Dunes appealed these denials to the city council, and was again denied. Del Monte Dunes consequently App. 28 filed a suit in federal district court alleging, among other things, that the denial amounted to an uncompensated taking under the Fifth Amendment. Del Monte Dunes, 526 U.S. at 698, 119 S.Ct. at 1633. The takings claims in that case were ultimately submitted to a jury, which returned a verdict in favor of Del Monte Dunes. Del Monte Dunes, 526 U.S. at 701, 119 S.Ct. at 1634. The question of whether the takings claim was properly submitted to the jury was later affirmed by the Ninth Circuit. The Ninth Circuit’s decision was subsequently appealed to the United States Supreme Court. {50 One of the issues considered by the Del Monte Dunes court was whether it was proper for the district court to submit the question of liability for takings to the jury, instead of having the issue decided by the district court without the aid of a jury. Del Monte Dunes, 526 U.S. at 707, 119 S.Ct. at 1637. Del Monte Dunes asserted that its right to a jury trial was conferred by the Seventh Amendment and 42 U.S.C. § 1983, and the United States Supreme Court agreed. Del Monte Dunes, 526 U.S. at 710-12, 119 S.Ct. at 1638-40. In its reasoning, the Del Monte Dunes court explained that because an action under § 1983 sounds primarily in tort, it was of a type of action cognizable under the common law, and thus a cause of action for which the Seventh Amendment provides a trial by jury. Del Monte Dunes, 526 U.S. at 709-10, 119 S.Ct. at 1638. App. 29 751 In reaching this conclusion, the United States Supreme Court explicitly rebuffed an argu- ment advanced by the city of Monterey that there was no common law right to a jury in eminent domain proceedings. In doing so, the Supreme Court high- lighted the fact that the tortious nature of a § 1983 claim was wholly independent from the nature of underlying right giving rise to the § 1983 claim itself. As Justice SCALIA notes ... we have declined in other contexts to classify § 1983 actions based on the nature of the underlying right asserted, and the city provides no per- suasive justification for adopting a different rule for Seventh Amendment purposes. Even when analyzed not as a § 1983 action sim- pliciter, however, but as a § 1983 action seek- ing redress for an uncompensated taking, Del Monte Dunes’ suit remains an action at law. Although condemnation proceedings spring from the same Fifth Amendment right to compensation which, as incorporated by the Fourteenth Amendment, is applicable here, a condemnation action differs in important respects from a § 1983 action to redress an uncompensated taking. Del Monte Dunes, 526 U.S. at 711-12, 119 S.Ct. at 1639 (citations omitted). 4152 The Supreme Court explained this point further as follows: App. 30 Condemnation proceedings differ from the instant cause of action in another funda- mental respect as well. When the govern- ment condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. If the condemnation proceed- ings do not, in fact, deny the landowner just compensation, the government’s actions are neither unconstitutional nor unlawful. Even when the government takes property without initiating condemnation proceedings, there is no constitutional violation unless or until the state fails to provide an adequate post deprivation remedy for the property loss. in this case, however, Del Monte Dunes was denied not only its property but also just compensation or even an adequate forum for seeking it. That is the gravamen of the § 1983 claim. Del Monte Dunes, 526 U.S. at 714-15, 119 S.Ct. at 1641 (quotations and citations omitted). {53 In conclusion, the Supreme Court then clarified the scope of its holding with the following admonition: We note the limitations of our Seventh Amendment holding. We do not address the jury’s role in an ordinary inverse condemnation suit. The action here was brought under § 1983, a context in which the jury’s role in vindicating constitutional rights has long been recognized by the federal courts. A federal court, moreover, App. 31 cannot entertain a takings claim under § 1983 unless or until the complaining land- owner has been denied an adequate post dep- rivation remedy. Even the State of California, where this suit arose, now provides a facially adequate procedure for obtaining just com- pensation for temporary takings such as this one. Our decision is also circumscribed in its conceptual reach. The posture of the case does not present an appropriate occasion to define with precision the elements of a tem- porary regulatory takings claim; although the city objected to submitting issues of liability to the jury at all, it approved the instructions that were submitted to the jury and therefore has no basis to challenge them. Del Monte Dunes, 526 U.S. at 721-22, 119 S.Ct. at 1644 (emphasis added). {54 The Del Monte Dunes Court thus took great pains to expressly limit its holding to actions brought under § 1983, and deliberately chose not to address the province of the jury in an ordinary in- verse condemnation suit, or, by extension, a regula- tory or categorical takings claim such as presented here. {55 In this connection, we also find that Chessman, Matter of C.L.A., and Sunburst Oil & Gas, upon which appellants rely, are not particularly helpful in deciding the issue presently before the Court. Those cases simply establish that a right toa jury trial exists for the class of cases which existed at the time the Montana Constitution was adopted. App. 32 Chessman, 31 Mont. at 584-88, 79 P. at 256-57. “The rule in Montana is that our state constitution only guarantees the right to a jury trial in the class of cases in which the right was enjoyed when the constitution was adopted.” Matter of C.L.A., 211 Mont. at 396, 685 P.2d at 933. However, none of these cases demonstrate that Montanans enjoyed a right to jury trial on the issue of liability in an inverse condemnation, or categorical or regulatory takings case. (56 In this case, the District Court concluded that appellants would be entitled to a jury trial on the issue of damages if liability for the takings claim was established. The weight of authority tends to support the view that the right to jury trial in inverse condemnation suits — and, by extension, regulatory or categorical takings claims — is limited solely to the issue of damages. Hensler v. City of Glendale, 8 Cal.4th 1, 32 Cal.Rptr.2d 244, 876 P.2d 1043, 1052 (1994); Tibbs v. City of Sandpoint, 100 Idaho 667, 603 P.2d 1001, 1004 (1979); Dept. of Agriculture and Consumer Servs. v. Mid-Florida Growers, Inc., 521 So.2d 101, 104 (Fla.1988); Deisher v. Kan. Dent. of Transp., 264 Kan. 762, 958 P.2d 656, 663 (1998); Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45, 808 A.2d 1107, 1126-27 (2002); Galvis v. State, Dept. of Transp., 140 Wash.App. 693, 167 P.3d 584, 589 (Div. 2 2007); See also New Port Largo, Inc. uv. Monroe Co., 95 F.3d 1084, 1092 (llth Cir.1996) (concluding specifically that there is no jury require- ment for deciding whether a regulatory takings has App. 33 occurred). Under these authorities, the District Court presumptively satisfied appellants’ constitutional right to a jury trial by providing a jury trial on the issue of damages. 757 Against this weight of authority, appel- lants have not cited a single case in which a court has held that the issue of liability in a categorical or regulatory takings case must be submitted to a jury. Although the question of whether a taking has occurred is in the nature of an “ad hoc, factual inquiry,” see Kafka, | 69, it appears that both state and federal courts are in near universal agreement that whether the facts show that a regulatory or categorical taking has occurred is ultimately a question of law for the court. E.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932-33 (Tex.1998); Chancellor Manor v. United States, 331 F.3d 891, 898 (Fed.Cir.2003); Alevizos v. Metro. Airports Commn. of Minneapolis and St. Paul, 298 Minn. 471, 216 N.W.2d 651, 660-61 (1974); Seiber v. State By and Through the Bd. of Forestry, 210 Or.App. 215, 149 P.3d 1243, 1246 (2006); Vulcan Materials Co. v. City of Tehuacana, 369 F.3d 882, 886-87 (5th Cir.2004); but see, Noghrey v. Town of Brookhaven, 48 A.D.3d 529, 852 N.Y.S.2d 220, 221 (2 Dept.2008) (submitting the question of whether a regulatory taking has occurred for a jury’s determination). In fact, the authority in this area strongly supports the District Court’s determination that “[wJhether a compensable taking has occurred is a question of law based on factual underpinnings.” Am. Pelagic Fishing Co., L.P. v. App. 34 United States, 379 F.3d 1363, 1371 (Fed.Cir.2004) (citing Maritrans, Inc. v. United States, 342 F.3d 1344, 1350-51 (Fed.Cir.2003)); Moldon v. Co. of Clark, 188 P.3d 76, 79 (Nev.2008); State v. Dunn, 888 N.E.2d 858, 861 (Ind.App.2008); Scott v. Co. of Custer, 178 P.3d 1240, 1243 (Colo.App.2007). 7158 Under § 26-1-201, MCA, “all questions of law” are to be decided by the court, while questions of fact go to the jury pursuant to § 26-1-202, MCA. While takings claims arguably present “mixed questions of fact and law,” see Del Monte Dunes, 526 U.S. at 721, 119 S.Ct. at 1644, and while it may be that some cases in the regulatory or categorical takings arena present questions of fact which should be submitted to a jury, the appellants here have not articulated what specific factual questions needed to be resolved by a jury in this case. In fact, it appears from the record that there were no factual disputes concerning the effects of I-142 on appellants’ busi- nesses and private property. Instead, the dispute centered on whether, as a legal matter, 1-143 con- stituted a regulatory or categorical taking. {59 In sum, we decline at this time to adopt a bright-iine rule regarding the role of a jury in the context of categorical or regulatory takings claims. However, we conclude that the District Court did not err in this case by reserving for itself the question of whether the State was liable for an uncompensated taking. Given the primarily legal nature of takings inquiries, a jury determination should be required only in those cases in which the resolution of a factual App. 35 dispute is necessary in order to determine whether a taking has occurred. Here, there appears to have been no such dispute. The appellants have not pointed to any factual question which should have been decided by a jury, nor for that matter do they complain that any of the District Court’s factual findings were in error. Instead, the gravamen of the appellants’ challenge is that the District Court made an incorrect legal determination that a regulatory or categorical taking had occurred. Under these par- ticular circumstances, therefore, we hold that the District Court did not err in deciding the takings question without the presence of a jury. 760 Issue Three: Did the District Court err in concluding that Article II, Section 29 of the Montana Constitution does not previde any greater constitu- tional protection against the taking of private property than the Fifth Amendment to the U.S. Constitution, and that the same legal analysis applies to takings claims brought under the Fifth Amendment to the U.S. Constitution and Article ll, Section 29 of the Montana Constitution ? 9461 In its Decision and Order of October 22, 2004, the District Court, citing to Western Energy Co. v. Genie Land Co., 227 Mont. 74, 737 P2d 478 (1987), concluded that the same legal analysis, based on federal law under Penn Central, applies to takings claims whether brought under the U.S. or Montana Constitution. Appellants argue that the District Court erred in reaching this conclusion, and assert that Article II, Section 29 of the Montana App. 36 Constitution provides greater protection than the Fifth Amendment, thus requiring a different analysis. This provision reads as follows: Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the ful] extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be award- ed by the court when the private property owner prevails. Mont. Const., Art. IT, § 29. {62 Appellants assert that the constitutional protection against “taking and damaging” of property is a fundamental right because it occurs in Article II of the Montana Constitution and, therefore, the State must show a compelling interest that is narrowly- tailored to impose the least restraints possible on their properiv interests. Appellants maintain that the State has faiied to meet this burden because it failed to demonstrate that I-143 substantially advanced any purported legitimate state interests such as protecting the tradition of fair chase hunting in Montana, or preventing the spread of CWD. See Opinion, {16 n.2. Appellants assert that their position is supported by the plain language of Article II, Section 29, which protects against a “taking” or “damaging.” Therefore, the inquiry is whether Article II, Section 29 of the Montana Constitution affords greater, more expansive rights than does the Fifth App. 37 Amendment to the U.S. Constitution, to the extent that a wholly separate regulatory takings analysis need be performed under the Montana Constitution. {63 As we noted in Kafka, we have generally looked to federal case law for guidance when considering takings claims brought under Article II, Section 29 — a practice that is consistent with that of other states with similar or identical language in their state constitutions. See Kafka, { 30. Appellants and the Dissent have seized upon the “damaging” language in Article II, Section 29 to argue for a sweeping new interpretation of this provision. 7 64 It is important to bear in mind that Article II, Section 29 protects against a “taking” and “damaging” of private property. We take this occasion to reaffirm the position taken in Kafka, that the protection against a “taking” of private property under Article II, Section 29 is coextensive with the protection given under the Fifth Amendment. Kafka, {7{ 30-31. In other words, a takings analysis based on federal law under Penn Central or Lucas is to be applied to takings claims whether brought under the U.S. or Montana Constitutions. This practice is in accord with the overwhelming majority of states that have similar or identical language in their state constitutions. {65 The question then becomes what type of protection, and accompanying analysis, is provided against a “damaging” of private property. This “or damaged” language was adopted verbatim from the App. 38 1889 Montana Constitution, and already has a well- established meaning. In Less v. City of Butte, 28 Mont. 27, 72 P. 140 (1903), the plaintiff sued the city for damages to his property occasioned by a change in the grade and excavation of the street abutting his residence. As a result of the change, Less was confronted with a street graded and excavated to the depth of about seven feet below his home. Less claimed that his ability to use and enjoy his property had been significantly infringed, as had his access to the public street. The District Court awarded him $500, and the city appealed. In affirming the district court, this Court stated: Constitutions which provide that “private property shall not be taken for public use without just compensation” are but declar- atory of the common law, and contemplate the physical taking of property only. Under constitutions which provide that property shall not be “taken or damaged” it is universally held that “it is not necessary that there be any physical invasion of the individual’s property for public use to entitle him to compensation.” Root v. B.A. & P. Ry. Co., 20 Mont. 354, 51 Pac. 155, and cases cited. The owner of a city lot “has a kind of property in the public street for the purpose of giving to such land facilities of light, of air, and of access to the street.” Bohm v. Ry. Co., 129 N.Y. 576, 29 N.E. 802, 14 L.R.A. 344. “These easements are property, protected by the Constitution from being taken = or damaged without just compensation.” Root v. App. 39 B.A. & P. Ry. Co., supra. Moreover, it may frequently occur that “the consequential damage may impose a more serious loss upon the owner than a temporary spoliation or invasion of the property.” City of Atlanta v. Green, 67 Ga. 386. Less, 28 Mont. at 32, 72 P at 141 (other citations omitted). 166 Subsequently, in Knight v. City of Billings, 197 Mont. 165, 642 P.2d 141 (1982), we were called upon to address plaintiffs’ complaints for inverse condemnation arising out of the improvements to 24th Street in Billings, which expanded the roadway to such an extent that the parties’ front yards were unusable and the noise and traffic horrific for the homes now virtually atop these new traffic lanes. Relying upon Less and the “or damaged” language of Article II, Section 29, we concluded that the private property interests of the plaintiffs had been interfered with to such an extent as to constitute a “taking” by inverse condemnation. We cautioned, however, that our holding was limited to the unique situation before us “where a physical taking across the street occurred.” Anight, 197 Mont. at 174, 642 P.2d at 146. {67 It thus appears that the “or damaged” language of the provision has been interpreted to apply to eminent domain proceedings, including inverse condemnation proceedings, where private property is taken or damaged for public use. In fact, during the debate over the 1972 Montana Constitution. the App. 40 committee discussed this provision strictly in the context of eminent domain proceedings, using property taken for highway construction as the primary example in explaining what occurs when the offer by the government is, for example, too low or too high. See Montana Constitutional Convention, Verbatim Transcript, March 9, 1972, pp. 1825-28. {68 Notably, the California state constitution contains the identical language as Article II, Section 29. California courts have, over the history of this provision, repeatedly been asked to expand the circumstances under which a private property owner may recover, with proponents contending that the “or damaged” language infers an intention to expand the scope of the provision outside the realm of eminent domain or public works. California courts have resisted this notion. As recently as 1995, in the case of Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41 Cal. Rptr.2d 658, 895 P.2d 900 (1995), the Supreme Court of California, sitting en banc, rejected an attempt by a store owner to recover damages to his store occasioned by police action that was taken to enforce criminal laws. The court stated that “(t]he California Constitution of 1879 added the phrase ‘or damaged’ to the just compensation provision, but this change was not intended to expand the scope of the constitutional compensation provision beyond the ambit of eminent domain and public improve- ments.”Customer Co., 41 Cal.Rptr.2d 658, 895 P.2d at 906 (citation omitted) App. 41 469 The point of the foregoing discussion is that the “or damaged” language of Article IT, Section 29 is intended to apply to damage to real and private property occasioned by a taking of real property for public use. Neither the 1889 or 1972 Montana Constitutions evince any intent that it apply to regulatory takings or damages resulting therefrom. Moreover, the provision mandates that private property not be taken or damaged for public use without just compensation “having been first made to or paid into court for the owner.” This language obviously contemplates a condemnation of property by the State, and the recognition that the appropriation will cause determinable consequential damages to property owners affected thereby-damages which can be ascertained at the time of the taking. Simply put, the plain language of Article II, Section 29 does not suggest that the provision was intended to apply to the types of damages a regulatory taking might arguably cause over time, after a regulation has taken its toll om a property owner. And, notably, neither the appellants nor the Dissent have cited a single case for the proposition that the “or damaging” language — which, incidentally, is present in roughly half of the state constitutions in this country, see Kafka, { 30, n. 5 — is intended to provide any greater protections in the regulatory taking context than does the Fifth Amendment to the U.S. Constitution, or that it applies to anything other than the consequential damages to the property of persons affected by a physical condemnation, or similar actions, initiated by the State. App. 42 {70 The Dissent claims to have contradicted this proposition by citing to Wild Rice River Estates v. City of Fargo, 705 N.W.2d 850 (N.D.2005), and Manufactured Housing Communities v. State, 142 Wash.2d 347, 13 P3d 183 (2000). However, an examination of these cases confirms the accuracy of the analysis and conclusions presented in this Opinion with respect to the meaning of the “or damaged” language in Article II, Section 29. {71 Manufactured Housing did involve a regulatory taking claim under the Washington State Constitution, employing an analysis which was distinct from that employed under the Fifth Amend- ment. Manufactured Housing, 13 P.3d at 187. However, this case is not supportive of the Dissent’s criticism. First, Manufactured Housing did not discuss the meaning of the “or damaged” language in the Washington State Constitution in the context of a regulatory takings claims. Thus, the significance of the Dissent’s citation to this case in the present context is unclear. Second, the Washington takings test has four distinct inquiries, which are grounded partly in federal and partly in state law. Manu- factured Housing, 13 P.3d at 187. The Dissent, however, does not propose a distinct new test, or indeed, any analogous test. Rather, the Dissent simply argues that the federal tests should not apply, and that, instead, whenever there is any damage to private property by state action, compensation 1s required — whether the action was actually a taking or not. This amounts to a radically scaled-back Penn App. 43 Central analysis: There need be no inquiry into the character of the government action or the reasonable investment-backed expectations of the claimant; rather, the only inquiry is whether there was any economic impact. Since the Dissent does not provide any guidance or bright line as to how much economic impact is enough to trigger a damaging —- relying more on a “I know it when I see it” reflex (see Dissent, ¥ 167) — it is difficult to envision how the State could confidently afford to regulate anything under such a regime. Arguably, any private property owner whose property was “damaged” by state action, whether in the form of restrictions, fees, or regulations, would be entitled to seek compensation therefore from the public fisc. As Justice Holmes noted in Pennsylvania Coal, “[glovernment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 394, 43 S.Ct. 158, 159 (1922). 472 Moreover, while Wild Rice did discuss the “or damaged” language in the North Dakota State Constitution, neither Wild Rice itself, nor the cases upon which it relied, involved or discussed any regulatory takings claims. In Wild Rice, the North Dakota Supreme Court, in interpreting identical language in its state constitution stated the following: Under N.D. Const. art. I, § 16, “[p]rivate property shall not be taken or damaged for public use without just compensation.” This Court has said our state constitutional App. 44 provision is broader in some respects than its federal counterpart because the state pro- vision “‘was intended to secure to owners, not only the possession of property, but also those rights which render possession valu- able.’” Wild Rice, 705 N.W.2d at 856 (quoting Grand Forks- Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 346 (N.D.1987)). {73 Wild Rice relied upon Grand Forks, which in turned relied upon Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 816 (1942). Donaldson, in turn, relied upon King v. Stark County, 67 N.D. 260, 271 N.W. 771 (1937). None of these cases applied the “or damaged” language in the context of a regulatory takings claim even remotely similar to the claim at bar. However, in King, the North Dakota Supreme Court specifically described the meaning of the “or damaged” language in its state constitution. Because the analysis is King is instructive regarding the Dissent’s contentions, we quote it at length: When the Fifth Amendment to the Consti- tution of the United States was adopted, it was therein provided that private property could not be taken by the United States for public use without just compensation. And the earlier State Constitutions likewise so provided. But this guaranty was too narrow. It insured compensation only in those cases where property was taken. The severity of the rule and the tnjustice resulting from its application were recognized. In England, by App. 45 act of Parliament, compensation has been allowed since 1845 for damage caused by the construction of public works. In this country a wide diversity in the holdings of the courts of the several jurisdictions arose as to the meaning of the terms “taken” and “damaged.” In 1870, the people of the State of Illinois amended their Constitution so that it provided that property should not be taken or damaged for public use without just compensation. And when the Constitution of the State of North Dakota was adopted this provision was inserted therein as section 14. Its history has been traced and its effect somewhat considered by this court hereto- fore. Nearly all of the State Constitutions now contain this provision. Under it the courts have uniformly held that there is hability not only for property taken, but also for consequential damages to property arising from the acts of the authorities in constructing public works. It is not necessary that there be a direct injury to the property itself in order to create this liability. It is sufficient to warrant a recovery if there be “some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.” And the diminution in value of property resulting from the acts App. 46 complained of is special and peculiar within the meaning of the rule. King, 271 N.W. at 773-74 (internal citations omitted). 474 The Dissent faults the Court for its “originalist” approach to Article II, Section 29, and for declining to adopt its construction of Article II, Section 29. Begging the question of why “originalist” is equivalent to “abhorrent,” (see Dissent, {{ 178, 178), the fact is that virtually none of the legal rhetoric and argument posited by the Dissent here was presented by the appellants themselves — either in the District Court or before this Court. We routinely admonish parties that we do not consider a party's change in legal argument, or new theories raised on appeal. State v. Rahn, 2008 MT 201, J 22, 344 Mont. 110, 7 22, 187 P.3d 622, | 22. Based on the issues actually raised and argued by the parties, and their failure to either effectively address our existing jurisprudence under Article IJ, Section 29, or argue for an expansion of existing law, we conclude that appellants have failed to establish that in the regulatory takings context, the “or damaged” lan- guage in Article II, Section 29 of the Montana Constitutior affords more expansive rights than does the Fifth Amendment to the U.S. Constitution. Accordin [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0510%3A1. Public record. Not legal advice.