Opposition Brief — E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District

Supreme Court, U 5S

PILED

4 NOV 3- 2010 |

No. 10°448

OFFICE OF 1... 4! |

In the

Supreme Court of the United States

KL, ENTERPRISES, INC.,

Petitioner,

V.

MILWAUKEE METROPOLITAN SEWERAGE DISTRICT,

Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF IN OPPOSITION

JAMES H. PETERSEN G. MICHAEL HALFENGER

MILWAUKEE METROPOLITAN Counsel of Record

SEWERAGE DISTRICT WILLIAM J. KATT, JR

260 W. Seeboth Street FOLEY & LARDNER LLP

Milwaukee, Wis. 53204 777 Kast Wisconsin Avenue

(414) 225-2102 Milwaukee, Wis. 63202

(414) 271-2400

mhalfenger@foley.com

Attorneys for Respondent

Ne pte _—

Wit SON-F PES PRINTING CO , INC (202) 789 0096 Wasnincton,D C 20002

QUESTION PRESENTED

Respondent's extraction of groundwater during

sewer construction on an easement next to peti

tioner’s building caused some of the building’s wood

foundational piles to decay and ultimately fail. Peti-

tioner’s use of the commercial real estate was never

interrupted, but repairs were required.

Does the Takings Clause of the Fifth Amendment

entitle petitioner to recover from respondent the

costs of repairing its building?

il

RULE 29.6 STATEMENT

Respondent, defendant-appellant-petitioner below,

is Milwaukee Metropolitan Sewerage District, a spe-

cial purpose entity organized under Chapter 200 of

the Wisconsin Statutes. See Wis. Stat. § 200.21, ef

seq. It has no parent corporation, and no publicly

held company owns 10% or more of its stock.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .........................0...... i

RULE 29.6 STATEMENT........................ aren 1

TPs MP FR RPM Or enev scecndccoussoccncscacsesss iV

BRIEF IN OPPOSITION ..... PRS e ne SUCRE i a ]

I ccanvcedcseeconansiceceavies l

COUNTERS LATEOMENNT .......0cccccccccccoroscsscccccess 1

REASONS FOR DENYING THE WRIT........... 5

:. This Case Presents a Poor Vehicle to

Consider a Federal Takings Law

Issue Because E-L Based Its Claim

Ne es eutiowes 5

Il. The Wisconsin Supreme _ Court

Correctly Applied Settled Law. ................. 6

III. The Wisconsin Supreme Court Did

Not Construe Federal Law so as to

Conflict With Other Federal or State

ee ins cuceasndde 11

20 & Bho 1S 14

(iii)

TABLE OF AUTHORITIES

Page(s)

CASES

Bedford v. United States,

192 U.S. BUF teas seacsesc. a i

Blum v. Ist Auto & Cas. Ins. Co.,

786 N.W.2d 78 (Wis. 2010) ...............ccceceeeeceeeeee 10

Cline v. Am. Aggregates Corp.,

474 N.E.2d 324 (Ohio 1984).................. 1 12

Colher v. Merced Irrigation D1st.,

DP Deb FOG ee oi vcccocccccccccccccesess 13

Dugan v. Rank,

372 U.S. Be iis snacesasss....... 9-10

Gibson v. United States,

166 U.S. Be ee vovececcce.sc0.....000:. G6

Hensley v. City of Columbus,

557 F.3d 693 (6th Cir. 2009)...........c.ccccccececceece: 12

Hensley v. City of Columbus,

433 F.3d 494 (6th Cir. 2006).......... ae 11-12

Hensley v. City of Columbus,

No. 02-3778,

2004 WL 1152836 (6th Cir. Feb. 20, 2004) ...... 1]

Hensley v. City of Columbus,

No. 2:99-CV-888,

2007 WL 2902943 (S.D. Ohio Oct. 1, 2007)...... 12

Vv

International Paper Co. v. United States,

282 U.S. 399 (1931)

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005)

Loretto v. Teleprompter Manhattan CATV

Corp.,

GOB CB. CUO CIO socks ccisceciccavsessiaccrnscencs

McNamara v. City of Rittman,

838 N.E.2d 640 (Ohio 2005)...........c.cccccceecceceee-

Sanguinetti v. United States,

264 U.S. 146 (1924).................. Nise epeereaacesdaioeas

Stop the Beach Renourtshment, Inc. v. Fla.

Dep't of Envtl. Prot.,

130 S. Ct. 2592 (2010)...... se oad Coane ee .

United States v. Cress,

BES Ue Be nO atin ok see

United States v. Kansas City Life Ins. Co.,

339 U.S. 799 (1950) .0....cccccccececccesececeeeceeceeeeceeee

United States v. Lynah,

168 U.S. 445 (1008) .......0...00..00ccessscscsvecessesesesase

United States v. Willow River Power Cce.,

Sia OF a Cr oe ee ey

Wis. Power & Light Co. v. Columbia Cuty.,

BT NW .2d STO (Wik, BOGGS oi scccssccecssvcesecencorsess

Wisconsin v. Michels Pipeline Constr., Inc.,

217 N.W.2d 339 (Wis. 1974). ...........00..00- 8, 10,

fond ry

oO, f

12

10

v1

CONSTITUTIONAL PROVISIONS

rely Se SII OF soo cn cdunatusensasnesany 6, 8, 12

CAL. CONST. art. 1, § 14.................. Pace gedtavuctani ae 13

ns Ue Soins cone aks pin susie pacudabenvess 3

STATUTES

WG, Beh BB oss ivcciesoeccuvesedececsaxessapsatcesvnesesens 3

OTHER AUTHORITIES

Brief of Respondent E-L Enterprises, Inc.,

E’-L Enterprises, Inc. v. Milwaukee Metro.

Sewerage Dist.

785 N.W.2d 409 (Wis. 2010)

(No. 2008AP921), 2009 WL 2761576........... eae

RESTATEMENT OF THE LAW (SECOND) OF TORTS

BRIEF IN OPPOSITION

INTRODUCTION

Petitioner E-L Enterprises, Inc. seeks review of a

decision of the Wisconsin Supreme Court holding

that consequential damages caused to its building by

respondent’s sewer construction did not amount to a

taking of property. As a threshold matter certiorari

is inappropriate in this case because the petition

presents no important federal law issue: E-L did not

press a federal takings claim in the lower state

courts and addressed it only perfunctorily after the

Wisconsin Supreme Court ordered the parties to

brief the application of federal law; the Wisconsin

Supreme Court reversed the lower courts without

separately analyzing federal law. What is more, the

Wisconsin Supreme Court’s ruling that E-L proved

only consequential damages to its building does not

decide a question of federal law in a way that con-

flicts with any decision of this Court, a federal court

of appeals, or another state court of last resort. This

Court has held for over a century that consequential

damages do not amount to a taking of property for

purposes of the Fifth Amendment. Certiorari should

be denied.

COUNTERSTATEMENT

1. This case arises from the District’s construction

in 1987—1988 of a near-surface collector sewer con-

structed for the District by an independent contrac-

tor. App. 1:5. To construct this sewer, the contractor

dug a trench from the surface, installed sewer pipes,

and then restored the surface. /d.

2

One portion of the sewer ran next to E-L’s building.

App. 1:5-6. The building, built in 1928, was con-

structed on wood piles—long, wooden poles driven

into the ground. /d. at 1:6. Concrete pile caps were

poured on top of the piles, and the caps provided

foundational support for the rest of the building. /d.

The contractor constructed the sewer in the Dis-

trict’s easement under a private alley next to the

south wall of E-L’s building. Jd. at 1:5-6. Neither the

contractor, the construction trench, nor the District

ever entered E-L’s property. /d. at 1:6 n.8.

When construction approached E-L’s_ building,

groundwater entered the trench and interrupted

construction. /d. at 1:6. Beginning October 26, 1987,

the contractor pumped water from the trench for 17

days in order to dry it sufficiently to allow construc”

tion to resume under safe conditions. Jd. Groundwa-

ter measurements at the time of construction in 1987

and when the sewer was completed in 1988 showed a

groundwater level reduction near E-L’s building. /d.

The levels recovered over the course of the next two

years. /d.

In 1998, ten years after the sewer was constructed,

E-L’s owner began monitoring the building’s settle-

ment rate. /d. In 2001, E-L had an engineer examine

the building’s foundational piles. /d. E-L’s engineer

determined that the tops of 14 wood piles under the

building’s south wall (and the first piles north of

each corner) had rotted and were no longer able to

support the building. /d. To repair the problem,

damaged portions of these piles were sawed off and

replaced with concrete. /d.

The repairs ultimately cost $309,388, including at-

torneys’ fees E-L incurred litigating with a neighbor

3

who obstructed the repair effort by refusing access to

his adjacent alley. App. 1:7. E-L continued to lease

space in the building throughout the entire period.

Id.

2. In June 2004, E-L filed this lawsuit against the

District and the insurer for the now-defunct contrac-

tor. Jd. E-L principally pleaded negligence and nui-

sance claims. /d. It also pleaded a claim for “inverse

condemnation’—effectively a takings claim under

Art. I, § 13 of the Wisconsin Constitution—against

the District. Jd.

The contractor’s insurer resolved E-L’s negligence

and nuisance claims against the contractor in a con:

fidential agreement. /d. at 1:7 n.9. E-L has refused to

disclose the amount it recovered in the settlement.

The trial court dismissed E-L’s negligence and nui-

sance claims against the District under Wis. Stat.

§ 893.80(4), which affords governmental entities im-

munity from tort claims based on discretionary con-

duct. Jd. at 1:7. The trial court allowed E-L to pre-

sent its takings claim to a jury. App. 1°9.

The jury found that the District's removal of

groundwater was unreasonable and a_ taking.

App. 1:9-10. The special verdict asked the jury

whether the District's removal of groundwater

caused E-L’s building to settle. App. 1:10. The jury

answered “yes” and awarded E-L $309,388, the

amount of the foundation repairs, plus other inciden-

tal repair costs, including attorneys’ fees incurred in

litigating access rights with the neighbor. Jd at

1:10—11.

The District appealed. Jd. at 1:11. The court of ap-

peals, addressing E-L’s takings claim under the state

4

constitution only, affirmed. App. 2:1—20. It concluded

that “this case is on the ‘taking’ side of the line rec-

ognized by Wisconsin Power & Light |Co. v. Colum-

bia County, 87 N.W.2d 279 (Wis. 1958)]” (App. 2:10)

dividing non-compensable governmental damage to

property from governmental conduct that constitutes

a taking of property (App. 2:7-8).

3. The Wisconsin Supreme Court reversed. The

Court explained that two types of governmental con-

duct can give rise to a compensable taking under the

Wisconsin Constitution and the Constitution of the

United States—(i) physical occupations or appropria-

tions and (ii) regulatory conduct that approximates a

physical cccupation because it deprives an owner of

all beneficial use of the property. App. 1:14—15 (citing

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)).

As the court stated, E-L claimed only that the Dis-

trict physically took its property. App. 1:15—-16; see

also App. 1:16 n.15. But, as the court recognized, “It

is undisputed that the Sewerage District did not

physically occupy the property for which E-L seeks

compensation.” /d. at 1:33. And, as the court ex-

plained, E-L could not claim that the District’s con-

duct deprived “E-L of all, or substantially all, of the

beneficial use of its building. .. . The fact that E-L

continued to lease the building throughout this en-

tire period is alone sufficient to show that the value

of E-L’s building was not destroyed for all purposes.”

App. 1:30-31.

Because E-L proved only camage to its property

caused by the District’s removal of groundwater on

the District’s property, the court held that E-L had

not demonstrated a compensable taking: “[T]he U.S.

Constitution and the Wisconsin Constitution, unlike

5

the constitutions of other states, provide only that

the property of no person shall be ‘taken’ for public

use without just compensation; there is no mention

of just compensation for property that is merely

‘damaged’ for public use.” App. 1:25 (footnote omit-

ted). Indeed, as the court stated, “Both the United

States Supreme Court and this court have consis”

tently recognized that ‘government action outside the

owner's property that causes consequential damages

within’ does not constitute a taking.” App. 1:24 (quot:

ing Loretto v. Teleprompter Manhatian CATV Corp.,

458 U.S. 419, 428 (1982)). See also App. 1:28.

REASONS FOR DENYING THE WRIT

I. This Case Presents a Poor Vehicle to Consider

a Federal Takings Law Issue Because E-L

Based Its Claim on State Law.

Petitioner did not raise a federal takings law issue

in the Wisconsin courts, and none was well devel:

oped there. See App. 1:2 n.2 (“The issue of whether

the Sewerage District’s conduct constituted a taking

under the U.S. Constitution was not invoked, argued,

or appealed below.”). The Wisconsin Supreme Court

interjected the federal law issue sua sponte when, in

granting review, it ordered that “the parties’ briefs

shall address the following additional issue: the ap-

plicability of the United States Constitution’s provi-

sions regarding takings of property.”

EK-L had consistently relied only on Wisconsin law

in the trial court, the court of appeals, and in oppos-

ing the District’s petition for review in the Wisconsin

Supreme Court. Neither the trial court nor the court

of appeals considered the judgment to be one driven

by federal law.

6

E-L’s brief in the Wisconsin Supreme Court dealt

with federal law only in passing. See Brief of Re-

spondent E-L Enterprises, Inc. at 25-30, #-L Enter-

prises, Inc. v. Milwaukee Metro. Sewerage Dist., 785

N.W.2d 409 (Wis. 2010) (No. 2008AP921), 2009 WL

2761575. And the Wisconsin Supreme Court simply

resolved the federal-law issue in tandem with the

state constitutional question, belying any claim that

the case presents an important federal-law issue that

deserves this Court’s consideration. See App. 1:14

17.

Il. The Wisconsin Supreme Court Correctly Ap-

plied Settled Law.

A. E-L proved only consequential damages not re-

coverable as a taking. This Court’s Takings Clause

jurisprudence has long adhered to the principle that

consequential damages from non-invasive govern-

ment conduct do not amount to “takings”: “Opera-

tions of the Government. . . oft times inflict serious

damage .. . but damage alone gives courts no power

to require compensation where there is not an actual

taking of property.” United States v. Willow River

Power Co., 324 U.S. 499, 510 (1945); see also Bedford

v. United States, 192 U.S. 217, 225 (1904) (no taking

where government obstruction of river alleged to

cause damage that “was strictly consequentiall |

[and] was the result of the action of the river through

a course of years”); Gibson v. United States, 166 U.S.

269, 275 (1897) (damage resulting from construction

of dike “was not the result of the taking of any part

of her property ... but the incidental consequence of

the lawful and proper exercise of a governmental

power”).

7

The effects of governmental conduct outside pri-

vate property—like the District's conduct lere—are

not takings unless they result in a complete appro-

priation of private property. For example, “this Court

has consistently distinguished between flooding

cases involving a permanent physical occupation, on

the one hand, and cases involving a more temporary

invasion, or government action outside the owner's

property that causes consequential damages within,

on the other. A taking has always been found only in

the former situation.” Loretto, 458 U.S. at 428 (citing

United States v. Lynah, 188 U.S. 445, 468-70 (1903);

Bedford, 192 U.S. at 225; United States v. Cress, 243

U.S. 316, 327-28 (1917); Sanguinetti v. United

States, 264 U.S. 146, 149 (1924); United States v.

Kansas City Life Ins. Co., 339 U.S. 799, 809-10

(1950)).

Decaying woodpiles—the consequence of lower

groundwater levels—is the only property damage or

loss E-L proved. While E-L now conteiids that “its”

groundwater was taken, it submitted no evidence of

groundwater value. The proof of reduction in “mar-

ket value” that E-L now argues is a proxy for

groundwater value was actually proof of repair costs.

As E-L told the jury, “(t]he reduction in the fair mar-

ket value was what were the repairs that had to be

done on this place. And the repairs that had to be

done are summarized in Exhibit 51... .” App. 1:19.

Exhibit 51, as the Wisconsin Supreme Court cor-

rectly recognized, made obvious that K-L proved only

consequential damages:

Exhibit 51, a five-page document titled “Costs to

Repair the Valley Business Center lor E-L’s

building],” is a comprehensive list of the repairs

made to E-L’s building and the costs thereof. The

8

document has a “Detail” list of the repairs made,

which includes “Window work,” “Foundation, In-

terior... ,” “Installed baseboard, etc.,” “Electri

cal work for wall,” “Wall repairs,” “Demo piping,

etc.,” and like repairs.

App. 1:19—20 n.17.

B. The decision below and this Court’s decisions

are in accord. In interpreting the Fifth Amendment's

Takings Clause the Court has recognized two types

of compensable government conduct: (1) direct gov:

ernment appropriations or physical invasions of pri-

vate property, and (2) non-invasive regulatory ac”

tions that force the owner to suffer a physical inva-

sion or that substantially interfere with the prop:

erty’s use. Lingle, 544 U.S. at 537-38. E-L did not

demonstrate conduct of either type.

There was no evidence of a direct government ap-

propriation or physical invasion. The District never

entered E-L’s property, and no regulatory action is at

issue. Nor does Wisconsin law grant K-L ownership

of the groundwater removed by the District’s con:

tractor from the District’s property. The controlling

Wisconsin decision, Wisconsin v. Michels Pipeline

Construction, Inc., allows landowners free use of

groundwater on their land but imposes a common:

law nuisance duty not to use groundwater on their

property in a way that unreasonably harms

neighboring properties. 217 N.W.2d 339 (Wis. 1974).

Michels did not create a property “right” or “interest”

in a specific groundwater level; indeed, it refused to

adopt the “correlative rights” doctrine of groundwa-

ter use allocation among neighboring landowners. /d.

at 349—50. Thus, under Wisconsin law, the District's

misuse of its land in violation of this duty—the most

-

that E-L has proved—<annot be viewed properly as a

“partial” physical taking of E-L’s property. See App.

1:28. E-L did not own the removed groundwater.

And, as the Wisconsin Supreme Court stated, “E-L

does not claim that the Sewerage District’s diversion

of groundwater beneath E-L’s building, which re-

duced the building’s structural integrity, rendered E-

L's building valueless. E-L cannot so claim because it

is undisputed that E-L continued to lease the com-

mercial building throughout this entire period.” /d.

at 1:34~-35; see also id. at 1:7, 30-31.

C. E-L ignores the last half century of this Court’s

takings jurisprudence and relies exclusively on

Dugan v. Rank, 372 US. 609 (1963), and

International Paper Co. v. United States, 282 U.S.

399 (1931), to argue that the Wisconsin Supreme

Court’s decision conflicts with decisions of this Court.

Dugan and International Paper both involve gov-

ernment appropriation of discernable water rights

created by state laws materially different from the

Wisconsin law at issue here.

1. Dugan v. Rank arose out of a reclamation project

that redirected water from the Sacramento River to

the San Joaquin River. The project reduced water

flow on a section of the San Joaquin. San Joaquin

landowners who declined the Government’s offer to

purchase their California-law riparian rights sued to

enjoin the project. Dugan held that a district court

had improperly enjoined the United States and offi-

cials of the United States Bureau of Reclamation

from proceeding with the project.

In vacating the injunction, the Court reasoned that

the only potentially available remedy was damages

“to be measured by the difference in market value of

10

the {landowners’] land before and after the interfer-

ence.” 372 U.S. at 624-25. But the Court did not rule

on the propriety of a water-rights takings claim, stat-

ing, “we do not in any way pass upon or indicate any

view regarding the validity of respondents’ water

right claims.” Jd. at 626.

Even Dugan's dicta are not in conflict with the

Wisconsin Supreme Court’s holding that E-L was not

entitled to recover for a taking. As the Wisconsin Su-

preme Court reasoned, E-|. never attempted to prove

the value of diminished groundwater. App. 1:17 &

21-22. It proved only consequential damages.

Moreover, whether a property right exists is a

state-law question. See Stop the Beach Renourish-

ment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct.

2592, 2597 (2010). Wisconsin law, as discussed

above, does not afford landowners an exclusive right

to groundwater or a right to a certain level or

amount of groundwater.” Instead, Wisconsin law af-

fords all neighboring landowners the right to use

avallable groundwater and subjects them to possible

tort lability if their excessive use interferes with a

neighbor’s use. See Michels, 217 N.W.2d at 350-51.

Nothing in Dugan suggests that a government en-

” E-L’s suggestion that the Wisconsin Court of Appeals’ de-

cision in this case recognized a property right in groundwater is

misplaced. The Wisconsin Supreme Court's reversal of that de-

cision deprives it of precedential effect. See Blum v. Ist Auto &

Cas. Ins. Co., 786 N.W.2d 78, 88-89 (Wis. 2010) (overruled

court of appeals decisions have no precedential effect even on

grounds not addressed by the Wisconsin Supreme Court).

Moreover, the Wisconsin Supreme Court’s Michels decision is

plainly at odds with E-L’s putative groundwater property right,

as the Wisconsin Supreme Court explained. See App. 1:23—24

n.20.

1]

tity’s tortious interference with a neighbor’s land use

amounts to a taking. Such a holding would transform

every governmental nuisance into a taking.

2. International Paper Co. v. United States is

equally inapposite. During World War I the United

States appropriated the total electric power output

generated from diverting the Niagara River. 282 U.S.

at 404-06. The Power Company, which was author-

ized by the State of New York to harness the river

water, had conveyed to International Paper the right

to use part of the diverted water to operate its mill.

The Court held that because the Government took all

of the water for its own use, it had to compensate In-

ternational Paper for the loss of its right “to draw .

730 cubic feet per second—a right that by the law of

New York was a corporeal hereditament and real es-

tate.” Jd. at 405. E-L suffered no similar appropria-

tion of an exclusive right to a specific amount of wa-

ter.

lil. The Wisconsin Supreme Court Did Not Con-

strue Federal Law so as to Conflict With

Other Federal or State Decisions.

E-L’s effort to manufacture a federal law conflict

from decisions of the Sixth Circuit, the Ohio Su-

preme Court, and the California Supreme Court is

unavailing.

In Hensley v. City of Columbus, a federal district

court had ruled that Ohio law did not afford land-

owners a property interest in groundwater collected

in wells for residential use. The Sixth Circuit certi-

fied that question to the Ohio Supreme Court.

Hensley v. City of Columbus, No. 02-3778, 2004 WL

1152836 (6th Cir. Feb. 20, 2004). The Ohio Supreme

12

Court answered that under Ohio law title to property

includes a right to reasonable use of the groundwater

beneath that property. McNamara v. City of Ritt-

man, 838 N.E.2d 640 (Ohio 2005). It was not asked to

decide the circumstances under which government

appropriation or interference with that right would

amount to a compensable taking of property under

the Fifth Amendment. See id. at 646. The Sixth Cir-

cuit summarily reversed the district court’s ruling

and remanded for further proceedings. Hens/ey v.

City of Columbus, 433 F.3d 494 (6th Cir. 2006).

On remand, the district court held that the plain-

tiffs’ takings claims were time-barred and granted

summary judgment. Hensley v. City of Columbus,

No. 2:99-CV-888, 2007 WL 2902943 (S.D. Ohio Oct.

1, 2007). The Sixth Circuit affirmed. 557 F.3d 693

(6th Cir. 2009). Neither court considered the merits

of plaintiffs’ claim that the Fifth Amendment re-

quired the City of Columbus to compensate them for

“dewatering” their drinking-water wells.

The inchoate takings issue that these decisions left

unresolved is materially different from the one that

E-L makes here. Whereas E-L claims injury caused

by removal of groundwater passively surrounding its

foundation piles, the Ohio plaintiffs sought compen-

sation for the removal of groundwater captured in

domestic wells for private consumption. See McNa-

mara, 838 N.E.2d at 642. Ohio law, moreover, em-

braces the very correlative rights approach _ to

groundwater that Wisconsin law has rejected. Com-

pare Cline v. Am. Aggregates Corp., 474 N.E.2d 324,

327 (Ohio 1984) (adopting 4 RESTATEMENT OF THE

LAW (SECOND) OF TORTS § 858(1)(b)’s protection from

another’s “withdrawal of ground water exceedling]

the proprietor’s share of the annual supply or total

13

store of ground water”), with Michels, 217 N.W.2d at

349-51 (rejecting correlative rights rule and adopt:

ing draft RESTATEMENT § 858A, which lacked the

provision included in § 858(1)(b)).

E-L’s reliance on the California Supreme Court’s

decision in Collier v. Merced Irrigation District un-

derscores the lack of a true conflict on any important

federal law issue. 2 P.2d 790 (Cal. 1931). At issue in

Collier was whether article 1, § 14 of the California

constitution, which provided that private property

“shall not be taken or damaged for public use with-

out just compensation” (Ud. at 796 (emphasis added)),

required that the defendant-irrigation district com>

pensate the plaintiff-landowner when the district’s

dam eliminated the flow of stream water the plaintiff

had relied on for irrigation. Jd. at 794-96. The 79-

year-old Collrer decision thus involves application of

a materially different state constitutional provision

to materially different state-law property rights in

the context of materially different facts.

14

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

JAMES H. PETERSEN

MILWAUKEE METROPOLITAN

SEWERAGE DISTRICT

260 W. Seeboth Street

Milwaukee, Wis. 53204

(414) 225-2102

November 2010

Respectfully submitted,

G. MICHAEL HALFENGER

Counsel of Record

WILLIAM J. KATT, JR.

FOLEY & LARDNER LLP

777 East Wisconsin Avenue

Milwaukee, Wis. 53202

(414) 271-2400

mhalfenger@foley.com

Attorneys for Petitioner