CPR Archive for John Echeverria

The Horne Case and the Public Trust in Wildlife

by John Echeverria | April 29, 2015

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court last week might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case involves a claim that an arcane raisin-marketing program administered by the Department of Agriculture effects a taking by requiring raisin growers, in certain years, to turn over a portion of their crop to the government in order to keep raisin prices high.   While there are several issues presented and lurking in the case, the central question is whether takings claims based on government seizures or other “appropriations” of personal property are governed by a per se rule. The Petitioners’ case rests on persuading the Court to apply a per se rule because they declined, for better or for worse, to present an alternative takings claim resting on the multi-factor Penn Central analysis.  In the oral argument, a majority of the Court seemed persuaded that the raisin-marketing program was “ridiculous” and that some ground should be found for calling it a taking.

However, based on logic and precedent, the Petitioners still have a steep uphill climb. The Court has indicated that appropriations of real property are governed by a per se rule, but it has never held that a per se rule applies to government seizures of personal property. In other words, the Court has declined to accept, at least so far, that government seizures of personal property, as a category, are ...

In Horne v. Department of Agriculture, SCOTUS to Wade into Complicated Nest of Takings Issues

by John Echeverria | March 13, 2013
Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches.  To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls. The issue representing ...

The Muddy Arkansas Game and Fish Commission Case

by John Echeverria | September 25, 2012
The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed.  The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause.  But there are two other  -- arguably ...

In Stop the Beach Renourishment Ruling, Conservatives Come up One Vote Short in Quest to Remake Property Rights Law

by John Echeverria | June 17, 2010
If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” ...

The Florida Beach Case Comes to Supreme Court: A Badly Flawed Test Case for Property Rights Advocates

by John Echeverria | November 30, 2009
On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here). Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their ...

Also from John Echeverria

John Echeverria is Professor of Law and Acting Director of the Environmental Law Center at Vermont Law School.

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