Horne v. United States Department of Agriculture
Mar. 9, 2015
INTRODUCTION
The Ninth Circuit held in this case that a federal regulatory requirement that petitioners (collectively “Home”) deliver a substantial portion of their annual raisin crop to a federal administrative body did not constitute a compensable taking. Of the several reasons the Ninth Circuit offered for that conclusion, one was particularly fundamental: that “the Takings Clause affords less protection to personal than to real property.” Pet. App. at 18a. Relying on that distinction, the Ninth Circuit concluded that the requirement that the Homes deliver their raisins to the administrative body did not fall within the scope of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), which held that permanent physical invasions of property work a per se, or “categorical” taking. Id. at 17a-20a. In other words, the Ninth Circuit would limit that per se rule to real property. Id.
The FCBA focuses this brief on the real/personal property distinction drawn by the Ninth Circuit. That distinction is contrary to this Court’s longstanding reluctance to draw bright lines in takings cases, and has unsettling implications for takings jurisprudence that extend well beyond the circumstances of this case.
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