The Horne Case and the Public Trust in Wildlife

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 always takings.   Instead, the Court has sometimes ruled that seizures of personal property amount to takings, and sometimes it has rejected such claims, depending on the nature of the government’s police power rationale for its action, the fairness of the imposition, and so on – all factors that naturally come into play under Penn Central, but not under a per se analysis. In Lucas v. South Carolina Coastal Council, the Court, after justifying a per se rule for total regulatory takings of land by observing that they were akin to “appropriations,” said that this per se rule did not apply to personal property, especially commercial property; this reasoning logically supports the conclusion that takings claims based on appropriations of commercial goods should not be governed by a per se rule.

And then there are all the examples of where government seizes commercial goods and other items of personal property for perfectly legitimate purposes and no member of the Court would think a taking occurs. Start with the Food and Drug Administration’s well-established authority to seize adulterated drugs. Or consider the traditional authority of local health departments to confiscate unwholesome foods, or the power of local humane officers to take mistreated animals away from neglectful owners. Or, as Justice Elena Kagan pointed out during oral argument, the instances in which the government can demand that citizens turn over records to the government. Every per se rule has its exceptions, and the Court could attempt to craft a per se rule for takings based on seizures of personal property with numerous exceptions. But to do so the Court would need the acrobatic skills of an Olympian and would have to override a good deal of contrary precedent.

The dramatic surprise in the oral argument came during the discussion of the 1929 chestnut of Leonard v. Earle, a Supreme Court precedent with an uncanny resemblance to the Horne case. The case involved a takings claim based on a Maryland statute that required oyster “packers” to turn over to the State of Maryland, once the oysters had been shucked, 10% of the empty shells. The shells, though surely not as valuable as the innards, had value for road making, as fertilizers, and as animal feed. The State’s purpose in procuring the shells was to arrest the “rapid exhaustion” of Maryland’s oyster beds by using the spent shells to build the depleted beds back up and provide a substrate on which young oysters could grow.  In response to the argument that the statute amounted to a taking, Justice McReynolds wrote:

“From the packer’s standpoint, empty shells are but ordinary articles of commerce, desirable because convertible into money. Their value is not large, and the part taken by the state will be so used as greatly to advantage the business of packing. The purpose in view is highly beneficent, and the means adopted are neither arbitrary nor oppressive. The federal Constitution may not be so successfully invoked by selfish packers who seek to escape an entirely reasonable contribution, and thereby to thwart a great conservation measure generally approved.”

The Horne case, too, of course, involves a program that requires raisin “handlers,” in certain years, to hand over a portion of the raisin crop to the government in order to benefit the industry as a whole.  If there was no taking in Leonard, it is very hard to see how there could be a taking in Horne, much less a taking under a per se rule.

Counsel for Petitioners, Michael McConnell, attempted to distinguish the Leonard case on the ground that it was a “wild animal” case; the oysters, he said, “are the property of the State.”   In other words, because the oysters were public property to begin with, the State could choose by statute to hold back part of the property the public owned. But the Court’s opinion does not suggest that the decision turned on the fact that the oysters were wild animals. Moreover, as Justice Elena Kagan accurately observed, there is a fatal flaw in this argument in this case because the statute applied to the packers, not the fishermen. Once the fishermen lawfully acquired oysters, the oysters were their private property, and when they sold the oysters to the packers the property interest in the oysters was unencumbered by any public ownership.   In other words, when the government required oyster packers to set aside a portion of the spent shells, the government was clearly “appropriating” private property, not holding back public property.

So, Professor McConnell’s effort to distinguish Leonard should fail and the Supreme Court arguably should affirm the Ninth Circuit’s rejection of the takings claim in Horne based on this venerable precedent. But the equally tantalizing possibility is that the Court might embrace McConnell’s argument and thereby revive the concept of public trust ownership of wild animals. The concept of public ownership of wildlife has a venerable history, and I among others have argued that the doctrine provides a potentially powerful defense to takings claims based on ESA restrictions. See John Echeverria & Julie Lurman, “’Perfectly Astounding’ Public Rights: Wildlife Protection and the Takings Clause.”  One obstacle to this argument is repeated statements by the modern Supreme Court that the doctrine of public ownership of wildlife is a mere “fiction.”   If the Court were to embrace Professor McConnell’s argument for distinguishing Leonard, the public ownership doctrine could be given new life, with consequences that could extend far beyond the realm of raisins.

Cross-posted from Takings Litigation blog.