Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife
41 Pages Posted: 17 Oct 2015 Last revised: 25 Mar 2016
Date Written: October 14, 2015
In Horne v. Department of Agriculture, the Supreme Court expanded its so-called per se analysis under the Takings Clause to government actions impairing possession of personal property. The Court decided that a New Deal era agricultural program effected a taking by requiring raisin growers to turn over a portion of their crops in certain years to a governmental body that disposes of the raisins in noncompetitive markets. The raisin marketing program, which by law only persists with continuing support from the raisin industry itself, aims to control the market supply of raisins, and thereby elevate and stabilize the prices received by raisin growers. Despite the unusual character of the program, a majority of the Court ruled that certain dissident raisin growers were entitled to prevail on their theory that government "appropriations" of personal property interests in raisins were governed by the same per se takings rule that applies to government appropriations of real property.
The Court's analysis of the takings issue is problematic for a number of reasons , including 1) the fact that these particular plaintiffs, who were proceeding in the capacity of raisin "handlers," were not the actual owners of the raisins at issue, and therefore could not legitimately claim a taking of their private property; 2) the Court's modern precedents and traditional practice support the idea that government has broader latitude in controlling personal property than real property, contradicting the Court's new per se rule; 3) there was a substantial question as to whether the program imposed an unconstitutional taking of property "without just compensation," given the significant offsetting benefits growers received from this price support system; and 4) the Court failed to give the government the opportunity to defend the conditions imposed on raisin growers by showing that that the conditions satisfied the standards articulated in Nollan v. California Coastal Commission and Dolan v. City of Tigard. Each of these issues provided a proper basis for affirming the Ninth Circuit's rejection of the takings argument. Nevertheless, Chief Justice John Roberts' majority opinion either ignored or skimmed over all these issues and applied a per se takings rule to this context. Figuring out the implications of the Horne decision for drug forfeiture laws, unwholesome food recalls, and animal cruelty statutes has been left to other days and other cases.
The Horne decision did include an unexpected result of considerable benefit to government defendants, however: the Court distinguished the raisin marketing program from a similar program involving oysters that it upheld against a takings challenge in a 1929 decision. The Chief Justice explained that, unlike raisins, oysters were public property. The Court thereby ratified the venerable but somewhat misunderstood doctrine of sovereign ownership of wildlife. States employ this doctrine, inherited from England and nearly universally adopted by American states, to uphold wildlife conservation regulations and defeat claims of private ownership. Often referred to as the "wildlife trust," the doctrine is the kind of "background principle" of property law that the Court recognized as defeating claims of takings in its 1992 decision of Lucas v. South Carolina Coastal Commission.
In this article we examine the Horne decision in some detail. Although the case does extend the Court's takings jurisprudence to an uncertain extent by applying the per se analysis to personal property, we think the long-term ramifications of the decision lie in the Court's recognition of the sovereign ownership of wildlife. That doctrine not only will defeat private takings claims but should sanction affirmative regulation of wildlife and protection for its habitat, authorize government actions to recover damages against those harming wildlife and wildlife habitat, and reinforce public standing to enforce the wildlife trust.
Keywords: takings law, constitutional law, environmental law, property law, natural resources law, wildlife law
JEL Classification: H42, K11, K12, K32, L12, M11, O13, P42, Q13, Q18, Q22, Q28
Suggested Citation: Suggested Citation