|Piles of oysters in 1884 (Oysters for the Bay.Com)|
It turns out that yesterday's decision bought the argument, a development with potentially far-reaching consequences for the ability of the government to protect nature without running afoul of the takings clause. Echevveria explains in a post yesterday:
In an earlier post on this blog, I noted the debate among the justices during oral argument about the potential significance of the Court’s 1929 decision in Leonard & Leonard v. Earle. I suggested that the Horne case might have the surprising effect of reinvigorating the venerable, but much maligned, doctrine of public ownership of wildlife. As I explained in my earlier post, Leonard appeared to be on all fours with the Horne case and a powerful precedent for upholding the Ninth Circuit, at least until Mike McConnell, counsel for the petitioners, pulled a surprising rabbit out of his hat. Leonard, he argued, was not on point because the denial of the claim turned on the fact that the case involved oysters and oysters are ferae naturae, a form of public property. While there are arguments against this reading of the Leonard decision (including the fact that the Supreme Court opinion in Leonard offers no support for this reading), Chief Justice Roberts bought the argument: “The oysters, unlike raisins.” he explained “were ferae naturae that belonged to the State under state law, and no individual had any property rights in them other than such as the state may permit him to acquire.” In 1979, in Hughes v. Oklahoma, the Supreme Court, after a series of earlier decisions disparaging the public ownership doctrine, famously remarked that the public ownership doctrine was merely a “19th century fiction.” But, with Horne, the public ownership has apparently come roaring back to life. The decision will provide powerful support for government regulations relating to fish and wildlife, and it will bolster the efforts of various scholars and litigators to promote the public ownership doctrine as a defense to takings claims arising from wildlife-protecting regulations.Jonathan Zasloff at Legal Planet discusses the relevance for water law:
Seven years ago, in Casitas Municipal Water Dist. v. United States, the Federal Circuit strongly held — over a vigorous dissent — that if the government does not deliver contracted water because of Endangered Species Act requirements (i.e. keeping water instream to protect fish), then that could be a physical taking. But as far as I know, no other circuit has adopted that holding, and neither has the Supreme Court. And it was a rather odd holding because under California state water law, individuals and private actors cannot own water: they can only hold the right to use it. If you cannot own something, you still may have valuable rights, but it is harder to call it a physical taking.
So the question is whether Chief Justice Roberts’ opinion in Horne would include dicta supporting the Casitas decision. The answer appears to be no. The opinion distinguishes an earlier case, Leonard & Leonard v. Earle, which "upheld a Maryland requirement that oyster packers remit ten percent of the marketable detached oyster shells or their monetary equivalent to the State for the privilege of harvesting the oysters….The oysters, unlike raisins, were 'feræ naturæ' that belonged to the State under state law, and '[n]o individual ha[d] any property rights in them other than such as the state may permit him to acquire.' The oyster packers did not simply seek to sell their property; they sought to appropriate the State’s. Indeed, the Maryland Court of Appeals saw the issue as a question of 'a reasonable and fair compensation' from the packers to 'the state, as owner of the oysters.' Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not 'public things subject to the absolute control of the state'. Any physical taking of them for public use must be accompanied by just compensation."
It’s pretty easy to make an analogy between oysters and water because both are owned by the state. Indeed, if anything, the opinion might undermine the Casitas decision for precisely this reason. If so, it’s good news.