Are state courts serious about federalism?

November 14, 2012 | By BRIAN HODGES

Yesterday I attended the oral argument for Lemire v. Washington Department of Ecology at the Washington Supreme Court. The primary question the Court must resolve in that case is whether Ecology committed a taking when it ordered cattle rancher Joseph Lemire to install livestock exclusion fencing around a creek that runs through his property. The really interesting thing about the case is that it could tell us if the Court is serious about preserving federalism.

On one hand, Ecology argues that the Court should take a narrow view of the case based on federal law, under which the agency’s order might not constitute a taking even if it substantially interferes with Lemire’s ranching operations. On the other hand, Lemire (and PLF as amicus) argue that the Washington Constitution is more protective of Lemire’s property rights than Ecology’s parsimonious view of federal law. Our position is that Lemire should prevail because he can show that the fencing order destroys fundamental attributes of ownership that make his property economically viable.

The Court has to make a choice. Will it abandon the long-held notion that the Washington Constitution provides greater protection of individual rights than the Fifth Amendment? Or will it vindicate federalism by holding that the Washington Constitution protects the people of the state from overreaching government, even when the U.S. Constitution might not?

The Court’s questioning at oral argument did not suggest that a majority of the Court was leaning one way or the other, but some members of the Court seemed concerned that a reworked state takings doctrine could deprive Lemire of a remedy. For example, Justice Stephens wanted to know whether Lemire would be entitled to compensation if his access to water was destroyed, even if only a small percentage of his total land area was restricted.

Ecology also suggested that the Court should disregard a recent Washington Supreme Court takings case called Manufactured Housing. Ecology believes that the law as stated in that case (which is one of the main cases that supports Lemire) does not accurately reflect takings law. Justice James Johnson did not seem to be impressed with the idea of overruling Manufactured Housing, asking Ecology’s attorney, cuttingly, “What else has this Court said that you want to get rid of?”

Whether or not the Court reevaluates or restates Washington’s takings doctrine when it issues its opinion, the Court should conclude that Ecology’s order resulted in a taking of Lemire’s property. As we wrote in our brief, “Land and water are the lifeblood of Lemire’s ranch, yet Ecology eliminated access to both.”