August 16, 2013

Takings law is here to stay

By Brian T. Hodges Senior Attorney

The Supreme Court of Washington issued an opinion in Lemire v. Washington Department of Ecology yesterday, upholding an Ecology order that requires rancher Joe Lemire to install livestock exclusion fencing around a portion of his ranch that borders a creek.  This is a disappointing outcome for Lemire, who may now be required to block off grazing access to almost 20% of his property.  The opinion also will have wider repercussions for agriculture in the state, because it seems to empower Ecology to issue orders to any property owners who (1) have a body of water on their property that is not fenced off, and (2) own cattle that occasionally cross over or drink from that water.  Furthermore, the court determined that Ecology may issue such orders even when the agency cannot demonstrate that the lucky recipient is actually causing pollution.

However, despite its shortcomings, the opinion is good for takings law in the Evergreen State.  When I first wrote about this case, I explained that PLF supported Lemire because Ecology was attempting to undermine long-standing state precedent on takings.  Specifically, I noted that Washington takings law is, on the whole, more protective than federal law because it recognizes several additional theories under which a property owner may prove a taking.  For example, Washington law provides that a property owner may prove a taking if he can show that a regulation destroys a “fundamental attribute” of his ownership.  Federal law does not recognize that test, but plaintiffs have used it with success in Washington courts.  Fortunately—and to the distress of many amici who lined up against Lemire—the court did not abandon Washington’s special takings tests.  That means property owners in Washington may still avail themselves of the state theories, even though the court did not conclude that a taking had occurred in Lemire’s case.

Finally, I was pleased to see that the dissenting opinion lauded PLF’s recent victory in Koontz v. St. Johns River Water Management District by describing it as “illustrat[ing] the continued strength of private property rights under our federal constitution.”

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