July 30, 2012

Will the Supreme Court of Washington finally take on takings law?

By Brian T. Hodges Senior Attorney

Today, Division III of the Washington Court of Appeals issued an “Order of Certification” in a case called Lemire v. Washington Department of Ecology.  An Order of Certification means the Court of Appeals believes that the legal issues in the case are so important that the Washington Supreme Court should decide the case, bypassing Court of Appeals review.  The main issue in the case is whether Ecology committed a “taking” of rancher Joseph Lemire’s property when the agency ordered him to fence off a portion of his property to keep livestock from accessing a creek.

Today’s order is exciting for a couple reasons.  The court’s order indicates that the key issue for review is “whether restrictions imposed by the Department of Ecology on the use of a body of water on private property results in a per se taking.”  This was the primary issue we addressed in our brief—we wrote that the court should find a taking because Ecology’s order destroyed “fundamental attributes” of Lemire’s property ownership.  Though we cited numerous cases showing that the court should apply the “fundamental attributes” test, Ecology took the position that Washington courts have never applied such a test.  Thus, it appears that the big question the Supreme Court is being asked to resolve is whether we or Ecology are right about the viability of the “fundamental attributes” test as a tenet of takings law in Washington.  That question desperately needs to be answered, and our brief provides good arguments for preserving the test.

The certification order also has the potential to open the door for the Supreme Court to reevaluate Washington’s takings test as a whole.  There is a lot of confusion among property owners and government agencies alike as to when a regulation constitutes a taking under Washington law.  But rest assured that PLF will champion a view of takings law that provides the widest possible latitude for property owners to obtain just compensation for takings if the Supreme Court decides to hear the case.

As always, keep coming to the PLF Liberty Blog for updates!

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