In the Supreme Court of the United States
BRIDGE AINA LE ‘A, LLC, Petitioner,
STATE OF HAWAII LAND USE COMMISSION, Respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
Brief of Amici Curiae
Owners’ Counsel Of America, National Association of Reversionary Property Owners, NFIB Small Business Legal Center, Reason Foundation, and Professor Shelley Ross Saxer
In Support of Petitioner
Summary of Argument
For nearly a century, this Court has held out the promise that if a regulation goes “too far,” it will be a taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). But “[t]akings law should be predictable *** so that private individuals confidently can commit resources to capital projects.” Susan Rose-Ackerman, Against Ad Hockery: A Comment on Michelman, 88 Colum. L. Rev. 1697, 1700 (1988). In the intervening time, this Court has also recognized that there are a “nearly infinite variety of ways in which government actions or regulations can affect property interests[.]” Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012). And despite much doctrinal confusion, this Court has repeatedly emphasized one thing: there are few bright lines or categorical rules.
Most takings claims are analyzed by avoiding “any ‘set formula’ for determining how far is too far, instead preferring to ‘engag[e] in *** essentially ad hoc, factual inquiries” under the “storied but cryptic” three-factor test in the “polestar” decision of Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (quoting Penn Central, 438 U.S. at 124); Palazzolo v. Rhode Island, 533 U.S. 606, 633 (2001) (O’Connor, J., concurring) (Penn Central as “polestar”); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (the three factors are “storied but cryptic”).
The emphasis on ad hoc factual inquiries means that most takings cases should be resolved on the facts, by the trier of fact. But the case at bar is the latest in a growing list of examples of an appellate court tossing aside Penn Central verdict rendered by a trier of fact in favor of a categorical rule (invariably a categorical rule of “no liability” in which the “judicial thumb [is] firmly on the governmental side of the balance.” Gideon Kanner & Michael M. Berger, The Nasty, Brutish, and Short Life of Agins v. City of Tiburon, 50 Urban Lawyer 1, 34 n.34 (2019)).
Thus, although apparently designed to throw resolution of takings issues to trial courts and juries — where they belong — Penn Central has instead ironically become a tool that gives appellate courts an infinite arsenal of reasons to second-guess a trial court’s view of the evidence. As a consequence, takings litigation often devolves into a pleadings game, not the fact-intensive inquiry the Court apparently contemplated in Penn Central. This incentivizes both sides to put the cart before the horse. Instead of focusing on the question at hand (what evidence supports a taking, and if there’s been a taking, what compensation must be provided?), the key battle in many takings cases is whose narrative governs: the owner searches for a discrete property interest that has been rendered categorically useless so she can convince the court to treat it as a per se taking under one of the carve-outs, while government counsel advocates for a much broader view of the owner’s expectations at stake (also known as the property interest) in order to water-down the economic impact of the regulation. Here, the Petitioner covered both bases, and the jury found both a Lucas and a Penn Central taking. But even then, the Ninth Circuit would not hear of it.