Monthly Archives: January 2013

What Is a Taking? Once More With Feeling

We find it difficult to believe but several smart and prestigious gents have noted in their commentaries on the Koontz case that during oral arguments some of the Justices had problems grasping “what has been taken.” We don’t know precisely what was on their minds, but it sounds suspiciously like a throwback to the olden days when regulators advanced the “I know it when I seize it” approach and demanded that the rule should be “No physical interference, no taking.” But that can’t be, can it? Not in the 21st century, decades after Pennsylvania Coal Co. v. Mahon and a quarter century after First English.

So maybe it’s time to remind everybody that SCOTUS was quite explicint in the General Motors case of World War II vintage, that a taking is not the accretion of any property right to the taker, but rather the deprivation of the owner. That makes sense because once the owner is deprived of his property or property interest, it doesn’t matter what happens to it — the owner loses it and is deprived of the beneficial attributes of property ownership.

So in Koontz, as we understand it, the taking was the prevention of the owner from putting his property to economic use because after paying for the offsite improvements that the rregulators demanded, the proposed development of his property didn’t “pencil out,” and he was thus deprived of the right of user. We use this old term because it ties in nicely with Blackstone’s rhetorical question of: what is property if not the use thereof?

Although the mechanism of the taking in the 19th century Pumpelly case was flooding, making it a physical taking case, the opinion does an excellent job of explaining that it is the extinguishment of a right — of the owner’s ability to use his land that constitutes the taking. Check it out.

In other words, to get back to the old, first-year law school stuff, property is not a thing but a right, or more accurately a group of rights, duties, etc. Being a Californian, your faithful servant is mindful that our statutory law defines “property” as “the right of one or more persons to posses and use it to the exclusion of others.” Cal. Civil Code Sec. 654. Sounds pretty straightforward to us: if you deprive a property owner of the right to use his property in a reasonable fashion, you have taken it. Right?

That wasn’t so hard, Your Honors, was it?

Bubble, Bubble — Toil and Trouble

Being  a rational sort, we have entertained the hope that the 2008 collapse of the California housing bubble may have taught us Californians a lesson. But maybe not. The latest dispatches from the California housing front indicate that home prices are moving up again and in areas where people want to live — not some selected posh enclaves — are once again moving into the area of unaffordability for most people.

Thus, the median home price in California has just hit $319,600, up 7.5% from last month. And remember, to state the obvious, median means that half the houses in the state fetch prices that are higher than that.

Desirable cities in the state, go like this. San Francisco – $517,7000, up 12.1% from last month, San Jose – $618,000 – up 13.4%. In Los Angeles, which is a huge metropolis that includes some posh places, but also has a large working class population, the median price is $408,900, up 6.%.

Take note, however, that should you be able to find a home in our neck of the woods (the East San Fernando Valley) it is a certainty that it would be a lot more expensive than that — and Burbank, where we live, ain’t no Beverly Hills. But even here, should you find a house for sale for a mere 400K, chances are you wouldn’t want to live in it. At the same time, in depressed areas of the state, like Riverside county, for example, the median house goes for just under $200,000.

A note of caution: these figures may be distorted by the fact that recently an unusually high number of  people have been buying homes for cash — free and clear — so it seems reasonable to suppose that they want to put their money into housing to avoid the likely coming inflation surge. But there can’t be that many people with a few hundred-thousand dollar bills under their matresses, so that does not look like an enduring trend. But then again, this is California, man. Who knows what will happen?

SCOTUS Embellishes Polly Adler’s Dictum and Holds that a House is Not a Boat

Though overshadowed by the antics of yesterday’s Koontz oral argument,  we also have a new SCOTUS opinion in Lozman v. Riviera Beach, No. 11-626, January 15, 2012, which should be of interest to land-use law junkies. There, the Supreme Court reversed the 11th Circuit, and held that a floating house is not a navigable vessel, and thus its regulation does not fall under the rubric of admiralty laws but is rather subject to local land-use regulation. A witty friend has observed that maybe it should be thought of as being in a “floating zone.” But enough already with the bad jokes.

 The subject structure was a floating plywood house with an empty bilge below, to keep it afloat. Lozman kept it in a marina, but the city wanted it out of there and, using maritime law, seized it and had it towed away and destroyed. Lozman sued and lost in the trial court and in the U.S. Court of Appeals for the 11th Circuit. Those folks thought, more or less, that if it floats, it’s a boat and as such is subject to maritime law. SCOTUS disagreed. Justice Breyer, speaking on behalf of seven Justices, thought that definition was too broad because, inter alia, under it a floating plastic tub would be deemed a vessel subject to maritime law which it obviously isn’t, notwithstanding old salts’ occasional references to their vessel as an “old tub.”

The majority’s bottom line:

 “We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose. [citation]But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factualambiguity to the City) only its own furnishings, its owner’spersonal effects, and personnel present to assure thehome’s safety. [citation] This is far too little actual “use” to bring the floating home within the terms of the statute. See Evansville, 271 U. S., at 20–21 (wharfboat not a “vessel” even though “[e]ach winter” it “was towed to [a] harbor to protect it from ice”); see also Roper v. United States, 368 U. S. 20, 23 (1961) (“Unlike a barge, the S. S. Harry Lane was not moved in order to transport commodities from one location to another”).

What this tells us is that a boat can be a house, but a house cannot be a boat.

Justice Sotomayor, with Justice Kennedy’s concurrence, dissented, arguing that the case should have been remanded to the lower courts for further determination of the floating home’s status.

The interesting part of the majority opinion is that it contains a picture of the subject home. So take a look at it, and using the late Justice Potter Stewart’s famous legal test for pornography (“I know it when I see it”) tell us if you would consider Lozman’s waterborne pride and joy a vessel or a house. But before you get carried away, do reflect on the fact that the California Supreme Court once held that a freeway is an electric railway, and that — in their Lordhips’ own words in another case — “our holding was dictum.”

Finally, no case worth its salt (no pun intended) is complete without reference to money. First, one telling argument by the feds, arguing as amicus curiae, was that if this thing were classified as a vessel, it would abruptly impose heavy burdens on the Coast Guart which has the duty of inspecting vessels. Second, when the city seized Lozeman’s home it had to post a bond under maritime law, which it did. So inasmuch as the city was wrong in destroying Lozman’s floating home, it will now have to pay for it. While we have no idea what a floating Florida home may be worth, that $25,000 bond will come in handy in discharging the city’s monetary obligation to Lozman.

Afterthought. Apropos absolutely nothing,  this debate whether a house is a boat, reminds us of that all-time humorous classic created by some clever  Canadians, in the form of a judicial opinion (Regina v. Ojibway, 8 C.L.Q. 137 (1965)) in which the court decided the issue of whether an Indian pony, fortuitously saddled with a feather pillow was a “small bird” within the meaning of the Canadian Small Birds Act, while traversing a national park. The holding was . . . You tell us. 

What Was the Koontz Oral Argument All About?

As you may have heard, today SCOTUS heard oral arguments in the Koontz case. That’s the exaction case in which a Florida Water District demanded that instead of the usual “dedication” of land to mitigate the environmental harm of his development, Koontz make off-site improvements that had nothing to do with the subject property. In other words the harm to Koontz would be monetary; he would not have to dedicate land but he would have to pay for those improvements. So the issue he raised was whether the Nollan-Dolan constitutional limitations on government dedication demands apply to monetary demands, the same as to demands for land dedication.

The argument was a mish-mash of ideas, in which one could not tell what coherent theory the justices thought should apply. Check out the relevant post on our fellow blogmeister’s blog, www.inversecondemnation.com,  an analysis that is well worth a perusal. You can get the argument transcript by clicking on http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1447.pdf

We won’t go through it here because you can read it for yourself, and Robert Thomas who runs the blog www.inversecondmnation.com does an excellent job of reporting, and commentary. Go for it.

Our overall view of this event suggests to us that the Justices are again out of it — e.g. Justice Scalia thought that in Nollan a permit was issued before Nollan sued (it wasn’t — Pat Nollan took his chances and built without city approval and won). Justice Kennedy was still beating his drum in favor of substantive due process with no clue as to whether he also means to relax the forbidding difficulties in winning a regulatory due process case. Etc., etc.

But the championship prize goes to counsel for the District who, in a semantic/doctrinal flip-flop of major proportions,  suggested that there is no such thing as a Takings Clause — only a Just Compensation Clause. We find this amusing because in the olden days, when your faithful servant was a mere stripling (though licensed to practice law), the Fifth Amendment’s business end was indeed referred to as the Just Compensation Clause because it was universally assumed that a taking required just compensation. What else?  Then came the assault by what Professor Dan Mandelker dubbed the “police power hawks” who wanted to implement a high degree of regulation, but just didn’t want to pay for regulatory takings, so they started calling for specific relief only in regulatory takings, and started using the term “Takings Clause” in an effort not even to mention the, you know, that Just Compensation business. Eventually they lost that battle in the First English case which held that just compensation, not specific relief, is the proper remedy in regulatory as well as physical taking cases. Now they are evidently trying to promote Justice Stevens’ Kelo idea that the government can do anything it wants, substantive constitutional limitations be damned, as long as it pays the charge — which, of course, it doesn’t, and screams bloody murder whenever some courageous and intellectually honest judge says it has to — as in the Half Moon Bay case. Or when a judge actually applies the “public use” clause and rules that, no, the government may not take property for a private use, as it tried to do in the 99 Cents Only Stores case.

So do we have any predictions? Don’t be silly. Your faithful servant is a lawyer, not a haruspex. At least a haruspex had something to work with, to wit, sheeps’ entrails which he could examine to predict the future. All we have  is Justice Thomas’ joke — yes indeed, he spoke during oral argument — something about a Yale J.D., which frankly, we don’s get, and something by Justice Breyer about sliced bread, which we also don’t dig, although we appreciate a wit’s reference to this oral argument being a case of “sliced bread and circuses.”

There was also talk about using the Penn Central approach — an idea that sends shivers down our spine — but alas, Penn Central has become a sort of a catch-all, default refuge for people who don’t really know what they are talking about, and  seek refuge within its foggy language. If you want a thorough discussion of why Penn Central may well be the doctrinally worst case decided in modern times, see Gideon Kanner, Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York , 13 William. & Mary Bill Rts. J. 679 (2005) — reading it can’t possibly hurt you, and you may learn some interesting things from it — like the fact that after all the legal sturm und drang, Penn Central won economically because in the end the Grand Central Terminal was restored to its glory by the City of New York, not by the Penn Central Company. You didn’t know that, did you?

But if we may take a peek at what is going on here, we discern a return of the idelogical underpinning of those “police power hawks” who historically wanted to emulate the British Town & Counry Planning Act of 1947, under which nothing new could be built without what the blokes call “planning permission,” which is another way of saying that there are no private property rights, except to the extent the goverment chooses to create them ad hoc by the issuance of some sort of more-or-less discretionary permit or license. It was a crackpot Georgist, pseudo-socialist scheme that failed in the U.K (see Arthur Shenfield, The Mirage of Social Land Value: Lessons From the British Experience, Appraisal Journal, October 1976, at p. 523) and it makes for a poor example to emulate.

So, as we so often conclude our posts: Stay tuned folks. A decision in Koontz will come no later than the end of June. And who knows? It may even be sound. After all, the Good Book says “Thou shalt not steal,” and there is a respectable body of precedent supporting the belief that sometimes the Lord works wonders, even if He also works in mysterious ways.

Look Out: California Bar Invents Something for Nothing

A couple of weeks ago we posted a piece about IOLTA (click on www.gideonstrumpet.info/?p=4706) It was about Charlotte Allen’s op-ed in the L.A. Times (Legal Larceny by Lawyers, Jan. 2, 20133, at p. A15) in which she rightly criticized what she called  “legal larceny” by the organized bar’s IOLTA program  that — without mincing words — de facto steals interest that accrues on small amounts of money in client trust accounts, pockets it and then uses the accumulated funds for what it considers worthy litigational causes. Note well that this scheme does not apply to large trust accounts that accumulate a lot of money in interest — only to trust accounts of small fry litigants — the very people whose interest lawyers are supposed to protect with tender solicitude.

In response. Patrick Kelly, President of the California Bar, has written a piece for what the L.A. Times calls “Blowback” (a response to selected op-ed pieces, that is not printed in the Times newspaper but is avalable on the Times’ website).  Naturally, Kelly defends the IOLTA practices, which is expectable. But what is not expectable is that he completely ignores Allen’s specific critiques of the IOLTA program, as well as her point that IOLTA has been trying to rattle a tin cup, schnorring for other people’s money to support its own ideological agenda. This she aptly characterizes as “an experiment that is using other people’s money to buy advocacy that liberal lawyers like — but not enough to pay for it themselves.”

We could spend some time refuting all that stuff, but it isn’t necessary. Any intellectually honest person reading both piecces will observe at once that Kelly does not even try to refute Allen’s points. He merely tells his readers how wonderful IOLTA is, and ignores completely the fact that IOLTA is a failed experiment whose budget has fallen from $20 million to $6 million, and that the bar is now rattling a tin cup in an effort to get its hands on other people’s money in order to pursue the Bar leaders’ ideological agenda.

And what is Kelly’s bottom line? You’ll never guess. He proudly asserts that IOLTA is a case of “something for nothing” (His exact words). Poor Kelly. He evidently doesn’t understand that characterizing a scheme as “something for nothing” is to charaterize it as dishonest. Which is what Allen tried to tell us to begin with. To say nothing of the verity that that there ain’t no such thing as a free lunch — somebody always pays, amd Kelly should be ashamed of himself for arguing in favor of shifting the cost of the Bar’s dogooderism onto the shoulders of those lawyers’ clients who can least afford it.

 

That California State Budget Again

This is actually an expanded follow-up to our earlier post of January 12, 2013 — (click here) concerning the optimistic California state budget just revealed by Governor Brown. For today’s revelations, see Evan Halper  and Chris Megerian, Debt a Cloud Over State’s Future, January 14, 2013, at p. A1. What it tells us is that the governor’s statement of a couple of days ago appears to be so much BS. In the above-cited article, the L.A. Times informs us that the state’s actual financial condition is a not-so-slow-motion disaster getting ready to unfold. Quoth the Times:

“Sacramento is legally obligated to pay many billions of dollars withheld from schools, local governments and healthcare providers as lawmakers struggled repeatedly to balance the books. It owes Wall Street more per resident than almost every other state. And it has accumulated a crushing  load of debt for retiree pension and heathcare, now totalling more than taxpayers spend each year on all state programs combined.

“The budget Brown proposed Thursday addresses only a small portion of the overall debt, which stems from the same type of bills that drove such cities as Vallejo, Stockton, and San Bernardino into bankruptcy. The state is likely to find the debt consuming an ever larger share of money meant for the basic needs of government.

*     *     *     *

“Brown’s repayment plan does not significantly reduce the sizable debt to Wall Street or account for promises the state has made to its current and future retirees but is not setting enough money aside to cover.”

That says it all, doesn’t it?

The First Circuit Engrafts “Lenses” Onto Penn Central’s “Three Factors”

There is general agreement that the “polestar” case of Penn Central Transp. Co. v. City of New York is a mess. It’s not just our view (see Gideon Kanner, Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary 679 (2005)), but that of others who hold competing substantive views;  “[A] ‘totality of the circumstances’ analysis masks intellectual bankruptcy.” Thomas Merrill, “The Economics of Public Use,” 72 Cornell L.Rev. 61, 92 (1986);  “Sometimes the Penn Central analysis has been described as a ‘balancing test,’ but this seems nonsensical because the Penn Central factors are completely incommensurate.” John Echeverria, 23 UCLA Jour. Env. L. & Pol’y. 171, 208.

After all, what can you say about a case that lacks a holding because in it SCOTUS confessed that it has been “simply unable” to state the elements of an inverse condemnation action, and all it can offer is three ad hoc “factors” whose consideration may — or then again, may not — yield a precedentially usable decision. Why this field of law, and this field alone, should so baffle the intellectually  mighty U.S. Supreme Court (and its elite clerks) has never been explained — not really. As Judge James L. Oakes aptly put it, the Penn Central decision “permits purely subjective results, with the conflicting precedents simply available as makeweights that may fit pre-existing value judgments”); it merely allows judges to reach whatever results they choose, with Penn Central providing a convenient makeweight.  (56 Wash. L.Rev. 583 (1981).

Nonetheless SCOTUS has decreed that the incomprehensible doctrinal mish-mash that is Penn Central is to be regarded as the “polestar” of the pertinent law. That would be bad enough, but now we get a further complication. The U.S. Court of Appeals for the First Circuit has just complicated this wretched intellectual mess some more in The Maine Education Association Benefits Trust v. Cioppa, 695 F.3d 145 (1st Cir, 2012).  You might think that considering Penn Central’s vague “three factor test” without an indication of what weight to assign to each “factor,” would be bad enough, wouldn’t you? Nope. In the First Circuit those “factors” aren’t even real factors to be considered. Quoth their Lordships:

“[T]he context-sensitive ‘Penn Central’ factors operate not as a ‘checklist of items that can be ticked off as  fulfilled or unfulfilled,’ but rather as ‘lenses through which a court can view and process the facts of a given case.”

“Lenses”? What the hell does that mean? Will we now need to become legal opticians to discern how the courts should rule in these cases?

Once upon a time it was said that even a bad rule of law is better than a legal regime in which there is no rule at all. It appears that we have arrived at that point. Professor Paul M. Bator hit the bull’s eye back in 1990 when he presciently observed in his critique of the Supreme Court’s performance:

“[A]ll too often, when when the Supreme Court decides a case, instability and uncertainty and confusion are not alleviated, but, rather, reinforced.” Paul M. Bator, What Is Wrong With the Supreme Court? 51 U. Pitt. L.Rev. 673 91990).

 

California Budget: Don’t Believe What You Read in the Headlines

Both the New York Times (click here ) and the Los Angeles Times (Chris Megerian, Brown Says State is in the Black, L.A. Times, Jan. 11, 2013, at p. A1) run headlines in today’s editions proclaiming that California’s budgetary woes are over, and according to Governor Brown we have turned the corner and are headed for a surplus. Sounds great. But don’t believe it.

While it’s true that Brown so announced, there is less to this story than the headlines might suggest. First, the income side. Brown’s revenue figures fail to mention that they are inflated on a one-time basis because of the sell-off of appreciated investments by wealthy folks who have been saving taxes by realizing their capital gains in 2012 as opposed to 2013, when their federal (and state) taxes will be higher. In contrast with Brown’s estimated revenues that are claimed to produce a $21.5 surplus, the nonpartisan Office of the Legislative Analyst states that we face a $1.9 billion deficit, not any kind of surplus. Second, there is the matter of expenditures which, according to the L.A. Times are going up by 5%.

Quoth the Los Angeles Times (on the front page, above the fold yet):

“Even with the state’s books technically balanced, California will have billions of dollars in debt from pensions and other benefits promised to public employees and from borrowing that has not been repaid. The governor’s plan deals with only a fraction of that.”

Follow up: Three days later, the Los Angeles Times ran the following headline and subheading on the front page, above the fold:

Debt a Cloud Over State.’ Brown’s budget has a plan to repay $28 billion owed, but some estimate the state’s obligations at hundreds of billions.” Evan Halper and Chris Megerian, L.A. Times, January 14, 2013, at p. A1

As we lawyers are wont to say: Res ipsa loquitur.

Indiana Court of Appeals Confuses Public Necessity With Excess Condemnation

Here comes another instance of judicial confusion between the topics of necessity for takings and excess condemnation (which properly gives rise to an issue of public use). See Boyd v. State, 976 N.E.2d 767 (Ind.App. 2012).

Necessity, or public necessity, is usually required by statute  to prevent condemnors from wasting public funds on unnecessary land acquisitions. See e.g., Cal. Code Civ. Proc. Sec 1240.040. To establish necessity for the taking it must be shown that (a) the public project is necessary, (b) the subject property is necessary for the project, and (c) the project is so located so as to be most compatible with the greatest public good and least private injury; Sec. 1245.230. There is no such requirement in federal law, but most states have one.

Now, consider this problem: the formal documentation (e.g., plans and profiles for a new highway) specify a right-of-way width of 200 feet. But the condemnor files an action seeking to take a 400-foot wide right of way. How do we characterize the resulting problem? Does it give a rise to an issue of necessity? — i.e., is the additional 200 feet of right of way unnecessary, or is it a question of public use? —  is the extra 200-foot excess to the formally adopted right of way width being taken for permissible public use or not? See Cincinnati v. Vester, 281 U.S. 439 (1930).

Although this is a pretty straightforward distinction, it has given rise to mountains of judicial confusion which stems from imprecise use of the English language. If the disputed excess land is said to be “unnecessary,” many judges (and lawyers who should know better) think this gives rise to an issue of necessity.  And once you say that, you usually doom your case. Why? Because for reasons that are not clear, courts (except  in Florida) take the position that the question of necessity for a taking is  legislative and won’t be considered by the court unless the owner can show fraud or bad faith on the part of the condemnor. Before 1976, the California Supreme Court went so far as to hold that the issue of necessity is altogether nonjusticiable even when the condemnor is guilty of fraud, bad faith and abuse of dicretion. People v. Chevalier 52 Cal.2d 299 (1959).

Not so when the argument proceeds on the premise that the excess 200 feet will not be devoted to the public use specified in the condemnation resolution, and will thus not be devoted to a “public use.” Back in 1917, a fellow named Cushman wrote a book entitled EXCESS CONDEMNATION, that explains it all, and its analysis remains sound.

Anyway, in the Indiana Boyd case cited  supra. the judge who wrote the opinion got all confused and treated a clear case of excess condemnation (a proposed taking of 400 feet for a right of way specified to be only 200 feet), as if it gave rise only to a nonjusticiable  issue of public necessity, which it did not.

So be warned. When handling a case like that, do not say “the taking of the excess 200 feet is unnecessary.” No, no, no! Your opponent will respond by saying “Necessity is not for the court to decide.” Say instead “this taking includes land that will be in excess to what will be devoted to the public use, and to that extent its taking violates the ‘public use’ clause.” And presence or absence of public use is a judicial issue, because it involves the interpretation of a legal, constitutional term. Courts do that; not legislatures, and  a fortiori not the many unelected government functionaries (like highway commissions, for example, who actually decide what particular parcel of land to take, how much of it to take, and for what specific purpose This is no guarantee of victory, but sorting it out will better inform the judge and improve your chances of success.

For an example of an excess condemnation being treated as such see People v. Superior Court (Rodoni) 68 Cal.2d 206 (1968). True enough, in that case a divided California Supreme Court left the door open to the condemnor to take excess land (54 acres for a required public use of 0.5 of an acre). But in so doing the court set the bar high, requiring the ocndemnor to show that by engaging in excess cojndemnation the condemnor will save money (impoossible) or spend no more that it would if it only took what it plans to actually use for the project. The legislature agreed —  (Cal. Code Civ. Proc. Sec.1240.150) — so that thereafter, there have been no reported excess condemnation cases in California. Possibly, that may have something to do with the fact that shortly after the Rodoni case, California’s Little hoover Commission investigated the state’s excess land program, and found that, far from saving the state money, it produced a large acumulation of excess land that it could neither use nor sell.

 

SCOTUS Dumps the 9th Circuit Again

This morning’s news from the marble temple in Washington includes an environmental decision: Los Angeles County Flood Control District v. National Resource Defense Council, No. 11-46, Jan. 8, 2013. Quoting from the court’s syllabus:

 “Held: Flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a ‘discharge of a polllutant’ under the C[lean] W[ater] A[ct].”

But though it is “the law,” we have some problems accepting the idea that the improved part of the Los Angeles River is “navigable.” We have lived in the LA area for well over a half century, and have never seen any boats in the “improved” parts of the LA River which is a bare, concrete lined channel that is either dry (or nearly so), or filled with rushing water when it rains, into which no sane person would launch a boat. That’s the dry concrete channel in which movie cops and robbers engage in those thrilling car chases. And in real life, during the rainy season, it occasionally provides scenes of breathtaking rescues of the unfortunates who somehow fall into the rushing water. At those times, you sure don’t want to be in it, in a boat or — God forbid! — without one.

For a link to the opinion click on http://www.supremecourt.gov/opinions/12pdf/11-460_3ea4.pdf .

And  by the way, we like better the formulation of the same holding as phrased by the Second Circuit. Quoth Justice Ginsburg:

“As the Second Circuit [aptly] put it. . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added”soup or anything else to the pot.’” Miccosukee, 541 U. S., at 109–110 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F. 3d 481, 492 (CA2 2001)).