Word comes to us that — who else? — the 9th Circuit U.S. Court of Appeal has filed an opinion on remand, reaching the same result as before it got reversed by SCOTUS: i.e., the Agriculture Department’s demand that, in connection with the federal raisin marketing scheme Horne deliver tons of raisins to it without compensation, or pay $695,226.92 in fees and penalties, is not a taking.
If you want to read how their Lordships arrived at that result go to www.inversecondemnation.com, which has a link to the opinion.
The opinion concludes that the fine imposed on Horne is in the nature of an exaction, and as such valid. Really? As we understand it, an exaction may be imposed when the private, regulated activity brings about some sort of societal harm or detriment and the exaction tends to reduce of eliminate it. Our problem is that we don’t see how growing or handling raisins is a societal harm, and how paying hundreds of thousands of dollars to Uncle Sam can ameliorate that harm. In other words, if you plan to build a subdivision that will increase traffic, you can say that the developer should pay an exaction (or convey land) to rectify the resulting deteriorated traffic conditions. But how does payment of money to Uncle Sam rectify whatever harm has come to society by people being able to buy raisins at a lower price?
So how should this case have been handled? In the first round, the U.S. District Court should have transferred the case to the U.S. Court of Federal Claims, where the taking issue (and the just compensation if a taking had been found) would have been promptly and efficiently decided by now.
We are reminded of the insight of Fred Bosselman who once observed that property owners in inverse condemnation cases are denied due process of law, not by getting too little of it, but rather too much.
We assume that Horne will petition for certiorari again, but who can tell if SCOTUS will respond favorably? Its track record in that regard is like that of an autocratic King of yore, who, whilst riding through the fields on a hunting trip sees an overseer beating the crap out of a serf for no reason. His Majesty may then stop and inquire, thus providing succor to the serf, or he may ride on, being preoccupied with the royal pursuit of quail.