This Clause contains the Constitution's principal safeguard of private property rights against the actions of government, mandating "just compensation" when property is "taken" by the government. In June 2010, the Court decided one taking case, followed by two non-taking but property-rights-related decisions in the Court's 2011-2012 term, followed by no less than three takings decisions in the just-concluded 2012-2013 term. The taking case decided in 2010 is Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection . There, a four-Justice plurality concluded that courts, just as other branches of government, could be subject to taking liability, as when they change the law in a manner that divests existing property rights. The other decision is Sackett v. Environmental Protection Agency , holding that when property owners receive an administrative order from the Environmental Protection Agency (EPA) under the Clean Water Act, they may challenge at least the jurisdictional basis of that order, and likely any other legal inadequacies therein, right away—before EPA seeks to enforce the order in court, requesting the court to impose potentially large penalties. The three property-rights-related decisions during the Court's 2012-2013 term, all takings cases, began with Arkansas Game & Fish Comm'n v. United States . There, the Court jettisoned its long-standing rule that when a government project induces flooding of private property, only flooding that is continual or at least "intermittent but inevitably recurring" can result in takings liability. Temporary flooding, the Court now says, may also in appropriate cases subject the government to takings liability. Next, the Court decided Horne v. Department of Agriculture , ruling that a takings defense may be raised in federal district court—rather than the usual Court of Federal Claims—to federal administrative penalties imposed under a Depression-era commodity-price-support statute. Last, the Court decided Koontz v. St. Johns River Water Management District , holding that its previously announced test for when exaction conditions on land development approvals constitute takings applies even when a permit is denied because the landowner refused to accede to the conditions, and to monetary exactions as well as land-dedication conditions. For property-owner-petitioners in five of the six cases, this meant that the Supreme Court had to remand the case to the lower courts to determine, based on the Court's ruling, the merits of the property owner's particular claims. This report discusses each of these decisions in turn, noting their importance for federal programs. Decided During the Supreme Court's 2009-2010 Term

		Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection: "Judicial Takings"

Facts : Stop the Beach Renourishment, Inc. consists of a handful of beachfront property owners on the Gulf Coast of Florida. Therefore, it held that pre-enforcement review of CWA ACOs is available in district courts under the Administrative Procedure Act. Finally, the United States still retains several defenses in flooding-taking cases—first, that the property injury is noncompensable "consequential damages" (the United States argued before the Supreme Court in this case that all downstream damage from dam operation is merely consequential, but the Court's decision expressly did not reach the issue); second, that the flooding was no worse than if the dam had not been built; and third, that the flooding was not caused by the dam. First, the court held, there can be no Nollan/Dolan taking when, as in this case, the property owner refused to accept the offered conditions and as a result the permit was denied. Nonetheless, an informed guess can be made as to the Court's motives. In all six of the cases discussed here, the decisions below were against the private property owner. This suggests that the Justices (or at least some Justices) are looking for circumstances where property rights are unfairly burdened. And indeed, in five of its six decisions, the Court reversed, ruling (in four cases unanimously) for the aggrieved property owner.
In 2010, the Supreme Court ended a five-year period when it accepted no property rights cases, granting certiorari in no less than six such cases between 2010 and 2012. This large number of cases suggests a renewed interest by the Court in property rights, and particularly in the Fifth Amendment Takings Clause at issue in four of the cases. The Takings Clause is the Constitution's principal protection of property rights, promising just compensation when property rights are "taken" by government for a "public use."
The first case, decided in 2010, was Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection. There, a four-Justice plurality endorsed the idea that courts, just as other branches of government, could be subject to takings liability. This question of "judicial takings" often arises when courts articulate new principles of common law that extinguish existing property rights.
The next two cases were decided during the Court's 2011-2012 term. In PPL Montana LLC v. Montana, the Court fleshed out its test for "title navigability"—important because title to only streambeds under "navigable" waters passes to a state upon its admission to the Union. In Sackett v. Environmental Protection Agency, enforcement of the wetlands permitting program in the Clean Water Act was at issue. The holding was that when property owners receive an order from the Environmental Protection Agency (EPA) under the act, they have a right to "pre-enforcement review"—that is, a right to judicially challenge the order right away, before EPA seeks to enforce it and impose potentially large penalties. The number of other federal programs that, due to this decision, must now afford pre-enforcement review of agency orders is unclear.
Finally, the Court decided three takings cases during its 2012-2013 term. In Arkansas Game & Fish Comm'n v. United States, the Court jettisoned its long-standing rule that when a government project induces flooding of private property, only flooding that is continual or at least "intermittent but inevitably recurring" can result in takings liability. Temporary flooding, the Court now says, may also subject the government to such liability. In Horne v. Dep't of Agriculture, the Court held that penalties imposed under a Depression-era statute for the support of agricultural commodity prices may be challenged on the ground that they punish a person's refusal to accede to an unconstitutional taking. Broad issues radiate from this narrow ruling—such as the availability of takings defenses in enforcement actions generally when the compensation remedy has been withdrawn. In Koontz v. St. Johns River Water Management District, the Court addressed its previously announced test for when exaction conditions on land-development permits constitute takings. The Court clarified that this test—viewed as more favorable to property owners than the alternative—applies even when the landowner refuses the exaction conditions imposed and, as a result, the permit is denied. It also covers not only land-dedication exactions, the context in which the test was originally articulated, but purely monetary exactions as well.
Typically, one can only speculate why the Supreme Court takes a case; the Court's reasons generally are not easily discerned. Still, an informed guess can be made that the six cases discussed in this report point to a reawakened interest by the Court in property rights. In all six cases, the decision below had been against the property owner, suggesting that the Justices (or some of them) are looking anew for circumstances where property rights are unfairly burdened. And indeed, in five of the six decisions rendered by the Court, the private property owners were vindicated. Decisions yet to be rendered on remand, however, may not necessarily go their way.