Marzulla Law, LLC is the nation's leading law firm for takings claims against the federal government. ML represents landowners, developers, water districts, Indian tribes, business, and corporate interests in litigation of property rights and contract claims. ML also represents clients in environmental enforcement actions, and litigation involving natural resources and permitting issues, in federal district courts and courts of appeal.

 

We hope that this Newsletter will serve as a resource for you.

 

 

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Nancie and Roger Marzulla      

Marzulla Law, LLC  

Tel.: 202.822.6760      

www.marzulla.com    

    

 

 

U.S. Supreme Court to Hear Third Takings Case of This Term   

 

   

On March 20, 2013, the U.S. Supreme Court will hear oral arguments in Horne v. U.S. Department of Agriculture. Horne will be the third takings case heard by the Supreme Court this term, following Arkansas Game & Fish v. United States and Koontz v. St. Johns River Water Management District, heard earlier in the term.  In Arkansas Game & Fish, the Court held that the government is not automatically exempt from takings liability for inducing recurrent, yet temporary, flooding on private property. In Koontz, not yet decided, the Court will determine if government effectuates a taking when it refuses to issue a land use permit on the sole basis that the applicant did not accede to a non-essential and disproportional permit condition.

Horne involves the imposition of a fine that a California raisin farmer was ordered to pay for failure to deliver a portion of his
crop---- a requirement he contends was an unconstitutional
taking---- to the Government under a marketing order issued by the Agriculture Department in accordance with statute and regulation. The farmer asserts that forcing him to pay the fine for refusal to surrender his property without just compensation is a taking and that the Fifth Amendment may be raised as a defense.

Both parties have filed their briefs with the Court. The Court has also received amicus curiae briefs from the State of Texas, the CATO Institute, the U.S. Chamber of Commerce, and Constitutional Law Scholars, a group of constitutional law professors and legal scholars. You can find all the briefs on the SCOTUS blog here.

In its brief, Respondent, the Agriculture Department argues that the marketing order and the fine assessed may only be challenged by paying the fine and then bringing a claim for money damages in the U.S. Court of Federal Claims (CFC) for the taking of the property (the fine amount) without just compensation. The Government further argues that requiring petitioners "to challenge the Secretary's order in district court while requiring them to raise their Just Compensation Clause claim in the Court of Federal Claims in the first instance" is not unduly burdensome because they "are different legal claims, brought in different legal capacities, and petitioners' position is a result of their own voluntary choice to assume two different roles" under the statute. The capacities referred to are those of a handler and producer of raisins.      

In its reply, Horne argues that there is a split among the Circuit Court of Appeals that needs to be resolved over whether a producer-handler of raisins may assert its takings claim as a defense in administrative proceedings or may only assert that claim after first paying the fine and then bringing suit for recovery of the fine amount in the CFC under the Tucker Act.

Horne, see brief, further argues that (a) under prior case law "a party may challenge a governmental demand for a cash transfer without going through the repetitive steps of paying a fine and then going to the Court of Federal Claims to get the same sum back in the form of compensation for the taking" and (b) the "historical interpretation of the [Just Compensation] Clause confirms that a party can obtain affirmative injunctive relief under the Clause or raise the Clause as a defense." 

What People Are Saying About Marzulla Law:

 

"I had no idea of what to expect and I was very impressed with the hearing, with the Judge, and with Nancie and Roger's conduct in the courtroom."


John McPherson

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Spotlight:
Farmers of the Klamath River Basin  

John McPherson is a farmer in the Klamath Basin, and a farmer/putative class member in the water rights takings case pending in the U.S. Court of Federal Claims. In Klamath Irrigation District v. United States (Case No. 01-591), each plaintiff is either a landowner or a legal representative of landowners who possesses water rights that are appurtenant to their land. The farmers receive their irrigation water from Upper Klamath Lake through the Link River Dam.

Together the farmers in this case, of which McPherson is one, grow crops on approximately 232,000 acres of land. The principal crops they grow are horseradish, cereal grains, onions, potatoes, sugarbeets, alfalfa hay, and grass seed. The Klamath Basin is also used as irrigation pastures for beef cattle and noted for the production of malting barley.  

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Court Rejects Government's Attempt to Expand Reach of Section 1500    

 

Along with all the other motions to dismiss that the Government filed following the Supreme Court ruling in United States v. Tohono O'Odham (as discussed in our June 2011 Newsletter), the United States filed a motion to dismiss for lack of jurisdiction in Klamath Irrigation District v. United States, a takings case involving water rights from the Klamath Project in Oregon pending in the U.S. Court of Federal Claims ("CFC").  

The Government's motion cites two grounds for dismissal, both under 28 U.S.C. § 1500, the statute granting jurisdiction to the CFC: first, that at the time Klamath was filed, a case was pending in district court with the same "operative facts" as Klamath; and second, that the plaintiffs in that district court case were the "assignees" of the Klamath plaintiffs because they had "a stake in the outcome of the district court action." Under Section 1500, the CFC lacks jurisdiction over any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States. This Government's "assignee" argument was novel and an attempt to broadly expand the reach of Section 1500. 

On February 22, 2013, the trial judge rejected this interpretation of Section 1500 before the Government even had an opportunity to argue its case. The trial judge stated that the Government's novel definition of the word "assignee"----which has no support in case law----would have "unfortunate consequences for the way [Section 1500] would be interpreted." He further stated:

I don't think that it's supported by the plain meaning of the word 'assignee.' I think that it has very unfortunate consequences for the way that that statute would be interpreted and in particular, it raises of the prospect, yet again I think, of having an action that is dealing with, for example, the validity of a particular action having a prophylactic effect on the ability for other individuals to pursue monetary damages. And for all those reasons, really I can even----I don't even think it's close enough in my mind to warrant argument.

The parties are awaiting a decision on the Government's second basis for dismissal.

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Staff Spotlight: Meet Mark Ode  

 

Mark L. Ode is one of our interns this spring season, who is participating in The Washington Center's Law and Criminal Justice internship program. Mark is a senior who will graduate this May with a degree in Criminal Justice and Political Science from Westfield State University in Massachusetts. Last summer, Mark interned with the U.S. District Court of New Orleans.

 

Not only is Mark an excellent intern, he is multi-lingual. He is a fluent speaker of Ukrainian and Russian languages. He is also a member of Phi Kappa Phi Honor Society and the Criminal Justice Club. He served as the secretary and president of the International Club and as the secretary of Law Club.

While working at Marzulla Law, Mark has focused his keen mind on topics for several cases, and has been assisting with the large task of updating the litigation database.

"The experiences that I have gained so far as an intern at Marzulla Law have become an invaluable part of my professional development. I very much enjoy being part of this great law firm. The legal expertise of each and every member of this office has given me a broader perspective of the legal profession."

When not spending time on work or school, Mark enjoys playing guitar, reading literature, listening to jazz and blues, and playing basketball.

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About Marzulla Law 

 

Marzulla Law, LLC is a Washington D.C.-based law firm. Nancie G. Marzulla and Roger J. Marzulla help property owners get paid just compensation when the Government takes their property through inverse condemnation.

 

ML lawyers practice in the federal courts, especially the U.S. Court of Federal Claims, the Federal Circuit Court of Appeals, and the U.S. District Court for District of Columbia, as well as other federal district courts, appellate courts, and the U.S. Supreme Court. ML also represents clients in administrative agencies, such as the Interior Board of Indian Appeals.   

 

Chambers has recognized Marzulla Law as one of the top ten water rights litigation firms in the country. Nancie Marzulla and Roger Marzulla have been selected by their peers to be included on the list of Best Lawyers in America, and their firm has the highest AV-rating from Martindale-Hubble.  Nancie and Roger Marzulla have been recognized by Best Lawyers as a Top Tier law firm by U.S. News & World Report for environmental law, and Marzulla Law is a proud member of the International Network of Boutique Law Firms.