*1 BRUCE BUHMANN, SHIRLEY BUHMANN, FARM,
CIRCLE EAGLE GAME LEN WALLACE, PAMELA WALLACE,
and BIG RANCH, VELVET Appellants, Plaintiffs STATE MIKE OF MONTANA, McGRATH,
and JEFF HAGENER, Appellees, Defendants SPORTSMEN FOR MONTANA I-143,
WILDLIFE FEDERATION,
Appellees.
Defendant-Intervenors
No. 05-473.
Argued
September
2006.
Submitted June
2007.
Decided December
2008.
Rehearing
February 10,
Denied
For Groen, Stephens & (argued), Bozeman; Stephens Richard M. P.C., Bellevue, Washington. LLP, Klinge, General, McGrath, Attorney Montana Hon. Mike Appellees:
For General, Attorney Helena. Tweeten, Assistant (argued), Chris D. Jack R. Tuholske Appellees: and Defendant-Intervenors For McMillan, Missoula; K. Office, P.C., Sarah Law (argued), Tuholske Law, Attorney at Missoula. of the Court. Opinion delivered the
JUSTICE COTTER (Buhmanns), operators owners and Shirley Buhmann Bruce and Farm, Len and Pamela Wallace and Eagle the Circle Game Ranch, an Big appeal Velvet (Wallaces), operators owners and takings denied their Court which the First Judicial District order of Constitution and to the U.S. the Fifth Amendment claims under claims Constitution. These of the Montana Section 29 measure no. of initiative and enforcement alleged that the enactment Montana on citizens of (1-143), by the approved which was 7, 2000, private constituted a of their November they just taking. For compensation were entitled below, reasons set forth we affirm the District Court. AND PROCEDURAL
FACTUAL BACKGROUND The at bar very case involves claims similar to claims we Fish, recently Parks, Dept. addressed in Mont. Kafka Wildlife background MT as Mont. P.3d Insofar reasoning information and our decision and applies Kafka bar, case at will arguments we refer to case. Where the and issues present by raised are distinct those appellants from raised we parties Kafka, accordingly. will address their merits appellants in this case were and operators owners Farms) (Game livestock game alternative farms within the state of Montana. The Game industry premised Farm on the notion that willing pay individuals are significant amounts of money shoot captive animals, elk, primarily within confines of a Game Farm. Since it has been lawful for individuals to own alternative livestock, elk, keep captivity. such them in Game Farms are heavily regulated by Fish, Wildlife, Department the Montana (FWP) Parks wasting because of the threat posed chronic disease *3 (CWD), a fatal disease of the system captive central nervous and deer, free-ranging deer, animals such as mule Rocky white-tailed and Kafka, operate Farm, Mountain elk. 2. To a Game the owner/operator possess must an alternative Game Farm license and comply rigorous with the licensing extensive requirements set 4, forth in chapter part Title MCA. Kafka, See 8. ¶¶ 7,2000, On 1-143, November passed voters Montana which made significant changes two regulation of Game Farms in Kafka, First, Montana. See 6-9. it prohibited fee-shooting on ¶¶ Game Second, Farms in Montana. 1-143 prohibited licensees from transferring their alternative livestock licenses others. These changes significant had a impact industry Game Farm vitality Montana because the industry of the Game Farm was premised upon profits fee-shooting. derived from The ban on the significant transfer of licenses was essentially because it prohibited others, Game Farm selling owners from Game those Farms to since a Game Farm could not operate not, without a valid license. did 1-143 however, eliminate all uses of alternative permitted livestock as it still herds, Game Farm operators to own harvest the animals for their meat antlers, or sell them in fee-shooting out-of-state markets where legal. Kafka, 7-8. of 1-143 led to several lawsuits and enforcement The enactment suit, At time of this court in Montana. state and federal
in both Montana, County, and owned and in Blaine Buhmanns resided Farm, twenty-nine game acre farm Eagle Game the Circle operated Eagle the Circle began Buhmanns regulated FWP. The which was receiving from the state of applying for and a loan Ranch in 1997 after application The loan Department ofCommerce. Buhmanns’ Montana’s elk-breeding they describing program an plan included a business selling ofwholesale planned plan to institute. This included annual selling and the of retail mature shooting operations, mature bulls Eagle The Buhmanns and the Circle breeding operations. to other cows through license FWP which Ranch received an alternative livestock In sixty They began selling elk keep them to elk. allowed elk, supplement sold mineral the Buhmanns also selling addition deer called Pro. captive and elk Sweet Big County, Velvet Ranch in Ravalli The Wallaces started Montana, Big license in 1992. The obtaining after a Game Farm Velvet encompassed roughly 2000 acres. In the course of eventually Ranch ranch, fencing purchased their the Wallaces material developing infrastructure, lodge property, constructed a on the removed and other (elk) elk, deer and then alternative livestock imported the native elk, captive provided raised from other locations. Wallaces Big elk on Velvet fee-shooting for the Ranch. opportunities service, stay Big clients would come and on the Under Velvet guaranteed to an elk within the confines of the Ranch and be shoot Additionally, captive the Wallaces elk for other Game ranch. bred Farms. According complaint, to the factual assertions Big millions of Velvet developing
Wallaces invested dollars Ranch, and took to ensure that their alternative a number measures highest quality livestock was ofthe and was disease-free. after three-year testing process, Big Velvet Ranch was certified as tuberculosis-free, Additionally, in 2001 certified as brucellosis-free. roughly Big tested 700 animals from the Velvet Ranch for Wallaces CWD, negative. and all tests came back The Wallaces also claim those *4 trucks, facility they developed appropriate feed and prototype maintain high nutritional modifications which would allow them elk, $600,000. The further the at a cost of over Wallaces stated level of measures, including hiring of a veterinarian they that took other monitoring that development systems, of extensive ensure operation reputation their one of most successful established elk in the United private ranches States. through 1999, From 1997 the Wallaces claim have harvested gross 100 mature and earned over million per $1
over bulls revenues of year. allege guests pay The Wallaces that their ranch would on $7,000 elk, average hunting comprised mature bull and that this majority of the ranch’s revenues. Between 1995 and hosted than Wallaces more 600 clients. 1-143, the passage interpretation by Attorney After of and its FWP, claim
General’s office and their existing Wallaces prospective Big customers cancelled their to visit the plans Velvet Ranch, many deposits. and that demanded on their Similarly, refunds there was a of promised purchases cancellation of animals and feed from the Eagle Circle Ranch. The Wallaces claim in order stem ranch, the financial hemorrhaging they at the contacted various Indian tribes in receiving Montana to assess their approximately interest 500 animals the Big from Velvet After obtaining Ranch. appropriate permits, the Wallaces thereafter into entered an agreement with the Crow Indian of Tribe transfer some their elk, animals. After the first shipment enjoined the Wallaces were in the transferring any First Judicial District Court from more their alternative livestock to the Crow Indian Reservation to be released an unfenced area. The appealed Wallaces issuance injunction Court, Wallace, to this upheld and it was Hagener MT 309 Mont. P.3d 847. The Wallaces sought also injunctions against the enforcement of 1-143in County Ravalli District Court, as separately Montana, well as in the federal district of both of Moreover, which were denied. Len Wallace was tried and convicted in Justice violating Court for fee-shooting. I-143’s ban on 6,2002, On June the Wallaces and joint Buhmanns filed a action against Montana, state Attorney McGrath, General Mike FWP Hagener Director Jeff Court, the Seventeenth Judicial District Blaine County, seeking damages for the taking private their property under the Fifth Amendment and Article Section 29 Montana Constitution. The Wallaces and alleged Buhmanns that 1-143 violated the Fifth prohibition Amendment’s taking private just compensation, without as well as Article Section 29’s prohibition on a damaging of their property. The Wallaces and alleged Buhmanns private 1-143 affected just compensation “by without specifically taking only (i.e., fee), viable source of profitability shooting animals for a *5 market, sale and destroying Montana breed stock
thereby the The and Buhmanns of licenses.” Wallaces prohibiting the transfer oftheir property 1-143to the detriment the State enforced alleged that on imposed retroactive liabilities that this enforcement new rights and the rights Additionally, as well. them, their damaging vested the by that transfer of alleged prohibiting Buhmanns Wallaces and in their Game Farms and the value of their investments their licenses licenses, their and others, only “property State to the took not land, and increased value of the of the the profitable the use but also The and of the issued licenses.” Buhmanns prior land as a result alleged Hagener McGrath and violated their also that Wallaces them, enforcing against brought 1-143 and rights by constitutional claim 1983.1 relief under 42 U.S.C. § nature the Buhmanns’ and Wallaces’ claims precise The fee-shooting slightly. provide the Buhmanns did not differed Because services, directly were not affected 1-143. operations their business However, fee-shooting, 1-143 by eliminating the in-state market for their profitability on the breeder significant impact had a economic Wallaces, marketing of Sweet The on the operation and Pro. hand, provided the Ranch directly Big affected since Velvet other were fee-shooting services. 22,2002, change filed a to the venue of July On the State motion District, the First County from Blaine to Judicial Lewis
the case 25-2-116, 16, 2002, August County, pursuant to MCA. On Clark § pursuant to parties, filed a motion sever the Wallaces Buhmanns motion, Buhmanns argued P. 21. that their M. R. Civ. In the argued County, the Wallaces action should remain in Blaine while County their cause in Ravalli they pursue should be able of action August 6, August On they filed there on complaint under Court denied the motion sever and County the Blaine District case to granted change the State’s Lewis motion venue County. and Clark Court, 17, 2002, Judge First District September On Judicial appellants’
Dorothy presiding, jurisdiction McCarter assumed over 10,2002, a motion granted the District Court filed suit. On October Wildlife Federation to Sportsmen for 1-143 Montana appellees Initially, jury Court set a trial to in this matter. District intervene case-in-chief, granted appellants’ the District Court the State’s At the close of object proof. Appellants did not at the failure to § motion to dismiss 1983 claim for challenge appeal. time, of this claim on and do the dismissal However, hear appellants’ subsequently claims. State filed proceedings, arguing motion bifurcate issue whether solely by was liable for a decided State should be liable, damages Court. If the State was then the issue of District found jury. appellants resisted the would be submitted The State’s motion, were trial asserting they jury entitled to a on issue takings liability. summary judgment State seeking also filed motion One
appellants’ takings aspect claims. ofthe State’s motion dealt with appellants categorical takings the issue ofwhether assert a could claim respect livestock, personal property (e.g., to their alternative equipment). argued authority Game Farm The State that under the *6 Council, 1003, (1992), S.C. Lucas v. Coastal 505 U.S. S. Ct. 2886 taking may only a categorical regarding claim be asserted for claims land, a taking taking and not for a of personal property or other property Kafka, interests. See the (noting 67-69 distinction between claims). categorical regulatory takings appellants’ Since the land all significant 1-143, retained spite passage value in a categorical taking Additionally, claim would fail in this case. the State argued that it was summary further entitled to judgment on appellants’ regulatory takings claims. hearing After a holding on on these motions October the Court granted portion motion,
District a concluding the State’s the question of whether taking presented there had been a a question by law to be determined the District Court a If jury. without Court, was found the District it would submit the issue of damages jury. Additionally, to a ultimately while the District Court summary denied the judgment State’s motion and concluded that it would hold a bench trial appellants’ takings claims, agreed on with Lucas, personal State that under could property not form the basis categorical for a takings Moreover, claim. the District Court agreed legal with a argument raised in the State’s brief that the same analysis, law, claim, based on federal applied whether brought under Article Section 29 ofthe Montana Constitution or the Fifth Amendment to the U. S. Constitution. 30,2004, Beginning on November the District Court held a three-
day appellants’ bench trial on takings claims. The District Court heard testimony Buhmann, Wallace, from Bruce Len Dr. Peter Nickerson (Dr. Nickerson), expert appellants, an economist and witness as well as other parties. witnesses for both The District Court also received number exhibits into evidence. Based on this evidence findings a number of factual testimony, Court made the District property operations respect to Wallaces’ and Buhmanns’ with interests.2 they Wallaces, the District Court found respect to the With FWP in the licensing set forth requirements complied
had District Court noted that Ranch. The Big Velvet operation they years, over the had sought operation their expand Wallaces permits. necessary expansion for the with FWP applied by FWP which would have expansion request were denied an Wallaces then-existing roughly acres acre approximately 1000 added denial, their out After the Wallaces decided sell ranch. enough grazing land for their they would not have of a concern that provide Farm They acquired a Game Wisconsin subsequently elk. animals, prevented shipping from land for their but were grazing CWD due to on Game Farms animals back and forth outbreaks states, Additionally, the District Court including Montana. several 1-143, difficulty marketing had their prior Wallaces found moratorium on interstate elk outside of Montana because of a elk on a Montana from Montana as result of CWDoutbreak shipments further that an outbreak Farm in The District Court found Game of the Wallaces impacted ability Game Farm of CWD another at the time I- and that it was still on market to sell into 143 went effect. 1-143, passage found that after the District Court began selling equipment off their elk and Game Farm
Wallaces pre-I-143 Between 1997 compared “substantial loss” with their value. $666,166 purchase elk. spent approximately Wallaces elk to 1-143 *7 prior Len Wallace testified that value of his herd was 1-143, liquidated After he the herd for roughly million. $5.5 his $238,000, simply and in cases donated elk to approximately some of organizations. Additionally, the Wallaces sold some their various connection, analysis by the the District Court and In this we note much of trial, objectives parties during purposes argument the on and bench focused the CWD, 1-143, accomplished goals preventing of of outbreaks of whether heritage, preventing privatization preserving or commercialization of States hunting “fair chase” Montana’s However, Kafka, recent United wildlife. as we observed in efficacy inquiry Supreme jurisprudence an into the or has foreclosed Court (which concerns) regulatory change process” purposes of a are best considered as “due analysis. Kafka, categorical regulatory See 70-71 the realm of or (2005)). U.S.A., Inc., (discussing Lingle In 544 U.S. 125 S. Ct. v. Chevron words, takings analysis case, purposes in this it is immaterial whether for of other or not 1-143 is effective in achieving objectives designed or it was concerns of address. $600,000to purchase, cost specialized equipment, approximately which $150,000. net District Court found that the income from the Ranch for the 1-143 Big four-year period prior Velvet $1,480,452. prepared by Financial records Dr. Nickerson demonstrated $4,595,123 that the Wallaces had a basis of in their business. Between 1994 and of parcels records indicated numerous sales land acres, ranging forty totaling between ten and more than million $1 dollars, as well two sales of to another ranch for more than million dollars. $5 total, Court District concluded that Wallаces suffered significant, but complete, loss value to their Game Farm quantified
business as a result of 1-143.The District Court this loss as fifty percent reduction the value of figure their business. This apparently took into account the fact that while the Wallaces’ elk devaluation, a significant suffered the real estate associated with the Big Velvet Ranch had in fact appreciated. The District Court further found that while the market for alternative declined, livestock elk had alternative livestock could still be bred and sold to Game Farms other states. Buhmanns, With respect the District found they initially
when purchased the land on Eagle which Circle mid-1980’s, Farm Game is located in the they had no intention of operating Game Farm chose that but course much later. The District Court found that the purchased Buhmanns all their elk in 1997 for $29,500, began selling them in 1999. Their total receipts sales through $8,948, $11,963 they 2000 were received elk from sales in They 2001 and anticipated selling 2002. approximately 10 calves a $30,000. year for respect Pro, about to their With sales of Sweet they District gross Court found had product sales $68,000 approximately between 2000 and For the period overall they their business from 1997 to had net business loss of $41,325. With respect impact 1-143, their business from District Court found no aspect prohibited that business was they because did not operate fee-shooting However, operation. 1-143 did affect the market for both livestock and alternative Sweet Pro. The District Court concluded that the Buhmanns suffered a net $22,000 loss as a result 1-143. law, In its began conclusions of by restating District Court its analysis,
determination that the legal upon law, same based federal applied brought to claims under whether the Fifth Amendment Moreover, Section 29. the District Court stated that a *8 Lucas because case under lie in this did not takings claim
categorical Court The District takings of land. only takings apply categorical taking under regulatory for a claims appellants’ reject went on then Transp. Co. v.New Central in Penn set forth framework analytical (1978). Kafka, 67-73 See 98 S. Ct. U.S. City, 438 York reasoning analysis). The takings regulatory (discussing Penn Central detail greater discussed will be Court of the District analysis and below. of their the denial appeal now Buhmanns and The Wallaces
¶22 following issues They present Court. District claims takings appeal: the venue changing err in Court the District Issue One: Did ¶23 appellants’motion County denying and Clark Lewis and proceedings claims? the Wallaces’ to sever liability concluding that Court err in District Two: Did the Issue
¶24 instead by the court would be decided claims takings appellants’ jury? Article concluding that Court err in Did the District Issue Three: ¶25 any greater provide not does Montana Constitution 29 the than private property taking against protection constitutional Constitution, legal that the same the U. S. Amendment to Fifth Amendment under the brought claims analysis applies Fifth Montana Section 29 the U. S. Constitution Constitution? denying appellants’ Court err in the District Issue Four: Did personal taking categorical 1-143
claim that affected property? concluding that I-143 did err in District Court Five: Did the Issue private property? appellants’ regulatory affect OF REVIEW
STANDARD clearly under the findings of fact court’s review a district We Roe of law for correctness. standard, its conclusions erroneous 70, 12, MT of Commsrs., 2008 ¶ Co.Bd. Family, L.L.C. v. Lincoln clearly of fаct is finding 12. A P.3d ¶ Mont. ¶ evidence, if the trial by substantial supported if it is not erroneous evidence, review of or if our effect ofthe misapprehended court Family, Roe has been committed. that a mistake convinces us record
DISCUSSION changing Issue Did District err in One: the venue County Clark proceedings denying appellants’motion Lewis and *9 to sever the Wallaces’claims ? Court, County, granted The Seventeenth Judicial District Blaine
¶30 State’s motion to transfer the case to County the Lewis and Clark appellants’ ultimately where the merits of claims decided. were appellants argue that the Court erred granting District in the change order, In County of venue. its the Blaine District found change MCA, a 25-2-116, that of venue was under proper which § reads as follows: Multiple
25-2-116. In claims. an action involving two more part designates claims for which this more than one a proper trial, place party place of a entitled to a of change of trial on place claim is entitled a change action, of trial on the entire subject power of the to separate court issues claims or 42(b) trial under Rule the Montana Rules of Civil Procedure. the Although complaint Wallaces’ and Buhmanns’ only asserted counts, the they two District Court determined that asserted more than two purposes claims for of the specific statute because the allegations sought by and relief sufficiently the Buhmanns was distinct specific from the allegations sought by and relief the Wallaces. The District Court observed that it is the nature of the asserted and sought demand for relief that claims, determines the number rather designation than formal complaint the itself. The District Court noted the that Wallaces and Buhmanns each detailed different locations and 1-143, businesses which were differently by affected damages the in each case differed only based these different locations but also on effect, the duration ofthe type the of the business, and the parties’ extent the respective investments. The District Court also noted that because their claims were brought against Montana, the state of the proper claims, venue for the 25-2-126, pursuant MCA, to § county would be either the of the plaintiffs’ respective residences or Lewis County. and Clark That statute in pertinent part reads as follows: place
The proper of trial for an action against the is in state county in which the claim or in arose County. Lewis Clark an brought by state, action county resident of the plaintiffs proper place residence also a trial. 25-2-126(1), MCA. Here, parties resided in different counties. The Buhmanns resided Ravalli the Wallaces County, in Blaine while
resided County proper venue Therefore, Blaine would be while County. Buhmanns, proper not be for the would the statute under 25-2-126(1), MCA, County and Clark Thus, under Lewis Wallaces. § for all Since the State only parties. venue appropriate would be MCA, 25-2-116, under virtue of change venue § was entitled to claims, County the Blaine District Court multiple presence County and Clark change that a of venue Lewis concluded appropriate. filed Court denied a motion Additionally, District County, and allow claims in Blaine
appellants keep Buhmanns’ newly-filed pursue complaint claims and to sever their Wallaces hand, On the District Court conсluded County. the one Ravalli 42(b), M. R. Civ. P. good had cause under failed show Buhmanns claims, and further failed to demonstrate how separate impractical or County and Clark would be access to court Lewis sever, the motion to District expensive. respect With to the Wallaces’ Emery v. authority Federated Court denied motion under *10 (1993), simple Foods, Inc., Mont. P.2d 426 for the reason the time yet that motion to sever had not been filed at the State the change motion for of venue. filed its maintain the the Wallaces and Buhmanns District appeal, On
¶35 interpretation statutes, and application in its ofthese Court erred involving they multiple not cover scenarios simply assert that do interpretation the District plaintiffs. They maintain that Court’s They to that right argue them of their choose venue. unfairly deprives adding from prevent plaintiffs of these is to intent statutes obtaining a to defendants from favorable spurious prevent claims this case. venue, present a concern not in sever, the appellants to of the motion to respect the denial ¶36 With not the motion due argue that the District Court’s decision to consider DML, in timing directly holdings to both Inc. its contravenes Emery. 2005 MT 328 Mont. 119 P.3d Fulbright, propriety that of venue is Appellants argue that the doctrine complaint, only time situations applies determined as of of changes, and was not intended to composition parties where the case-including the occurring all in a motion to freeze in time activities Accordingly, they argue filed motion to sever which was here. granted by the District Court. have been considered sever should DML and demonstrates that State maintains that controls change a of venue Lewis and correctly permitted Court District sever, the State out County. respect points Clark With the motion within District that the decision of whether to sever claims lies 25-2-116, MCA, 42(b), under and M. R. Civ. P. Court’s discretion § Here, prejudice. of and to avoid the District furtherance convenience showing to make explicitly appellants Court found that failed 42(b). of P. justifying the invocation M. R. Civ. The State asserts that appellants challenged finding appeal. not have this place for county proper “The determination whether is question involving application trial is a ofthe venue statutes law pleaded DML, plenary, 7. Our of such facts.” review decisions is ¶ meaning ruling legally district court’s we determine whether the DML, County 7. Court correct. We conclude that Blaine District ¶ change did not err in venue permitting appellants’ State to County. cause of action to Lewis Clark DML, 25-2-116, MCA, interpreted this Court § follows: 25-2-116, MCA, By the words of “a party change entitled to § place change trial on claim is entitled to a place trial on the entire contemplates multiple action.” This statute claim county situation which the the plaintiff proper where files is for one claim but recognized not for one or more of the others. As 25-2-116, MCA, the Evidence Commission Comments to § consistently has ruled a change that defendant entitled to of venue on one claim should have it on the entire action.
DML, ¶ Here, it is patent venue Lewis and Clark proper is
respect 25-2-126(1), to the Buhmanns’ claims virtue of MCA. § Because the Wallaces reside in venue County, appropriate Ravalli there, DML, therefore, or in Lewis and Clark Undеr County. the State is entitled a change respect of venue with entire action. See DML, (Gray, C.J., concurring) (concluding change venue 25-2-116, MCA, appropriate under when action consists ofmultiple § claims, designate venue county statutes more than one one more claims, brought county one, and action is in a is proper which but claims). all, County of those Since Lewis and Clark is an *11 case, appropriate parties venue for all in this the District Court did not allowing err in change of venue. respect With County to the Blaine
¶41 District Court’s refusal to sever, consider the motion we with agree to the State that the District Court denying acted within its discretion in such motion. Decisions as matters, trial sever, administration such as a motion bifurcate are within the “broad Jarvenpaa discretion” of district court. v. 12, 292 118, 12, Inc., 306, MT Mont. Cooperative, ¶ Elec. ¶
Glacier case, the District Court 84, regardless 12. In ofwhether P.2d this sever, motion to the merits of the should have considered could or appellants that had failed demonstrate clearly in its order stated 42(b). Appellants sever, under M. Civ. P. good required R. cause Thus, County the Blaine challenge finding. we affirm do not and decisions as to venue severance. Court’s District concluding liability err that Two: Did District Court Issue by the court instead takings would be decided claims appellants’ jury? 22, Order, and the Lewis Clark Decision In its October motion the State to bifurcate granted Court filed County District allowing the liability phases proceedings, of these damages Court, solely by the District while the latter to be determined former determined the State by jury heard if the District Court would be taking. The District Court concluded uncompensated for an was liable law, question there was a is a question whether that right jury to a trial was limited to the owner’s and that damages. issue of was position The District Court determined its consistent Ltd., Monterey Monterey, City Del Monte Dunes at 526 U.S.
with v. (1999)-a 687, upon by appellants Ct. 1624 case relied for their 119 S. they jury takings the issue of were entitled to trial on argument damages the issues of liability. The District Court considered whether intertwined, liability or were distinct and should be were practical no reason to presented separately, and concluded there was unrelated damages. the issue of subject jurors to evidence that it needed Additionally, adequate District Court determined proceeding damages-an a trial on liability time to consider before liability that would be moot if decided favor of the exercise was State. the District erred and Appellants wrongfully maintain that right jury liability. trial on the issue of
denied them
to a
(1982)
State,
198 Mont.
219
adopted
the Montana
in
Appellants
when
Constitution was
1889.
beyond
of
argue this class
cases extends
those common-law
1889,
recognized
modern-day
actions
in
and includes
actions that
of
traditionally
involve
and remedies
the sort
enforced in an
law,”
claims
takings
presented
“action at
such as the
they
here.
authority
Dunes,
argue
Under the
of Del
appellants
Monte
uncompensated taking
their suit for an
of their
is an action
law,
reasoning
at
and that the
in
supported by
Del Monte Dunes is
cases, including Solberg
Co.,
Montana
&
v. Sunburst Oil Gas
Mont.
(1924)
Hale,
sounding seeking legal law); tort and relief anis action at see (1953) Little, 152, 155-56, v also Little 127 Mont. 259 P.2d (actions specific at law include actions to recover personal property damages). Appellants maintain that Lucas and Penn Central analyzing takings tests for are inquiries claims factual are which properly jury. They argue allocated to a therefore that the District Court erred in concluding that the determination as whether a taking question law, has occurred ais and maintain instead that question is a of fact. The State maintains that because there is no established tradition by jury takings
of trials in regulatory Montana, cases this Court decides this issue on “clean slate.” The State then asserts that appellants’ reliance onDel misplaced Monte Dunes is because that case solely question involved plaintiff whether a was entitled to a jury trial under the Amendment Seventh to the United States Constitution for an brought action under 42 U.S.C. 1983. The State § maintains that Del Monte Dunes did question not address the whether plaintiffs generally are a jury entitled to trial on the issue liability takings jurisdictions, cases. The State notes that other such California, generally have held liability that the issue of in takings question claim is court, of law right with a to a jury trial available of damages. issue Accordingly, urges the State affirmance of grounds the District Court on the question that the whether a primarily has occurred is a legal question to which right no jury trial exists. Whether an individual jury entitled to a trial presents
question of law we which review de novo for Supola correctness. Justice, Bureau, Mont. Dept. 421, 423, 925 Drivers License 278 Mont. (1996). 480, 481 matter, P.2d As an initial agree we with the State that the question before the Court is impression one first the state of observing both Howard correct in are Appellants
Montana. jury claimants Club, afforded apparently the trial courts Country Butte Howard, Mont. at See cases. in inverse condemnation trials 76, 519 Club, at P.2d at 829; 164 Mont. Country Butte 647 P.2d any analysis or discussion which would However, provides neither case categorical regulatory appellants’ the issue whether bear on case ever and neither has jury, submitted to a claims should be of law. authority point on this been cited as Dunes, which the State upon to Del Monte therefore turn We *13 case, a property In that positions. rely opposite for their appellants Dunes) (Del city brought against action an owner Monte repeated denial of Del 1983 based on its Monterey under U.S.C. § Monte Each time Del development permit. for a request Monte Dunes’ city Monterey denied development request, a Dunes submitted Monte Del Monte Dunes. Del rigorous more demands on imposed it and Eventually, Ct. Del Monte Dunes, at 119 S. at 1631. 526 U.S. council, again city and was denials appealed these Dunes federal district consequently filed a suit in denied. Del Monte Dunes amounted to an things, other that the denial alleging, among court Dunes, Del Monte taking under the Fifth Amendment. uncompensated claims in that case takings at Ct. at 1633. The 526 U.S. 119 S. favor returned a verdict in ultimately jury, submitted to a which were 701, 119 at Dunes, 526 U.S. at S. Ct. Del Monte of Del Monte Dunes. properly claim wаs takings The of whether question 1634. by Circuit. The later affirmed the Ninth jury submitted to the was to the United appealed subsequently Ninth Circuit’s decision was Supreme Court. States by Del Dunes was considered the Monte court One the issues question court submit the proper
whether it for the district was by having the issue decided liability jury, for instead Dunes, U.S. of a Del Monte jury. court without the aid district right its 707, 119 at Monte Dunes asserted that at S. Ct. 1637. Del and 42 U.S.C. trial the Seventh Amendment jury a was conferred agreed. Del Monte States Court Supreme and the United § 710-12, 119 Dunes, reasoning, 1638-40. In its 526 U.S. at S. Ct. at explained that an action under § Del Monte Dunes court because tort, cognizable under the of a of action primarily type sounds law, of action for which Seventh common and thus cause Dunes, at 709- byjury. trial Del Monte 526 U.S. provides a Amendment at 119 S. Ct. conclusion, Supreme Court the United States reaching In this explicitly argument city Monterey rebuffed an advanced right jury there was no common law to a in eminent domain doing so, highlighted proceedings. Supreme Court the fact that wholly the tortious nature of a 1983 independent claim was from the § of underlying right giving nature rise to the 1983 claim itself. §
As Justice SCALIA ... have notes we declined other contexts classify 1983 actions based on the nature of the underlying § asserted, right city justification and the no provides persuasive adopting different rule for Seventh purposes. Amendment Even analyzed when however, as 1983 action simpliciter, § but as seeking a 1983 action uncompensated redress for an Del taking, § Monte Dunes’ suit remains an action at law.
Although condemnation proceedings from the spring same Fifth right compensation which, Amendment incorporated Amendment, by the Fourteenth applicable here, condemnation action in important respects differs from 1983 § action to an uncompensated taking. redress (citations Dunes, 711-12, Del Monte U.S. 119 Ct. S. at 1639 omitted). Supreme explained point further as follows: proceedings
Condemnation differ from the instant cause of action in another fundamental respect as well. When government public use, condemns it provides seeking just landowner a forum for compensation, required as is by the Constitution. If the not, condemnation proceedings do *14 fact, deny the just compensation, landowner government’s are actions neither unconstitutional nor unlawful. Even when the government takes without initiating condemnation proceedings, is no there constitutional violation unless or until the provide state fails to an adequate post deprivation remedy for the case, however, loss. In this Del Monte Dunes was denied only not its property just compensation but also or an even adequate for seeking forum gravamen it. That is the of the 1983 § claim. Dunes,
Del Monte
714-15,
holding following admonition: We note the limitations of Amendment our Seventh holding. We do not address jury’s role in ordinary an inverse condemnation suit. The brought action here was under § vindicating constitutional jury’s role
a which the context A federal courts. recognized by the federal long has been claim under moreover, takings § entertain a court, cannot denied an landowner has been complaining or until unless California, State of remedy. Even the post deprivation adequatе arose, facially adequate procedure provides a this suit now where temporary takings such as just compensation obtaining conceptual is also circumscribed its Our decision this one. present appropriate case an of the does posture reach. temporary the elements precision to occasion define claim; city objected submitting to takings although regulatory all, approved at instructions liability jury issues of no basis to jury and therefore has were submitted to that challenge them. 721-22, (emphasis S. at 1644 Dunes, at 119 Ct. Monte 526 U.S.
Del added). great expressly pains Dunes thus took The Del Monte deliberately holding brought under §
limit its to actions ordinary province jury in an inverse chose not to address extension, categorical suit, or, by regulatory or condemnation presented claim such as here. Chessman, connection, of C.L.A., find Matter In this we also Gas, rely, are not upon appellants &
and Sunburst Oil
which
before the Court.
helpful
deciding
presently
issue
particularly
trial
for the
right
jury
that a
exists
simply
Those cases
establish
at the time the Montana Constitution was
class of cases which existed
Mont,
Chessman,
584-88,
223 (Fla. Growers, Inc., 101, 104 1988); Florida So.2d 521 Deisher Kan. (Kan. 656, Farms, Dept. of Transp., 1998); 958 P.2d 663 Cumberland (Conn. 1107, 1126-27 Groton, 2002); Inc. v. Town 808 A.2d Galvis v. of State, (Wash. 584, 589 2007); Dept. of Transp., App. 167 P.3d Div. 2 See (11th Co., 1084, 1092 Largo, also New Port Inc. v. Monroe 95 F.3d Cir. 1996) (concluding specifically jury requirement that there is no occurred). deciding a regulatory takings whether has Under these authorities, presumptively the District Court satisfied appellants’ jury by providing constitutional trial right jury a trial on issue damages. of Against weight authority, this of have appellants single not cited
case in which a of liability categorical court has held the issue in a or regulatory takings Although case must he a jury. submitted to question taking of whether a has occurred is an “ad nature of hoc, 69, inquiry,” Kafka, appears factual see that both state and agreement federal courts are in near universal that whether facts regulatory taking show that categorical ultimately or has occurred is question E.g., Mayhew Sunnyvale, law the court. v. Town of (Tex. 922, 1998); 964 S.W.2d 932-33 Chancellor Manor v. United (Fed. States, 891, 2003); 331 F.3d 898 Cir. Airports Alevizos v. Metro. (Minn. Paul, Commn. Minneapolis 651, and St. 216 N.W.2d 660-61 1974); By Through Forestry, Sieber v. State the Bd. 149 P.3d (Or. 1243, 1246 2006); App. of Tehuacana, Vulcan v. City Materials Co. (5th 882, 2004); see, 369 F.3d 886-87 Cir. but Noghrey v. Town (N.Y. Brookhaven, 2008) 220, 852 N.Y.S.2d App. Div. Dept. (submitting question of whether a regulatory has occurred determination). jury’s fact, for a authority area strongly supports the District Court’s “[wlhether determination that compensable taking question has occurred is a of law based on factual Co., underpinnings.” Pelagic Fishing Am. States, L.P. v. United (Fed. 2004) Maritrans, F.3d (citing Cir. Inc. v. United (Fed. States, 342 F.3d 2003)); 1350-51 Cir. Moldon v. Co. of Clark, (Nev. 2008); 188 P.3d Dunn, 858, 861 State v. 888 N.E.2d (Ind. (Colo. Custer, App. 2008); 1240, 1243 Co. Scott v. 178 P.3d App. 2007). 26-1-201,MCA, Under “all questions § are to be law” decided court, 26-1-202, questions go jury while offact pursuant to § takings MCA. “mixed arguably present While claims questions fact law,” Dunes, 721, 119 Del see Monte 526 U.S. at S. Ct. at it may while be regulatory that some cases categorical present questions arena jury, fact which should be submitted to a *16 specific factual articulated what here have not the appellants fact, it in case. In by jury a this to be resolved needed questions concerning disputes were no factual that there appears from the record private property. businesses and appellants’ of 1-143 on the effects matter, 1-143 whether, legal as a Instead, dispute the centered taking. regulatory categorical a or constituted rule bright-line sum, adopt time to a we decline this or categorical regulatory of a in the context of regarding jury the role did not However, the District Court we conclude that takings claims. the State question for the ofwhether by reserving itself err in this case legal taking. primarily Given the uncompensated for an liable required be inquiries, jury determination should takings nature of dispute of a factual is only the resolution in those cases which Here, taking has occurred. necessary in order to determine whether not dispute. no have appellants to have been such appears there have decided any factual which should been pointed question to District they complain any do that jury, nor for that matter Instead, findings gravamen in error. Court’s factual were legal is made an incorrect appellants’ challenge that District Court had categorical taking occurred. regulatory that a or determination therefore, circumstances, we hold that these particular Under question without the deciding takings District Court did not err jury. presence of concluding err in that Three: Did the District Court Issue II, provide any greater 29 the Constitution does Section Montana private property than protection against constitutional Constitution, legal and that the same Amendment the U.S.
Fifth brought Amendment analysis applies takings claims under Fifth Montana to the U.S. Constitution and Article Section Constitution? Court, the District In its Decision and Order of October Co., 227 Mont. 737 P.2d
citing Energy to Western Co. Genie Land (1987), legal analysis, on federal concluded that the same based brought Central, whether applies law under Penn claims argue Appellants under the U.S. or Montana Constitution. conclusion, reaching assert that Article District Court erred greater protection provides 29 the Montana Constitution Amendment, analysis. This requiring thus a different than the Fifth provision reads as follows: not be taken or domain. shall
Eminent Private the full just compensation without damaged use to or having paid extent of the loss been first made into court litigation, just compensation the owner. In the event of shall necessary expenses litigation include be awarded private property prevails. court when the owner Const., Mont. Art. 29.§ against Appellants protection assert the constitutional
“taking it damaging” right is a fundamental because and, therefore, in Article II оf occurs the Montana Constitution narrowly-tailored State must compelling show interest impose the least restraints on their possible property interests. Appellants maintain that the State has failed to meet this burden substantially because failed to demonstrate that 1-143 advanced legitimate purported state interests as protecting such the tradition of Montana, fair chase hunting preventing spread See CWD. Opinion, 16 n. Appellants position supported assert that their *17 II, plain language 29, of protects against Article Section which “taking” Therefore, II, a “damaging.” inquiry or is whether Article 29 of greater, the Montana Constitution affords more expansive than does the Fifth Amendment to the U. S. Constitution, wholly extent separate regulatory takings that a analysis need be performed under the Montana Constitution. As Kafka, we noted in we have generally looked to federal case guidance
law considering for when takings brought claims under II, practice Section 29-a that is consistent with of other states with similar or identical language in their state constitutions. Kafka, See Appellants 30. and the Dissent have upon seized “damaging” language in Article Section 29 to argue for a sweeping interpretation new of provision. It is mind important to bear in that Article protects Section 29
against “taking” and “damaging” of private property. We take this occasion to position reaffirm the taken in Kafka, that the protection against “taking” private of property under Article Section 29 is coextensive with protection given under the Fifth Amendment. Kafka, words, takings 30-31. In other analysis based on federal law under Penn Central or be applied Lucas is to claims brought whether under the U.S. or Montana Constitutions. This practice is in accord with the overwhelming majority of states that have similar identical in their language state constitutions. question The then becomes type protection, what and analysis, accompanying provided against “damaging” private property. This “or damaged” language adopted verbatim from
226 Constitution, already has a well-established
1889 Montana (1903), Butte, 140 28 Mont. P. City In v. meaning. Less by a occasioned city damages property to his sued the for plaintiff his abutting the street excavation of grade in- the change with a street Less was confronted change, As result ofthe residence. home. depth of about seven feet below his excavated to the graded and enjoy his had been ability property his use Less claimed that street. infringed, public as had his access significantly affirming $500, city appealed. and the Court awarded him District court, this stated: the district shall not be “private property provide which
Constitutions but just compensation” are public use without taken law, contemplate physical declaratory of common provide that only. constitutions which property Under universally it held damaged” not “taken or property shall be ofthe necessary any physical “it is that there be invasion use to entitle him public individual’s Co., Pac. Ry. B. P. 20 Mont. compensation.” Root v. A. & city “has a kind of 155, and The owner of a lot cases cited. land giving for the such purpose in the street air, Ry. the street.” Bohm v. light, of and of access to facilities of 802, 14 Co., E. 344. “These easements 129 Y. 29 N. L.R.A. N. being taken or by the Constitution from property, proteсted are Co., just Ry. v. B. A. & P. damaged compensation.” Root without Moreover, may consequential occur that “the frequently supra. upon than a damage may impose a more serious loss the owner temporary spoliation property.” City Atlanta or invasion Green, Ga. v. (other omitted).
Less,
32, 72
28 Mont at
P. at 141
citations
Mont.
Subsequently, Knight City Billings,
(1982),
upon
plaintiffs’ complaints
P.2d
we were called
to address
*18
improvements
24th
arising
for
out
the
to
inverse condemnation
to
an
that
Billings,
expanded
roadway
which
the
such
extent
Street in
parties’
yards
the
and the noise and traffic horrific
front
were unusable
virtually atop
Relying upon
traffic lanes.
for the homes now
these new
II,
of Article
Section
we
damaged” language
Less and the “or
the
had
private property
plaintiffs
that the
interests of
been
concluded
“taking”
by
extent as to constitute
inverse
interfered with to such an
cautioned, however,
holding
our
was limited
We
condemnation.
taking across the
unique
physical
to
us “where a
the
situation before
language as Article
Section 29. California courts
over the
history
provision,
this
repeatedly
expand
been asked to
may recover,
circumstances under which a private property owner
proponents contending
damaged” language
“or
an
infers
to expand
scope
provision
intention
of the
outside the realm
or public
eminent domain
works. California courts have resisted this
recently
notion. As
case of
v. City
Customer Co.
(Cal.
Sacramento,
1995),
Supreme
language Article damage 29 is intended to apply to real and private property occasioned real use. Neither the 1889or 1972 Montana Constitutions evince intent apply regulatory takings that it damages or resulting therefrom. Moreover, the provision private mandates that property not be taken damaged just for public compensation “having use without been first paid made to or into court for the owner.” language obviously This contemplates State, a condemnation of property by the and the recognition that appropriation will cause determinable consequential damages owners affected thereby-damages which can be ascertained at taking. put, the time of the Simply plain language suggest Section 29 does not that provision was apply damages intended to to the types regulatory *19 time, a has taken its regulation after arguably cause over
taking might nor And, appellants the notably, neither the on owner. property toll a the the “or proposition a case for single Dissent have cited in half of incidentally, present roughly is language-which, damaging” 30, n. intended country, Kafka, 5-is in this see the state constitutions regulatory taking context in the any greater protections provide Constitution, or that it to the U.S. Fifth Amendment than does the damages the consequential the anything other than applies to condemnation, or similar by physical a persons affected property of the actions, initiated State. by citing proposition to have contradicted this The Dissent claims (N.D. City Fargo, v. 705 N.W.2d Rice River Estates
to Wild
State,
Housing
in the Nоrth Dakota State neither Wild Rice nor upon relied, the cases or regulatory which it involved discussed Rice, Court, claims. In Supreme Wild the North Dakota in interpreting identical language its state constitution stated the following: Const, I, 16,
Under
art.
“[pjrivate
N.D.
shall
property
not be
§
or damaged
public
taken
for
use
just compensation.”
without
This
Court has said our state constitutional provision is broader in
some respects than its federal counterpart because the state
“
provision
owners,
‘was intended to secure to
only
not
the
possession of property,
but also those
which render
”
possession valuable.’
Rice,
Wild
(quoting
N.W.2d
Grand Forks-Traill Water
Users,
(N.D. 1987)).
Inc. v. Hjelle, 413 N.W.2d
Forks,
Wild Rice relied upon
Grand
which in
upon
turned relied
(N.D.
Bismarck,
1942).
City
Donaldson v.
3 N.W.2d
Donaldson,
turn,
upon King
County,
relied
v. Stark
When the Fifth Amendment to the Constitution United States adopted, was was therein provided private property could not be taken by United States for public just use without compensation. And the earlier State Constitutions likewise so provided. guaranty But this was too It narrow. insured compensation only in those cases property where taken. severity injustice ofthe rule and the resulting from its application recognized. were England, by Parliament, In act of compensation has been damage allowed since 1845 by caused country diversity in this a wide public works. In
construction as to jurisdictions arose of the several holdings of the courts “damaged.” meaning of the terms “taken” of Illinois amended 1870, the of the State people not taken property should be provided so that it Constitution just compensation. And when use public without damaged or this adopted the State of North Dakota was the Constitution history has been therein as section Its was inserted provision by heretofore. considered this court and its effect somewhat traced provision. now contain Nearly the State Constitutions all of not liability is uniformly held that there it the courts have Under taken, consequential damages but also for only for property constructing arising from acts of authorities property injury a direct necessary It that there be works. public liability. It is order create this sufficient property itself in direct recovery physical if there be “some to warrant private, plaintiff either which right, disturbance of gives it an and which enjoys property, in connection with his has value, such he and that reason of disturbance additional damage respect to his in excess special sustained diminution public generally.” And the of that sustained resulting complained special from acts value *21 meaning of the rule. peculiar within the omitted). (internal at 773-74 citations King, 271 N.W. to “originalist” approach for its Dissent faults 29, II, declining adopt its construction Section and for
Article why “originalist” Begging question 29. Section (see Dissent, 173, 178), that “abhorrent,” the fact is equivalent by the virtually legal argument posited rhetoric and none in the presented by appellants here themselves-either Dissent routinely parties that District Court or before this Court. We admonish legal argument, or new theories party’s change we not do consider 110, Rahn, 201, 22, MT 344 Mont. appeal. ¶ on State v. ¶ raised 22, 187 622, actually argued on raised and P.3d Based the issues ¶ our effectively to either address by parties, and their failure 29, an argue or existing under Article jurisprudence law, have failed expansion existing appellants we conclude that context, damaged” “or regulatory takings establish that in affords of the Montana Constitution language Article Section 29 U.S. the Fifth Amendment expansive more than does not err that the District Court did Accordingly, we hold Constitution. concluding analysis on takings based federal law under applied regulatory takings brought against Penn Central to the claims the State in this case. Issue Did err in denying appellants’ Four: the District Court categorical taking personal claim that 1-143 affected
property? In its Decision Order of October the District Court rejected appellants’ the notion that alternative livestock could be the object categorical takings categorical of a claim A under Lucas. or regulation
occurs when
state action forces an owner to sacrifice all
economically
good, leaving
beneficial uses
the name of the common
“economically
Lucas,
the property
Kafka,
idle.”
68. In
the United
Supreme
categorical
States
Court seemed
imply
that such
land,
apply only
claims could
to personal property:
Where
State
regulation
seeks to sustain
land
deprives
use,
of all economically
may
beneficial
we think it
resist
compensation only if the logically
inquiry
antecedent
into the
proscribed
nature
the owner’s estate shows that
use
part
begin
accords,
interests were not
of his title to
with. This
we
think, with
“takings” jurisprudence,
traditionally
our
has
which
by
been guided
understandings
of our citizens regarding the
of,
over,
content
and the
power
State’s
the “bundle of rights” that
they acquire
they
when
property.
obtain title to
It seems to us
the necessarily expects
owner
the uses of his
restricted,
time,
to be
from time to
various measures
newly
enacted
the State in legitimate exercise of its police
powers;
long recognized,
“[a]s
enjoyed
some
are
values
under an
implied limitation
yield
police
must
power.”
Pennsylvania
Mahon,
Coal
v.
[393],
Co.
U.S.
43 S.Ct.
[158], at 159. And in the
of personal property,
case
by reason
traditionally
State’s
high degree of control over commercial
dealings,
ought
he
to be aware of the possibility that new
regulation might even render his property economically worthless
(at
if
property’s only
least
economically productive use is sale
sale).
Allard,
51, 66-67,
manufacture
See
Andrus
444 U.S.
(1979)
100 S.Ct.
Circuit Maritrans, instance, the Federal Circuit personal property. In change shipping in federal considered whether Appeals Court of barges hull tank caused regulations oil carriers use double requiring uses of its economically all beneficial private company to sacrifice Maritrans, Ultimately, F.3d hull single barges. tank taking categorical no Appeals Circuit Court of determined that Federal occurred, single hull still retained ships had because the ships Maritrans, change regulations. use some beneficial after F.3d at 1354-55. question personal ofwhether Ultimately, we need not resolve itself, object categorical form of a claim.3 can
property,
categorical taking
appellants’
if a
alternative livestock
Even
cognizable,
nevertheless conclude
equipment
we would
related
fail
the alternative
categorical takings
claims
because
1-143,
passage
still have
uses after
livestock
beneficial
could be sold to out-
Court concluded. The alternative livestock
District
for their meat
antlers.
operations
of-state breeder
or harvested
livestock,
Granted,
may
use of the alternative
profitable
not be
that, contrary
claims,
However,
appellants’
have
some courts
do
we
note
Promotions,
See,
Commodity
just
e.g., Hawkeye
interpreted
Lucas
such manner.
(8th
2007)
Vilsack,
categorical
(holding
F.3d
Cir.
that Lucas
Inc. v.
only”).
“protects
rule
real
*23
categorical
but in order to make a claim for a
taking, appellants must
economically
that 1-143took
of
property’s
show
all
beneficial use.4
Lucas,
8, 112
Indeed,
See
Taking property’s most beneficial use does not itself Andrus, 65-66, constitute a compensable taking. 444 U.S. at Andrus, “[a]t S.Ct. 318. the Court stated that least where an possesses a full property rights, owner “bundle’of the destruction one taking.” Only of ‘strand’ of the bundle is not a Id. where Congress away every categorical takes beneficial use does taking occur. Id.
Maritrans,
categorical takings analysis apply personal could property, we hold in this case appellants have failed to categorical taking Thus, demonstrate that a has occurred. we affirm the District Court. Issue Five: Did the err concluding District Court 1-143 did regulatory appellants’ private property? effect Findings Fact, Law, In its May Conclusions and Order dated
2, 2005, the District Court appellants’ regulatory denied claims for takings under Penn Kafka, Central. See (describing 66-72 detail the three-factor regulatory takings analysis). Penn Central Under the impact economic factor of analysis, Kafka, see the District ¶ (1) Court made following findings: 1-143prohibited the Wallaces’ fee-shooting business and entirely, eliminated the in-state market for the Buhmanns but did not prohibit the sales elk and Sweet Pro (2) supplements feed buyers; out-of-state neither the Wallaces nor (3) Buhmanns lost significant value in their improvements; land or both the Wallaces and Buhmanns lost substantial value in their elk (4) herds; parties (5) both lost expected profits; future both businesses already had negatively been prior CWD, affected outbreaks of that CWD why was fact one of the appellants reasons could not profitably dispose oftheir markets; alternative livestock to out-of-state (6) the Wallaces had already made a to get decision out Game Farm prior business to the passage of 1-143. Based on these why profitable beyond The reasons the out-of-state markets were not are scope categorical takings analysis. Indeed, difficult, of a in this case would be if not impossible, just profitability to isolate how much of sale to out-of-state markets by previous Montana, was affected outbreaks CWD on Game Farms in or on other passage market forces unrelated of 1-143. factor impact that the economic Court concluded the District
findings, test favored the takings analysis regulatory of the Penn Central appellants. expectations,” “investment-backed respect appellants’ With that, appellants found while 72, the District Court Kafka,
see
industry
highly
controversial
Farm
knew that
Game
regulatory
scheme in
relied on
regulated,
appellants
heavily
significant
invested
industry,
had
place
they entered
when
industry
never be
that the
would
money
expectation
sums of
However,
Court noted that
the District
out
regulated
of business.
is measured
Central,
expectation
this investment-backed
under Penn
its reasonableness. The
standpoint
in terms of
objective
from an
*24
Arms,
States,
Court,
Inc. v. United
7 F.3d
citing to Mitchell
District
(Fed.
1993)
States,
v.
Servs. United
and Allied-General Nuclear
Cir.
(Fed.
1998),
(discussing
58-59
Kafka,
see
Cir.
¶¶
F.2d
Allied-General),
that
have held such
noted
courts
Arms and
Mitchell
when
very high
to a
standard
expectations
investment-backed
fields such as firearms
highly regulated
are
in
operating
claimants
{Allied-General).
Arms)
recycling
plutonium
and
exportation {Mitchell
expect that the
Moreover,
operating in such fields should
claimants
In
regulate them out of business.
government
effectively
can
distinguished
a
upon
case relied
regard,
the District Court
(Fed.
States,
1990),
prong, see of 1-143 a valid exercise weighed in favor the State because factor welfare, that health and it police power protect of the State’s already significant industry subject which was affected an governmental regulation.5 balancing in maintain that the District Court erred Appellants concluding taking 1-143 not effect a that did
Penn Central factors the alternative livestock particular of in private property, their respect to the economic specialized equipment. Game Farm With factor, that this amounted impact agree with the conclusion appellants However, that District assert impact. appellants to a significant factor, inquired analysis extent as it a certain Lingle. The District Court’s under this 1-143, longer under See 16 purpose propriety no be valid into would 2.n. impact Court understated this because it evaluated the as a business (which whole, including the real estate had I- appreciated spite 143), argue they appellants when did not claim a their real property, only They but ofthe itself. that finding business assert to fifty-percent misleading 1-143 led reduction in their business is it because includes in the the value of real computation appreciated Instead, impact estate. argue Wallaces should be measured terms the market value of the alternative livestock before 1-143 ($5.5 dollars), ($238,000). million versus its market value afterwards Similarly, argue the Wallaces that the impact true economic on their destroyed 1-143 business was that it. The maintain I- Buhmanns impact had similar on their business as well. governmental factor, With respect the character action appellants argue weighs this factor also of compensable favor taking because 1-143 problems does not address the associated with (i.e., WD, Game F threatening arms threat from C heritage offair hunting) chase since permits it still existence Game Farms. actuality, appellants argue, nothing 1-143is more than a price control designed protect measure competing selling the State’s enterprise wild, licenses for the shooting game. non-captive Finally, under the factor, investment-backed expectations appellants maintain that the District Court relying andAllied-General, erred in upon Mitchell Arms analysis Yancey and that an position. under supports Appellants argue they are complaining particular that a regulation has made Game Farms expensive, more but that directly prohibited 1-143 the sale of a product a manner contrary their reasonable investment-backed expectations, because State has never exercised *25 any regulation over charged the fees for privately shooting alternative livestock. While the participants in the industry might Game Farm have reasonably expected they would have to maintain extra fencing testing livestock, increase they their had no reason to anticipate state price they interference in the charge would be able to for Thus, fee-shooting. they argue, weigh this factor should in their favor. As we at many noted the outset of this Opinion, arguments raised in the at previously case bar were addressed in At this Kafka.
point, we will highlight the relevant portions of the decision Kafka as they insofar appellants’ challenge address the District Court’s analysis. matter, Penn Central As an initial we note that because the appellants case, in Kafka, this likе allege those in that a of mix 1-143, interests have allege been taken do I- and not (i.e., do not claim appellants all their interests
143 took Game Farms property comprising the real impacts that 1-143 for all) separately interests each of those business will consider we takings analysis. Kafka, 37. ¶ a regulatory purpose i.e., assets, intangible Regarding regulatory the case, that businesses we held in appellants’ businesses Kafka government physically taken unless the cannot be themselves Kafka, itself. See 55-63. and runs them those businesses condemns Arms Allied-General analyzed the Mitchell we both Kafka Therefore, set reasons reaching this conclusion. decisions in this case were businesses Kafka, appellants’ forth in we hold not taken 1-143. Game Farm elk and related appellants’ this leaves Accordingly, Central, we of Penn impact prong Under the economic
equipment. significant impact on Court that 1-143had a agree with the District For livestock. and Buhmanns’ alternative value of Wallaces’ factor, Wallaces had District Court found that the ofthis purposes through $666,166 purchases in elk from approximately invested Before 1-143 the market value of the alternative livestock 1999. elk) 1-143, million; roughly after $5.5 850 head of was (approximately $238,000.6The Wallaces’ Game the herd for liquidated the Wallaces trucks) (the feeding purchased were equipment specialized Farm similarly $150,000. The Buhmanns had $600,000 and sold for roughly livestock, on fee- although alternative ban invested breeding directly prohibit did them from alternative shooting not herd also livestock, devaluation in their cause a similar did Accordingly, Pro ability to sell Sweet in Montana. impacted their impact weighs appellants’ favor. economic factor However, appellants’ investment-backed respect factors, we governmental action expectations and character finding against weigh District Court that these factors agree with the Kafka, impaired the taking. we noted in while 1-143 compensable As livestock, every appellants it still allowed profitable use of alternative livestock; thus, perspective from the use of their alternative other testimony concerning case, provide expert appellants In this did 1-143. In change livestock before and after in the fair market value of alternative Kafka, testimony presented showing before expert that alternative livestock was in fact per $5,000 head, per $500 was worth after 1-143 the livestock was worth while 1-143 Here, comparable Kafka, represented roughly no 90% head. This testimony utilizing devaluation. (850 elk) However, given provided. herd the size of the Wallaces’ Kafka, lost figures employed in Wallaces’ herd evaluation 95% approximately of its fair market value. *26 law, regulatory takings governmental character action minimally had on appellants’ embodied 1-143 a intrusive effect Kafka, bundle of in the See interests alternative livestock. respect 87-88. The same would be true with to the Wallaces’ specialized equipment, Game Farm as it could still sold to out-of- be Thus, disagree analysis by state markets. while we with the employed inquired the District Court under this factor because into the (see a purposes propriety by Lingle, of 1-143in manner foreclosed 80), Opinion, agree we nonetheless with the District Court’s ¶ weighs against compensable conclusion that this factor a finding taking. Fargo See Talmage, 45, 23, 336 Wells Bank v. 2007 MT Mont. ¶ 125, 23, (stating 152 P.3d that will a ¶ we affirm district court’s decision if right even it reaches the wrong result reason). Similarly, under the expectations investment-backed prong, the
regulative and speculative nature industry of the play does significant role in determining whether a certain set investment- expectations backed are “reasonable.” we in Kafka, As did we conclude appellants that in this case could not maintain a reasonable expectation Farms, investment-backed by that Game extension fee-shooting, would be always legal Kafka, in Montana. See ¶¶ 89-93. connection, In this we agree with the District Court Yancey does not alter the regulatory takings analysis Yancey, in this case. In Andrew and Yancey (Yanceys) Elizabeth turkey owned and operated breeding operation in Rockingham County, Virginia. Yancey,915 F.2d Yanceys 1536. In acquired of turkey a rafter breeder hens for purposes of selling hatching eggs to customers other states. In mid-October an pathogenic outbreak of a Avian Influenza occurred in County, Pennsylvania, Lancaster prompting the United (USDA) Department Agriculture States impose a quarantine in state, which was later extended to Rockingham County, Virginia quarantine well. The prohibited Yanceys from the interstate shipping of live poultry, manure from poultry, litter used poultry, carcasses, as well as eggs and certain equipment. Although Yanceys’ influenza, flock was not they affected were unable productive make use they intended, of the flock as and had to $1,800 maintain the flock at per a cost of They ultimately week. slaughter decided to meat, the flock and sell it for although the flock had not been raised to economically be viable for purpose. They $20,887 received for the flock. Yanceys $63,566 filed subsequently indemnity claim with from the flock as result USDA, the lost value representing they claim the filed The claim was denied
quarantine. *27 claims court Fifth Amendment. The under the U.S. Claims Court claim, government the Yanceys’ Fifth Amendment granted the had to Appeals Court of the Federal Circuit appeal, On appealed. a constituted quarantine effects of the the determine whether Yancey, 915 F.2d at Fifth Amendment. taking under the compensable analysis from regulatory takings the Yancey applied court The that the the claims court had found It noted that Penn Central. a result of the a 77% devaluation as Yanceys’ flock had suffered have been worth healthy breeder flock would the quarantine, because further, place, and, that the $91,616 had not been quarantine if the use for the flock other than alternative viable Yanceys had no other long place. the remained quarantine them slaughtering so Moreover, noted the appeals at 1539. the court Yancey, 915 F.2d the Yanceys only learned about finding court that lower day took before it effect quarantine through newspaper hatching expectations eggs to sell the they that had investment-backed by Virginia-an that was foreclosed action outside customers Yanceys by the immediate, impact upon the disparate unforeseen and Yancey, F.2d аt 1540. quarantine. decision, Yancey explicitly court court’s affirming In claims Farms, States, Galloway Inc. v. its case from United
distinguished (Fed. 1987). Farms, Circuit Galloway In the Federal F.2d 998 Cir. the Soviet embargo imposed against Appeals grain Court of held that give Jimmy compensable not rise to Union President Carter did States, part grain farmers the United takings claim on behalf Farms, Galloway other markets. grain embargo open left because Yancey distinguishable court found its case 834 F.2d 1003. The Yanceys that the had no other because the claims court had found value, substantially less than their turkeys to sell their choice but Galloway still had available grain farmers in Farms while F.2d at 1541-42. The court concluded Yancey, markets. unanticipated deprivation an impact “[w]hen adverse economic suffered, poultry are as when the backed interest investment flock, turkey Yanceys compensation to sell their quarantine forced the Yancey, F.2d at 1542. appropriate.” under the Fifth Amendment is Yancey distinguishable agree the District Court We with to the investment-backed present respect from the case analysis. As threshold factor the Penn Central expectations matter, we expectations note that the investment-backed are measured objective, subjective, from an not standpoint of reasonableness. See (Fed. 2003) States, 1319, 1346 Cienega Gardens v. United 331 F.3d Cir. (“This claim incorporates objective factor also an test-to support a regulatory an taking, expectation investment-backed must be ”). Moreover, ‘reasonable.’ inquiry into the reasonableness expectation investment backed unique to each case and cannot be I., 606, 636, reduced to “set formula.” See Palazzolo v. R. 533 U.S. (2001) J., (O’Connor, 121 S. Ct. concurring). Yancey, Appeals the Court of bound factual from the
determinations Court Claims which supported the conclusion that quarantine in that completely case was unexpected. findings by the District Court in this case cut the way, other because the District Court objective noted that under an reasonableness, standard appellants could maintain an expectation that industry Game Farm permitted would be continue indefinitely. The District specifically found previous outbreak of CWD on a Montana Game Farm in 1997 had *28 already impeded the Wallaces’ sale of alternative livestock to out-of- state after imposition markets of a moratorium on out-of-state sales, and that their ability Big to sell the Velvet Ranch before the passage 1-143 negatively impacted previous was from the CWD Additionally, outbreaks. appellants were aware of the highly controversial nature of Game Farms and the fact CWD presented significant making risks it highly regulated industry. With respect “reasonableness” of investment-backed
expectations, analogy between the industry Game Farm and other industries such as the importation of firearms discussed in Mitchell Arms, the plutonium or recycling industry Allied-General, discussed in actually quite apt, because at the time these Game Farms in were existence, posed CWD a very serious threat to the native elk and deer populations Montana, within given that impossible it was completely prevent alternative livestock from escaping confines of Morеover, a Game Farm. there was no live test CWD which is permanent and irreversible Hagener, Moreover, disease. 25.7 ¶ explicitly District Court found that the exact incubation period Hagener, testing As we in noted was it limitations on for CWD which led the legislature impose to to an a moratorium on new Game Farms in 2000. This moratorium was response a 25. Phillipsburg Hagener, outbreak CWD on a Game Farm in 1999. ¶ fact, understood. In completely transmitting CWD are
means
required
which
posed
CWD
grave
threat
primarily
industry Montana. See
Farm
in
of the Game
regulation
extensive
dangers
inherent
backdrop of these
against the
Kafka, 8. It was
¶
Moreover,
dangers
publicly
were
these
operating.
were
appellants
public.
members
among many
very controversial
known and
would have no
producers
Thus,
Yancey,
poultry
where the
unlike
turkeys
to be
healthy
would have
flock
expect
reason
knew that their
industry
Farm
suddenly destroyed, those in the Game
danger
inherent
with them an
livestock carried
alternative
and which could
never be eliminated
spreading CWD which could
genetic make-up
into
way
if it made its
prove uncontrollable
facts,
highly
with the
together
These
populations.
wildlife
native
evaluating
industry, must be considered when
ofthe
regulated nature
expectations.
investment-backed
appellants’
the “reasonableness”
for a
analysis calls
Kafka,
in
the Penn Central
As we noted
“
regulatory actions that
identify
‘to
balancing
the factors
order
government
taking which
functionally
to the classic
equivalent
are
the owner from his
private property
ousts
directly appropriates
”
CONCLUSION affirm the District Court. upon foregoing, we Based GRAY, LEAPHART and DISTRICT JUSTICE JUSTICE CHIEF CHRISTOPHER, sitting WARNER. for JUSTICE COURT JUDGE dissenting part. RICE, concurring in part JUSTICE *29 One, Two and resolution of Issues I concur with Court’s ¶101 Five, I that a Four and as would hold I from Issues Three. dissent of 1-143 by the enactment ofPlaintiffs’ was effectuated dissenting in opinion Justice Nelson’s analysis provided under Kafka. NELSON, dissenting. JUSTICE Three, Four, and Issues I from the Court’s decision on dissent companion in the my dissent I do for the reasons articulated
Five. so Fish, case, Parks, Dept. Montana 2008 MT of Kafka Wildlife 460, 80, 96-248, 96-248, 348 Mont. 201 P.3d 96-248 ¶¶ ¶¶ (Nelson, Rice, Swandal, JJ., dissenting) (hereinafter, & “Kafka Dissent”), and for the additional set reasons forth below. I do not express any views on Court’s of resolution Issues One and Two.
I. INTRODUCTION As it did Kafka, again the Court holds that business owners industry the alternative livestock are compensation entitled no outright whatsoever for the destruction of their businesses (“Initiative” “1-143”). Initiative No. 143 or encouraged people The State to embark on this “viable economic opportunity,” facilitated their of investment millions of dollars into enterprises, granted such a statutory right them perpetual renewal their business licenses. Then, up legislated State businesses out existence. Court, According to the such action does not a taking constitute damаging II, under Article Section 29 of the Montana Constitution. reaching conclusion, spite this and in plain language II, Article Section the Court makes the astounding
pronouncement II, that Article Section 29 is little more than a redundancy-an constitutional empty provision guaranteeing nothing beyond what the federal courts deem compensable under the Fifth Amendment the United States Constitution. This pronouncement finds no support the text of Article Section which facially broader than the Fifth Amendment. It no support finds in the history Article predecessor, Section 29 and III, its Section 14 of Constitution, the 1889 which provide were intended to greater protection than against the Fifth infringements Amendment property rights. Montanans’ It finds no in the support prior decisions Court, recognize which independent protections of property under the Montana contrary Constitution. And Constitutional delegates’ Convention charge that this Court “revitalize” the civil of Montanans. Rather, the Court’s decision is based on single proposition: one delegates to the 1889 and 1972 Constitutional Conventions
and the voters approved who these Constitutions intended for the meaning “taking” and “damaging” property to be frozen in time. Adopting originalist an interpretation of Article rejects the notion that the terms “taking” “damaging” together were meant provide a broader range protection than *30 Instead, the Court provides. jurisprudence Fifth Amendment
extant which II, only to those situations Section 29 Article prefers restrict late nineteenth by the Fifth Amendment were not covered resulting from damages” consequential century: “determinable ofArticle from this emasculation strenuously I dissent projects. works 29. Section require Section Amendment and Both the Fifth effected damaging and for the just compensation the Fifth analyzed this issue under comprehensively 1-143. I (see Dissent, 177-240);and since there ¶¶ Amendment in Kafka Kafka present and the factual distinctions between are no material Kafka Rather, analysis I focus in necessary to here. case, repeat it is not explain why, 29 and on Article primarily this Dissent decision, the Buhmanns provision entitles contrary to the Court’s Ranchers”) just compensation. “the (collectively, and the Wallaces by the however, legal argued factual and issues First, I address several I some State, Ranchers this case. addressed and the Sportsmen, I reiterate the critical Kafka', accordingly, simply of these issues ensuing analysis. points here as foundation for FACTUAL AND LEGAL ISSUES II. PRELIMINARY 1-143 Explanation of Sportsmen’s A. The in this State since occupation” It a lawful “business or has been harvest, sell, breed, own, control otherwise acquire, 1917 to This livestock ranch.1 game owned animals on an alternative privately regulations have become more activity regulated, has and the been time, however, Legislature At years. the same rigorous over protect the business designed specifically has provisions enacted of their interests-e.g., through statutory recognition owners’ and their businesses “private property” livestock as alternative statutory guarantee through opportunities,” economic “viable each ranch licenses would be renewed that their alternative livestock fee with all compliance of the renewal year upоn payment Dissent, recording reporting generally See requirements. Kafka 103-109. ¶¶ 1-143, passed gutted November which was on regulatory scheme industry and rendered
alternative livestock scheme, statutory Opinion, “game prefers ¶ The The the term farm.” 87-4-406(2), however, MCA. “Game § livestock ranch.” See uses the term “alternative Accordingly, ranch.” I the term “alternative livestock farm” nowhere mentioned. use who were pointless. Sportsmen, principle “the forces behind 1-143,” ranching snuff sought out alternative livestock passage end, they “carefully to foot the public’shaving without bill. To that (1-143) prohibit crafted” a citizen initiative remuneration shooting ranches, thereby alternative livestock alternative livestock all industry operate, essentially, businesses in the forcing without Dissent, As any income. See 114-120. counsel for Kafka during oral Sportsmen explained argument: *31 by my they passed There was a if recognition clients that a statute said, “Every game tomorrow,” simply that farm is done that that very against. be a difficult claim defend we would And go didn’t want to down that And was have to road. so statute carefully problem way crafted to address the was taking offensive to at the same benefitted but time the wildlife management and wildlife of this State. Sportsmen’s
The assertion that charade “not transparent is guarantee just to the of compensation offensive” or damaging private of preposterous. any event, In Sportsmen did not detail their intentions Rather, according Sportsmen, “[f]oremost
the voters. to the among disease, issues in 1-143 presented voters were concerns about of fair chase hunting European style privatization loss ethics and of words, In other Sportsmen wildlife.” voters told the not that 1-143 “carefully had been industry-an crafted” obliterate an entire industry sanctioned, that had encouraged, been and by nurtured years, State for no that 1-143 “aimed” alluring less-but at the wildlife goal “protecting of Montana’s hunting heritage and from variety dangers posed game analysis Initiative, farms.” An ofthe however, reveals that it not actually did address dangers. these fact, As a matter of Sportsmen tacitly admit that 1-143was a fraud on Montana voters. instance, disease, For regarding Sportsmen paint grima “[cjontact
picture. They state that between farm game animals and wildlife can parasite transmission, result in disease and with devastating impacts complain to native wildlife.” They “[g]ame only single farm enclosures require prevent fence and do not nose ungulates Plus, game nose contact between wild farm animals.” virtually “[i]t impossible keep game coming farm animals from animals, escaped into contact wild animals are a fact of life game Moreover, contact, farm owners.” aside from direct “[s]ome hosts, are making diseases transmitted intermediate any form prevention.” ineffective for disease enclosure Indeed, to the voters. these concerns argued Sportsmen Pamphlet for Voter Information cite the 2000 the Sportsmen minimize the was to primary purposes I-143’s “[o]ne proposition (“CWD” “chronic is short for wildlife.” threat to Montana’s CWD concerns, disease.”) expect one would Accordingly, given these wasting diseases, more perhaps through related to target problems 1-143to testing additional requirеments, fencing and enclosure stringent livestock of all alternative outright an seizure or even requirements, of alternative livestock. private ownership along prohibition awith things. Sportsmen As the However, none of these 1-143 did 2000, are still prior to November “[g]ame farms licensed acknowledge, 1-143,” operators farm are Montana, “[g]ame even after legal handle, dispose’ game or breed, pursue, sell ‘acquire, grow, free to testing fencing requirements. no new imposed 1-143 farm animals.” owning alternative livestock on people from prohibit It does not ranches, problem not address the does alternative livestock through inadequate intermediate hosts or of diseases transmission diseases, the posed by Sportsmen’s the dire threat fencing. spite that issue. nothing addressing initiative contains ethics, that “Montana has Sportsmen state hunting As for wildlife, hunting protection and the heritage of ethical proud the state’s interest those traditions.” protect 1-143was intended to economic benefits of addition to the enormous They “[i]n assert that *32 hunting hold dear their big game hunting, Montanans traditional heritage,” component an of their western important tradition as explain hunting.” Sportsmen offair chase particularly concept “the “opposed ‘penned hunts’ offered they and other citizens in an enclosed “[s]hooting an animal many game farms” because citing hunting Again, these ethical traditions.” facility repugnant is Pamphlet, Sportsmen “[t]he state that the 2000 Voter Information for hunting, of fair chase as an ethical consideration protection to eliminate Montanans, integral part provisions of I-143’s was an penned shoots.” 1-143, however, “provisions penned no to eliminate contains any it the establishment of things: prohibited 1-143 did three
shoots.” ranches; right existing of it revoked new alternative livestock livestock to transfer their alternative alternative livestock businesses remuneration licenses; charging a fee or other prohibited and it ranch facility. on an alternative livestock shooting alternative livestock Issues, 2001,2000 Ballot Initiative No. of Montana generally See Laws 1, 4, animal “shooting facility” 6. But an in an is §§ enclosed still Indeed, legal. “[g]ame farm perfectly Sportsmen concede that shooting from operators prohibited by are not 1-143 otherwise matter, ‘harvesting5 their animals themselves.” For that 1-143 does not friends, relatives, acquaintances of an prohibit alternative operator shooting on an livestock from alternative livestock alternative only activity game prohibited livestock ranch. “The on licensed farms 1-143,” state, allowing under “is that of Sportsmen fee-paying opportunity personally individual shoot a farm game animal.” anyone But who not a “fee-paying may individual55 still participate in penned “personally game hunts and shoot a farm animal” notwithstanding 1-143. So much for protecting “proud Montana’s heritage” ethical, hunting. of fair-chase Lastly, wildlife, respect to European-style privatization Sportsmen “[c]entral hunting state heritage Montana’s availability big game hunting ordinary individuals: citizens,
inexpensive licenses available to all to big game access on public private plentiful lands... and populations of native wildlife.” According Sportsmеn, proponents “I-143’s made this a central issue to ban campaign penned (citing shoots” the 2000 Voter Yet, Sportsmen concede, Information Pamphlet). as the are forced to allow[s] “1-143 ownership game elk,” the continued farms and alternative breed, livestock ranchers free ‘acquire, grow, “are handle, pursue, dispose’ sell or game farm animals” Montana. Moreover, not provide 1-143 does for less expensive hunting licenses or greater game big access to private lands. smn, Sportsmen’s initiative purported address
disease, ethics, hunting and privatization wildlife, but 1-143 did not actually Rather, address these. “carefully was crafted” to achieve the Sportsmen’s goal ulterior all putting alternative livestock ranches out of Proponents’ argument business. The in favor blatantly the Initiative misleading assuring was voters that “[e]xisting game will farms be allowed to all operations, continue except canned hunts.” 1-143 designed to shut down all alternative by forcing livestock ranches operate them to with no income. The Sportsmen claim that merely 1-143 “added to the existing operation
restrictions” on the of alternative ranches. They livestock also assert that the Ranchers have not established that the “additional *33 restrictions” are “so onerous effect is the same as ‘an appropriation of property through eminent domain or physical ” “add” to 1-143 did not personified. hypocrisy This is
appropriation.’ previously new restriction a whole It devised “existing restrictions.” alternative shooting for remuneration industry: no in the unheard of of1-143is absurd. contrary characterization Sportsmen’s The livestock. reporting fencing, testing, strengthen to thing one It did restrictions,” Legislature as through “additional requirements livestock require to alternative another quite But it is years. over expedient through no income operate with to ranchers their activity on which key economic for the remuneration prohibiting “carefully crafted” Sportsmen shooting. The fee depended: businesses businesses, doing they succeeded destroy the Ranchers’ 1-143to closely more regulation that of a to conceive It is difficult so. property.” appropriation “an approximates alternative livestock conclusion, entered the the Ranchers ranching had been Alternative livestock industry in the 1990s. explicit had enacted Legislature The 1983 years. over 75 existence industry. in the participants interests of protect to statutory rights 1999, the State characterized Dissent, As late as 105-106. See Kafka opportunity “a viable economic ranching as livestock alternative the traditional livestock as well as owner private productivity.” ranch diversifying are interested who producers reluctantly conceded at 87-4-431, Moreover, the State MCA. suggest that it was evidence to Kafka, “There is some argument oral encourage people government political branches policy traditional farming as an alternative game to look they could agriculture so traditional to subsidize agriculture-actually, however, objected Sportsmen, The and ranches.” stay on the farms They decided to shut down ranching. livestock alternative Montana’s purpose “protecting They did so for the stated industry. that 1-143 They argued to the voters hunting heritage.” wildlife Yet, the populace. Montana the entire intended to benefit economic costs associated all of the sought place Sportsmen They sought, ranchers. livestock on the alternative achieving goal nothing. words, something for give public in other of Montana voices ofthousands Sportsmen “represent protection to the 1-143 is vital who believe men and women hunting.” of fair chase and to the tradition wildlife Montana’s designed and enacted “1-143 was Sportsmen, According fair chase wildlife and to Montana’s very dangers serious address “guarantee private that the heritage.” It has been said hunting just compensation use without not be taken for property shall *34 designed forcing people to bar Government from some alone to which, justice, burdens in all fairness and should be public bear borne States, 40, 49, 364 public Armstrong the as a whole.” United U.S. (1960). alone, Ct. principle 80 S. 1569 On this it seems abundantly achieving Sportsmen’s goals obvious that costs of whole, public must be borne as a not disproportionately placed on the shoulders of the alternative livestock ranchers. The Arguments
B.
State’s and the Ranchers’ Means-Ends
I-143-i.e.,
The
analysis
State asserts that a “means-ends”
whether
inquiring
substantially
Initiative
advances
some
legitimate public purpose-is
takings
in the
improper
context. The
correct,
is
State
at least with
to the Fifth
respect
Amendment. The
explained
in
Supreme
question
regulatory
has
that the critical
takings analysis
the regulation
is whether
is “soonerous that its effect”
“functionally equivalent
government
classic
which
directly
private
appropriates
property or ousts the owner from his
Inc.,
Lingle
537, 539,
domain.”
v. Chevron
U.S.A.
U.S.
(2005).
2074, 2081,
S.
“substantially
Ct.
A
advances” test is
answering
ineffective for
It
question.
nothing
reveals
about the
magnitude or character ofthe
that
regulation imposes
burden
upon
private property
Rather,
rights.
regulation’s
it
probes
underlying
validity. Lingle,
542, 543,
Yet,
such to and question distinct from the regulation whether a taking, Takings effects a for the Clause presupposes government has acted in pursuit of a valid public purpose. The expressly requires Clause compensation government where takes private property use. It public does for government not bar from interfering with property rights, but rather requires compensation event of otherwise proper amounting taking. to a if Conversely, government interference action is found be impermissible-for instance because it fails to meet the use” “public requirement arbitrary or is so as to violate process-that due is the end of the No inquiry. amount of compensation can authorize such action. (citation 543, 125
Lingle, U.S. at S. Ct. at 2084 and some internal omitted). quotation marks acknowledge Supreme Ranchers Court’s clarifications however,
of federal Lingle; they point doctrine in out that “Lingle not, not, did fact an independent could foreclose interpretation of the Montana Constitution.” The Ranchers suggest that under Article Section order “[i]n to avoid the constitutional compelling state must show the State compensation, just mandate of possible the least restraints narrowly impose tailored to that is interest formulation, In an alternative Ranсhers’] interests.” [the it has must demonstrate that “the State assert Ranchers purposes accomplishing means in restrictive the least employed may-indeed, this Court Ranchers that agree with the 1-143.”While I Article Section independent interpretation provide an must— inapt test is proposed that the Ranchers’ the State agree I II, Section 29. brought under Article analyzing claims states, part, “[p]rivate pertinent just public use without damaged taken or shall not be requires language This the full extent of loss.” compensation to “for damages private property the State takes or where compensation “public “compelling,” use” to be use,” require it does not but means” for “the least restrictive employ the State require nor does *35 has Rather, considering regulation whether a when achieving goals. its that the analysis presupposes the property, damaged private taken or properly focus is directed and the regulation permissible is is just compensation property the and whether regulation’s “effect”on 2081, 537, 543, at 125 S. Ct. Lingle, 544 U.S. at owed. Cf. the State has inquire little sense to whether It thus makes
¶122 achieving “compelling” a means” of “the least restrictive employed us may has done so tell or not the State state interest. Whether necessary or broadly than is regulation sweeps the more whether But “public requirement. the use” regulation fails to meet whether the effect and the burden the nothing regulation’s about the it tells us words, In other it does private property rights. regulation imposes damaged. has been taken or property not tell us whether been Moreover, if the least restrictive means have even property compelling, if the State’s interest is employed and even In this taking damaging property. a may have suffered owner still is connection, Supreme Lingle following reasoning persuasive: regulation effectively that property subject of a to
The owner singled out and may just interest be legitimate state serves subject to an property as the owner of a just as burdened say little sense to regulation. It would make ineffective has not. while the first has suffered second owner Likewise, may significantly not burden regulation an ineffective broadly all, may and it distribute burden rights at The notion that such among owners. evenly regulation private property public nevertheless “takes” use merely by virtue of its or foolishness is untenable. ineffectiveness 543, reasons, U.S. at Lingle, 544 S. Ct. 2084. For these Supreme rejection analysis Court’s of means-ends under the Fifth apply equally Amendment sensible should under Article Section 29. said, argue That the State inexplicably proceeds proposed
converse of Ranchers’ test. The State asserts that “property subject police power” are to reasonable exercise way and that Article Section 29 “alter in does not a fundamental police power adopt regulations public health, reasonable that protect safety, Mugler Kansas, and welfare.” Based on 123 U.S. 8 S. Ct. (1887), government the State compelled insists that “the cannot be to pay compensation reasonably whenever it determines that a activity injurious health, commercial public safety, or welfare.” short, The State’s position, is that it cannot bе required to pay compensation challenged regulation where is a valid exercise of the police power activity. course, related to a commercial Of corollary government rule is be required pay can compensation where challenged regulation anis invalid exercise power the police related to a activity-the very commercial proposition the State goes great lengths to refute. But there are additional flaws in the approach. State’s First, Mugler stands for the limited proposition
government need pay compensation not when it exercises power its prohibit i.e., property, a noxious use of a use akin to a nuisance. See Dissent, However, 126-129. alternative livestock Kafka ranching, which was done maintained express authority under the Title chapter part MCA, way public nuisance, no 27-30-101(2), MCA, see may § the State escape paying just *36 compensation for the through Ranchers’ losses mere expedient the declaring formerly that which public was not a nuisance to have been a public along, Dissent, nuisance all see 132-134. In Kafka regard, smug the State’s condemnation of the alternative livestock industry as some sort of noxious or threat public abhorrent to the health, safety, and rings light welfare hollow in the 83-year State’s role in creating, developing, nurturing industry the in the first place. Second, Supreme rejected the explicitly has the notion police regulation
that a valid power never requires compensation to the Council, owner. 1003, In Lucas v. South Carolina Coastal 505 U.S. “limits (1992), that there are the Court stated
III. ANALYSIS THE RANCHERS’ Analytical Framework A. regulatory to brought this action recover for Ranchers by caused of 1-143.
taking
damaging
property
passage
of their
action,
owner, in
of a
property
an
“in
the absence
formal
Such
which
entity
seeks
from
proceeding,
governmental
condemnation
to recover
interest,”
commonly
appropriation
property
of his
referred
Sackman,
L.
on Eminent
as “inverse condemnation.” Julius
Nichols
(3d
2006).
2A, 6.03[2],
ed.,
Bender
Domain vol.
6-182.1
Matthew
§
proceeding typically
by
a condemnation
an action
Whеreas
involves
property,
title to
inverse condemnation is an
acquire
condemnor
by
against
governmental
owner
defendant
property
action
damaged,
that has been taken or
even
property
recover
value of
though
power
no formal exercise
eminent domain has been
Clarke,
U.S.
attempted
government.
See United States v.
1127, 1130
Butte,
253, 257, 100
(1980);
City
also
e.g.
S. Ct.
see
Less
(inverse
(1903)
Mont.
251 domain, eminent doctrine power entire ofinverse condemnation predicated taking may that a occur such proposition without proceedings.”). brought by formal “Such a suit is ‘inverse’because it is owner, right the affected the condemnor. The to bring owner’s self-executing such suit derives from the character of the provision with respect Kirby constitutional condemnation.” Forest Industries, States, 1, 6, 2187, v. n. Inc. United 467 U.S. 5 104 S. Ct. (citation (1984) omitted). 2191 n. 6 quotation some internal marks noted, II, states, 29 pertinent part, As Article “[plrivate property damaged shall not be taken or for public use just compensation without analyzing full extent of loss.” In just a claim compensation the context of an inverse action, condemnation plaintiff court first determines whether the constitutionally possesses protected property interest. See Germann 130, 27, 303, Stephens, 27, v. 2006 MT 545, 332 Mont. 137 P.3d ¶ ¶ 27; Up State, 146, 26, Seven Pete Venture v. ¶ 2005 MT 327 Mont. ¶ 306, 26, 114 26; 1009, P.3d Co., ¶ see also Ruckelshaus v. ¶ Monsanto (1984) 986, 1000, 104 U.S. 2862, 2871 467 S. Ct. (articulating the same law). threshold inquiry under federal one protected Whether has a question Kiely interest is a City law. Construction v. Red Lodge, 241, 25, 52, 25, 836, 2002 MT 312 Mont. 57 P.3d 25. If ¶ ¶ ¶ plaintiff interest, possesses protected property the court then part determines whether a or a whole that interest has taken been use, damaged thus entitling plaintiff just compensation. See Mont. Const. 29; Monsanto, art. 467 § U.S. at 1000-01, 104 2871; Quota S. Ct. at Members Holders Ass’n v. of Peanut (Fed. States, 2005). United 1323, 421 F.3d 1330 Cir. The issue of whether a question has occurred is a of law based on factual underpinnings. Huntleigh Corp. States, USA v. 1370, United 525 F.3d (Fed. 2008). 1377 Cir. Analysis
B. Claims Ranchers’ under Article Section 29
1. General Approach It is well-established that enumerated Rights Declaration of (i.e., of Montana’s 1972 Constitution those set II) State, forth Article are rights.” “fundamental v. Walker 2003 MT 134, 74, 103, 74, 872, Mont. 74; ¶ 316 68 ¶ P.3d State v. 2001 Tapson, ¶ 292, 15, 428, MT 15, 305, 307 Mont. 41 15; ¶ P.3d ¶ Wadsworth v. ¶ State, (1996). 1165, 1172 275 287, 299, 911 Mont. P.2d This means that each the Article II rights significant component is a liberty, alleged infringement of which triggers the highest scrutiny level of
252 Walker, 74; ¶ the courts. protection level of thus, highest
and, 1174; State v. e.g. see also 302, P.2d at Wadsworth, Mont. at 829, 98; 481, 98, 78 P.3d ¶ 275, 98, 317 Mont. ¶ MT ¶ Mount. Mont. Quality, Environmental Dept. Center Environmental Info. For the P.2d ¶ 64, Mont. ¶ MT II-B, analysis under our in Part earlier reasons discussed *38 action, governmental “scrutiny” of the involve 29 does Section But raised. use” has been “public ofa requirement as the except insofar of protection” private level of highest “the must afford analysis our Walker, 74. rights. ¶ ofthe rights II mindful connection, Article interpret we 132 In ¶ Armstrong v. In Constitution. Montana in the rights set out other 364, that explained we 361, P.2d 261, Mont. 989 State, MT 296 1999 Rights, of the Declaration Constitution, especially and Montana’s rules and discrete disconnected cook book of simply a is not policy. insurance automobile vitality of an written with its Declaration Constitution, Rather, pаrticular and our carefully drafted principles, set of encompasses a cohesive Rights, It is a government. just ideal of to an abstract committed and guarantees. and redundant overlapping and compact of Armstrong, 71. ¶ independent sections interpreted accordingly have We II’s effect to Article give as to together, so Constitution
Montana’s Possibly the most guarantees. and redundant coordinate, overlapping, right not to be interpretation is our of this repeated example 11) (Article II, Section and seizures searches unreasonable subjectedto 10). (Article II, e.g. Section See right privacy conjunction with (1997), 257-78, 176, 180-92 250, P.2d 934 281 Mont. Siegal, State v. 287, 19, MT Kuneff, 1998 ¶ State v. grounds, other part on overruled 556, 474, 19, P.2d 19.2 970 ¶ 291 Mont. ¶ explained we Siegal, questions implicating and seizure analyze most search while we traditional under Constitution 11 ofMontana’s Article Section courts by the federal enunciated principles Amendment Fourth law, where in certain instances case in our own adopted 2 (1995); 373-84, 61, 361, Bullock, P.2d 69-76 901 e.g. 272 Mont. State v. See also Bassett, (1997); 722, 724-28 41, 45-51, 950 1999 Scheetz, State v. P.2d Mont. State v. 286 Elison, 410, 22-45; 327, 22-45, State v. 22-45, 109, ¶¶ 982 P.2d ¶¶ Mont. MT 294 ¶¶ 45-58; 456, 228, 45-58, State v. 45-58, 288, ¶¶ 14 P.3d Mont. ¶¶ ¶¶ 2000 MT 18-25; 18-25,51 471, 358, State 18-25, 310 P.3d 67 P.3d 153, ¶¶ ¶¶ Mont. Lovegren, MT ¶¶ ¶¶ 17-31, 17-31. 17-31, ¶¶ Tackitt, 315 Mont. MT privacy, Montana’s right constitutional Article must, specially implicated, necessity, also we consider unique address effect of constitutional mandate question before us. 264-65,
Siegal, Walker, Mont. at Similarly, P.2d we reasoned:
Just as we read privacy provision the Montana Constitution in conjunction provisions regarding with the search and seizure provide with greater protections government Montanans from intrusion, so we dignity provision too do read the of the Montana together provide Constitution with Article Section 22 to greater protections Montana citizens from cruel and unusual punishment than does the federal constitution. The federal constitution expressly provide right does not for the to human dignity.
Walker,
recognized
73. Wethus
have
while traditional principles
enunciated
the federal courts
adopted
may
in our own caselaw
inform
analysis,
our
our decision
ultimately
must
take
account
unique
and,
structure of the Montana
in particular,
Constitution
coordinate,
overlapping,
guarantees
redundant
II.
case,
present
therefore,
In the
just
the fundamental
right
*39
compensation to the full extent of
damaging
the loss for a
or
private property
interpreted
must be
mindful
pertinent rights
of other
in the Montana Constitution. One
right
such
is the
right
“inalienable”
of“acquiring,
and
possessing
protecting property.”
II,
Mont. Const. art.
3. In City
Vaniman,
76, 869
§
Bozeman v.
(1994),
264 Mont.
P.2d 790
we
that “[pjrivate
observed
real property ownership is a fundamental
right,
3,
Const.,
Art.
Mont.
any
§
and
statute which allows the
government
person’s
take a
property
given
plain
must be
its
interpretation,
favoring
person’s
rights.” Vaniman,
fundamental
79,
254 construed, giving the statute its strictly property must be
person’s rights.” favoring person’s fundamental interpretation, but plain limiting constitutional text Indeed, there no basis recognizes 3 Section given that to “real property,” principle not protect “property,” acquire, possess, right the inalienable property.” “real just mind, questions I approach in turn general With this constitutionally protected possess the Ranchers
whether interests has been part or a whole of those and whether interests use. damaged taken Constitutionally Possess
2. Whether the Ranchers Property Protected Interests create, protects, does not but Constitution Pete, 26; Phillips Washington Legal v. Up ¶
interests. Seven
(1998).
1925,
156, 164,
Rather,
Foundation,
S. Ct.
1930
524 U.S.
118
created
are defined
“are
dimensions
property interests
understandings
independent
stem from an
source
existing rules or
Monsanto,
1001,
S. Ct. at
Amendment’s
of interests.
Takings
encompasses wide
intangible property.
personal property,
It includes real property,
“
group of
Huntleigh,
‘denote[s]
at 1377-78. It also
F.3d
right
thing,
in the
as the
inhering
physical
citizen’s relation to the
”
Robins,
Shopping
use
ofit.’ PruneYard
Center
possess,
dispose
(brackets
(1980)
74,
6,
2035,
n. 6
U.S.
100 S. Ct.
n.
PruneYard)
Corp., 323 U.S.
(quoting United States v. General Motors
(1945)).
357,
“are about as
Property
65 S. Ct.
interests
conceive,”
mind can
Florida Rock Industries v.
diverse as
human
(Fed.
1994),
States,
and the
18 F.3d
1572 n. 32
Cir.
United
may
“every
sort of interest the citizen
Takings Clause is addressed
Motors,
S.
land, fence, car, or some office furniture. It anything person has the right possess and use to the exclusion of others. 70-1-101, By way property MCA. of example, interests exist in “all inanimate things capable which are or appropriation of manual delivery,” animals,” “all obligations,” domestic “аll “such products of labor or composition author, skill as the goodwill an of a business, trademarks, “rights and signs,” granted created or by 70-1-104, statute.” Section law, MCA. Nothing Montana however, suggests that meaning “property” depends on arbitrarily drawn lines or rigidly constrictive tests devised (see federal courts. The Court’s adoption of such tests in Kafka Kafka Opinion, 46)-thereby restricting the “property” definition of under Section 29 to those satisfy interests which the standards created jurisdiction courts of some other not accountable to Montanans-is indefensible. case, present In the just compensation seek Ranchers damaging of several “their interests: alternative business,
livestock inventory, and equipment,” which includes “fixtures,” “facilities,” State, and livestock. The alternative Sportsmen, and the Court do dispute that these are compensable property interests; however, proceeding question before to the part whether a or a whole these interests has been taken or damaged use, I following note the considerations regarding way Ranchers’ businesses. In opportunity the same that the pursue employment a necessary right incident fundamental
256 3) necessities,
(under life’s basic II, pursue Section Article the opportunity 911 P.2d at Wadsworth, Mont. at necessary to the incident as concern is a going operate one’sbusiness 3) (also II, to acquire, possess, Article under Section right fundamental going as a Indeed, one’s business operating protect property. many Montanans is, the vehicle which employment, like concern necessities; interests associated property life’s basic pursue therefore, level of are, highest entitled to a going with business Court. by this protection Property Part a Whole of the Ranchers’
3. Whether for Use Damaged has Taken or Public Interests been full II, guarantees just compensation Article Section 29 damaged has been “taken or private property where extent the loss that use” “public The do not contend public for use.” Ranchers thus, met; is whether only question not been here requirement has or damaged.” has been “taken II, only applies that Article Section 29 The Court is of the view actions proceedings and inverse condemnation to eminent domain See of, to, property. a direct arising appropriation out or related II, Article Section 29 67-69. The Court asserts that Opinion, ¶¶ against damage property loss or provides protection no whatsoever course, This, 69. by government regulation. Opinion, occasioned ¶ far far” Article question of how is “too under moots difficult Mahon, 393, 415, Co. v. Pennsylvania 29. Coal U.S. Section Cf. (1922) (“The 158, 160 rule least is that general S. Ct. at while extent, goes if far it will may regulation be to certain too regulated now, regulation goes recognized taking.”). Apparently no ever be “too far” under the Montana Constitution. noted, disagree I this strenuously As emasculation analysis is Tellingly, corresponding 29. the Court’s Section homeopathic soup boiling thin made the shadow
“as
as the
Lincoln,
Abraham
Sixth
pigeon
of a
that had been starved
death.”
(Oct. 13,1858),
A.
Stephen Douglas, Quincy,
Debate with
Illinois
3, 245, 279
Basler
(Roy
Lincoln
P.
The Collected Works Abraham
vol.
1953).
ed.,
University
Rutgers
Press
29 was
First, the Court
that Article
misstates
“verbatim” from
Constitution.3
adopted
Opinion,
thе 1889
Butte,
City
(1903),
P.
then cites Less v.
28 Mont.
Knight
Billings,
(1982),
City
197 Mont.
P.2d
proposition
900
for the
“or damaged”
that California’s
clause
apply beyond
does not
the ambit of eminent domain and public
improvements. Opinion,
Co., however,
68. Customer
did not
involve
government
claim based
regulation
Rather,
of property.
involved
claim that
just
compensation
is owed when public
employees (e.g.,
officers),
law enforcement
pursuit
in the
of their public
duties,
damage
cause
private
property. The court held
that
public
may
entities
involved
liable,
all,
be held
if at
only in a tort
action, not an
Co.,
inverse condemnation action. Customer
sister states meaning Constitution, dictate the of the Montana I note North Supreme I, Dakota Court has applied Article Section 16 of the North Dakota a regulatory taking Constitution to or 3 “following original The word “verbatim” means word word.” for Webster’s (4th 2002). (1889) College Wiley III, Dictionary ed., New World 1587 Article Section 14 damaged public just states: “Private shall not be or for taken use without compensation having paid been first made to or into court for the owner.” Article (1972) (with representing III, Section Section language 29 states italics not contained in Article 14): damaged public just “Private not shall be taken or for use without compensation having paid extent the loss been first made or court into of full litigation, just for expenses compensation necessary the owner. In event shall include litigation private property to be awarded the court when the owner prevails.”
258
Estates,
City Fargo,
Inc. v.
705
Rice River
damaging claim. See Wild
(N.D. 2005).
like Article
Section
provision,
This
N.W.2d
damaged
public
for
not be taken or
“[p]rivate property
shall
states
to,
paid
made
or
into
just compensation having been first
use without
I,
Notably,
art.
16.
the North
the owner.” N.D. Const.
§
court for
provision
has
that this constitutional
“is
Supreme Court
said
Dakota
federal
because
state
counterpart
than its
respects
broader
some
owners,
only
possession
to secure to
was intended
provision
valuable.” Wild
possession
also
which render
but
those
property,
omitted).
(internal
Likewise,
I,
Article
Rice,
marks
quotation
16¶
Washington
private
“[n]o
Constitution states that
16 of the
Section
use without
damaged
public
private
be
or
for
or
property shall
taken
made,
into
having
first
or
court
paid
been
just compensation
State,
P.3d
Housing
Communities
owner.” Manufactured
(Wash. 2000),
Supreme
that “a
Washington
Court observed
I,
16 when it “effects a total
regulation” can violate Article
economically
property,”
use
one’s
“has resulted
taking of all
viable
“destroys one
upon
property,”
one’s
or
physical
in an actual
invasion
(the right
possess,
ownership
fundamental attributes
more
dispose
employed
“[was]
or
property),”
exclude other and to
Housing,
held
publicly
property.”
enhance the value of
Manufactured
Alaska,
Similarly,
P.3d
I,
provides
section 18 of the Alaska Constitution
damaged
“[p]rivate property
shall not be taken
use
just compensation.” Property
enjoy
without
owners
broader
Constitution than under the Fifth
protection under
Alaska
the United States Constitution.
Amendment of
(Alaska
Y,
Municipality Anchorage,
R & Inc. v.
P.3d
*43
2001).
protection”
Alaska
has
“broader
Supreme
applied
Court
this
&Y,
government
See R
Section
damaged” language
“or
[the
“evince
intent that
Constitutions
II,
damages resulting
29]
apply regulatory
Article
Section
Opinion,
problems
therefrom.”
69. There are two obvious
with this
¶
First,
above,
II,
explained
language
assertion.
as
ofArticle
Section
coordinate,
give
be
as to
effect Article II’s
interpreted
must
so
guarantees-a point
utterly
and redundant
the Court
fails
overlapping,
Second,
to address.
the Court’s assertion could also be made about the
Clause,
Fifth
Takings
simply
Amendment’s
which
states: “nor shall
use,
private
public
just
taken for
property
compensation.”
be
without
There
language
is no more reason to conclude that
encompasses
this
regulatory takings than there is to conclude that
the pertinent
(“Private
II,
language ofArticle
Section
shall not be taken
or damaged for
without
public
just compensation.”) encompasses
use
Yet,
regulatory takings.
encompass regulatory takings,
the former does
104,
see Penn Central
Transp.
City,
Co. New York
438 U.S.
98 S. Ct.
(1978),
concedes,
as the Court
Opinion,
see
74. If Justice
¶
can perceive
language
Holmes
in the
of the Fifth Amendment’s
Takings
regulation
Clause the
goes
notion
“if
too far it
bewill
recognized
Mahon,
a taking,”
limiting its 29 states: Section damaged for use public not be taken or
Private shall property having extent of the loss to the full just compensation without In the event paid to or into court for owner. first made been necessary just expenses shall include compensation litigation, private property the court when the litigation be awarded prevails. owner permitting a telecommunications passes regulation a
If the State lands, no there is optic through private cable company to run a fiber prevail for that the owners cannot concluding property textual basis II, property a claim that their has been Article Section 29 on under CATV v. Manhattan damaged.” Teleprompter Loretto “taken or Cf. (1982). passes U.S. 102 Ct. 3164 If the State Corp., 458 S. economically completely depriving a owner of all regulation property concluding for there is no textual basis property, beneficial use her II, cannot 29 on prevail under Article Section property that the owner v. damaged.” or Lucas that her has been “taken property claim Cf. (1992). 1003, 112 Council, 505 S. Ct. 2886 Coastal U.S. South Carolina destroying or more of the passes regulation If one the State for there is no textual basis ownership, fundamental attributes II, under Article concluding property prevail that the owner cannot or damaged.” been “taken property 29 on a claim her has Section State, Housing Communities P.3d Cf. Manufactured (Wash. 2000). contrary interpretation, limiting the reach The Court’s II, improper appropriations, Article Section 29 direct amounts (“In 1-2-101, provision. into the MCA language § insertion of Cf. statute, judge simply ascertain construction of a the office the is therein, not to what is in terms or substance contained declare inserted.”). or to what has been insert what has been omitted omit describe, define, II, way or Section 29 does not be or ways private property may “taken circumscribe the which or states, It “Private not be taken damaged.” simply property shall Clearly, for use public public use ....” “taken” damaged may “damaged” as proceeding. Property in an also be eminent domain public reject But I the Court’s assertion project. a result of works damaged” use cannot be “taken government regulation. Nothing the text Artiсle fact, given that the Fifth Amendment’s requires such construction. Takings regulatory takings, given Clause reaches that Article facially Amendment, logical Section 29 is broader than the Fifth regulatory takings conclusion that Article Section 29 also reaches *45 (and damagings). II, construing The of broadly notion Article Section more counterpart Butte,
than its federal
is
In Less v. City
well-established.
of
(1903),
28 Mont.
Less,
interpretation, the Court relies on the fact delegates’ II, during discussion Article Section 29 the 1972 Constitutional primarily Convention centered on taking highway property purposes. Opinion, discussion, however, This is inapposite. The delegates were considering by Delegate a motion Davis to strike the “having clause been first to or paid made into court for the See owner.” Convention, Montana Constitutional Verbatim Transcript, March 1972, pp. (Notably, Delegate 1826-27. “I pointed Davis out that don’t you think that can make a determination what the full extent loss is until after the place.” Transcript, construction takes Verbatim 1826.) p. delegates But the government did not even regulation discuss that Article Section 29 should view express let alone property, discussion, therefore, Their does regulations. apply government
not Article proposition to the Court’s support lend one shred regulatory cases. apply 29 does not connection, transcripts read as a whole the Convention In this protected owners are contrary that Montana view support infringements their regulatory against uncompensated transcripts the debates without cannot read the rights. One progressive Constitution is a constitution. recognizing that Montana’s fundamental into our Constitution delegates wrote really-to protect government’s citizens from rights-protections, Section is property. into their lives and inexorable reach every guarantees person It “certain inalienable apt example. an to a clean and healthful environment and rights,” including right “the necessities, enjoying defending rights life’s basic pursuing liberties, protecting acquiring, possessing property, lives their ways.” in all safety, happiness health and lawful seeking many unique Recognition of these inalienable is Constitution. Montana’s *46 II, recognizes-again, uniquely-that 4 the Article Section
¶156 requires is This section “dignity” being the human “inviolable.” also law, and it government equally prohibits the to treat under the persons states, II, broadly Article Section 7 more than First discrimination. Amendment, speak publish every person “shall be free II, subject.” guarantee 8 any whatever he will on Article Sections and 9 right participate governmental decision-making public’s right person of each examine documents and observe the agencies. rights all Neither these deliberations of bodies and protected by federal constitution. Constitution, counterpart, unlike The Montana its federal II, explicitly protects right privacy individual Article Section enjoy right protection 10. Montanans a broader to bear arms II, they 12 Second under Article Section than do under right explicitly broadly protected by The to vote is Amendment. II, II, persons 15 under the grants Article Section 13. Article Section Il-a rights guarantee of 18 the fundamental in Article not age all of II, requires Article Section 16 contained in federal constitution. remedy every speedy have access to the courts and person every injury of or character. person, property, II, Article declares that the State its Section (i.e., subject sovereign are governmental subdivisions suit immunity abrogated) except law. specifically provided Article II, privilege corpus Section 19 states that the of habeas shall “never” suspended-a right provided by be the federal constitution. Certain II, 24, 23, 25, clauses of Article provide guarantees Sections and 26 greater provisions extent than like of the federal constitution. And II, Article Section Amendment’s textually 29 is broader than the Fifth Takings Clause. “ delegates Rights intended the ‘to Declaration stand on footing its own provide and... with individuals fundamental far protections broader than through those available the federal ” “ system’ in order ‘to meet the changing circumstances of ” contemporary 94, life.’ Dorwart Caraway, 240, 2002 MT ¶ (Nelson Trieweiler, Mont. 58 P.3d & specially ¶ (citation omitted). concurring) give This intent to the Declaration of Rights “teeth” could not be apparent delegates’ more than in the adoption ofanother right, fundamental Section Although 34. provision guarantees rights, unenumerated and Article Section protections enumerated, 29’s are the intention of the of Rights Bill is still pertinent. Committee The Committee considered Section “a part be crucial effort to revitalize the state government’s approach to civil questions” liberties and “the source of innovative judicial activity in the civil liberties field.” Montana Constitutional Convention, on the of Rights Comments Bill Proposal, Committee 22, 1972, February p. Yet, against this backdrop rights, of broader fundamental today
Court protections eviscerates the of Article 29 by declaring this section to provide protection no more than does Fifth Opinion, Amendment. worse, 74. To make matters chooses lockstep to march confused muddle Fifth jurisprudence.41 Amendment simply cannot abide Court’s decision. regulatory jurisprudence Federal has been described as “doctrinal lacking coherence,” Bradley Karkkainen, muddle” “theoretical C. The Police Power Incorporation Takings “Muddle," Revisited: Phantom and the Roots 90 Minn. L. *47 of 826, 827, (2006), body containing contradictory principles Rev. 828 “a confused lawof standards,” Dennis, Takings and John D. & Echeverria Sharon and The Issue the Due Way Confusion, (1993), Process A Clause: Out Doctrinal 17 Vt. L. Rev. 696 composite resolutions,” principled Rose, of “ad hoc determinations rather than Carol M. Why Muddle, Takings Mahon Reconstructed: the Issue Still a 57 S. L. Cal. Rev. (1984), “predominant 562 confusing and an area of law whose characteristic” “a welter apparently incompatible results,” Sax, Joseph and Takings L. the and Police Power, (1964). lawyers 74 Yale L. J. 36 It “[e]ven has been the said wisest would acknowledge great uncertainty scope Supreme have to takings [the Court’s] the Com’n, about jurisprudence.” 825, 866, 107 Nollan v. Coastal 483 U.S. S. Ct. California (1987) (Stevens Blackmun, JJ., dissenting). Supreme & Court itself has II, It the ignores Section 29. language of Article ignores plain It the here, right the rights-in particular II ofthe Article interconnectedness (Article 3) the Section and protect property acquire, possess, and to property of that damaging compensation for right just 29). statutorily (Article ignores property rights the broad It overriding -104, ignores And it the and MCA. 70-1-101 defined §§ the Rights: protect of the Declaration of theme and fabric may rights those how irrespective ofMontanans fundamental provisions of the federal constitution under like interpreted be government’s approach to civil liberties. “revitalize” the Union, the joined first citizens Long ago, Montana when whims unwilling property rights leave this state were of the federal constitution and provisions the property-related Rather, they provisions. interpretations those Supreme Court’s private an assurance that explicit included in our Constitution just damaged taken or use without would not be property (1889). III, provision This was compensation. Const. art. § Mont. Constitution, the 1972 Montana carried forward into full compensation be “to the requirement provided additional unequivocally which clarifies loss”-language extent of the depends not on what damaged taken or property whether art. owner lost. Mont. Const. got, but on what the government (1972). II, 29§ responsibility-indeed, obligation-to Court’s its It is this free-standing provision as it is Section 29
acknowledge Article redundancy. relegate to the status of mere constitutional and not obligation in Products Co. previously recognized this Gas We (1922), Rankin, ignore when refused to 63 Mont. P. we Supreme holding simply adopt Court’s our own Constitution closely in a related case: expressed by accept Supreme we views
Were content rights in this the United States as the rule of Court of state, be determining questions presented our would task However, easy. danger establishing such comparatively although we entertain principle apparent, this state is Supreme very highest regard respect decisions States, feel to follow of the United we do not constrained takings regulatory jurisprudence acknowledged “cannot be characterized that its 539, 125 Dissent, Lingle, 148-151 S. Ct. at 2082. See also unified.” 544 U.S. at Kafka process principles). (discussing due the conflation of and substantive
265 citizens, blindly affecting its determinations our especially guaranties.... in view of our оwn constitutional constitutionality attacked,
Since the of the act is both under Constitution, the federal and state we it to duty, believe be our courts, irrespective holdings apply other to consider and general of our provisions own Constitution and statutes thereto, and declare the rule of for Montana. property Products, 380-81, Gas 63 at P. Mont. at 996-97. Thus, years some 86 ago, this Court announced that would
not blindly follow the determinations of the Supreme affecting Court citizens, property rights of our we acknowledged duty, and our irrespective courts, holdings of other to declare the rule of property for Montana based on the provisions of our own Constitution general Products, 380-81, 388, and statutes thereto. Gas Mont. 207 P. at We utterly years 996-97. have failed in recent to abide instead, this approach, choosing today, “look[] does guidance considering to federal case law for takings when claims II, brought result, under Article Section 29.” 63. As a Opinion, ¶ uncertainty confusion and federal encumbering regulatory takings (see 4) jurisprudence 160 n. our ¶ have infected own jurisprudence. This situation It long past is untenable. is time that we appropriate articulate for analysis II, standards under Article Section 29 and quit allowing federal meaning court decisions to dictate substance of Montana’s Constitution. Construing Article in light of the coordinate
guarantees in Article I conclude that this provision applies to situations which damaged taken or by virtue of government regulation. I further provision conclude that this affords broader than protections the Fifth Takings Amendment’s Clause. Based on these the foregoing discussion, conclusions and I now address whether a or a part whole of the Ranchers’ interests has been damaged, taken or entitling just compensation them to to the full extent of pursuant the loss to Article Section 29. Given impact of 1-143 on the industry-outright alternative livestock obliteration-I consider this to relatively easy be a question to answer. business, 1-143forced the Ranchers out of as it was intended do. Consequently, goodwill going-concern value of the
Ranchers’ totally destroyed. Dissent, businesses have been See Kafka 197-211. In respect, I-143’s ¶¶ effect dramatic. For all intents and purposes, the Ranchers have been “ousted” from their domain vis- their value of businesses. going-concern goodwill á-vis Cf. (“Each regulatory- [of our S. Ct. at 2082 544 U.S. at
Lingle, are actions that identify regulatory aims to takings inquiries] taking government in which to the classic functionally equivalent his from or ousts owner directly private property appropriates domain.”). merely damaging of hold that this constitutes I would them. businesses, outright an but themselves cannot be that “businesses The Court reasons condemns those businesses government physically taken unless 55-63). Kafka, This (citing Opinion, runs them itself.” *49 verbatim, lifted, Sportsmen’s appellate reasoning almost from is brief, they argue: where “businesses”
The in which courts have determined whether cases physical appropriation involve compensable property were even to itself take over governmental with intent property Laundry See Kimball appropriated. of the business it operation States, (1949); v. 0.88 335 U.S. United States Co. United (W.D. 1987).... Acres, Supp. F. Mich that even where emphatic 0.88 Acres court was The “damages for physically appropriated, business was value of are goodwill going-concern loss or loss ofthe a business has government unless the condemned compensable carrying the intention of on the business.” business with Laundry, U.S. at 12 added; Id. See also Kimball emphasis (where laundry ran it as a government appropriated and during compensation for the business laundry World War appropriate). however, Kimball explained Kafka, interpretation I
As Moreover, Dissent, it is Laundry See 213-214. is erroneous. ¶¶ Kafka illogical. Sportsmen completely rule the Court and the have The which goodwill a business is unable to transfer its distorted is when government going-concern (e.g., value to another location because business, prohibited), transfer is then has taken over the or because Dissent, required. See 208-210. compensation Kafka fixtures, inventory, equipment, As for the Ranchers’ designed specific for the procured facilities-most of which were and, thus, no ranching have little or of alternative livestock purpose just are salvage value-I would hold that Ranchers entitled Likewise, points damaging property. for a compensation roughly livestock lost 95% its out that the Ranchers’ alternative 90 n. 6. Even if the Ranchers Opinion, result of 1-143.See ¶ value deprived economically have not of “all” viable use of the been questionable livestock-a the Court asserts in 80-1 proposition, which ¶ they compensation would hold that are entitled to “to the full extent of loss,” i.e., for the art. 95% devaluation. Mont. Const. 29.§ rejecting respect In the Ranchers’ claim with to their livestock, although alternative the Court asserts that the Ranchers’ free, herds were disease the Ranchers that their alternative “knew danger spreading livestock carried them an inherent CWD prove which could never be eliminated and which could uncontrollable if way genetic it made its into the wildlife make-up native populations.” Opinion, 98. The Court thus concludes that expectations the had in their investment-backed Ranchers alternative livestock were unreasonable. irony reasoning, point in the Court’s which the Ranchers (as briefs, they
out in their is that have off would been better it turns out) if their alternative livestock had contracted CWD. See 9 C.F.R. (“The 55.2 pay purchase § Administrator is authorized to for the positive animals, destruction animals, ofCWD CWD and CWD exposed animals.”). words, suspect recognize other what the Court fails to that if the Ranchers should have known livestock could CWD, destruction, contract thus necessitating they then had expectations investment-backed in receiving something at least however, is, livestock. As it they nothing are receiving because their healthy. aside, herds are That point to the extent Article Section 29 requires us to consider the Ranchers’ expectations, investment-backed *50 agree I do not with the Court expectations those were Dissent, unreasonable. See 230-238. Kafka ¶170 The Court criticizes my analysis as to failing explain how II, Article Section 29 apply would in less-dramatic instances of government regulation property. Opinion, necessary, 71. It is not however, to possible articulate a rule applicable to all As the cases. stated, Supreme Court regulatory has most takings require case-by- a approach. event, case In any cannot we refuse to find a damaging of property under Article ground Section 29 on the may there be borderline cases in which we to engage will have more complex analysis. balancing Teleprompter Loretto v. Cf. 419, Corp., 436, Manhattan CATV 458 3164, U.S. 102 S. Ct. 3176 (1982) (“[T]his Court has not to apply per declined se rule simply must, boundary rule, because court at the apply the the rule of engage reason and in a complex balancing analysis.”). more Court’s criticism is also incongruous, given that the Court refuses choosing under any jurisprudence
develop federal lockstep with the the and march provision eviscerate instead to Nevertheless, I Fifth Amendment. under the courts’ pronouncements Knight City apply a test in adopt and purported note that we (1982), determining for when 165, 642 P.2d 197 Mont. Billings, “ sufficiently interference damaged: ‘whether the property has been us direct, magnitude cause sufficiently peculiar, and of sufficient the State and the justice, and between conclude that fairness by and public to be the not citizen, imposed the burden borne requires ” Mont. 642 P.2d at Knight, See by the individual alone.’ (10th Cir. States, F.2d v. United Batten (quoting 1962) C.J., (Murrah, dissenting)). Dissent, Here, Sportsmen the earlier as discussed and women who the of Montana men
“represent voices thousands and to the protection of Montana’s wildlife believe 1-143 vital to the “1-143 hunting.” According Sportsmen, fair chase tradition of very dangers to to address serious designed and enacted on the hunting heritage.” and Based wildlife fair chase Montana’s not to bear may people State force some alone principle by borne which, justice, in all should be burdens fairness whole, achieving I hold that the costs public as would by public, not goals for all Montanans must be borne Sportsmen’s ofthe alternative livestock placed on shoulders disproportionately ranchers.
IV. CONCLUSION analysis conclusion, disagree Court’s I with the stated in under the Fifth Amendment the reasons Ranchers’ claims analysis of disagree I with the Court’s my dissent. also Kafka set forth under Article Section 29 the reasons Ranchers’ claims above. Court, latter, by flabbergasted I am that this means As protections originalist holds that cramped approach, textually distinct broader
afforded Montana Constitution’s protective are than those afforded provision eminent domain less holding only flies in the face constitution. This federal II, Section but also flouts this Court’s plain language of Article coordinate, interpret overlapping, heretofore dedication to Rights together as to guarantees the Declaration of so redundant language, letter ofthe constitutional but also give only effect not *51 highest law. to the of Montana’s spirit Though jurisprudence may federal dictate the minimum rights, II,
protections of Section 29 constitutes a separate Creating right. body and enforceable constitutional of law grounded only by in Article Section 29 is not its necessitated Rights, but language broader and its inclusion the Declaration of by also fact that federal caselaw contains doctrines and precedents that are antithetical to Montanans’ interests-the most which, memory, London, of City notable in recent is Kelo v. New (2005), clearly U.S. Ct. S. a case of concern to legislative Montanаns as evidenced See responses thereto. Laws Montana, 2007, (amending Ch. 512 to provide various statutes private property may acquired by not be eminent domain for the revenue). increasing purpose tax It is said that hard proves cases make bad law. This case “carefully
rule. In crafting” just-compensation 1-143 to end-run the requirement Sportsmen ofArticle Section sold the Initiative 204,282 Montana promote voters a classic bait and switch: one with the product goal ulterior of selling something entirely different. Wrapped hyperbole in the of “ethical fair hunting” chase protecting ungulates disease, Montana’s feral hybridization, from privatization, Sportsmen depicted the alternative livestock ranchers people conducting as bad an injurious offensive business Yet, higher these principles. Sportsmen’s intent with 1-143 to address argued Rather, the concerns it voters. was to drive a subjectively reprehensible industry out existence denying industry ability charge businesses in that principle for their service. important While is to acknowledge patent 1-143as the fraud was, this, course,
that it is not the Likewise, critical issue here. promoted State to concede that it and enabled the alternative industry years livestock for some 83 prior passage 1-143, but in the next breath industry condemn the as an offensive and harmful nuisance in which the Ranchers had compensable property no interests, hypocrisy is highest magnitude. Yet, that too is water Rather, over the point dam. to be made in this case and Kafka if the voters want industry vote an “offensive” out (as here) existence, so it. But they they be need to understand did not so, that there is cost doing and Article 29 guarantees regardless of payment whether the are perceived business owners people. words, bad In other the voters must understand that there principle fundamental constitutional If the public, throughits stake: *52 for person’s private property damages takes or government, benefit, its public, through then the perceived use or public’s person. to pay just compensation must taxpayers, will be hailed decision here and No doubt the Court’s ¶177 Kafka ranchers’ coffin. nail in the alternative livestock as the final provided coup grace has de to what Unfortunately, while the Court industry, and offensive perceived the voters a noxious majority so limited. This Court two decisions will be the fallout from these II, beyond its ofArticle Section 29 historical scope cabined the has now doing, has In so the Court plain language. and its underpinnings 3 to under Article Section right of Montanans diminished also reinforced The Court has possess, protect property. acquire, reach into other Montana businesses. government’s inexorable encourage groups to still, decisions will other Worse our ¶178 which, “carefully if promote and sell similar bait-and-switch initiatives crafted,” effectively nullify rights. fundamental This result may other to when Today, right paid just compensation it is the be is abhorrent. given the damages But Court’s private property. takes or the State right, to all of ratify attempt to end-run this decision I-143’s blatant risk. The result this has equally II are at the other Article not worth ultimate cost achieved in this case and in is Kafka Montana’s Constitution. I dissent. MORRIS, SWANDAL, sitting JUSTICE
DISTRICT for JUDGE NELSON. joins the Dissent JUSTICE SWANDAL,dissenting. DISTRICT JUDGE I Justice Nelson’s dissent. Beсause of concur with property rights, its for majority’s reasoning, private circuitous disdain action, government its and unfettered unprincipled endorsement value, compensation, in the total loss of without which will result issue, plain language and its property some of disavowal Constitution, I comments. Justice of the Montana offer additional law, exhaustively repeat and I will not applicable discussed Nelson under the Fifth taking here. I find that a occurred both would and Article Section to the United States Constitution Amendment in this case and Montana 29 of the Montana Constitution Kafka 80, 201 Fish, Parks, 460, 348 P.3d 2008 MT Mont. Dept. of Wildlife personal property real the distinction between conventioneers. Article was well known the constitutional property damaged taken or says, property “Private shall not be just compensation say use without ....” It does not “real property” or “land.” It does not exclude all businesses and say physical accoutrements. It does not that a has occur for invasion or a damage occur. The 1972 Constitutional Convention left language intact, foreclosing from the 1889 Constitution possibility a lockstep government. march with the federal The majority can offer no textual basis in the Montana Constitution business, providing protection personal, intangible less than for real property. private Private property. majority just does claim that too hard to determine
damages in certain types property. Apparently, no judges trial will longer giving be burdened the instruction that simply because damages are hard determine does not mean that none exist and majority should not be awarded. The apparently also believes that juries are not capable weighing factual issues in cases. said, Thomas Jefferson byjury] only [trial “I consider yet as the anchor *53 imagined man, by by which a government can held be to the principles of its constitution.”1 His statement prescient. case, was In this majority has denied appellants prove the opportunity to their damages to jurya governmental and has sanctioned a violation of constitutional principles. justification
¶183 There is no under the Montana Constitution for set different of for regulatory rules takings versus an actual State, occupation property. of The kind, when it property any takes of pay; should the more it takes the more it should pay. The provision in the prevents Montana Constitution by abuse of the State its eminent power domain and provides protection for private property rights. Freedom prosperity suffer without protections. such Unfortunately all Montana, citizens of this ignored Court has its obligations and has abandoned effort to match the benefits to the State of this with the imposed burden on the businesses. matter, For that legitimate is to ask what benefit was State, received. argument, The in its asserted that this was legitimate of exercise the State’s “police power,” a term in often used constitutional but a discourse term that appear does not in the constitution. As passed, written and did 1-143 not benefit the State. The State people claims that some in Montana were offended fee Yet, hunting. only it is remarkable that their concern was the (Letter Writings Jefferson, 1861) (Washington The Thomas vol. ed. to of 1789). Paine, July 11, Thomas reviewing the Montana killing. money, not
exchange of offended. It right find not to be Constitution, not a constitutional I did majority hang can only hook the it is the must there because be of elk did ban the existence 1-143 benefit. suggesting hat on as farm; it did not elk an elk shooting of within farms; it did not ban the nothing control disease it did regulation; the amount change animals; nothing it did wild captive and lessen contact between heritage. hunting the State’s preserve hunting. completely It prohibit fee What 1-143 did businesses, includes the license and which
destroyed value assets, the value of livestock. intangible and about 90% of other Nelson, after, State facilitated by Justice aptly This as described of hundreds thousands encouraged spending elk farms and the Considering game expenditures. specialized capital of dollars years, for over claim now had been sanctioned this state farms they would be expectation had no reasonable that these appellants to any offensive operate profit their businesses allowed regulate, in power to Apparently, of common sense. modicum destroy. I believe this is view, equals power do not majority’s in mind. the constitutional conventioneers had what disturbing attempt did not to balance costs 186 It is lost millions in this case and appellants benefits. Kafka no The rule from this longer offended. people dollars so some were long hint nothing as there is a pays Court: The State wins and State, private pounds suffers even if the owner benefit police was worried about the use of burden. Justice Holmes justification protection private he stated: “The power as when provides that it shall not be taken the Fifth Amendment... seemingly protection When this absolute compensation.... ... without tendency police power, the natural qualified is found to be until more and more qualification human nature is extend *54 Mahon, Co. v. property disappears.” Pennsylvania last Coal private (1922). 158, 160 393, 415, Today’s majority opinion 260 U.S. S. Ct. about and leads to the type is the of decision he was concerned Montana, that, benefit does not have actual inescapable conclusion rights destroyed. fundamental are to occur before majority’s and the assertions that 1-143 Sportsmen’s laughable. 1-143 did not “weighty” purposes and “vital” served It was passage. the concerns that led its directly address and fraud by design-deception embraced deceptive a charade this Court. Ayn correctly Rand right observed to life is the source
of all rights-and right to property only implementation. is their rights, Without no other rights possible. are These principles are embodied in the Montana Constitution in Article 3 and Sections 29. I invite majority to read them. The fundamental acquire, possess, protect property are even given lip service this Court. majority’s opinion, Under the State suffers no consequences exercise of coercive and power unreasonable destroying these businesses. There is no serious effort to balance may benefits burdens. It be early too asking, start “Who John Galt?”2 but more decisions like seriously this will impact private all property and business owners this State. strongly I dissent from the majority opinion. 2 Ayn Shrugged, phrase Rand’s work Atlas expression an becomes
helplessness despair at the current state the novel’s fictionalized world.