HORNE ET AL. v. DEPARTMENT OF AGRICULTURE
No. 14-275
SUPREME COURT OF THE UNITED STATES
June 22, 2015
OCTOBER TERM, 2014
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HORNE ET AL. v. DEPARTMENT OF AGRICULTURE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 14-275. Argued April 22, 2015—Decided June 22, 2015
The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate “marketing orders” to help maintain stable markets for particular agricultural products. The marketing order for raisins established a Raisin Administrative Committee that imposes a reserve requirement—a requirement that growers set aside a certain percentage of their crop for the account of the Government, free of charge. The Government makes use of those raisins by selling them in noncompetitive markets, donating them, or disposing of them by any means consistent with the purposes of the program. If any profits are left over after subtracting the Government‘s expenses from administering the program, the net proceeds are distributed back to the raisin growers. In 2002–2003, raisin growers were required to set aside 47 percent of their raisin crop under the reserve requirement. In 2003–2004, 30 percent. Marvin Horne, Laura Horne, and their family are raisin growers who refused to set aside any raisins for the Government on the ground that the reserve requirement was an unconstitutional tаking of their property for public use without just compensation. The Government fined the Hornes the fair market value of the raisins as well as additional civil penalties for their failure to obey the raisin marketing order.
The Hornes sought relief in federal court, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. On remand from this Court over the issue of jurisdiction, Horne v. Department of Agriculture, 569 U. S. ___, the Ninth Circuit held that the reserve requirement was not a Fifth Amendment taking. The court determined that the requirement was not a per se taking because personal property is afforded less protec
Held: The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property. Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking—it does not meаn the raisins have not been appropriated for Government use. Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce. Pp. 4–18.
(a) The Fifth Amendment applies to personal property as well as real property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. Pp. 4–9.
(1) This principle, dating back as far as Magna Carta, was codified in the Takings Clause in part because of property appropriations by both sides during the Revolutionary War. This Court has noted that an owner of personal property may expect that new regulation of the use of property could “render his property economically worthless.” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1027–1028. But there is still a “longstanding distinction” between regulations concerning the use of property and government acquisition of property. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 323. When it comes to physical appropriations, people do not expect their property, real or personal, to be actually occupied or taken away. Pp. 4–8.
(2) The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Govеrnment. Title to the raisins passes to the Raisin Committee. The Committee disposes of those raisins as it wishes, to promote the purposes of the raisin marketing order. The Government‘s formal demand that the Hornes turn over a percentage of their raisin crop without charge, for the Government‘s control and use, is “of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 432. Pp. 8–9.
(b) The fact that the growers are entitled to the net proceeds of the
(c) The taking in this case also cannot be characterized as part of a voluntary exchange for a valuable government benefit. In onе of the years at issue, the Government insisted that the Hornes part with 47 percent of their crop for the privilege of selling the rest. But the ability to sell produce in interstate commerce, although certainly subject to reasonable government regulation, is not a “benefit” that the Government may withhold unless growers waive constitutional protections. Ruckelshaus v. Monsanto Co., 467 U. S. 986, distinguished. Leonard & Leonard v. Earle, 279 U. S. 392, distinguished. Pp. 12–14.
(d) The Hornes are not required to first pay the fine and then seek compensation under the Tucker Act. See Horne, 569 U. S., at ___. Because they have the full economic interest in the raisins the Government alleges should have been set aside for its account—i.e., they own the raisins they grew as well as the raisins they handled, having paid the growers for all of their raisins, not just their free-tonnage raisins—they may raise a takings-based defense to the fine levied against them. There is no need for the Ninth Circuit to calculate the just compensation due on remand. The clear and administrable rule is that “just compensation normally is to be measured by ‘the market value of the property at the time of the taking.‘” United States v. 50 Acres of Land, 469 U. S. 24, 29. Here, the Government already calculated that amount when it fined the Hornes the fair market value of the raisins. Pp. 14–18.
750 F. 3d 1128, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINSBURG, BREYER, and KAGAN, JJ., joined as to Parts I and II. THOMAS, J., filed a concurring opinion. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion.
SUPREME COURT OF THE UNITED STATES
No. 14–275
MARVIN D. HORNE, ET AL., PETITIONERS v. DEPARTMENT OF AGRICULTURE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Under the United States Department of Agriculture‘s California Raisin Marketing Order, a percentage of a grower‘s crop must be physically set aside in certain years for the account of the Government, free of charge. The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market. The question is whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on the growers without just compensation.
I
The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate “marketing orders” to help maintain stable markets for particular agricultural products. The marketing order for raisins requires growers in certain years to give a percentage of their crop to the Government, free of charge. The required allocation is determined by the Raisin Administrative Committee, a Government entity composed largely
Growers generally ship their raisins to a raisin “handler,” who physically separates the raisins due the Government (called “reserve raisins“), pays the growers only for the remainder (“free-tonnage raisins“), and packs and sells the free-tonnage raisins. The Raisin Committee acquires title to the reserve raisins that have been set aside, and decides how to dispose of them in its discretion. It sells them in noncompetitive markets, for example to exporters, federal agencies, or foreign governments; donates them to charitable causes; releases them to growers who agree to reduce their raisin production; or disposes of them by “any other means” consistent with the purposes of the raisin program.
The Hornes—Marvin Horne, Laura Horne, and their family—are both raisin growers and handlers. They “handled” not only their own raisins but also those produced by other growers, paying those growers in full for all of their raisins, not just the free-tonnage portion. In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so. The Government sent trucks to the Hornes’ facility at eight o‘clock one morning to pick up the raisins, but the Hornes refused entry. App. 31; cf. post, at 11
When the Government sought to collect the fine, the Hornes turned to the courts, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. Their case eventually made it to this Court when the Government argued that the lower courts had no jurisdiction to consider the Hornes’ constitutional defense to the fine. Horne v. Department of Agriculture, 569 U. S. ___ (2013) (Horne I). We rejected the Government‘s argument and sent the case back to the Court of Appeals so it could address the Hornes’ contention on the merits. Id., at ___ (slip op., at 15).
On remand, the Ninth Circuit agreed with the Hornes that the validity of the fine rose or fell with the constitutionality of the reserve requirement. 750 F. 3d 1128, 1137 (2014). The court then considered whether that requirement was a physical appropriation of property, giving rise to a per se taking, or a restriction on a raisin grower‘s use of his property, properly analyzed under the more flexible and forgiving standard for a regulatory taking. The court rejected the Hornes’ argument that the reserve requirement was a per se taking, reasoning that “the Takings Clause affords less protection to personal than to real property,” and concluding that the Hornes “are not completely divested of their property rights,” because growers retain an interest in the proceeds from any sale of reserve raisins by the Raisin Committee. Id., at 1139.
The court instead viewed the reserve requirement as a use restriction, similar to a government condition on the grant of a land use permit. See Dolan v. City of Tigard, 512 U. S. 374 (1994); Nollan v. California Coastal Comm‘n, 483 U. S. 825 (1987). As in such permit cases, the Court of Appeals explained, the Government here imposed a condition (the reserve requirement) in exchange for a Government benefit (an orderly raisin market). And just as a landowner was free to avoid the government condition by forgoing a permit, so too the Hornes could avoid the reserve requirement by “planting different crops.” 750 F. 3d, at 1143. Under that analysis, the court found that the reserve requirement was a proportional response to the Government‘s interest in ensuring an orderly raisin market, and not a taking under the Fifth Amendment.
We granted certiorari. 574 U. S. ___ (2015).
II
The petition for certiorari poses three questions, which we answer in turn.
A
The first question presented asks “Whether the government‘s ‘categorical duty’ under the Fifth Amendment to рay just compensation when it ‘physically takes possession of an interest in property,’ Arkansas Game & Fish Comm‘n v. United States, 133 S. Ct. 511, 518 (2012), applies only to real property and not to personal property.” The answer is no.
1
There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 324 (2002) (brackets and internal quotation marks omitted). Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426–435 (1982).
The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.”
The colonists brought the principles of Magna Carta with them to the New World, including that charter‘s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the
Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, сomplained to the New York Legislature about military impressment by the Continental Army of “Horses, Teems, and Carriages,” and voiced his fear that such action by the “little Officers” of the Quartermasters Department might extend to “Blankets, Shoes, and many other articles.” A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the “hint,” passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N. Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was “probably” adopted in response to “the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever.” 1 Blackstone‘s Commentaries, Editor‘s App. 305–306 (1803).
Nothing in this history suggests that personal property was any less protected against physical appropriation than real property. As this Court summed up in James v. Campbell, 104 U. S. 356, 358 (1882), a case concerning the alleged appropriation of a patent by the Government:
“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any mоre than it can appropriate or use without compensation land which has been patented to a private purchaser.”
Four years after Penn Central, however, the Court reaffirmed the rule that a physical appropriation of property gave rise to a per se taking, without regard to other factors. In Loretto, the Court held that requiring an owner of an apartment building to allow installation of a cable box on her rooftop was a physical taking of real property, for which compensation was required. That was true without regard to the claimed public benefit or the economic impact on the owner. The Court explained that such protection was justified not only by history, but also because “[s]uch an appropriation is perhaps the most serious form of invasion of an owner‘s property interests,” depriving the owner of the “the rights to possess, use and dispose of” the property. 458 U. S., at 435 (internal quotation marks omitted). That reasoning—both with respect to history and logic—is equally applicable to a physical appropriation of personal property.
The Ninth Circuit based its distinction between real and personal property on this Court‘s discussion in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), a case involving extensive limitations on the use of shorefront property. 750 F. 3d, at 1139–1141. Lucas recognized
Lucas, however, was about regulatory takings, not direct appropriations. Whatever Lucas had to say about reasonable expectations with regard to regulations, people still do not expect their property, real or personal, to be actually occupied or taken away. Our cases have stressed the “longstanding distinction” between government acquisitions of property and regulations. Tahoe-Sierra Preservation Council, 535 U. S., at 323. The different treatment of real and personal property in a regulatory case suggested by Lucas did not alter the established rule of treating direct appropriations of real and personal property аlike. See 535 U. S., at 323. (It is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice versa” (footnote omitted)).
2
The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. App. to Pet. for Cert. 179a; Tr. of Oral Arg. 31. The Committee‘s raisins must be physically segregated from free-tonnage raisins.
Raisin growers subject to the reserve requirement thus lose the entire “bundle” of property rights in the appropriated raisins—“the rights to possess, use and dispose of”
The Government thinks it “strange” and the dissent “baffling” that the Hornes object to the reserve requirement, when they nonetheless concede that “the government may prohibit the sale of raisins without effecting a per se taking.” Brief for Respondent 35; post, at 12 (SOTOMAYOR, J., dissenting). But that distinction flows naturally from the settled difference in our takings jurisprudence between appropriation and regulation. A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). As Justice Holmes noted, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.” Pennsylvania Coal, 260 U. S., at 416.
B
The second question presented asks “Whether the gov-
The Government and dissent argue that raisins are fungible goods whose only value is in the revenue from their sale. According to the Government, the raisin marketing order leaves that interest with the raisin growers: After selling reserve raisins and deducting expenses and subsidies for exporters, the Raisin Committee returns any net proceeds to the growers.
But when there has been a physical appropriation, “we do not ask . . . whether it deprives the owner of all economically valuable use” of the item taken. Tahoe-Sierra Preservation Council, 535 U. S., at 323; see id., at 322 (“When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” (citation omitted)). For example, in Loretto, we held that the installation of a cable box on a small corner of Loretto‘s rooftop was a per se taking, even though she could of course still sell and economically benefit from the property. 458 U. S., at 430, 436. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here.
The Government and dissent again confuse our inquiry concerning per se takings with our analysis for regulatory takings. A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central. That is why, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we held that a law limiting a property owner‘s right to exclude certain speakers from an already publicly accessible shopping center did not take the owner‘s property. The owner retained the value of the use of the prоperty as a shopping center largely unimpaired, so the regulation did not go “too far.” Id., at 83 (quoting Pennsylvania Coal Co., 260 U. S., at 415). But once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation. See Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725, 747–748 (1997) (SCALIA, J., concurring in part and concurring in judgment). That is not an issue here: The Hornes did not receive any net proceeds from Raisin Committee sales for the years at issue, because they had not set aside any
C
The third question presented asks “Whether a governmental mandate to relinquish specific, identifiable property as a ‘condition’ on permission to engage in commerce effects a per se taking.” The answer, at least in this case, is yes.
The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don‘t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Brief for Respondent 32 (brackets and internal quotation marks omitted).
“Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law. In Loretto, we rejected the argument that the New York law was not a taking because a landlord could avoid the requirement by ceasing to be a landlord. We held instead that “a landlord‘s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.” 458 U. S., at 439, n. 17. As the Court explained, the contrary argument “proves too much“:
“For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices.” Ibid.
The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). There we held that the Environmental Protection Agency could require companies manufacturing pesticides, fungicides, and rodenticides to disclose health, safety, and environmental information about their products as a condition to receiving a permit to sell those products. While such information included trade secrets in which pesticide manufacturers had a property interest, those manufacturers were not subjected to a taking because they received a “valuable Government benefit” in exchangе—a license to sell dangerous chemicals. Id., at 1007; see Nollan, 483 U. S., at 834, n. 2 (discussing Monsanto).
The taking here cannot reasonably be characterized as part of a similar voluntary exchange. In one of the years at issue here, the Government insisted that the Hornes turn over 47 percent of their raisin crop, in exchange for the “benefit” of being allowed to sell the remaining 53 percent. The next year, the toll was 30 percent. We have already rejected the idea that Monsanto may be extended by regarding basic and familiar uses of property as a “Government benefit” on the same order as a permit to sell hazardous chemicals. See Nollan, 483 U. S., at 834, n. 2 (distinguishing Monsanto on the ground that “the right to build on one‘s own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a ‘governmental benefit‘“). Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection. Raisins are not dangerous pesticides; they are a healthy snack. A case about conditioning the sale of hazardous substances on disclo-
Leonard & Leonard v. Earle, 279 U. S. 392 (1929), is also readily distinguishable. In that case, the Court upheld a Maryland requirement that oyster packers remit ten percent of the marketable detached oyster shells or their monetary equivalent to the State for the privilege of harvesting the oysters. But the packers did “not deny the power of the State to declare their business a privilege,” and the power of the State to impose a “privilege tax” was “not questioned by counsel.” Id., at 396. The oysters, unlike raisins, were “ferae naturae” that belonged to the State under state law, and “[n]o individual ha[d] any property rights in them other than such as the state may permit him to acquire.” Leonard v. Earle, 155 Md. 252, 258, 141 A. 714, 716 (1928). The oyster packers did not simply seek to sell their property; they sought to appropriate the State‘s. Indeed, the Maryland Court of Appeals saw the issue as a question of “a reasonable and fair compensation” from the packers to “the state, as owner of the oysters.” Id., at 259, 141 A., at 717 (internal quotation marks omitted).
Raisins are not like oysters: they are private property—the fruit of the growers’ labor—not “public things subject to the absolute control of the state,” id., at 258, 141 A., at 716. Any physical taking of them for public use must be accompanied by just compensation.
III
The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation, and argues that the Hornes are free to seek compensation for any taking by bringing a damages action under the Tucker Act in the Court of Federal Claims. See
As noted, the Hornes are both growers and handlers. Their situation is unusual in that, as handlers, they have the full economic interest in the raisins the Government alleges should have been set aside for its account. They own the raisins they grew and are handling for themselves, and they own the raisins they handle for other growers, having paid those growers for all of their raisins (not just the free-tonnage amount, as is true with respect to most handlers). See supra, at 2–3; Tr. of Oral Arg. 3–4. The penalty assessed against them as handlers included the dollar equivalent of the raisins they refused to set aside—their raisins. 750 F. 3d, at 1135, n. 6; Brief for Petitioners 15. They may challenge the imposition of that fine, and do not have to pay it first and then resort to the Court of Federal Claims.
Finally, the Government briefly argues that if we conclude that the reserve requirement effects a taking, we should remand for the Court of Appeals to сalculate “what compensation would have been due if petitioners had complied with the reserve requirement.” Brief for Respondent 55. The Government contends that the calculation must consider what the value of the reserve raisins would have been without the price support program, as well as “other benefits . . . from the regulatory program, such as higher consumer demand for raisins spurred by enforcement of quality standards and promotional activi-
The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach, or its notion that general regulatory activity such as enforcement of quality standards can constitute just compensation for a specific physical taking. Instead, our cases have set forth a clear and administrable rule for just compensation: “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking.‘” United States v. 50 Acres of Land, 469 U. S. 24, 29 (1984) (quoting Olson v. United States, 292 U. S. 246, 255 (1934)).
JUSTICE BREYER is concerned that applying this rule in this case will affect provisions concerning whether a condemning authority may deduct special benefits—such as new access to a waterway or highway, or filling in of swampland—from the amount of compensation it seeks to рay a landowner suffering a partial taking. Post, at 5 (opinion concurring in part and dissenting in part); see Bauman v. Ross, 167 U. S. 548 (1897) (laying out of streets and subdivisions in the District of Columbia). He need not be. Cases of that sort can raise complicated questions involving the exercise of the eminent domain power, but they do not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here. Nothing in the cases JUSTICE BREYER labels ”Bauman and its progeny,” post, at 5, suggests otherwise, which may be why the Solicitor General does not cite them.*
take their raisins. This case, in litigation for more than a decade, has gone on long enough.
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
I join the Court‘s opinion in full. I writе separately to offer an additional observation concerning JUSTICE BREYER‘s argument that we should remand the case. The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.”
I agree with Parts I and II of the Court‘s opinion. However, I cannot agree with the Court‘s rejection, in Part III, of the Government‘s final argument. The Government contends that we should remand the case for a determination of whether any compensation would have been due if the Hornes had complied with the California Raisin Marketing Order‘s reserve requirement. In my view, a remand for such a determination is necessary.
The question of just compensation was not presented in the Hоrnes’ petition for certiorari. It was barely touched on in the briefs. And the courts below did not decide it. At the same time, the case law that I have found indicates that the Government may well be right: The marketing order may afford just compensation for the takings of raisins that it imposes. If that is correct, then the reserve requirement does not violate the Takings Clause.
I
The Takings Clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.”
On the record before us, the Hornes have not established that the Government, through the raisin reserve program, takes raisins without just compensation. When the Government takes as reserve raisins a percentage of the annual crop, the raisin owners retain the remaining, free-tonnage, raisins. The reserve requirement is intended, at least in part, to enhance the price that free-tonnage raisins will fetch on the open market. See
More than a century ago, in Bauman v. Ross, 167 U. S. 548 (1897), this Court established an exception to the rule that “just compensation normally is to be measured by ‘the market value of the property at the time of the taking.‘” United States v. 50 Acres of Land, 469 U. S. 24, 29 (1984) (quoting Olson, supra, at 255). We considered in Bauman how to calculate just compensation when the Government takes only a portion of a parcel of property:
“[W]hen part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition, as to be in it-
self of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.” 167 U. S., at 574.
“The Constitution of the United States,” the Court stated, “contains no express prohibition against considering benefits in estimating the just compensation to be paid for private property takеn for the public use.” Id., at 584.
The Court has consistently applied this method for calculating just compensation: It sets off from the value of the portion that was taken the value of any benefits conferred upon the remaining portion of the property. See Regional Rail Reorganization Act Cases, 419 U. S. 102, 151 (1974) (“[C]onsideration other than cash—for example, any special benefits to a property owner‘s remaining properties—may be counted in the determination of just compensation” (footnote omitted)); United States v. Miller, 317 U. S. 369, 376 (1943) (“[I]f the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken“); United States v. Sponenbarger, 308 U. S. 256, 266-267 (1939) (“[I]f governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty. Such activities in substance take nothing from the landowner“); Reichelderfer v. Quinn, 287 U. S. 315, 323 (1932) (“Just compensation . . . was awarded if the benefits resulting from the proximity of the improvement [were] set off against the value of the property taken from the same owners“); Dohany v. Rogers, 281 U. S. 362, 367-368 (1930) (a statute that “permits deduction of benefits derived from the construction of a highway” from the compensation paid to landowners “afford[s]
The rule applies regardless of whether a taking enhances the value of one property or the value of many properties. That is to say, the Government may “permi[t] consideration of actual benefits—enhancement in market value—flowing directly from a public work, although all in the neighborhood receive like advantages.” McCoy v. Union Elevated R. Co., 247 U. S. 354, 366 (1918). The Federal Constitution does not distinguish between “special” benefits, which specifically affect the property taken, and “general” benefits, which have a broader impact.
Of course, a State may prefer to guarantee a greater payment to property owners, for instance by establishing a standard for compensation that does not account for general benefits (or for any benefits) afforded to a property owner by a taking. See id., at 365 (describing categories of rules applied in different jurisdictions); Schopflocher, Deduction of Benefits in Determining Compensation or Damages in Eminent Domain, 145 A. L. R. 7, 158-294 (1943) (describing particular rules applied in different jurisdictions). Similarly, “Congress . . . has the power to authorize compensation greater than the constitutional minimum.” 50 Acres of Land, supra, at 30, n. 14 (1984). Thus, Congress, too, mаy limit the types of benefits to be considered. See, e.g.,
II
The majority believes the Bauman line of cases most likely does not apply here. It says that those cases do “not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here.” Ante, at 16. But it is unclear to me what distinguishes this case from those.
It seems unlikely that the majority finds a distinction in the fact that this taking is based on regulatory authority. Cf. Chrysler Corp. v. Brown, 441 U. S. 281, 295 (1979) (“It
Ultimately, the majority rejects the Government‘s request for a remand because it believes that the Government “does not suggest that the marketing order affords the Hornes compensation” in the amount of the fine that the Government assessed. Ante, at 17. In my view, however, the relevant precedent indicates that the Takings Clause requires compensation in an amount equal to the value of the reserve raisins adjusted to account for the benefits received. And the Government does, indeed, suggest that the marketing order affords just compensation. See Brief for Respondent 56 (“It is likely that when all benefits and alleged losses from the marketing order are calculated, [the Hornes] would have a net gain rather than a net loss, given that a central point of the order is to benefit producers“). Further, the Hornes have not demonstrated the contrary. Before granting judgment in favor of the Hornes, a court should address the issue in light of all
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Given the precedents, the parties should provide full briefing on this question. I would remand the case, permitting the lower courts to consider argument on the question of just compensation.
For these reasons, while joining Parts I and II of the Court‘s opinion, I respectfully dissent from Part III.
The Hornеs claim, and the Court agrees, that the Raisin Marketing Order,
I
Our Takings Clause jurisprudence has generally eschewed “magic formula[s]” and has “recognized few invariable rules.” Arkansas Game and Fish Comm‘n v. United States, 568 U. S. ___ (2012) (slip op., at 6-7). Most takings cases therefore proceed under the fact-specific balancing test set out in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). See Arkansas Game and Fish Comm‘n, 568 U. S., at ___ (slip op., at 7); Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538-539 (2005). The Hornes have not made any argument under Penn Central. In order to prevail, they therefore must fit
In the “special context of land-use exactions,” we have held that “government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit” constitute takings unless the government demonstrates a nexus and rough proportionality between its demand and the impact of the proposed development. Lingle, 544 U. S., at 538, 546; see Dolan v. City of Tigard, 512 U. S. 374, 386, 391 (1994); Nollan v. California Coastal Comm‘n, 483 U. S. 825, 837 (1987). We have also held that a regulation that deprives a property owner of ”all economically beneficial us[e]” of his or her land is a per se taking. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992) (emphasis in original). The Hornes have not relied on either of these rules in this Court. See Brief for Petitioners 42, 55.
Finally—and this is the argument the Hornes do rely on—we have held that the government effects a per se taking when it requires a property owner to suffer a “permanent physical occupation” of his or her property. Loretto, 458 U. S., at 426. In my view, however, Loretto—when properly understood—does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Where some property right is retained by the owner, no per se taking under Loretto has occurred.
This strict rule is apparent from the reasoning in Loretto itself. We explained that “[p]roperty rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.‘” Id., at 435 (quoting United States v. General Motors Corp., 323 U. S. 373, 378 (1945)). A “permanent physical occupation” of property occurs, we said, when governmental action “destroys each of these rights.” 458 U. S., at 435 (emphasis in original); see ibid., n. 12
By contrast, in the mine run of cases where governmental action impacts property rights in ways that do not chop through the bundle entirely, we have declined to apply per se rules and have instead opted for the more nuanced Penn Central test. See, e.g., Hodel v. Irving, 481 U. S. 704 (1987) (applying Penn Central to assess a requirement that title to lаnd within Indian reservations escheat to the tribe upon the landowner‘s death); PruneYard Shopping Center v. Robins, 447 U. S. 74, 82-83 (1980) (engaging in similar analysis where there was “literally . . . a ‘taking’ of th[e] right” to exclude); Kaiser Aetna v. United States, 444 U. S. 164, 174-180 (1979) (applying Penn Central to find that the Government‘s imposition of a servitude requiring public access to a pond was a taking); see also Loretto, 458 U. S., at 433-434 (distinguishing PruneYard and Kaiser Aetna). Even governmental action that reduces the value of property or that imposes “a significant restriction . . . on one means of disposing” of property is not a per se taking; in fact, it may not even be a taking at all. Andrus v. Allard, 444 U. S. 51, 65-66 (1979).
What our jurisprudence thus makes plain is that a claim of a Loretto taking is a bold accusation that carries with it a heavy burden. To qualify as a per se taking under Loretto, the governmental action must be so completely destructive to the property owner‘s rights—all of them—as to render the ordinary, generally applicable protections of
II
A
When evaluating the Order under this rubric, it is important to bear two things in mind. The first is that Loretto is not concerned with whether the Order is a good idea now, whether it was ever a good idea, or whether it intrudes upon some property rights. The Order may well be an outdated, and by some lights downright silly, regulation. It is also no doubt intrusive. But whatever else one can say about the Order, it is not a per se taking if it does not result in the destruction of every property right. The second thing to keep in mind is thе need for precision about whose property rights are at issue and about what property is at issue. Here, what is at issue are the Hornes’ property rights in the raisins they own and that are subject to the reserve requirement. The Order therefore effects a per se taking under Loretto if and only if each of the Hornes’ property rights in the portion of raisins that the Order designated as reserve has been destroyed. If not, then whatever fate the Order may reach under some other takings test, it is not a per se taking.
The Hornes, however, retain at least one meaningful property interest in the reserve raisins: the right to receive some money for their disposition. The Order explicitly provides that raisin producers retain the right to “[t]he net proceeds from the disposition of reserve tonnage raisins,”
Granted, this equitable distribution may represent less income than what some or all of the reserve raisins could fetch if sold in an unregulated market. In some years, it may even turn out (and has turned out) to represent nо net income. But whether and when that occurs turns on market forces for which the Government cannot be blamed and to which all commodities—indeed, all property—are subject. In any event, we have emphasized that “a reduction in the value of property is not necessarily equated with a taking,” Andrus, 444 U. S., at 66, that even “a significant restriction . . . imposed on one means of disposing” of property is not necessarily a taking, id., at 65, and that not every “injury to property by governmental action” amounts to a taking, PruneYard, 447 U. S., at 82. Indeed, we would not have used the word “destroy” in Loretto if we meant “damaged” or even “substantially damaged.” I take us at our word: Loretto‘s strict requirement that all property interests be “destroy[ed]” by governmental action before that action can be called a per se taking cannot be satisfied if there remains a property interest that is at most merely damaged. That is the case here; accordingly, no per se taking has occurred.
Moreover, when, as here, the property at issue is a fungible commodity for sale, the income that the property may yield is the property owner‘s most central interest. Cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1002 (1984) (noting that the “nature” of particular property defines “the extent of the property right therein“). “[A]rticles of commerce,” in other words, are “desirable because [they are] convertible into money.” Leonard & Leonard v. Earle, 279 U. S. 392, 396 (1929). The Hornes do not use the raisins that are subject to the reserve requirement—which are, again, the only raisins that have
The conclusion that the Order does not effect a per se taking fits comfortably within our precedents. After all, we have observed that even “[r]egulations that bar trade in certain goods” altogether—for example, a ban on the sale of eagle feathers—may survive takings challenges. Andrus, 444 U. S., at 67. To be sure, it was important to our decision in Andrus that the regulation at issue did not prohibit the possession, donation, or devise of the property. See id., at 66. But as to those feathers the plaintiffs would have liked to sell, the law said they could not be sold at any price—and therefore categorically could not be converted into money. Here, too, the Hornes may do as they wish with the raisins they are not selling. But as to those raisins that they would like to sell, the Order subjects a subset of them to the reserve requirement, which allows for the conversion of reserve raisins into at least some money and which is thus more generous than the law in Andrus. We held that no taking occurred in Andrus, so rejecting the Hornes’ claim follows a fortiori.
We made this principle even clearer in Lucas, when we relied on Andrus and said that where, as here, “property‘s only economically productive use is sale or manufacture for sale,” a regulation could even “render [that] property economically worthless” without effecting a per se taking. Lucas, 505 U. S., at 1027-1028 (citing Andrus, 444 U. S., at 66-67; emphasis added). The Order does not go nearly that far. It should easily escape our opprobrium, at least
B
The fact that at least one property right is not destroyed by the Order is alone sufficient to hold that this case does not fall within the narrow confines of Loretto. But such a holding is also consistent with another line of cases that, when viewed together, teach that the government may require certain property rights to be given up as a condition of entry into a regulated market without effecting a per se taking.
First, in Leonard & Leonard v. Earle, 279 U. S. 392, we considered a state law that required those who wished to engage in the business of oyster packing to deliver to the State 10 percent of the empty oyster shells. We rejected the argument that this law effected a taking and held that it was “not materially different” from a tax upon the privilege of doing business in the State. Id., at 396. “[A]s the packer lawfully could be required to pay that sum in money,” we said, “nothing in the Federal Constitution prevents the State from demanding that he give up the same per cent. of such shells.” Ibid.1
Next, in Ruckelshaus v. Monsanto Co., 467 U. S. 986, we held that no taking occurred when a provision of the Federal Insecticide, Fungicide, and Rodenticide Act required companies that wished to sell certain pesticides to first submit sensitive data and trade secrets to the Environmental Protection Agency as part оf a registration process. Even though the EPA was permitted to publicly disclose
some of that submitted data—which would have had the effect of revealing trade secrets, thus substantially diminishing or perhaps even eliminating their value—we reasoned that, like the privilege tax in Leonard & Leonard, the disclosure requirement was the price Monsanto had to pay for “‘the advantage of living and doing business in a civilized community.‘” 467 U. S., at 1007 (quoting Andrus, 444 U. S., at 67; some internal quotation marks omitted). We offered nary a suggestion that the law at issue could be considered a per se taking, and instead recognized that “a voluntary submission of data by an applicant” in exchange for the ability to participate in a regulated market “can hardly be called a taking.” 467 U. S., at 1007.2
Finally, in Yee v. Escondido, 503 U. S. 519 (1992), we addressed a mobile-home park rent-control ordinance that set rents at below-market rates. We held the ordinance did not effect a taking under Loretto, even when it was considered in conjunction with other state laws regarding eviction that effectively permitted tenants to remain at will, because it only regulated the terms of market participation. See 503 U. S., at 527-529.
Understood together, these cases demonstrate that the
Government may condition the ability to offer goods in the market on the giving-up of certain property interests without effecting a per se taking.3 The Order is a similar regulation. It has no effect whatsoever on raisins that the Hornes grow for their own use. But insofar as the Hornes wish to sell some raisins in a market regulated by the Government аnd at a price supported by governmental intervention, the Order requires that they give up the right to sell a portion of those raisins at that price and instead accept disposal of them at a lower price. Given that we have held that the Government may impose a price on the privilege of engaging in a particular business without effecting a taking—which is all that the Order does—it follows that the Order at the very least does not run afoul of our per se takings jurisprudence. Under a different takings test, one might reach a different conclusion. But the Hornes have advanced only this narrow per se takings claim, and that claim fails.
III
The Court‘s contrary conclusion rests upon two fundamental errors. The first is the Court‘s breezy assertion that a per se taking has occurred because the Hornes “lose the entire ‘bundle’ of property rights in the appropriated raisins . . . with the exception of” the retained interest in
the equitable distribution of the proceeds from the disposition of the reserve raisins. Ante, at 8-9. But if there is a property right that has not been lost, as the Court concedes there is, then the Order has not destroyed each of the Hornes’ rights in the reserve raisins and does not effect a per se taking. The Court protests that the retained interest is not substantial or certain enough. But while I see more value in that interest than the Court does, the bottom line is that Loretto does not distinguish among retained property interests that are substantial or certain enough to count and others that are not.4 Nor is it at all clear how the Court‘s approach will be administrable. How, after all, are courts, governments, or individuals supposed to know how much a property owner must be left with before this Court will bless the retained interest as sufficiently meaningful and certain?
One virtue of the Loretto test was, at least until today, its clarity. Under Loretto, a total destruction of all property rights constitutes a per se taking; anything less does not. See 458 U. S., at 441 (noting the “very narrow” nature of the Loretto framework). Among the most significant doctrinal damage that the Court causes is the blurring of this otherwise bright line and the expansion of this
otherwise narrow category. By the Court‘s lights, perhaps a 95 percent destruction of property rights can be a per se taking. Perhaps 90? Perhaps 60, so long as the remaining 40 is viewed by a reviewing court as less than meaningful? And what makes a retained right meaningful enough? One wonders. Indeed, it is not at all clear what test the Court has actually applied. Such confusion would be bad enough in any context, but it is especially pernicious in the area of property rights. Property owners should be assured of where they stand, and the government needs to know how far it can permissibly go without tripping over a categorical rule.
The second overarching error in the Court‘s opinion arises from its reliance on what it views as the uniquely physical nature of the taking effected by the Order. This, it says, is why many of the cases having to do with so-called regulatory takings are inapposite. See ante, at 9-12. It is not the case, however, that Government agents acting pursuant to the Order are storming raisin farms in the dаrk of night to load raisins onto trucks. But see Tr. of Oral Arg. 30 (remarks of ROBERTS, C. J.). The Order simply requires the Hornes to set aside a portion of their raisins—a requirement with which the Hornes refused to comply. See
The Hornes and the Court both concede that a cap on the quantity of raisins that the Hornes can sell would not be a per se taking. See ante, at 9; Brief for Petitioners 23, 52. The Court‘s focus on the physical nature of the intrusion also suggests that merely arranging for the sale of the reserve raisins would not be a per se taking. The rub for the Court must therefore be not that the Government is
The combined effect of these errors is to unsettle an important area of our jurisprudence. Unable to justify its holding under our precedents, the Court resorts to superimposing new limitations on those precedents, stretching the otherwise strict Loretto test into an unadministrable one, and deeming regulatory takings jurisprudence irrelevant in some undefined set of cases involving government regulation of property rights. And it does all of this in service of eliminating a type of reserve requirement that is applicable to just a few commodities in the entire country—and that, in any event, commodity producers could vote to terminate if they wished. See Letter from Solicitor General to Clerk of Court (Apr. 29, 2015);
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Because a straightforward application of our precedents reveals that the Hornes have not suffered a per se tаking, I would affirm the judgment of the Ninth Circuit. The Court reaches a contrary conclusion only by expanding our per se takings doctrine in a manner that is as unwarranted as it is vague. I respectfully dissent.