US 50 in Nevada – the “Loneliest Road”
Here’s the cert petition which we and our Nevada colleague Luke Busby filed today, asking the U.S. Supreme Court to review this Question Presented:
Conflicting with Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court of Nevada concluded that to prevail on a physical takings claim a property owner must show that a flood “effectually destroy[ed] or impair[ed] [the property’s] usefulness.”
The question presented is:
To constitute a taking under the Fifth and Fourteenth Amendments, must a physical invasion also destroy or substantially impair an owner’s economically beneficial uses of property?
Rather than summarize the case and the issues, here’s the Introduction:
Physical occupations—as distinctly invasive public uses of private property—are treated by this Court differently than regulatory takings. Although the Court has consistently avoided adopting categorical rules in most takings cases, it has also long-recognized that physical invasions are governed by more bright lines. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 322 (2002) (“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.”) (emphasis added) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951)).
One of the brightest of the bright line rules is that in cases of physical invasion, the loss of use, if any, is not a part of the takings equation, much less the dispositive factor. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) is perhaps the most famous example. In that case, the Court concluded that even a de minimis physical occupation—the installation of a tiny cable television box on the roof of the owner’s apartment building—was a taking, even though the box in no way interfered with the owner’s use of her roof or building (and indeed may actually have enhanced her use by providing cable service).
Here, however, the Nevada Supreme Court adopted a contradictory rule that unnecessarily blurred the well-established distinction between physical and regulatory taking, and takings and torts. It concluded that when private property is intentionally flooded by the government, the physical invasion of water must also be accompanied by “substantial injury” to the owner’s economic use of the land. App. 5 (“For a taking by flood water to occur, there must be a physical invasion of flood waters resulting in substantial injury.”). The Nevada court defined “substantial injury” very broadly, as destruction or impairment of a properties’ usefulness. Id. (“For substantial injury to exist, the physical invasion must ‘effectually destroy or impair [the property’s] then usefulness.’ ”) (quoting Clark County v. Powers, 611 P.2d 1072, 1075 n.3 (Nev. 1980)).
In effect, this ruling authorizes the public to use all or a portion of private property as a drainage and storage easement for storm and surface water as long as the owner may use the flooded property at some other time, or some other part of the property for some other purpose besides the County’s intermittent flowage easement.
The Nevada Supreme Court’s ruling wrongly conflates physical invasion takings with regulatory takings, and conflicts with this Court’s precedents and the decisions of other lower courts. This Court should review the judgment of the Nevada Supreme Court.
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1. Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23, 31 (2012) (“In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules.”).
Pet. at 2-3. Stay tuned.
Petition for a Writ of Certiorari, Fritz v. Washoe County, Nevada, No. 19-___ (Mar. 23, 2020)