We’ve been meaning to write up the U.S. Court of Appeals’ decision in a case we’ve been followingProtect Our Parks, Inc v. Chicago Park District, No. 19-2308 (Aug. 231, 2020), but our Illinois colleague Mike Ryan was quicker on the draw.

Rather than summarize Mike’s write up, we simply suggest you go to his firm’s blog and read “7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment.”

Short story: the citizen’s group plaintiff doesn’t have a property interest in Grant Park, notwithstanding its argument that the public’s status as the beneficiary of the public trust (the real public trust, not, you know, the other things that get labeled “public trust” but really aren’t the thing you think about when you think “public trust”), is enough of a property interest to come under the Fifth Amendment’s protections (or, more accurately, the protections of the Fourteenth Amendment). The court rejected the takings claim.

Interestingly, although framed as a takings problem, the plaintiffs were not seeking just compensation. Instead, they alleged, in effect, this was a private taking. No public use or purpose (the beneficiary is the Obama Center). A private regulatory taking. That’s giving us Agins/Lingle flashbacks. [Barista’s note: we still think the Court was wrong when it held in Lingle that the means-ends analysis (“substantially advance a legitimate state interest”) isn’t a question for regulatory takings. The Court instead relocated it to a due process venue. We argued in an amicus brief in Lingle that the substantially advance inquiry was grounded in the Public Use Clause, and recognized the ability of a property owner to challenge the purpose of the taking, even if the taking was a regulatory taking and not an affirmative exercise of the power of eminent domain. But the Court in Lingle was unanimous, so what do we know?]

 Here’ s what Mike writes about how the Seventh Circuit dealt with that argument:

In addition to finding the plaintiffs’ lack of a protected property interest was a “fundamental defect” in their federal takings claim, the Seventh Circuit also construed plaintiffs’ takings claim, which sought injunctive relief rather than money damages, as an argument that the Obama Presidential Center did not qualify as a “public use.” In easily dismissing this argument as well, the Seventh Circuit, relying on the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), stated that even assuming there was a transfer of the use of Jackson Park to the Barack Obama Foundation, a transfer to a private owner can still be constitutional if it is done for a “public purpose.” The Seventh Circuit than concluded that it would not second guess the City of Chicago’s determination “that the Obama Presidential Center – with its museum, public library branch, auditorium, athletic center, gardens, and more – is a use with public benefits.”

Game, set, match.

Protect Our Parks, Inc. v. Chicago Park District, No. 19-2308 (7th Cir. Aug. 21, 2020)