“ In the case of John Anderson farms, inc., et al., as plaintiffs v. United States, Pacific Coast Federation of Fishermen's Associations, as defendants”(Thomson Reuters West law).
Issue; the pertinent issue is whether the plaintiffs have sufficient grounds to appeal for the decision already made. John Anderson farms inc. is a party representing Natural Resources Defense Council (NRDC) a nonprofit making institution and an amicus for conservation which has over 385,000 members. The entity has for a long time been active in water conservation and management in a bid to protect the endangered species. It has been an amicus in several issues involving conservation and the takings clause to water concerns. In this case it was involved in an amicus with the United States of America government in the court of federal claims. The issue in the case filed by the plaintiffs is on a single concern regarding whether the defendants had a right to establish a physical takings claim or on the basis of regulatory . The legal question in the case regard the both takings rule. In the case the plaintiff has to prove to the federal court that the defendant intended or did exercise a physical taking on the property in question, occupied or appropriated private property. There has to be a differentiation between physical takings claims and regulatory takings claims in the process of decision of the case. The plaintiff has to prove to the court that the type of regulatory forbiddance was physical occupation or appropriation in regard to the case. There has to be proof of the need to transfer ownership on the property concerned.
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Rule: In the ruling of “ Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008)” (Vermont law school 2018). There was need to analyze the application of the per se takings testing where there was need to proof that the dam operator was the owner and had been deprived the right to enjoy the benefits and that there was occupation, transfer or appropriation of the said private property. In regard to the case of NRDC appeal reference to “ Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908)” (Vermont law school 2018) Argues on taking claims based on constrain regarding water utilization and has to be examined by the use of the defined takings structure. The Hudson county case is a perfect reference in regard to the authoritative and already decided cases of takings test and if it can apply in this case through the reversal of the courts dependence on the per se physical takings. One of the important issues is to first distinguish between a physical taking and regulatory taking based on precedent rulings. Through the decisions made by the Supreme Court there is a clear distinction between the two terms. One of the rulings made on the decisions is the case of “ CRV Enterprises, Inc. v. United States, 626 F.3d 1241, 1246 (Fed. Cir. 2010)” (Vermont law school 2018) By definition a physical takings refers to when the government exercises direct appropriation or physical occupation of private property and this can be supported by a ruling on the case of “ Lingle v. Chevron USA Inc., 544 U.S. 528, 537 (2005)” (Vermont law school 2018) . On the other hand regulatory takings refers to the government exercising restrictions on a particular intended use of property it can be illustrated by the ruling made in the case of “ Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125 (1978)” (Vermont law school 2018) . In a majority of already decided cases the Supreme Court justifies the physical taking because it is rare and can be easily recognized. It is also a direct concern on private property and despite its minimal intrusion there has to be compensation to the owner. On the other hand the regulatory takings have to be looked at from an intricate point of view which bases its decision on three pertinent issues and they include; the economic concern of the government, the nature of the restriction and the extent of interference of the claimants investments or expectations. When the government finds the property to be appropriate for economic use, it is regarded as bringing benefit to all the regulatory taking will be applied and compensation done to the owner accordingly. It is a common type of occurrence and in most cases the owners receive compensation.
Analysis: In looking at the issue of NRDC appeal case the plaintiff has to proof that there was either an intended or actual physical taking of the property as defined and applied in the case of “ Lingle v. Chevron USA Inc., 544 U.S. 528, 537 (2005)” (Vermont law school 2018) . The plaintiff has to prove that the government of America exercised physical undertaking of the property and in this case it is not applicable because water cannot be owned or transferred like other properties such as land and buildings. The appellants failed to establish that there was a proof of government exercising physical taking by either using or taking over of the said individual property. In looking at the difference amid physical and regulatory takings as already defined above the case falls on the regulatory side of the divide because it cannot occupy a water space or appropriate it but can only exercise restrictions on the use of the said property. Appropriation takes place when the federal authority takes and owns property therefore becoming the new owner which in this case is not applicable. A reference can be drawn from “ Tahoe-Sierra, 535 U.S. at 324 n. 19. ” (Vermont law school 2018). There was neither appropriation nor occupation in this case. The US government was mistaken for physical taking yet it was exercising a regulatory taking and this is what should apply in the case. It is because the government had taken the right of the plaintiff to enjoy the use of water provided by the irrigation scheme. Because of the hindrance in enjoying the benefits of the stated property the government is liable on the basis of regulatory takings. In this regard it does not fit in the category of per se physical occupation and the appellant and their amicus are aware that the water cannot generate an argument on occupation of physical space. In looking at water rights “ (Water Rights, 83 Tex. L. Rev. 1985, 2009 -2016 (2005) (Vermont law school 2018) ” such issue can be proved to be null because the appellant’s arguments can not apply on water issue. There is also no appropriation because water is susceptible of being appropriated. Also the government did not exercise an interest in the water but imposed a restriction for the safety of the endangered species. It is therefore improper for the appellants to call a restriction an appropriation. The appellant has not valid arguments based on the physical takings as it is not applicable to the water issue which cannot be occupied or appropriated.
In conclusion it is vital to take into account that the court erred claims in the ruling by deciding on the basis of per se physical taking an issue that would have been decided on the grounds of regulatory ruling. In this regard it not possible to argue that the decision should be made in favor of the plaintiff because the basis of their argument is contrary to the definitions of physical taking and also regulatory taking.
References
Epstein, R. A. (2011). Physical and regulatory takings: One distinction too many. Stan. L. Rev. Online , 64 , 99.
Patashnik, J. (2011). Physical Takings, Regulatory Takings, and Water Rights. Santa Clara L. Rev. , 51 , 365.
Vermont law school (2018). United States Court Of Appeals for the Federal Circuit https://www.vermontlaw.edu/sites/default/files/2019-01/2018%20NRDC%20Brief.pdf
