Regulatory Takings

Legal Briefs

2009

  • Klamath Irrigation District v. United States
    Brief amicus curiae of Natural Resources Defense Council urging the Oregon Supreme Court to rule that Klamath project irrigators hold no property rights in the project water and that their rights are defined instead by their contracts with the Bureau of Reclamation
    (May 1, 2009).

  • 2008

  • Casitas Municipal Water District v. United States
    Amicus brief on behalf of NRDC urging the Federal Circuit to grant rehearing and/or rehearing en banc on the Court’s September 25, 2008, ruling that a per se taking theory applies to water regulation designed to protect fish (December 17, 2008).
  • City of Houston v. Trail Enterprises, Inc.
    Amicus brief of International Municipal Lawyers Association, U.S. Conference of Mayors, National League of Cities, Texas Municipal League, and Texas Municipal Lawyers Association urging the Texas Supreme Court to reverse a decision by the Texas Court of Appeals holding the City of Houston liable for a taking based on regulations restricting oil and gas development in and around Lake Houston, the city’s primary source of drinking water (August 20, 2008).
  • Klamath Irrigation District v. United States
    Joint Brief of Natural Resources Defense Council, Pacific Coast Federation of Fishermen Associations and others urging the Oregon Supreme Court to decline the request by the U.S. Court of Appeals for the Federal Circuit to certify issues of state law (July 25, 2008).
  • OFP, LLC v. State of New Jersey
    Amicus brief on behalf of the New Jersey Highlands Coalition urging the New Jersey Supreme Court to reject various constitutional challenges to the New Jersey Highlands Water Protection and Planning Act (with the Eastern Environmental Law Center and Professor Marc Poirier of Seton Hall University School of Law).
  • Rose Acre Farms, Inc. v. United States
    Amicus brief of Hoosier Environmental Council and Sierra Club urging the U.S. Court of Appeals for the Federal Circuit to reverse a finding of a taking based on the temporary closure of industrial egg farms that government officials had identified as a source of salmonella poisoning (March 4, 2008).
  • Casitas Municipal Water District v. United States
    Amicus brief of NRDC urging the Federal Circuit to affirm the claims court’s repudiation of the theory that any restriction on the use of water, no matter how modest, effects a per se taking (January 29, 2008).

  • 2007

  • Klamath Irrigation District v. United States
    Amicus brief of the Natural Resources Defense Council urging the Federal Circuit to affirm the claims court’s rejection of contract and takings claims based on reductions in water deliveries to irrigators based on the ESA (October 31, 2007).
  • Equity Lifestyle v. San Luis Obispo
    Amicus brief of League of California Cities and California State Associations of Counties in support of County’s application for rehearing and rehearing en banc on the question of whether a Ninth Circuit panel erred in ruling that the statute of limitations for a facial regulatory takings claim recommences with each transfer of the property (September 17, 2007).
  • Noghrey v. Town of Brookhaven
    Amicus brief on behalf of the Association of Towns of the State of New York, the American Planning Association, and New York Metro Chapter of the American Planning Association in support of the Town of Brookhaven's appeal of a $7.3 compensation award based on the rezoning of an area of the town from commercial to residential (May 14, 2007).
  • Hage v. United States
    Supplemental amicus brief explaining the significance of the decision of the U.S. Court of Federal Claims in Casitas Municipal Water District v. United States for the resolution of this case (April 4, 2007).
  • Casitas Municipal Water District v. United States
    Amicus brief of Natural Resources Defense Council in support of the United States' motion for partial summary judgment on the the takings issue in this case, arguing that a regulatory restriction on the use of water should be evaluated using the traditional regulatory takings analysis rather than the per se rule for permanent physical occupations (January 31, 2007).
  • Hage v. United States
    Supplemental amicus brief explaining the significance of the decision of the U.S. Court of Appeals for the Federal Circuit in Colvin Cattle for the resolution of this case (January 4, 2007).

  • 2006

  • Walker v. United States
    Amicus brief of the New Mexico Wildlife Federation, the New Mexico Council of Trout Unlimited, and the National Wildlife Federation, by John Echeverria of GELPI, Joseph Feller of Arizona State University Law School, and Tom Lustig of National Wildlife Federation, filed in the New Mexico Supreme Court in support of the United States, arguing that the court should resolve questions certified by the U.S. Court of Federal Claims by ruling that a New Mexico water right does not include the right to use adjacent lands for grazing purposes (July 8, 2006).
  • Colvin Cattle Company Inc., v. United States
    Amicus brief of the Natural Resources Defense Council filed in the U.S. Court of Appeals for the Federal Circuit in support of the United States, arguing that restrictions on use of public lands for grazing purposes did not result in a taking of private appropriative water rights (April 4, 2006).
  • Mansoldo v. State of New Jersey
    Amicus brief of the Association of State Floodplain Managers filed in the New Jersey Supreme Court, arguing that a prohibition on development in the floodway of the Hackensack River did not result in a taking (March 15, 2006).
  • Swinomish Indian Tribe v. Western Washington Growth Management Board
    Amicus brief of various fisheries groups filed in the Washington Supreme Court, arguing that the establishment of streamside buffers do not result in a compensable taking (2006).

  • 2005

  • San Remo Hotel L.P. v. City & County of San Francisco
    Amicus brief of the Conference of Chief Justices, the organization representing the chief justices of the state supreme courts, filed in the U.S. Supreme Court, urging the Court to affirm a Ninth Circuit decision barring a takings claimant from relitigating in federal court a claim previously litigated in state court (March 1, 2005).
  • Klamath Irrigation District v. United States
    An amicus "status report" of the Natural Resources Defense Council filed in the U. S. Court of Federal Claims, arguing that plaintiff's takings claims, based on reduced irrigation water deliveries, should be dismissed (2005).
  • Lingle v. Chevron
    Reply brief of the Governor and Attorney General of Hawaii, filed in the U.S. Supreme Court (2005).
  • Lingle v. Chevron
    Brief of the Governor and Attorney General of Hawaii by Robert Dreher and John Echeverria of GELPI, Seth Waxman and Paul Wolfson of Wilmer, Cutler, Pickering, Hale and Dorr, and Hawaii Attorney General Mark Bennett and Deputy Attorney General Michael Meavey, urging the U.S. Supreme Court to repudiate the substantially advances takings test (2005).
  • Lingle v. Chevron
    A petition for a writ of certiorari filed in the United States Supreme Court on behalf of the Governor and Attorney General of Hawaii by Robert Dreher and John Echeverria of GELPI, Seth Waxman and Paul Wolfson of Wilmer, Cutler, Pickering, Hale & Dorr, and Hawaii Attorney General Mark Bennett and Deputy Attorney General Michael Meaney, urging the Supreme Court to resolve the validity of the substantially advances takings test (2005).

  • 2004

  • Coast Range Conifers v. State of Oregon
    Amicus brief of the Audubon Society of Portland, Friends of the Columbia Gorge, Inc., Institute for Fisheries Resources, League of Women Voters of Oregon, Pacific Coast Federation of Fisherman's Associations, and Oregon Trout, Inc., filed in the Oregon Supreme Court, urging the Court to reverse an appeals court decision refusing to apply the "parcel as a whole" rule under the Oregon Constitution; the brief also argues that this taking claim, based on logging restrictions designed to protect nesting bald eagles, is barred by background principles of Oregon property and nuisance law based on the doctrine of public ownership of wildlife (November 4, 2004).
  • Hage v. United States
    Amicus brief of the Nevada Department of Wildlife, the National and Nevada Wildlife Federations, the Natural Resources Defense Council, and the Toiyabe Chapter of the Sierra Club filed in the U.S. Court of Federal Claims urging rejection of various takings claims based on restrictions and/or revocation of grazing privileges on the public range (September 13, 2004).
  • Coast Range Conifers v. State of Oregon
    Amicus brief of several Oregon public interest organizations filed in the Oregon Supreme Court, urging the court to grant the State's petition for review of an adverse Court of Appeals decision (May 5, 2004).
  • Stearns Co., Ltd v. United States
    Amicus brief of Kentucky Resources Council filed in the U.S. Court of Appeals for the Federal Circuit urging the court to reverse a court of claims finding of a taking based on the theory that the mere imposition of a regulatory review process on a mining company under the Surface Mining & Reclamation Act effected a "physical taking" (April 2, 2004).
  • Avenal v. State of Louisiana and Department of Natural Resources
    Amicus brief of the Coalition to Restore Coastal Louisaina and Environmental Defense filed in the Louisiana Supreme Court by Joel Waltzer and Robert Wiygul of Waltzer & Associates (Biloxi, MI) and GELPI's John Echeverria urging the Louisiana Supreme Court to reverse a takings award of $1,000,000,000 to various oyster fishermen based on the alleged effects of coastal restoration projects on the value of their leases of state-owned submerged lands (March 13, 2004).

  • 2003

  • Avenal v. State of Louisiana and Department of Natural Resources
    Amicus brief of the Coalition to Restore Coastal Louisiana and Environmental Defense by Joel Waltzer and Robert Wiygul of Waltzer & Associates (Biloxi, MI) and John Echeverria of GELPI, filed in the Louisiana Supreme Court, urging the Court to grant the State's peitition to review a $1,000,000,000 takings award to various oyster fishermen based on the alleged effects of coastal restoration projects on the value of their leases of state-owned submerged lands (December 22, 2003).
  • Klamath Irrigation District v. United States
    Amicus brief of the Natural Resources Defense Council filed in the U.S. Court of Federal Claims in support of the United States' opposition to plaintiffs' motion for partial summary judgment on takings claims based on reduced water deliveries (October 3, 2003).
  • American Pelagic Fishing Company, L.P. v. United States
    Amicus brief of Oceana and the Ocean Conservancy, filed in the U.S. Court of Appeals for the Federal Circuit, arguing that a Congressional enactment barring factory fishing ships from the Gulf of Maine did not effect a taking (September 4, 2003).
  • Seiber v. United States
    Amicus brief of the Audubon Society of Portland, Institute for Fisheries Resources, Oregon Trout, Inc., and the Pacific Coast Federation of Fishermen's Associations, filed in the U.S. Court of Appeals for the Federal Circuit, urging the appeals court to reject a takings claim based on restrictions on logging designed to protect spotted owls (May 20, 2003).
  • K&K Construction, Inc. v. Michigan Department of Environmental Quality
    Amicus brief of the Michigan Environmental Council filed in the Michigan Court of Appeals in support of the Michigan Dept. of Environmental Quality's appeal and urging the court to reverse a ruling that a restriction on wetland development effected a taking (April 7, 2003).

  • 2002

  • Washington Legal Foundation v. Legal Foundation of Washington
    Amicus brief of the City and County of San Francisco filed in the U.S. Supreme Court, arguing that the Court should reject a takings challenge to the IOLTA program (October 18, 2002).
  • McQueen v. South Carolina Coastal Council
    Reply brief of the South Carolina Coastal Council (July 23, 2002).
  • McQueen, v. South Carolina Coastal Council
    Brief of the South Carolina Coastal Council filed in the South Carolina Supreme Court by John Echeverria of GELPI, and Hope Babcock, Fellows, and Students at the Institute for Public Representation, urging the South Carolina Supreme Court to reverse a ruling that a restriction on coastal wetland development effected a taking (April 22, 2002).
  • Coast Range Conifers, LLC v. United States
    Amicus brief of the Audubon Society of Portland, Institute for Fisheries Resources, Oregon Trout, Inc., and the Pacific Coast Federation of Fishermen's Associations, filed in the U.S. Court of Federal Claims, urging the Court to reject a takings claim based on ESA restrictions on logging designed to protect nesting bald eagles (December 20, 2002).
  • City of Glenn Heights, Texas v. Sheffield Development Company, Inc.
    Amicus brief of the American Planning Association, filed in the Texas Supreme Court in support of the City of Glenn Heights, Texas, urging the court to reverse a trial court ruling that a downzoning effected a taking (October 8, 2002).
  • SDS Lumber Company v. State of Washington
    Amicus brief of the Washington Environmental Council filed in the Washington Supreme Court urging the Court to reverse a takings award based on a state restriction on logging designed to protect the spotted owl; the brief contends that the taking claim is barred by, among other things, (1) the parcel as a whole rule, and (2) the background principle of Washington law that all wildlife is held in trust by the State for the benefit of the people (April 19, 2002).
  • Coast Range Conifers, LLC v. State of Oregon
    Amicus brief of the Audubon Society of Portland, Institute for Fisheries Resources, Oregon Trout, Inc., and the Pacific Coast Federation of Fishermen's Associations, filed in the Oregon Court of Appeals, arguing that the Court should reject a takings claim based on state logging restrictions designed to protect spotted owls (October 2002).

  • 2001

  • Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency
    Amicus brief of the National Audubon Society, National Wildlife Federation, Natural Resources Defense Council, and Sierra Club, filed in the U.S. Supreme Court, urging the U.S. Supreme Court to affirm a Ninth Circuit ruling rejecting a takings challenge to a temporary moratorium on development (November 13, 2001).
  • RTG, Inc. v. State of Ohio
    Reply brief of the Ohio Environmental Council, filed in the Ohio Supreme Court, focusing on the "parcel as a whole" issue and the investment-backed expectations issue (October 9, 2001).
  • Brubaker Amusement Co., Inc. v. United States
    Amicus brief of the American Cancer Society, the American Lung Association, and the National Center for Tobacco-Free Kids, filed in the U.S. Court of Appeals for the Federal Circuit, arguing that the Court should reject the claim that FDA regulations restricting the placement of cigarette vending machines in adult-only venues resulted in a taking (August 2, 2001).
  • RTG, Inc. v. State of Ohio
    Amicus brief of the Ohio Environmental Council, filed in the Ohio Supreme Court, urging the Court to reverse a ruling of the Ohio Court of Appeals upholding a takings challenge to restrictions on surface coal mining designed to protect a village's drinking water supplies (June 27, 2001).
  • Seiber v. State of Oregon
    Amicus brief of the Audubon Society of Portland and other Oregon conservation groups, filed in the Oregon Court of Appeals, urging the Court to affirm the circuit court's rejection of a takings challenge to the Oregon Board of Forestry's regulations protecting the spotted owl; the brief argues that the Board's regulations do not result in a physical occupation-type taking and, in any event, the claim is barred by the background principle of Oregon law that the State holds all wildlife in trust for the public (March 30, 2001).
  • Machipongo Land & Coal Co., Inc. v. Commonwealth of Pennsylvania
    Amicus brief of 10,000 Friends of Pennsylvania, Citizen's for Pennsylvania's Future, and Pennsylvania Trout, filed in the Pennsylvania Supreme Court, urging the Court to reverse a decision by the Pennsylvania Commonwealth Court holding that a state statute declaring certain areas off limits to coal mining effected a taking (March 5, 2001).
  • Philip Morris, Inc. v. Reilly
    A supplemental amicus brief of Environmental Defense, Calvert Group Ltd., OMB Watch, Working Group on Community Right to Know, and Atlantic States Legal Foundation, filed in the U.S. Court of Appeals for the First Circuit, urging the court, sitting en banc, to reject a takings challenge to the Massachusetts tobacco products ingredient disclosure law (November 29, 2001).
  • Phillip Morris Inc. v. Reilly
    Amicus brief of Environmental Defense, Consumer Federation of America, Clavert Group, Ltd., OMB Watch, Working Group on Community Right to Know, and Atlantic States Legal Foundation, filed in the U.S. Court of Appeals for the First Circut, urging the court to reverse a trial court ruling that the Massachusetts tobacco products ingredient disclosure law effects a taking (February 8, 2001).
  • Palazzolo v. State of Rhode Island
    Amicus brief of Daniel W. Bromley, David E. Ervin, Barry Goodwin, Ray Huffaker, and C. Ford Runge, filed in the U.S. Supreme Court in support of the State of Rhode Island, presenting economic arguments in favor of the rule that a lack of investment expectations generally bars a taking claim as well as the rule that a finding of a taking requires a showing that the regulation eliminates all economically beneficial use. (January 3, 2001).

  • 2000

  • Animas Valley Sand & Gravel, Inc. v. the Board of County Commissioners of the County of La Plata, Colorado
    Amicus brief of various Colorado conservation groups filed in the Colorado Supreme Court, arguing that regulations in a river conservation district restricting sand and gravel operations did not effect a taking (December 1, 2000).
  • Palm Beach Isles Associates v. United States
    Amicus brief of the Florida Audubon Society filed in the U.S. Court of Appeals in the Federal Circuit, in support of the United States’ petition for rehearing and petition for rehearing en banc (May 30, 2000).
  • New Jersey v. East Cape May Associates
    Amicus brief of the New Jersey Conservation Foundation, filed in the Appellate Division of the New Jersey Superior Court, urging reversal of a trial court finding of a taking based on the State's denial of a permit to complete the last phase of a major coastal development (April 12, 2000).
  • Ali vs. City of Los Angeles
    Amicus brief of the League for Coastal Protection, the Natural Resources Defense Council, the Planning & Conservation League, and the Sierra Club, filed in the California Supreme Court, urging the court to grant a petition for review to resolve whether a municipal action in excess of statutory authority can provide the basis for a finding of a taking for "public use" within the meaning of either the federal or state constitutions (March 10, 2000).
  • Adams Outdoor Advertising Inc. v. City of East Lansing
    Amicus brief of Scenic America and Scenic Michigan filed in the Michigan Supreme Court in support of the City of East Lansing, arguing that a billboard amortization law did not result in a taking (January 25, 2000).
  • SDS Lumber Company v. State of Washington
    Amicus brief of the Washington Environmental Council filed in the Washington Supreme Court, urging the Court to reverse a lower court ruling that a restriction on logging to protect the Northern Spotted Owl effected a taking (2000).

  • 1999

  • Wyer v. Board of Environmental Protection
    Amicus brief of the Maine Audubon Society filed in the Maine Supreme Court, arguing that denial of a permit to build in a coastal dune area did not effect a taking (December 22, 1999).
  • State of New York v. Sour Mountain Realty
    Amicus brief of the Putnam Highlands Audubon Society, filed in the Supreme Court of New York, Appellate Division, in support of the State of New York's position that the trial court properly issued an injunction requiring a land owner to remove a fence erected to keep threatened eastern timber rattlesnakes of its property; the brief refutes the argument that preventing interference with wildlife on private property effects a physical-occupation taking, and further argues that a finding of a taking is precluded by background principles of state ownership of wildlife (July 27, 1999).
  • District Intown Properties Limited Partnership v. District of Columbia
    Amicus brief of the National Trust Historic Preservation and the D.C. Preservation League, filed in the U.S. Court of Appeals for the D.C. Circuit, urging the court to affirm a district court decision that a prohibition on development on the grounds of a landmarked hotel complex did not result in a taking (June 17, 1999).
  • Palm Beach Isles Associates v. United States
    Amicus brief of the Florida Audubon Society, filed in the U. S. Court of Appeals for the Federal Circuit, in support of the United States' position that the trial court's rejection of a wetland taking claim should be affirmed, based on the "parcel as a whole" rule, and the federal navigational servitude (May 10, 1999).
  • St. Johns River Water Management District v. Saboff
    Amicus brief of the Audubon Society of Florida, filed in the U.S. Court of Appeals for the Eleventh Circuit, in support of the Water Management District's appeal of a district court finding that a permit condition imposing development restrictions on a portion of the property constituted a taking (February 16, 1999).
  • Adams Outdoor Advertising v. City of East Lansing
    Amicus brief of Scenic Michigan and Scenic America, filed in the Michigan Supreme Court, in support of the City of East Lansing's motion for review of an appeals court decision that the City's enforcement of a billboard ordinance providing a twelve-year amortization period for nonconforming billboards effected a taking (1999).
  • Coast Range Conifers v. State of Oregon
    Amicus brief of the Audobon Society of Portland and Oregon Trout, Inc., filed in Oregon Circuit Court, urging the trial court to reject a takings claim based on the state's logging restrictions designed to protect bald eagles. The case involved a takings challenge to logging restrictions designed to protect bald eagle nesting (1999).
  • Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency
    Amicus brief of the American Planning Association and the League to Preserve Lake Tahoe, filed in the U.S. Court of Appeals for the Ninth Circuit, urging the court to reverse a district court finding that a taking resulted from a temporary development moratorium imposed by the Tahoe Regional Planning Agency (1999).

  • 1998

  • W.J.F. Realty v. Town of Southampton
    Amicus brief of the Environmental Defense Fund and the Group for the South Fork, filed in New York Supreme Court, Appellate Division, in support of town's appeal of trial court finding that a prohibition on development in Pine Barrens resulted in an equal protection violation (October 19, 1998).
  • City of Monterey v. Del Monte Dunes of Monterey Limited
    Amicus brief of the League for Coastal Protection, the Planning and Conservation League, the Center for Marine Conservation, the Chesapeake Bay Foundation, the National Trust for Historic Preservation, the National Wildlife Foundation, and the Sierra Club, filed in the U.S. Supreme Court, in support of the city's challenge to the 9th Circuit's application of the Nolan-Dolan rough proportionality test in affirming a jury finding that development restrictions were unreasonable and therefore resulted in a regulatory taking (June 4, 1998).
  • Lambert v. City and County of San Francisco
    Amicus brief of Western Center on Law and Poverty, Inc., Council of Community Housing Organizations, and the Southern California Association of Non-Profit Housing, filed in the California Supreme Court, in support of the city's opposition to appeal from a finding that general legislation requiring payment of fees to support low-income moving did not result in a taking (May 1, 1998)
  • Eastern Enterprises v. Apfel
    Amicus brief of the California League of Cities and Counties, filed in the U.S. Supreme Court, in support of the Commissioner of Social Security's opposition to the challenge of a ruling that retroactive application of an act requiring coal mining operators to pay health benefits did not result in a taking (January 20, 1998).
  • Good v. United States
    Amicus brief of the Florida Audubon Society, filed in the U.S. Court of Appeals for the Federal Circuit, in support of the United States' response to an appeal of a finding that the owner did not suffer a Lucas-type taking where the property still had positive market value and where plaintiff received valuable transferrable development rights (January 20, 1998).
  • Boise Cascade Corporation v. Board of Forestry
    Amicus brief of the Audubon Society of Portland, filed in the Oregon Court of Appeals in support of the State of Oregon's appeal of trial court finding that the State Board of Forestry endangered species regulations protecting spotted owl nesting sites resulted in a taking (1998).
  • Seiber v. State of Oregon
    Amicus brief of the Audubon Society of Portland, Oregon Trout, the Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources, filed in the Oregon Circuit Court in support of the State of Oregon's opposition to plaintiff's regulatory takings challenge to State Board of Forestry endangered species regulations requiring protection of spotted owl nesting sites (1998).

  • Useful Non-GELPI Briefs


  • American Pelagic Fishing Co. v. United States
    An amicus brief filed in the U.S. Court of Appeals for the Federal Circuit by Jeff Pidot of the Maine Attorney General's Office on behalf of the States of Maine, Alabama, Alaska, California, Florida, Georgia, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island and Washington, arguing for reversal of a trial court ruling that a Congressional ban on factory fishing ships in the Gulf of Maine effected a taking (August 2003).
  • Cayetano v. Chevron
    A petition for certiorari by Professor J. Peter Byrne on behalf of the State of Hawaii, urging the U.S. Supreme Court to grant review to consider the validity of the substantially advances takings test (October 2000).
  • Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck
    Amicus brief of the Natural Resources Defense Council, Scenic Hudson, Inc. and the Scenic Hudson Land Trust, prepared by Fred Schwartz of Cravath, Swaine, & Moore, filed in the New York State Court of Appeals, urging the court to reject a takings challenge to a zoning ordinance barring development of a golf course (September 1, 1999).
  • Briefs in Casitas Municipal Water District

  • U.S. Motion for Partial Summary Judgment
  • Casitas Opposition to Partial Summary Judgment
  • U.S. Reply in Support of Partial Summary Judgment
  • Association of California Water Agencies
  • Cattlemen Association
  • Pacific Legal Foundation
  • Stockton East
  • Tulare Lake Basin
  • State Water Resources Control Board
  • Natural Resources Defense Council

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