throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2014
`
`
`Syllabus
`
`1
`
` NOTE: Where 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 Sec-
`retary of Agriculture to promulgate “marketing orders” to help main-
`tain stable markets for particular agricultural products. The market-
`ing 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 Gov-
`
`ernment, free of charge. The Government makes use of those raisins
`by selling them in noncompetitive markets, donating them, or dispos-
`ing of them by any means consistent with the purposes of the pro-
`gram. If any profits are left over after subtracting the Government’s
`expenses from administering the program, the net proceeds are dis-
`
`
`tributed 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 taking of their property for pub-
`lic use without just compensation. The Government fined the Hornes
`
`the fair market value of the raisins as well as additional civil penal-
`
`ties 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-
`
`
`tion under the Takings Clause than real property and because the
`
`
`
`
`
`
`
`
`
`

`
`
`HORNE v. DEPARTMENT OF AGRICULTURE
`
`
`Syllabus
`Hornes, who retained an interest in any net proceeds, were not com-
`
`pletely divested of their property. The Ninth Circuit held that, as in
`
`cases allowing the government to set conditions on land use and de-
`velopment, the Government imposed a condition (the reserve re-
`quirement) in exchange for a Government benefit (an orderly raisin
`market). It held that the Hornes could avoid relinquishing large per-
`centages of their crop by “planting different crops.” 730 F. 3d 1128,
`1143.
`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 mean the raisins have not
`
`been appropriated for Government use. Nor can the Government
`make raisin growers relinquish their property without just compen-
`sation 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 codi-
`
`fied 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 worth-
`
`less.” 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 acquisi-
`
`tion 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 Government. 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 Govern-
`ment’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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`
`

`
`
`
`
`
`
`Cite as: 576 U. S. ____ (2015)
`
`
`Syllabus
`
`raisin sales does not mean that there has been no taking at all.
`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.
`The fact that the growers retain a contingent interest of indetermi-
`nate value does not mean there has been no taking, particularly
`
`
`
`when that interest depends on the discretion of the taker, and may be
`
`
`worthless, as it was for one of the two years at issue here. Andrus v.
`
`Allard, 444 U. S. 51, distinguished. 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. Pp. 9–12.
`
`
`
`(c) The taking in this case also cannot be characterized as part of a
`
`voluntary exchange for a valuable government benefit. In one 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 abil-
`ity to sell produce in interstate commerce, although certainly subject
`to reasonable government regulation, is not a “benefit” that the Gov-
`ernment may withhold unless growers waive constitutional protec-
`tions. 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 Gov-
`ernment 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 calcu-
`lated 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. SO-
`TOMAYOR, J., filed a dissenting opinion.
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`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 main­
`taining an orderly market. The question is whether the
`Takings Clause of the Fifth Amendment bars the Gov­
`ernment 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 percent­
`age of their crop to the Government, free of charge. The
`required allocation is determined by the Raisin Adminis­
`trative Committee, a Government entity composed largely
`
`
`
`
`
`

`
`
`
`2
`
`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`of growers and others in the raisin business appointed by
`the Secretary of Agriculture. In 2002–2003, this Commit­
`tee ordered raisin growers to turn over 47 percent of their
`crop. In 2003–2004, 30 percent.
`
`Growers generally ship their raisins to a raisin “han­
`
`dler,” who physically separates the raisins due the Gov­
`ernment (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; do­
`nates 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. 7 CFR §989.67(b)(5) (2015). Proceeds
`from Committee sales are principally used to subsidize
`handlers who sell raisins for export (not including the
`Hornes, who are not raisin exporters). Raisin growers
`retain an interest in any net proceeds from sales the Rai­
`sin Committee makes, after deductions for the export
`subsidies and the Committee’s administrative expenses.
`
`In the years at issue in this case, those proceeds were less
`than the cost of producing the crop one year, and nothing
`at all the next.
`
`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 pro­
`duced 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 Gov­
`ernment, 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
`
`App. 31; cf. post, at 11
`Hornes refused entry.
`
`
`

`
`3
`
`
`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`(SOTOMAYOR, J., dissenting). The Government then as­
`sessed against the Hornes a fine equal to the market value
`
`of the missing raisins—some $480,000—as well as an
`additional civil penalty of just over $200,000 for disobey­
`ing the order to turn them over.
`
`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 prop­
`erty 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. De-
`partment 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 constitu­
`tionality of the reserve requirement. 750 F. 3d 1128, 1137
`(2014). The court then considered whether that require­
`ment 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 require­
`ment 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 com­
`pletely 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
`
`
`
`
`
`
`
`
`
`

`
`4
`
`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`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 govern­
`
`ment’s ‘categorical duty’ under the Fifth Amendment to
`pay 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), ap­
`
`
`plies 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 prop­
`erty 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 omit­
`ted). 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).
`
`
`
`

`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`Nothing in the text or history of the Takings Clause, or
`
`our precedents, suggests that the rule is any different
`when it comes to appropriation of personal property. The
`Government has a categorical duty to pay just compensa­
`tion when it takes your car, just as when it takes your
`home.
`
`The Takings Clause provides: “[N]or shall private prop­
`
`erty be taken for public use, without just compensation.”
`U. S. Const., Amdt. 5. It protects “private property” with­
`out any distinction between different types. The principle
`reflected in the Clause goes back at least 800 years to
`
`Magna Carta, which specifically protected agricultural
`crops from uncompensated takings. Clause 28 of that
`
`charter forbade any “constable or other bailiff” from taking
`
`
`“corn or other provisions from any one without immedi­
`ately tendering money therefor, unless he can have post­
`ponement thereof by permission of the seller.” Cl. 28
`
`(1215), in W. McKechnie, Magna Carta, A Commentary on
`the Great Charter of King John 329 (2d ed. 1914).
`
`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
`
`
`
`
`
`
`
`5
`
`
`
`
`
`
`
`

`
`6
`
`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`prices such and the like articles sold for on the ninth day
`of October last.” 1779 S. C. Acts §4.
`
`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, complained to the New
`York Legislature about military impressment by the Con­
`tinental Army of “Horses, Teems, and Carriages,” and
`
`voiced his fear that such action by the “little Officers” of
`the Quartermasters Department might extend to “Blan­
`
`kets, Shoes, and many other articles.” A Hint to the Legis­
`lature 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,” pass­
`ing a law that, among other things, provided for compen­
`sation 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 Tak­
`ings 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,
`
`1 Blackstone’s
`without any compensation whatever.”
`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, with­
`out just compensation, any more than it can appropri­
`
`ate or use without compensation land which has been
`patented to a private purchaser.”
`
`

`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`Prior to this Court’s decision in Pennsylvania Coal Co. v.
`
`Mahon, 260 U. S. 393 (1922), the Takings Clause was
`understood to provide protection only against a direct
`appropriation of property—personal or real. Pennsylvania
`Coal expanded the protection of the Takings Clause, hold­
`ing that compensation was also required for a “regulatory
`taking”—a restriction on the use of property that went
`“too far.” Id., at 415. And in Penn Central Transp. Co. v.
`
`
`New York City, 438 U. S. 104, 124 (1978), the Court clari­
`
`fied that the test for how far was “too far” required an
`“ad hoc” factual inquiry. That inquiry required consider­
`ing factors such as the economic impact of the regulation,
`its interference with reasonable investment-backed expec­
`tations, and the character of the government action.
`
` Four years after Penn Central, however, the Court
`
`reaffirmed the rule that a physical appropriation of prop­
`
`erty 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 eco­
`nomic 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 quota­
`tion 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 shore-
`front property. 750 F. 3d, at 1139–1141. Lucas recognized
`
`
`
`
`
`
`
`7
`
`
`
`
`
`

`
`
`
`
`
`
`
`8
`
`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`that while an owner of personal property “ought to be
`aware of the possibility that new regulation might even
`render his property economically worthless,” such an
`“implied limitation” was not reasonable in the case of land.
`505 U. S., at 1027–1028.
`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 acqui­
`sitions of property and regulations. Tahoe-Sierra Preser-
`vation 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 alike.
`
`
`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 Com­
`
`mittee is a clear physical taking. Actual raisins are trans­
`ferred 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.
`7 CFR §989.66(b)(2). Reserve raisins are sometimes left
`on the premises of handlers, but they are held “for the
`account” of the Government. §989.66(a). The Committee
`
`disposes of what become its raisins as it wishes, to pro­
`mote the purposes of the raisin marketing order.
`Raisin growers subject to the reserve requirement thus
`
`lose the entire “bundle” of property rights in the appropri­
`ated raisins—“the rights to possess, use and dispose of”
`
`
`
`
`
`

`
`9
`
`
`
`
`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`them, Loretto, 458 U. S., at 435 (internal quotation marks
`omitted)—with the exception of the speculative hope that
`some residual proceeds may be left when the Government
`is done with the raisins and has deducted the expenses of
`implementing all aspects of the marketing order. The
`Government’s “actual taking of possession and control” of
`
`the reserve raisins gives rise to a taking as clearly “as if
`the Government held full title and ownership,” id., at 431
`(internal quotation marks omitted), as it essentially does.
`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 fac­
`tors that a court might ordinarily examine.” Id., at 432.
`The Government thinks it “strange” and the dissent
`
`“baffling” that the Hornes object to the reserve require­
`ment, when they nonetheless concede that “the govern­
`ment 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 juris­
`prudence between appropriation and regulation. A physi­
`cal 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. Mary-
`
`
`land, 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
`
`
`
`

`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`ernment may avoid the categorical duty to pay just com­
`pensation for a physical taking of property by reserving to
`the property owner a contingent interest in a portion of
`the value of the property, set at the government’s discre­
`tion.” The answer is no.
`
`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 mar­
`keting 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. 7 CFR §§989.67(d), 989.82,
`989.53(a), 989.66(h). The Government contends that
`because growers are entitled to these net proceeds, they
`retain the most important property interest in the reserve
`raisins, so there is no taking in the first place. The dissent
`agrees, arguing that this possible future revenue means
`there has been no taking under Loretto. See post, at 2–6.
`
`But when there has been a physical appropriation, “we
`do not ask . . . whether it deprives the owner of all econom­
`
`ically 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, regard­
`
`
`less 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 worth­
`less, as it was for one of the two years at issue here.
`
`
`
`
`
`
`
`
`
`
`
`10
`
`
`

`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
` The dissent points to Andrus v. Allard, 444 U. S. 51
`
`
`(1979), noting that the Court found no taking in that case,
`even though the owners’ artifacts could not be sold at all.
`
`Post, at 6. The dissent suggests that the Hornes should be
`
`happy, because they might at least get something from
`
`what had been their raisins. But Allard is a very different
`case. As the dissent recognizes, the owners in that case
`
`retained the rights to possess, donate, and devise their
`property. In finding no taking, the Court emphasized that
`the Government did not “compel the surrender of the
`artifacts, and there [was] no physical invasion or restraint
`upon them.” 444 U. S., at 65–66. Here of course the raisin
`
`
`program requires physical surrender of the raisins and
`transfer of title, and the growers lose any right to control
`their disposition.
`
`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 shop­
`ping center did not take the owner’s property. The owner
`retained the value of the use of the property 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 Govern­
`ment in connection with that action goes, at most, to the
`question of just compensation. See Suitum v. Tahoe Re-
`gional Planning Agency, 520 U. S. 725, 747–748 (1997)
`(SCALIA, J., concurring in part and concurring in judg­
`ment). 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
`
`
`
`
`
`
`
`
`
` 11
`
`

`
`12
`
`
`
`
` HORNE v. DEPARTMENT OF AGRICULTURE
`
`Opinion of the Court
`reserve raisins in those years (and, in any event, there
`were no net proceeds in one of them).
`C
`The third question presented asks “Whether a govern­
`
`mental mandate to relinquish specific, identifiable prop-
`erty 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 Gov­
`ernment, 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 comfort­
`ing 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 re­
`quire 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 requisi­
`tion a certain number of apartments as permanent
`government offices.” Ibid.
`
`
`
`
`
`

`
`
`
`
`
` 13
`
`
`
` Cite as: 576 U. S. ____ (2015)

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.