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
`
`
`
`
`
`
`
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`
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`
`
`
`
`2
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`
`

`
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`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
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`

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`
` 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
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`
`
`

`
`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)

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