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Property Rights Advocates Can’t Handle the Truth: Chief Justice Roberts, Takings Litigation, and Koontz

January 14, 2013

In his one big foray into takings litigation while in private practice, Chief Justice John Roberts expressed disdain for the stylized account of the facts and law offered by property rights advocates.  Indeed, the Chief Justice began his brief in that case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), with the following zinger: “Because petitioners and their amici take such liberties with it, we begin by quoting the Question Presented . . . .”  The Chief Justice then went on to eviscerate the other side’s characterization of both the facts and the law in that case, en route to a significant victory in the Supreme Court over the property rights movement.

If the Chief Justice applies the same critical eye to the briefs of Petitioner and his amici in Koontz v. St. Johns River Water Management District, an important takings case to be argued before the Supreme Court tomorrow, he will see a similar dynamic at play.  Property rights advocates are once again distorting both the facts and the law to support a ruling that would undercut efforts to protect the environment.  With that in mind, here are just a few of the ways in which Petitioner, to quote Chief Justice Roberts in his Tahoe-Sierra brief, “take[s] . . . liberties” with both the facts and law in Koontz

 

Distortion #1:  Mr. Koontz accused the Water Management District of carrying out a “plan of extortion,” requiring him to give up “his land and his money.”  The truth is that, from the beginning of its negotiations with Mr. Koontz, the District bent over backwards to find a way to allow his project to go forward – with Mr. Koontz cutting off negotiations before the parties could settle upon a single, concrete mitigation plan.  Far from carrying out a “plan of extortion,” the District’s discretion was guided and constrained throughout by state law – guidelines and constraints rooted in scientific best practices and intended to respond to decades of unchecked wetlands destruction.  In the end, under state law, it was always Mr. Koontz’s burden, not the District’s, to come up with mitigation options that offset any damage to protected wetlands caused by his proposed development.

 

Distortion #2:  Mr. Koontz claims that the District threatened to “hold his property hostage” unless he “agreed to finance improvements to the District’s lands.”  The truth is that the District never issued any such threat.  Rather, the District provided Mr. Koontz with a long (and open-ended) list of options for both satisfying state guidelines and allowing his project to go forward, some of which included measures that could have been carried out entirely on-site.  For instance, he could have reduced the size of his development project or performed on-site remediation to improve the functioning of his own wetlands.  Furthermore, the District was open to other proposals brought to the table by Mr. Koontz himself.

Even the condition explicitly challenged by Mr. Koontz, requiring him to carry out off-site improvements, was not nearly as onerous (or nefarious) as Mr. Koontz claims.  For instance, at trial, Mr. Koontz’s own engineer described this proposal as “excellent,” and Mr. Koontz himself understood that the related costs of the off-site improvement “would be minimal.”  Furthermore, even if Mr. Koontz had agreed to carry out such improvements, the District didn’t require him to do so on District lands.  Instead, he was free to improve other wetlands within the same river basin – whether on District-owned property or not.

In the end, the District didn’t “require” Mr. Koontz to perform off-site mitigation, as Mr. Koontz alleges.  The only requirement was that Mr. Koontz perform enough mitigation – whether on-site or off-site – to offset the environmental harms associated with his development proposal and, therefore, comply with state guidelines.

 

Distortion #3:  Mr. Koontz alleged that the District “demanded” that he “give up 75% of his land.”  The District “demanded” no such thing.  The truth is that Mr. Koontz himself agreed to this condition and offered it as mitigation for the environmental harms associated with his development proposal.  In addition, the condition itself didn’t require him to “give up . . . his land.”  Instead, it required him to place his undeveloped land – which consisted mostly of wetlands already protected by state law – into a conservation easement.  Under this arrangement, Mr. Koontz would still both own and control the land – just as he did before. 

 

Distortion #4:  Mr. Koontz asserts that he thought that his proposal to place his remaining wetlands into a conservation easement would be “more than enough” to satisfy his obligations under Florida law.  However, Mr. Koontz’s proposal – which included only a conservation easement – would have resulted in a net loss of wetlands within the river basin, as he was seeking to destroy 3.4 acres of protected wetlands in exchange for agreeing not to develop 11 additional acres of already-protected wetlands – a net loss of 3.4 acres.  Furthermore, Mr. Koontz’s proposal would have yielded a 3:1 ratio of preserved-to-destroyed wetlands, well below the minimal 10:1 ratio suggested by state guidelines.  In the end, proposals for conservation easements are a much less desirable form of mitigation, from the State’s perspective, than other mitigation options, such as wetlands creation, restoration, or enhancement, which actually add to the acres of viable, protected wetlands in the State.

 

Distortion #5:  Mr. Koontz argues that if the Supreme Court rejects his legal arguments, the District (and similarly situated government agencies) will have “unbridled power to confiscate property in the permit process” and, as a result, “the potential for government abuse . . . would be limitless.”  The truth is that, even if the Court rejects Mr. Koontz’s legal arguments (as it should), Mr. Koontz – and other similarly situated landowners – would still have several other potential claims available under the Takings Clause, the Fourteenth Amendment, and state law.  The problem for Mr. Koontz is that the factual record in Koontz does not support relief under any of these theories.

We could go on, but we’ve already done so in our brief and this list ought to be enough to suggest to the interested reader (hopefully including the Chief Justice) that there’s more going on in Koontz than Petitioner and his amici are letting on.

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