The Supreme Court has agreed to hear a case brought by a Florida landowner who, in exchange for issuance of a dredge and fill permit on land he owned in a habitat protection zone, was required to perform mitigation on government land. The government’s land was miles away from the landowner’s and the mitigation requirement bore no connection to the landowner’s project’s impacts on the habitat protection zone in which landowner’s property was located. The Florida Supreme Court, in reversing the holdings of the lower courts in the inverse condemnation case filed by the landowner, held that the mitigation requirement was not a taking because the U. S. Supreme Court’s holdings in prior cases that addressed eminent domain issues in the context of government exactions, Nollan v. California Coastal Commission and Dolan v. Tigard, apply only to forced dedications by a landowner of property or interests in property, and the cases do not apply where the government denies a permit, but only when a government issues a permit with conditions attached to it.

The Supreme Court’s holding in St. Johns River Water Management District v. Koontz should clarify the extent to which limitations imposed by the Constitution’s taking clause, as set forth in prior Supreme Court cases, apply to landowners upon whom governments are imposing coercive property exactions.

Admonishing Congress for the well recognized and continuing obtuseness of the Clean Water Act, the Supreme Court came down firmly on the side of the Fifth Amendment’s due process guarantees for ordinary citizens and unanimously rejected the federal government’s assertion that the property rights of ordinary Americans can be placed entirely at the mercy of a regulatory agency. In Sackett v. Environmental Protection Agency, the owners of a residential lot in Idaho filed suit challenging an EPA order issued under the Clean Water Act finding that their land was subject to the Act and that they had violated the Act. Unchallenged, the EPA order would have resulted in fines of $75,000 per day. The landowners sued, asserting that the EPA’s order violated the Fifth Amendment because it deprived them of “life, liberty, or property without due process of law.” The Court found that the only adequate remedy the landowners had to contest the EPA’s order was judicial review, and that the Clean Water Act and EPA cannot preclude that review. The Court stated that the act providing for judicial review of regulatory actions rejects efficiency of regulation as a principle that overrides other rights. The Court admonished: “[T]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review – even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”