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    Supreme Court Orders Department of Justice to Respond to Petition for Certiorari in Takings Case after Arent Fox Files Amicus Brief

    July 27, 2015

    Washington, DC — The United States Supreme Court has ordered the Justice Department to respond to a landowner’s petition for certiorari in Ministerio Roca Solida v. United States after Arent Fox filed an amicus brief in the case. The petition asks the Court to clarify that a previous high-court ruling does not enable the government to deny landowners of the “just compensation” guaranteed by the Fifth Amendment when the government takes their property based on a Civil War-era jurisdictional statute, which one constitutional scholar labeled a “jurisdictional ambush.”
     
    “The government asked the courts to dismiss Ministerio Roca Solida’s takings claim and deny them ‘just compensation’ based on a Civil War-era jurisdictional statute,” said Arent Fox partner Thor Hearne. “The church has petitioned the Supreme Court to clarify its ruling in United States v. Tohono O’odham Nation, arguing that the case’s application here violates its Fifth Amendment rights.” Arent Fox filed the brief on behalf of the Cato Institute, a nonpartisan public policy research foundation, and the National Association of Reversionary Property Owners. A link to the brief can be found here.
     
    Ministerio Roca Solida is a Nevada church that owns a 40-acre parcel of land for religious purposes. The land is entirely surrounded by a federally managed wildlife refuge and in 2010 the government re-routed a stream used for baptisms to a higher elevation entirely outside of Roca Solida’s property. Later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit seeking various kinds of relief for constitutional violations and the taking of its stream.
     
    Because of laws passed by Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the US Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in United States v. Tohono O’Odham Nation, holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the Court of Federal Claims while any other claims with “substantial overlap in operative facts” are pending in district court.
     
    Relying on Tohono, the US Court of Federal Claims dismissed Roca Solida’s takings claim. The US Court of Appeals for the Federal Circuit affirmed, though in concurrence Judge Richard G. Taranto noted that Tohono’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.”
     
    “In order for Roca Solida to receive complete relief for the multiple wrongs it suffered, the Court should revisit US v. Tohono and at least restrict § 1500’s ambit to exclude constitutional claims,” said Mr. Hearne. “No plaintiff should be forced by the three branches of government to ‘forgo one constitutional right to vindicate another.’”
     
    Arent Fox is currently representing more than a thousand landowners in eminent domain cases against the federal government. Mr. Hearne has earned a national reputation for his work in complex federal and state litigation and appeals — especially in cases involving constitutional law and property rights. In 2014, Mr. Hearne was recognized by The National Law Journal for his ‘Trailblazing’ work in federal takings law and has written and lectured on Fifth Amendment takings at the Brigham-Kanner Annual Property Rights Conference, and served on the faculty of the American Law Institute for its annual conferences on eminent domain.