Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife

John D. Echeverria and Michael C. Blumm

In Horne v. Department of Agriculture (“Horne II”), the Supreme Court relieved Marvin and Laura Horne of financial penalties for violating the rules governing the Department of Agriculture’s raisin marketing program, reasoning that enforcement of the rules would have resulted in a “taking” of their raisins under the Fifth Amendment. Widely viewed as a strange, slightly comedic legal controversy, the Horne case is likely to have ramifications extending far beyond the world of raisins. In particular, the case raises important questions about how the Takings Clause applies, in general, to personal property—from patents to cigarettes to drugs to firearms. In our view, the Court majority badly mishandled the case given the record before the Court, applicable precedent, and established takings principles. However, as we explain below, the Court’s analysis is so confused and confusing that it remains to be seen how much change or damage to established takings doctrine will flow from the Horne II decision.

At the same time, the Court’s decision contains a remarkable silver lining from the point of view of government regulators responsible for enforcing wildlife regulations: a ringing affirmation of the venerable but sometimes misunderstood doctrine of sovereign ownership of wildlife. The biggest surprise coming out of this apparently pro-property rights decision is that regulators now have a powerful defense against allegations that the federal Endangered Species Act (“ESA”) and other similar federal or state laws result in compensable takings.