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The Compleat Wetlander: Koontz v. St. Johns River Water Management District: A visit to the Supreme Court

It is truly remarkable that it is possible for any citizen of the United States to visit the Supreme Court to hear oral arguments.  It does require careful planning, warm clothes, an umbrella and the ability to get up very early.  And after last week, I think that a visit to hear oral arguments belongs on the bucket list of anyone who follows the activities of the judicial branch.  It is outstanding!

On January 15, 2013, the U.S. Supreme Court scheduled oral arguments for Koontz v. St. Johns River Water Management District and I decided to attend.  This is a takings case involving wetlands mitigation.  The two questions before the court were these:

1)     Whether the government can be held liable for taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1997), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2)    Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The room where oral arguments are heard has limited seating.  There are 60+ seats for everyday citizens with additional seating for members of the Supreme Court Bar, law clerks, special guests and the news media.  For the general public it is necessary to get in line to get a seat. If a person gets in line too late, they do not get in.  It is often difficult to determine the amount of interest an individual case might attract and therefore how early to arrive.  I elected for 6:00 a.m. and was the third person in line, where I stood shivering under an umbrella in the dark with other individuals who elected to arrive early enough to guarantee a spot.

The progression to the hearing room is an interesting ritual.  First one gets in line under a small tree at the edge of the Supreme Court plaza.  Later we were moved to a lower entrance to the Supreme Court where we were assigned numbers.  By 7:30 the first 10-20 people in line entered and went through security and we had a little time to get a cup of coffee and something to eat before we got in line again.  There were lots of opportunity to meet other people and find out why they were there. The guards kept trying to shush us, but with little success.

Around 9:00 we went upstairs to deposit ALL our belongings except pen and paper in a cloakroom and then we got in another line, went through the metal detector again and were seated, reseated and seated again to squeeze in as many people as possible into the room where oral arguments are heard. Security staff paced the room watching us like hawks.   Their role was twofold: to provide security and to ensure the audience maintained proper decorum.  If someone tried to remove a suit jacket, they were instructed to take it to the cloakroom.  The guards and security staff were kind, helpful and firm about the rules.

The oral arguments are just that: arguments.  The Supreme Court Justices pepper the attorneys arguing their respective sides of the case with questions. They ask for clarification on certain points and probe for weaknesses.  It is lively, sometimes humorous, and illuminating.

Arguments are scheduled to last exactly one hour.  Afterwards the audience is hustled out of the room to gather their belongings from the cloakroom and move back downstairs.

Over the years I’ve heard many summaries of oral arguments and my observation is that they are not reliable indicators of what the Justices final position will be on a case.  But they do provide an extraordinary insight into issues the Supreme Court Justices believe are important and an opportunity to listen to some of the best legal minds in the country.

Below are links to information on how to attend the oral arguments, as well as more information about this case.

Koontz v. St. Johns River Water Management District: Supreme Court website:

Transcript of Oral Argument January 15, 2013

Supreme Court hears oral arguments in Florida property rights case

Koontz gets hearing at the Supreme Court – Pacific Legal Foundation

Koontz v. St. John’s River Water Management District – Post-Argument SCOTUScast
SCOTUScast 1-18-13 featuring Richard Epstein

St. Johns River water Management District Facts

A visitor guide to oral arguments

Practical Tips for Attending Oral Arguments at the U.S. Supreme Court

Yelp: Supreme Court of the United States – 4.5 stars (38 reviews)

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One Response to The Compleat Wetlander: Koontz v. St. Johns River Water Management District: A visit to the Supreme Court

  1. John Ryskamp says:

    I wrote The Eminent Domain Revolt in 2006, about the Kelo case, so I have been following property rights law for a number of years. Regardless of what you think of the scrutiny regime and its levels of scrutiny (that is, whether the whole thing makes any sense or not), it IS the law, and you may as well recognize when the Court has made a change in it which will benefit your clients. Koontz is a BIG change.

    Koontz raises the level of scrutiny for property in the context of permitting, and the raising of the level of scrutiny for property in ANY context is a very big deal. Prior to Koontz, property enjoyed only minimum scrutiny, as you know. But here, even Kagan grants that Koontz has raised the level of scrutiny for property, at least in the context of permitting. However, as she also points out in her dissent, that’s just the beginning of it. Note that the Court found that the “command” was not a tax. If you consider the specificity of the purpose of a tax from dedicated to general, you will find that the purpose of the District’s “command” pretty close to general welfare. Down the line, this will permit a challenge to the federal income tax. It will allow a litigant to use discovery to find out what in FACT is the purpose of Federal taxation, income and otherwise. People will be surprised to find out that Federal taxation, including income taxation, is dedicated taxation (on the restoring-a-specific-wetland end of the continuum). Many property rights advocates have ALWAYS maintained that regardless of the vague terms in which the Federal government states the purpose of a tax, it is, in FACT, a dedicated tax. As you know, Congress can tax and spend, but not legislate, for the general welfare. If Federal taxation is considered more dedicated than the District’s purpose in Koontz, it will likely be thrown out (and check out the vagueness of the purpose in Koontz, below!!). General welfare is usually not considered litigable, but Koontz is laying the groundwork for a challenge and discovery of what in FACT is the policy behind general welfare taxation.

    To show you how this might go, here is an application of Koontz to the Federal income tax:

    The essence of Koontz v. St. Johns River Water Management District (No. 11-1447, June 25, 2013) is as follows:

    “when the government commands the relinquishment of funds linked to a specific, identifiable property interest such as a bank account or parcel of real property, a ‘per se [takings] approach’ is the proper mode of analysis under the Court’s precedent. Brown v. Legal Foundation of Wash. , 538 U. S. 216, 235 (2003).” Koontz at 17.

    The Court does not limit the ruling to land use, or even to permitting, simply stating that the case is when the government “commands the relinquishment of funds linked to a specific, identifiable property interest.” The Court, at 17, note 2, explicitly states that this test applies outside the permitting process and is generally applicable with respect to property: “The unconstitutional conditions analysis requires us to set aside petitioner’s permit application, not his owner­ship of a particular parcel of real property.” Emphasis in original.

    The dissent says, of the legal effect of the Court’s holding, that it subjects “the government’s demand to heightened scrutiny:

    The government may condition a land-use permit on the relin­quishment of real property only if it shows a “nexus” and “rough proportionality” between the demand made and “the impact of the proposed development.” Dissent at 4.

    Since the holding is with respect to property, where the government “commands the relinquishment of funds linked to a specific, identifiable property interest,” a level of scrutiny above minimum scrutiny, applies. This raises the level of scrutiny for property. Under Koontz, the command of current individual income “tax” rates are not taxation, they are an unconstitutional condition. Specifically, where the government commands a relinquishment of funds linked explicitly to income, the burden falls on it to show a nexus. The threshold showing is that the command is taxation. As the Supreme Court points out:

    “When the District asks permit applicants to fund offsite mitigation work, its policy is never to require any particular offsite project, and it did not do so here. In­stead, the District said that it “would also favorably con­sider” alternatives to its suggested offsite mitigation projects if petitioner proposed something “equivalent.” Koontz at 4.

    The Court did not consider that to be taxation and therefore pass the threshold—it considered that to be an impermissible evasion. As the Court states:

    The fulcrum this case turns on is the direct link between the government’s demand and a [specific, identifiable property interest]….Because of that direct link, [there is a] that the government may use its substantial power and discretion…to pursue governmental ends that lack an essential nexus and rough proportionality….Koontz at 16-17.

    The individual income “tax” rates are a command of the relinquishment of funds linked explicitly to income, which is a specific, identifiable property interest. They are imposed under the policy that specific, identifiable property interests enjoy only minimum scrutiny. That violates the Koontz standard that commands of the relinquishment of income have met heightened scrutiny. Therefore, individual income “tax” rates violate Fifth Amendment Due Process. The individual income taxation rates are an unconstitutional condition.

    John Ryskamp

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