MOUNT FUNGUSMORE--SHRINE OF DEGUSTATION?

Everyone knows that, after a good rain, mushrooms tend to pop up in yards. Thus, it should have been no surprise to me that today I stumbled upon the mountain of fungus pictured above.

At first, I thought it may be an alien being from outer space. Then, more realistically, I speculated that it was the heave of an owl that over-ate some squirrels. Close inspection, however, disclosed that it was a colony of fungus some two feet wide and a foot tall.

Being of Czech descent, mushrooms course through my blood. Called "houby", they are the fruit of the gods. The problem, however, is which gods, as some mushrooms can be quite deadly.

Unfortunately, all mushrooms look alike to me, so I buy them in a grocery store. However, my late aunt was a classic mushroom hunter/gatherer, with acute fungus radar. She had secret woodland hunting grounds and frequently was chased away by agitated farmers or their bulls. Her son did not fall from the toadstool, as he was in the same mold. His mushroom hunting, however, was in the lawns of unsuspecting homeowners.

I do not know whether my Mount Fungusmore is edible or not, but I have considered trying to save it for a parade float at the next annual Houby Festival held in a local town. Surely, it will be a high point.

One problem, however, is that mushrooms do not seem to have a long shelf life. In a 1946 decision of the U.S. Court of Appeals, the United States sued three 25 bags and two boxes of dried mushrooms, alleging that they were adulterated.* While the fungus could not speak for themselves, a claimant did and disputed that the mushrooms were adulterated. After a trial, the District Court ruled that the mushrooms were adulterated within the meaning of the federal Food, Drug and Cosmetic Act and that the mushrooms "be condemned, forfeited, and destroyed."

The claimant appealed. But wait, "in the meantime, no stay of the court's order or decree having been entered, the Marshall destroyed the mushrooms." How they were destroyed was not mentioned.

The Court of Appeals dismissed the appeal. "The continued existence of the mushrooms is essential to our right to proceed against the things themselves....The decree of the District Court goes against the mushrooms. The decree having been entered and executed, the proceeding is functus officio."

If one picks some mushrooms in the wild, and becomes ill from eating them, the only potential defendant likely is oneself. So, I have no intention to even touch Mount Fungusmore. I have decided to let nature take its course to condemn, forfeit and destroy: fungus functus officio.
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*United States v. 3 Unlabeled 25-pound bags
Dried Mushrooms,157 F.2d 722 (7th Cir.1946)

FREE FOR THE TAKING

Shortly before the U.S. Supreme Court set aside EPA's mercury emission rules, the Court also set aside the federal government's raison crop regulatory program.*

Under the Agricultural Marketing Agreement Act of 1937, the government established the Raison Administrative Committee. Each year, the Committee required raison producers to give to the government, free of charge, a percentage of their crop. According to the Court's opinion, in 2002-2003, for example, the percentage of free taking was 47%. If a producer refused to give the government its raison, the producer would be fined the fair market value of the raisons, plus civil penalties.

In the case before the Court, certain raison producers fined by the government for refusal to give raison away sued, asserting that the requirement to give raisons to the government was an unconstitutional taking of their property contrary to the Fifth Amendment requirement of payment of just compensation for any taking.

The Supreme Court held that the government cannot take raisons without paying just compensation, measured as the market value of the raisons taken. The Court also said that there is no distinction between a taking of personal property and a taking of real property. A physical taking of either is a per se action that requires payment of just compensation.

The Court did make a distinction between a per se physical taking of property and a so-called regulatory taking, such as a use restriction on property. An example of a use restriction could be imposition of a condition on issuance of a land use permit. In the case of a regulatory taking, the Court said, just compensation was required only if the regulation went "too far." Going "too far" would require an ad hoc factual inquiry , according to the Court, "considering factors such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action."

What may be evolving now could be judicial restraints on administrative agency regulatory actions perceived to cross the line into unfairness. In the case of the mercury emission rules, discussed in my prior posting, the Court stated that EPA rulemaking required consideration of costs and benefits. In the raison decision, the Court stated that regulation may require just compensation if is a physical taking or a regulatory taking that goes "too far."

These Court decisions may provide precedent beyond certain air emission rules or raisons. For example, they may be relevant to regulation of water and wastewater utility services and to regulations on the use of water resources.
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*Horne v. Department of Agriculture, 576 U.S.___(2015)