Below is the abstract for “U.S. Supreme Court Decisions, Both Decided May 25, 2023, Protect Private Property Owners from Overreach by Local (Tax Sale) and Federal (Wetlands) Regulators: Tyler v. Hennepin County and Sackett v. EPA,” available for download on SSRN.

This Special Alert for Powell on Real Property® explores two U.S. Supreme Court rulings, both issued on May 25, 2023, that expand the constitutional protections afforded private property owners in two regulatory contexts—tax sales administered by local governments (Tyler v. Hennepin County) and the EPA’s classification of wetlands as “waters under the United States” under the Clean Water Act (Sackett v. EPA). The cases are noteworthy for a number of reasons: (1) in Tyler the Court rejected the position of a minority of states that allow local governments to retain funds yielded by a tax sale that exceed the amounts owed by delinquent taxpayers, with the Court finding an illegal taking without just compensation; (2) in Sackett II, the Court reversed the EPA’s efforts to implement a “significant nexus” approach in defining its authority to regulate wetlands, in the process narrowing the meaning of the key statutory term “adjacent” and protecting landowners from sanctions for filling wetlands on their property; (3) while neither case featured a dissenting opinion denying that landowner rights had been violated, an intriguing combination of concurring justices offered owner-friendly alternatives to the majorities’ rationales, which is perhaps a sign that in the current iteration of the Roberts Court partisan divides are not set in stone, at least not in the important area of property rights protection.