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CA6: "The distric court's ripeness determination, in turn, was plainly mistaken"

Before you get too excited by the U.S. Court of Appeals for the Sixth Circuit's opinion in Catholic Healthcare Int'l, Inc. v. Genoa Twp., No. 22-2139 (Sep. 11, 2023), a spoiler up front: this may be a good ripeness decision, but this isn't a takings case.

But you takings mavens may still want to take a quick look over the opinion for how the court deals with a ripeness argument in a case where the plaintiffs assert the Township violated their rights by denying (twice) its requests for a land use special permit.

The story is about a walking path created by Catholic Healthcare that contains fourteen "Stations of the Cross" "depicting the "story of Christ's last day." Slip op. at 1. The Township insisted that Catholic Healthcare obtain a special use permit, because the Township believed that the trail use is the equivalent of a church.

So Catholic Healthcare sought a special use permit, and twice the Township said no. The Township required removal of the trail. Catholic Health sued, asserting RLUIPA and constitutional claims, and sought a preliminary injunction allowing it to restore the trail. The district court dismissed, concluding among other things, that the RLUIPA claim was not ripe.

The Sixth Circuit rejected that conclusion. Relying on Pakdel, the court concluded that the Township had adopted a "definitive position" on how its land use regulations apply to the plaintiffs' uses and land:

The district court’s ripeness determination, in turn, was plainly mistaken. A claim is unripe when “it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). In land-use cases, the necessary event is simply that the government has adopted a “definitive position” as to “how the regulations at issue apply to the particular land in question.” Pakdel v. City & County of San Fran., 141 S. Ct. 2226, 2230 (2021) (cleaned up). That has manifestly happened here: the Township has uniformly insisted that the plaintiffs obtain a special land-use permit for their religious displays; the Township Board has twice refused to grant them one, even when presented with an application limited almost entirely to those displays; and the Zoning Board of Appeals denied relief. Moreover, those events have “inflicted an actual, concrete injury” on plaintiffs, id., because the Township has actually forced them to remove the religious displays from their property.

Slip op. at 7. The district court held the claim was not ripe because in addition to receiving two permit application denials from the Township, Catholic Health had not also complied with the Township's administrative processes.

The court noted that "[t]he district court's mistake was to conflate ripeness (sometimes called 'finality' in this context) and exhaustion" when the district court held that the Township had not taken a final position until Catholic Healthcare had gone past the permit denial(s) and chased further administrative procedures. Slip op. at 8.

The Sixth Circuit held that one "no" is enough, and you don't really need a truly final decision (in other words, a decision that comes at the end of an administrative review process), but a court only need understand that the government is "committed to a position." Id. (quoting Pakdel, 141 S. Ct. at 2230). That this position might change later is of no consequence.

The opinion also made note of a good point - the ripeness requirement in these kind of cases (also takings cases) is there not to run the property owner through a maze of hurdles, but to ensure that the injury to the plaintiff is concrete enough. As the court held, "this case comes to us after Genoa Township has taken a definitive position, again and again, to the plaintiffs' concrete injury. Their claim is ripe." Slip op. at 8.

We think there are two good lessons to take from this one:

1. A reminder that ripeness does not require exhaustion. This isn't so much the "final decision" rule, but the "definitive position" rule. The Court meant what it said in Pakdel when it cautioned that the ripeness requirement is "relatively modest," and does not require exhaustion and crossing off all alternatives to get to a government's "yes." All it requires is a single "no."

2. The ripeness requirement is there so that courts can have confidence that the plaintiff has really been injured, which itself is a relatively modest requirement.

We suggest keeping those two things in mind in your next ripeness argument.

Catholic Healthcare, Int'l, Inc. v. Genoa Twp., No. 22-2139 (6th Cir. Sep. 11, 2023)

New Cert Petition: "It is Time to Recognize the Judicial Takings Doctrine"

Interested in the intriguing question of whether a court ruling can "take" property? If so, check out the latest cert petition on the issue.

Let's start with the Questions Presented:

1. Is a state supreme court able to "side-step" the just compensation requirement of the Fifth and Fourteenth Amendments by simply removing preexisting property rights of owners to real property?

2. Is the North Carolina Supreme Court’s decision in holding that an established right of private property no longer exists a taking in violation of the Fifth and Fourteenth Amendments to the United States Constitution?

3. Is the North Carolina Supreme Court’s grant of title and ouster of property rights without payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

You remember the last time that the Supreme Court ventured into this area, it wasn't exactly a satisfying result, although we got a bizarre analogy from Justice Scalia, and we personally got a law review article out of it.

This latest petition argues that the North Carolina Supreme Court altered the state's property law in a case that started off as what appears to be a rather run-of-the-mill ownership and trespass dispute between the Kisers and Duke Energy over a retaining wall on the bed of Lake Norman.

The alleged judicial taking occurred when the North Carolina Supreme Court affirmed a trial court's order that concluding the Kiser property is subject to an easement in favor of Duke Energy:

Under the Trial Court Order, property went not from A to B, but from A to C without compensation and foreclosed any economic benefit in the Kiser Lake Parcel. App.48a. This is a taking on every conceivable level. Sunset Keys cannot build on the Kiser Lake Parcel, it cannot collect rents and it cannot exclude others. The entire bundle of sticks that represents property interests were removed by the Trial Court
Order.

Pet at. 18.

Stay tuned. Follow along here, or on the Court's docket.

Petition for a Writ of Certiorari, Kiser v. Duke Energy Carolinas, LLC, No. (U.S. Sep. 18, 2023)

Just Published - IRWA's "Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 - June 30, 2023"

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent Infrastructure Bill. The report also includes summaries of a few notable cases in Canada.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

Check it out.

Can One Government Official Really Hold Up Necessary Water Uses? The Hawaii Public Water Trust In Action

According to the County, this is an "industrial" use,
incompatible with "agricultural" zoning

Note: sorry, this is one of those longer posts, but the topic is a serious one, so we felt it needed more than our usual cursory treatment.

How Can That Be?

We've been somewhat reluctant to post too much on the legal aspects of the Maui wildfires (other than to comment on the first lawsuit), just because it still seems "too soon." The focus should be on aiding the victims and helping those who want to rebuild to do so, and not on premature blamestorming (see also this), legal theories, and  the "opportunities" this disaster presents (see also this, this.and this).

But we did want to clear one thing up. There are a lot of stories (see here, here, and here, for example), about the State of Hawaii official -- the Deputy Director of the Commission on Water Resource Management and an employee of the State Department of Land and Natural Resources -- who allegedly refused for several hours to release water as requested to fill reservoirs, until first obtaining the approval of a taro farmer.

A lot of the reaction has been of the "how could this be?" variety. How can a government official refuse to release water needed for fire suppression? How is it that a private kalo (taro) farmer needed to be asked for approval? Can this be accurate?

Short story: yes.

This is exactly how Hawaii's water law is designed to work, and is the system functioning as intended. And please don't get us wrong -- we're not at all suggesting that working-as-designed has resulted in a system that actually, you know, works. No, we are being purely descriptive, not normative, and just laying out our experience about how Hawaii water law plays out day-to-day in all its intended glory.

Bottom line: the water law regime in Hawaii is designed so that a government official can hold up water uses -- even if that use is to fight fires.

No Private Rights

First, it is essential to understand that conflicts over water use are not a new thing, and have been ongoing for centuries. Second, you must realize that all water in Hawaii -- and by that we mean all water -- fresh, salt, surface, ground, runoff, freshet, riparian, stream, ocean, lake, you-name-it -- is owned by the public, and administered by every agency at every level of state and municipal government under a trust-beneficiary model.

This approach is unique to Hawaii. But how did it develop?

It wasn't always this way, and for more than a century, Hawaii's water law -- mostly developed though court cases -- followed its English and American counterparts with a few local modifications. The law recognized private rights to "own" and use water, subject to the rights of others.

But in the 1960's and 1970's, the activist Hawaii Supreme Court began altering the governing law, ultimately concluding that water resources are (and have always been) incapable of private ownership -- despite a century of Hawaii common law that seemed to hold otherwise. The court began developing the idea that water is a public resource and consequently is impressed with a "public trust."

In a clever bit of sleight-of-law, the court held that the "public trust' doctrine was adopted by the Kingdom courts in the 19th Century, and then "later decisions of this court confirmed the acceptance of the public trust doctrine in this jurisdiction." Kelly v. 1250 Oceanside Partners, 140 P.3d 985, 1002 (Haw. 2006). The problem with that conclusion is that the "public trust" doctrine referred to in the 19th Century Kingdom cases was the traditional public trust -- the one that has its roots in Roman and English law -- the public's right to use navigable waters for activities such as commerce, navigation, and fishing. It had nothing to do with ownership of the water, or water rights, or the government's authority to control and regulate uses. Instead, the newly created "public trust" doctrine the Hawaii Supreme Court was referring to was much broader, and applied to all water whether navigable or not, and all uses whether related to commerce or navigation.

National Property Scholar: You Keep Using the Term "Public Trust." I Do Not Think It Means What You Think It Means

As renown property and water rights scholar Thomas Merrill wrote:

The public trust doctrine burst forth in Hawaii, in a big time way, as part of a series of highly controversial decisions by the state supreme court involving water rights. The rights in question did not involve the public right of access to navigable waters for commerce and fishing -- the classic issue in Illinois Central and Oahu Railway. Instead, these decisions have involved the rights to consumptive uses of water for purposes like irrigation or public drinking water systems -- what the Hawaii courts call "water resources" law. The public trust doctrine has never been applied to water resources in this sense in Illinois or New York. Indeed, the only other state besides Hawaii that has extended the doctrine in this fashion is California. And even there, the famous Mono Lake decision involved the diversion of waters by the city of Los Angeles from tributaries of a navigable lake, so the diversion had an impact on navigation. In Hawaii, the connection to navigation has been cut altogether.

See Merrill, The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications, 38 U. Haw. L. Rev. 261, 276-277 (2016) (footnotes omitted). (For a much different view of this, see this story.)

In altering the longstanding rules, the Hawaii Supreme Court based its rulings on, among other things, a 1978 amendment to the Hawaii Constitution, which, according to the court, publicized all water resources:

The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.

Haw. Const. art. XI, § 7.

The long and the short of it is that all Hawaii water is incapable of private ownership. (So if anyone tells you that there are what you think of as "water rights" in Hawaii, they are in our opinion mistaken. Or at least the concept of a substantial private interest in water is markedly different in Hawaii than elsewhere.) In case you are wondering, yes, there have been challenges to this altered water regime as a taking, both legislative and judicial. But those cases mostly went nowhere, with the most significant challenge crashing and burning on the shoals of Williamson County's ripeness doctrine.

The Regulatory Regime

Next, after effectively publicizing private water rights, the Hawaii Supreme Court imposed a regulatory system -- again based on this new "public [water] trust" concept -- on how the State and its subsidiaries and agencies were to "control and regulate" water (as that term is used in article XI, noted above). The obligation to control and regulate water use extends to all uses of water, no matter how de minimis the use, or how necessary (such as fire suppression).

If you think we might be exaggerating about this, we offer an example (other than the Maui fire situation), from one of our own cases from when we were in private practice.

Setting the Stage for Lahaina

In Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, 324 P.3d 951 (Haw. 2014), "Kauai Springs" was a small, family owned business that purchased approximately 750 gallons per day of water emanating from a natural spring on the island of Kauai. For more than a century, thousands of gallons of water per day had naturally flowed out of the spring, where it was channeled into an above-ground pipeline to irrigate sugar fields several miles from the source. The water wasn't pumped out or down -- gravity did the work. When the sugar plantations went away in more recent times, a small portion of the water in the pipe was used by several nearby homes as drinking water, but otherwise, thousands of gallons of water per day emptied from the pipeline into a nearby stream bed where it eventually flowed into the ocean.

Sensing an opportunity, a Kauai family obtained a license from the owner of the spring to capture some of that water, ensure it was up to USDA water quality standards, and bottle it in those 5-gallon plastic bottles that go on top of a dispenser unit. The family would deliver these to homes and offices on the island.

The problems began when someone dropped dime and reported to the Kauai County Planning Department that Kauai Springs was making an "industrial" use of land zoned for agriculture. Sure enough, planning officials paid a visit and issued a notice of violation and a shut down order.

Kauai Springs sought after-the-fact permits allowing its use as either a special use, or as a conditional use. You land users understand that when an unpermitted use is kind of like a permitted use, and really won't have much of an impact on the land, then very often the owner may be allowed to make an otherwise unpermitted use. That was the case here, where Kauai Springs argued that putting water into 5 gallon bottles at its facility (see photo above) was not that much different than typical agricultural uses, and had no significant different impacts on the land or the surrounding properties.

But the County of Kauai denied the permits. Why? Not because the building (see above photo) or the low-impact activity of bottling water are incompatible with agricultural zoning. Rather, it was because Kauai Springs was bottling water, and it had not proven that using 750 gallons per day from the pipeline flowing thousands of gallons per day into the ocean would not significantly impact the water resources of the County of Kauai.

You read that right. Seven-hundred-and-fifty gallons per day represented .22% (that's 0.0022 for you who are mathematically-challenged like me) of the total daily output of the spring. So minuscule that when we tried to create a demonstrative exhibit to show how little this was "impacting" water resources, it was impossible because in order to get the X-axis (Kauai Springs' useage) large enough to be visible, the Y-axis (total volume) would not fit on any reasonably-sized poster board - it would have needed to be yards long. 

Additionally, the County said that until the State Public Utilities Commission and the State Commission on Water Resources had weighed in, it was premature for the County to grant a zoning permit that might affect the County's water resources. Never mind that both agencies did not have subject matter jurisdiction over this, and had told the County so.

An Already Long Story Shorter

By the time the case reached the Hawaii Supreme Court, the first big issue was whether under the Hawaii public water trust, county agencies like the Kauai County Planning Department and Planning Commission have an obligation to make searching inquiries into whether the grant of zoning permits might affect the County's water resources. After all, neither agency has any expertise in the area of water regulation. Their expertise, if any, is in land use, not water and hydrology. Surely the public trust cannot be read as requiring every state and local agency to make its own independent determination about water resources, and in the case of Kauai Springs, the County agencies could simply adopt the views of the State PUC and the State Commission on Water Resource Management that there was nothing here to worry about.

The second question was who has the burden of demonstrating that use of 750 gallons per day would or would not detrimentally impact the County's water resources. While that might seem like a common-sense determination in light of the overall amount (.22%), the court was asked whether the County could deny the zoning permits on the basis that Kauai Springs had not met its burden to show to the satisfaction of the County that 750 gpd would not have a serious impact on the County's overall water resources. (Remember, Kauai bills itself as one of the "wettest spots on Earth.")

Could the County rely on the precautionary principle writ large? Does Hawaii's public water trust really enshrine the principle of inaction in the face of any doubt?

The Precautionary Principle Reaches the Parody Stage

Bottom line: yes, it does.

The Hawaii Supreme Court held that every agency and official in Hawaii -- state and county -- has a duty under Hawaii's public water trust to protect water resources. It doesn't matter whether the agency has any type of interest or expertise in water regulation, or the decision it is being asked to make (remember that Kauai Springs was asking the County for zoning permits, not asking its permission to use the water).

The court rejected the extreme hypothetical we posed - does the public water trust require that the local DMV make an inquiry about whether issuing a commercial driver license to the driver of a water company truck? After all, issuing a CDL to someone who drives a truck to deliver water might affect the public's water resources. Aw, come on that is ridiculous you say? What business does the DMV have in regulation of water uses? Every business, the court held. The public water trust is a sacred obligation, and the court held that the Hawaii Constitution's language ("The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.") means that the State itself, every State agency, and every municipality and municipal agency has an obligation to "protect, control and regulate" water. Yes, even the DMV.

Moreover, to fulfill this duty, these officials and agencies cannot rely on the conclusions of other -- perhaps more appropriate and expert -- agencies and officials. Thus, the Kauai Planning Department and the Planning Commission could not consider their public trust duties fulfilled by noting that the State Commission on Water Resources and the state PUC had both disclaimed any interest in Kauai Springs. The County agencies have an obligation to make their own independent determinations.

Next, the court concluded that the public trust duty is fulfilled by these agencies and officials if they rely on the precautionary principle to place the burden on the user of water and do nothing if the user can't disprove that its use will not adversely impact water resources. In the absence of convincing proof of no impact, the government as the trustee of the public water trust can deny, deny, deny any request for action.

Thus, the County properly denied Kauai Springs' zoning permits.

How it Works

This regime works as it intended (to slow or stop development, to give anyone who might object to a use or action a way to challenge it, and to not act when in doubt (which there almost always is)). But you can see how this regime can be deployed selectively. For example, after the Supreme Court issued its opinion, a liquor manufacturing facility across the highway from Kauai Springs sailed through the zoning and permitting process without a squeak of objection even though it makes its product from water from the exact same water source that resulted in the problem with Kauai Springs, and uses a ton more water. But did anyone even ask whether making liquor (whose main ingredient is water) would affect water resources and insist that the producer disprove an adverse impact on Kauai's water resources? 

No, and there's the rub. The way this works is that officials and agencies have nearly total discretion to apply the exacting public water trust standards ad hoc. There's no requirement of comprehensiveness, or that every action be evaluated under the public water trust. Only a requirement that every agency and official do so when prompted (either sua sponte, or by third-party objectors who object to the underlying action).  

In short, if Water User "A" can stay off the radar, no sweat. Nobody seems to want to challenge the liquor producer, or new hotels (which use a ton of water daily without any restrictions), or the new car wash. But if someone drops a dime on Water User "B," or B ends up on its own catching a government official's attention, then the Kauai Springs principles spring into action:

If there's doubt, do nothing

In our opinion, that's what looks like might have gone on when that State of Hawaii official did not immediately act to release water for fire suppression (if that is indeed accurate, as the news stories report). You can see how government agencies and officials -- used to denying, delaying, and deferring -- are not really that used to acting quickly and decisively to release the precious public resource of water, even when the situation dictates quick action. After all, a wrong move will invite claims that the official -- a trustee of the trust with fiduciary responsibilities to the public to preserve, protect, and conserve the resource -- breached this sacred duty.

In short, Hawaii's water law is very conservative: go slow, do nothing, be sure before you act; there's no downside to doing nothing.

To answer this post's headline's question, "Can one government official really hold up necessary water uses?"

You bet. That's the Hawaii public water trust working as it was intended. There isn't a necessity, or let's-save-some-lives exception, at least just yet.

Sadly, it looks to us like this just had some devastating consequences.

Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, No. SCWC-29440 (Haw. Feb. 28, 2014)

This Was Not Written For Chiefs! Happy Constitution Day From One Named Kirk

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk's reading of the Preamble. 

KIRK: This was not written for chiefs!

Hear me! Hear this!

Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since.

Tall words proudly saying We the People. That which you call "Ee'd Plebnista" was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people!

Down the centuries, you have slurred the meaning of the words: "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution." These words and the words that follow were not written only for the Yangs, but for the Kohms as well!

He might be from Iowa, but that guy who plays him is from north of the border, so our kudos to a Canadian for the best dramatic rendition of our founding document.

So does this make Kirk an textualist, a living constitutionalist, or an original-public-meaning guy? Here's a hint, from the script:

SPOCK: Does our involvement here also constitute a violation of the Prime Directive?

KIRK: We merely showed them the ... meaning of what they were fighting for. Liberty and freedom have to be more than just words. Gentlemen, the fighting is over here. I suggest we leave them to discover their history... and their liberty.

Beam me down, Scotty!

Green Backs And Land: Dr. Seuss (Thor Hearne) Explains Trails Act Takings

with apologies to Green Eggs and Ham

Our friend and colleague Thor Hearne (True North Law/Federal Takings blog) sent us this and when we asked, kindly consented to us sharing it with you.

Thor writes: "I was trying to explain to my granddaughters, ages six, three and four months what I do and the Trails Act cases where I represent property owners.  So, I wrote a Dr. Seuss summary of the Fifth Amendment and Trails Act takings."

Check this out:

Dr. Seuss Explains Trail Act Takings

In the land where you and I reside,
Private property's our joy and pride.
Everyone has a piece, maybe big, maybe small,
A place to hang your hat, a spot for a ball.

When government says, "Hey, we need your space!"
They must pay you, put a smile on your face.
Whether it's a farm, or a tree, or a pond,
They give you the dollars, of which you are fond.

But wait, what's this? A train's coming through!
An easement they need, to pass and to woo.
It's not quite your land, but not quite their place,
It's shared in a way, yet you both have a case.

When trains cease to chug, and the tracks fade away,
The owner says, "Yay! My land's back today!"
But if Uncle Sam says, "No, here we shall stand,"
He must open his purse, pay you for your land.

So, remember these words, in freedom we trust,
Private property's good; to respect it's a must.
Whether a home, or a field, or a bright yellow flower,
We each have our space, and in that lies our power.

CA8: 11th Amendment Trumps The Fifth Amendment - Just Because Just Compensation Is A "Self-Executing" Federal Remedy Doesn't Mean You Get To Come To *Federal* Court

Remember after Knick when we predicted that the Supreme Court's opening back up the federal courthouse doors wasn't the end of the procedural gamesmanship, but merely the opening of a new chapter? That it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That's we're going to be experiencing Williamson County, Phase 2?

Here's more proof (as if you needed it).

In EEE Minerals, LLC v. North Dakota, No. 22-2159 (Aug. 30, 2023), the U.S. Court of Appeals for the Eighth Circuit held that a takings claim against the State of North Dakota was barred from being litigated in federal court because the State can't be sued in federal court - even if the right to just compensation is self-executing.

This is a mineral rights fight, and the property owner claimed that when the North Dakota legislature (allegedly) shifted the historical high water mark on the Missouri River -- which presumptively gave the State mineral rights that the owner claimed belonged to it -- the State took property for public use.

In December 2020, EEE Minerals and Vohs sued North Dakota, the Lands Board, and the Commissioner of the Board in federal court. They claimed that the North Dakota statute was preempted by the Flood Control Act, and that the defendants had taken property from EEE Minerals and Vohs in violation of the Fifth Amendment. The plaintiffs sought damages, declarations that the North Dakota statute was preempted by federal law and that an unconstitutional taking had occurred, and an injunction prohibiting the defendants from claiming ownership of the mineral interests under state law.

Slip op. at 4. The district court dismissed.

The Eighth Circuit affirmed. We won't go into the question of whether the federal Flood Control Act preempted the North Dakota statute, but will leave it to those of you interested in that issue to digest pages 5-7. Short answer: no, it didn't.

The takings stuff begins on page 7 of the slip opinion. That claim fared no better:

Vohs next asserts that North Dakota, the Lands Board, and the Commissioner committed a taking of property without just compensation, in violation of the Fifth Amendment as incorporated against the States. She contends that when the State defined its mineral rights based on the historical ordinary high water mark, the State took mineral rights that were reserved to EEE Minerals and Vohs without providing compensation. We conclude that Vohs’s claims for damages and injunctive relief are barred by the Eleventh Amendment.

Slip op. at 7.

The court rejected the owner's argument that because the obligation to provide just compensation is self-executing, an owner whose property has been taken is entitled to seek that compensation in federal court. Go press your federal claim in state court, property owners:

The Supreme Court has not directly addressed the interplay between the Fifth Amendment and the Eleventh Amendment. But in Reich v. Collins, 513 U.S. 106 (1994), the Court addressed an analogous situation involving a self-executing right under the Due Process Clause. The Court explained that even though the Fourteenth Amendment provides a right to a remedy for taxes levied in violation of federal law, “the sovereign immunity States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that forum.” Id. at 109-10. Instead, state courts were required to entertain suits against a State to recover taxes unlawfully exacted.

The same conclusion applies to a claim under the Takings Clause. There is no dispute that Vohs may bring her [federal] takings claim in North Dakota state court.

Slip op. at 8-9.

But what about prospective equitable relief (the Ex parte Young "exception" to the usual Eleventh Amendment rule)? The court wasn't having any of that because it concluded that the owner's claim for injunctive relief was just a claim for damages in disguise. "Vohs simply repackages her claim for monetary relief as a request for an injunction that cures past injuries and requires the payment of just compensation. This reformulated request for retrospective relief is likewise barred by the Eleventh Amendment." Slip op. at 9.

Stay tuned for more.

EEE Minerals, LLC v. North Dakota, No. 22-2159 (8th Cir. Aug 30, 2023)

Wine And Takings > Wine And Cheese

Check out this press release, reprinted on the Wine Industry Advisor ("Renowned International Winemaker Files Lawsuit Against Napa County over Denial of Water Rights"), noting that "winemaker of some of the world's most sought-after wines" has sued the County in federal court for a regulatory taking, because it denied well permits after Woodbridge refused to agree to a "strict limit on the water that could be drawn annually from each well, a restriction that does not apply to existing wells[.]"

Want to follow along? Here's the complaint, and here's the docket report. Here's a report on the case from Courthouse News ("Heralded winemaker sues Napa County over water wells").

We may have to do a "site visit" soon, just to be sure these reports are accurate. Just think if this involved our favorite label, Eminent Domaine!

CA6: In Home Equity Theft Taking, Just Compensation Is The Excess The Government Kept, Not The Value Of The Foreclosed Home

Here's a follow up to the issue resolved by the Supreme Court in Tyler v. Hennepin County. Recall that in hat case, the core question was whether state law exclusively defined the "property" which Ms. Tyler claimed - the monies remaining after the foreclosure and sale of her home to satisfy her outstanding property tax obligation. The Supreme Court unanimously held no, that a state's law of property is "one important source," but "cannot be the only source" of what constitutes private property for purposes of the U.S. Constitution.

In Freed v. Thomas, No. 21-1248 (Sep. 6, 2023), the U.S. Court of Appeals followed up on that question. The court addressed the measure of just compensation in these home equity takings. To do so, the court focused on what "property" was taken - was it the home, or was it the excess proceeds after foreclosure and sale?

The (former) homeowner prevailed on his takings claim after the county seized his home and sold it at auction to satisfy a $1,100 property tax debt, and then kept the excess. The owner asserted the fair market value of the home was $98,800, and not the $42,000 the county received when it sold the house at public auction. He argued he was entitled as just compensation to the difference between the fair market value of the home, minus the amounts he owed in back taxes, interest, and penalties. Meaning that if the owner was correct, the county owed him $56,800 more than the $40,900 the county asserted. The district court rejected the owner's argument, concluding that just compensation is "the amount of the difference between the foreclosure sale and [his] debt." Slip op. at 3.

The Sixth Circuit agreed. The main issue was what "property" was "taken," although the opinion does not clearly set this out. Check out page 4 and over onto page 5 for the court's brief analysis. The court noted that the "Freed is entitled to the amount of the sale above his debt and no more." Slip op. at 4-5.

Here, the district court held at the motion for summary judgment stage that Freed’s Fifth Amendment rights were violated, and it held that Freed was owed the difference between the foreclosure sale amount and his debt, plus interest. This holding squares with Tyler. Freed asserts though that he is entitled to an additional $56,800 because the purported fair market value of the property was $98,800 and the property sold for only $42,000. However, neither this court nor the Supreme Court has ever held that a plaintiff whose property is foreclosed and sold at a public auction for failure to pay taxes is entitled to recoup the fair market value of the property.

Slip op. at 4.

That is only correct if the "property" here was not the home itself, but the excess proceeds from the sale. That squares with Tyler, where the homeowner asserted that the unconstitutional action was Hennepin County keeping the excess proceeds (the property), and not forcing a sale and selling the property at auction (an action that Ms. Tyler conceded was ok). 

Similarly here, the property was not Freed's home and the unconstitutional action was not seizing it and selling it to satisfy his tax debt. Rather, the unconstitutional action was the county retaining the excess monies after the (otherwise valid) foreclosure and sale. Thus, the "property" is the money, not the home.

Which goes to show you that how you define the "property" allegedly being taken is critical.

Freed v. Thomas, No. 21-1248 (6th Cir. Sep. 6, 2023)

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Maine: To Avoid A Judicial Taking, We're Not Going To Alter Common Law - Property Owner May Remove Parts Of Neighbor's Encroaching Tree

Property issues often boil down to neighbor relations. Where is the property line, can I pick fruit from my neighbor's apple tree from my side? Her dogs take a dump on my lawn. And the like.

Those of you who practice in this area know that retail dirt law can be about the big issues, but often the things that come up at cocktail parties when someone finds out you are a property lawyer are not takings, the latest Supreme Court decision, Lockean theory, or Williamson County ripeness. No, people want to know if they can trim those parts of their darn neighbor's tree that hang on my side of the fence?

That was just the issue resolved by the Maine Supreme Court in Atkins v. Adams, No. 22-394 (Aug. 29, 203). The court held that "under the common law, property owners have the right to cut any part of a non-boundary tree that encroaches onto their property, regardless of how their actions affect the tree." Slip op. at 1. Put that in your cocktail party arsenal. 

Duty of reasonable care? Pshaw! Cut that miscreant tree back, even if it the tree is harmed (newsflash: Joyce Kilmer most affected).

We post the decision here not so much for the interesting historical stuff (and yes, it is interesting and worth your read, starting on page 8, with citations to Lord Coke, and the old maxim cujus est solum ejus est usque ad coelum et ad infernos), but for these paragraphs, where the court concludes to not adhere to the common law rule would allow a physical invasion of private property. And you know what that means - a taking:

[¶20] Perhaps most importantly, many of the rights embodied in the Bill of Rights and our Declaration of Rights evolved from the common law. See Smith v. Alabama, 124 U.S. 465, 478 (1888) (“The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”); Marshall J. Tinkle, The Maine State Constitution 61 (2d ed. 2013) (noting that the just compensation requirement in article 1, section 21 of the Maine Constitution finds its roots in the Magna Carta); Cordova v. City of Albuquerque, 816 F.3d 645, 665 (10th Cir. 2016) (Gorsuch, J., concurring) (“Neither can it come as a surprise that existing state common law courts will usually supply a sound and sufficient remedy when claims (possibly) of constitutional dimension are at stake: the whole point of the common law as it evolved in England and this country through the centuries was to vindicate the rights thought fundamental to the enjoyment of life, liberty, and property.”).

[¶21] A primary touchstone of property rights, whether under article 1, section 21 of the Maine Constitution or the Fifth Amendment of the U.S. Constitution, remains the protection against physical invasion onto private property. See Causby, 328 U.S. at 262; Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2074 (2021); Wellman v. Dep’t of Hum. Servs., 574 A.2d 879, 885 (Me. 1990); Tinkle, The Maine State Constitution at 61 (“Any permanent physical occupation of private property, or any interference with the right to exclude trespassers, constitutes a taking.” (citing Bell v. Town of Wells, 557 A.2d 168, 177-79 (Me. 1989))).

[¶22] Encroaching vegetation is a physical invasion onto private property. The longstanding constitutional protection of private property from uncompensated physical invasions reinforces the conclusion that the common law allows a property owner to remove such physical invasions. We would essentially be forcing the Adamses to suffer a continuing physical occupation were we to limit their right to engage in self-help.

Slip op. at 12-14.

This is how it's done. Check it out.

Atkins v. Adams, No. 22-394 (Maine Aug. 29, 2023)

Asserting His Property Right To Exclude "toxic fecal matter," Joe Montana Sues San Francisco For Inverse Condemnation

We're posting this Complaint, not because it raises any new or novel issue, but because one of the plaintiff/property owners is San Francisco 49ers legend Joe Montana, who is suing San Francisco, alleging that the city's maintenance of its stormwater/wastewater system (yes, the systems are one and the same) caused sewage to flood their Marina district homes.

Read the story here from SF Gate ("49ers legend Joe Montana sues San Francisco alleging 'toxic fecal' matter in home").

We're going to dust off the California Supreme Court's latest ruling on inverse condemnation liability for flooding, since we haven't looked at the doctrine in-depth in a while.

Complaint for Damages, Declaratory and Injunctive Relief, Armstrong v. City and County of San Francisco, No...

New Cert Petition: California's Escheat Procedures Cheat Due Process (And Take Property To Boot)

Here's the cert petition, recently filed, which asks the Supreme Court to review the California courts' decision that the state's "unclaimed property" statute  -- by which the State is able to grab billions of dollars of private property on the theory that the owners abandoned it. The statute requires the State to try and locate the owners, but the petition alleges the procedures do not provide adequate notice to the owners, and that the State doesn't really try all that hard to tell them.

Here are the Questions Presented:

1. Whether the Controller’s actions under color of the California Unclaimed Property Law, Cal. Civ. Proc. Code §§ 1300, et seq. (“UPL”), violate the Due Process Clause of the Fourteenth Amendment because they deprive owners of their property without affording constitutionally adequate notice.

2. Whether the Controller’s actions under color of the California UPL violate the Takings Clause of the Fifth Amendment because they take private property without just compensation.

This issue was left open by the Supreme Court's recent decision in Tyler v. Hennepin County, which held that the government keeping excess funds after a tax foreclosure sale was a taking, and rejected the County's argument that the homeowner had abandoned the excess by failing to pay her property taxes. The Court noted that for property to be deemed abandoned, the government must, at the very least, make some kind of process available for the owner to reclaim it that is reasonably designed to let them actually reclaim it:

The County portrays this as just another example in the long tradition of States taking title to abandoned property. We upheld one such statutory scheme in Texaco. There, Indiana law dictated that a mineral interest automatically reverted to the owner of the land if not used for 20 years. 454 U. S., at 518.

...

“It is the owner’s failure to make any use of the property”—and for a lengthy period of time—“that causes the lapse of the property right.” Texaco, 454 U. S., at 530 (emphasis added). In Texaco, the owners lost their property because they made no use of their interest for 20 years and then failed to take the simple step of filing paperwork indicating that they still claimed ownership over the interest.

Tyler, slip op.at 13-14.

Follow along here, or on the Court's docket.

Petition for Writ of Certiorari, Hashim v. Cohen, No. 23-195 (U.S. Aug. 29, 2023)

Arizona Supreme Court To Decide Whether Condo Law Which Permits Association To Force Sale Of A Privately-Owned Unit Is A Taking

Here's the Order by which the Arizona Supreme Court agreed to review a case we've been following.

The main issue is whether the Arizona condominium statute, which allows the condo association upon termination of the condominium regime, to sell individually-owned units is a taking under the Arizona Constitution.

Here are the questions presented:

FURTHER ORDERED: GRANTING IN PART the petition and cross-petitions as to these rephrased questions:

1. Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?

2. If any common elements or units in a condominium are to be sold pursuant to a condominium termination agreement, does A.R.S. § 33-1228 require all the common elements and units to be part of that sale?

3. If a contract incorporates an unconstitutional statute by reference, are the terms of that statute enforceable as to the contracting parties?

4. If a condominium declaration incorporates a statute by reference, are subsequent statutory amendments incorporated into the agreement?

We filed an amicus brief in the Court of Appeals, which argued that the statute should be construed to allow only the sale of the entire building, not individual units, but if the statute is read to permit picking off individual units for forced sale, then the statute allows for an unconstitutional and uncompensated taking.

The New York Times covered a very similar situation in Florida - "Their Retirement Plan Did Not Include Being Forced to Sell Their Condo" (Feb. 24, 2023).

Stay tuned for more as the case progresses. The argument date will be announced.

Order, Cao v. PFP Dorsey, No. CV-22-0228-PR (Ariz. Aug. 23, 2023)

They Say It's Your Birthday, Well It's Our (17th) Birthday Too, Yeah!

Every year at this time, it seems, we realize once again that as you get older, you overlook birthdays. Time speeds up, or maybe slows down. Very Proustian.

Thus, it occurred to us only yesterday that that this blog's "birthday" was looming and we almost let it slip by without notice. It hardly seems like seventeen years ago this day that we posted here for the first time.

In law blog years, that's quite a while. Thanks to you, our readers and contributors, we're still here, and still going pretty strong over 4,500 posts and nearly two decades later. 

Because doing this in a vacuum would not be worthwhile, we'd like to recognize those who send us items, who make comments, who give us feedback, who gently prod with suggestions, and who simply read and subscribe. You guys make the efforts that go into this thing all worth it. You are why we keep it going: this blog has allowed us to connect with many of you over the years all over the country and even internationally, an opportunity we'd otherwise probably not have had. Many of you have become colleagues, and many of you have become friends.

And though there's a lot of crossover with the above, we'd also like to hail our fellow law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Although you're not quite "Real Men [and Women] of Genius," today we salute you, Mr. and Ms. Law Blog Blogging Bloggers:

• Clint Schumacher's Eminent Domain Podcast (this isn't a blog, technically, but come on, man!)
• Tony Della Pelle's NJ Condemnation Law
• Brad Kuhn's California Eminent Domain Law Report
• Tred Eyerly's Insurance Law Hawaii
• Michael Rikon's Bulldozers at Your Doorstep
• Anastasia Boden's and Elizabeth Slattery's Dissed Podcast
• Infrastructure Junkies Podcast
• Dwight Merriam's Merriam's Corner
• Patty Salkin's Law of the Land
• Professor Gideon Kanner's Gideon's Trumpet
• Mark Murakami's Hawaii Ocean Law
• Julie Tappendorf's Municipal Minute
• Ben Lowenthal's Hawaii Legal News
• Horvitz & Levy's At the Lectern
• Abbott & Kindermann's Land Use Law Blog
• Bryan Wenter at Miller Starr Regalia's Land Use Developments
• Dan Dalton's RLUIPA Blog

There surely are others, and if we've omitted any who should be acknowledged, we apologize and plead a failing memory (see above). Besides, you know who you are. Let's keep it going.