In United States v. 191.07 Acres of Land (Martinek) (No. 04-35131, Apr. 4, 2007), the Ninth Circuit addressed two interesting issues in the context of a federal taking of unpatented gold- mining claims in Alaska’s Denali National Park.
The first is a question of appellate procedure: whether a party waives the right to appeal the denial of a demand for a jury trial by not seeking an immediate interlocutory appeal.
The government instituted eminent domain proceedings against the landowner (which entitles the landowner to request a jury trial on the issue of just compensation), and the landowner filed a claim for inverse condemnation (which does not carry with it the right to jury trial). The trial court held that the landowner had only a single claim for compensation, and the parties stipulated that the taking occurred on a date earlier than the government’s declaration of taking. Consequently, the court held that the landowner was not entitled to a jury trial.
On appeal, the government claimed that the landowner had waived an appeal on the issue because he had not sought immediate review of the trial court’s jury denial. The Ninth Circuit held that in order to be deemed to have waived an issue for appeal, there must be an indication that the appellant “affirmatively waived his rights to post-judgment appeal of this issue.” (slip op. at 3864). Makes sense: objecting, but losing an interlocutory issue should be sufficient to preserve an issue for appeal once the judgment becomes final. A litigant should not be required, on pain of being deemed to have waived an issue, to request piecemeal interlocutory appeals each and every time the trial court makes a ruling that does not dispose of a case.
The second issue was whether the trial court was correct in holding that the landowner was not entitled to a jury trial on the takings issue. That question is bound up in an understanding of the term “inverse condemnation,” and is detailed in this post.