April 2013

Here’s the amici brief of the Cato Institute and the National Association of Reversionary Property Owners supporting the petitioners in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

In that case, the Tenth Circuit’s opinion held that the term railroad “right of way” as used in an 1875 federal statute was a grant of land to railroads in fee simple with an “implied reversionary interest” to the United States, and not merely an easement. The difference is that easements may be extinguished, while reversionary interests are not. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court claiming it and and not Brandt owned the right of way.

The amici brief argues:

This case is important to the Association because the Tenth Circuit’s decision unsettles long-established property interests and clouds…

Continue Reading Amicus Brief In Railbanking Case: Circuit Split May Upset Title To Millions Of Acres

There isn’t a whole lot of eminent domain action in the Ninth Circuit’s opinion in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., No. 12-15634 (Apr. 26, 2013), and the issue the court analyzes is the relative jurisictions of the federal and tribal courts, but it still is an interesting read nonetheless.

The case involves the Hualapai Tribe’s efforts to condemn the rights of the non-Indian developer of that big glass bridge over the Grand Canyon. A dispute arose between the developer and a corporation chartered by the tribe over a revenue-sharing contract, and while the corporation and the developer were arbitrating their disagreement, the tribe instituted an eminent domain action in tribal court to condemn the developer’s “intangible rights in the contract, which practically speaking left [the tribal corporation] in contract with the Hualapai Tribe.” Slip op. at 5. The developer filed suit in…

Continue Reading 9th Circuit: Hard To Complain About Indian Tribe’s Eminent Domain Home Cookin’ When Condemnee Develops Indian Land

Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    Here’s the amicus brief we filed today on behalf of our colleagues at Owners’ Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

    That petition asks the Court to review a Tenth Circuit decision that continued a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act. The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting…

    Continue Reading Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims

    A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

    The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn’t notify the property owner before it took down the structure.

    The owner filed suit in state court, and the city removed it…

    Continue Reading Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

    Ah, the world of academia: ivy-covered walls, the strains of gentle theoretical debate, three months off in the summer, free coffee in the faculty lounge.

    [Here’s where the movie trailer has that cliché screeching sound of a record being scratched – by the way, do those raised on CD’s and mp3’s even understand what this sound is supposed to represent?]

    Here’s an academic debate that’s more of a brawl, between two of the big guys, Harvard Law’s Mark Tushnet and NYU/Chicago Law’s Richard Epstein over Professor Epstein’s recent book Design for Liberty: Private Property, Public Administration, and the Rule of Law.

    In his book review, Professor Tushnet apparently didn’t care too much for Epstein’s conclusions, labeling him a “sentimental optimist,” and criticizing his reasoning as thin:

    Epstein is a notably engaging speaker. I was surprised, therefore, that I found Design for Liberty harder to read than I expected. As…

    Continue Reading Prof Fight: Epstein v. Tushnet

    When reading the Ninth Circuit’s latest foray into the regulatory takings doctrine which holds that a muncipal rent control ordinance did not qualify under Penn Central (MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), we were reminded of the opening line in Andy Williams’ signature tune “Love Story” —

    “Where do I begin …”

    But before we begin, two preliminary thoughts. First, the district court’s decision finding that San Rafael’s mobile home rent control ordinance worked a taking of the mobilehome park owner’s property because it reduced the value by more than 80% was not some one-off aberration by a conservative district judge out on a lark. No, the decision was by the now-retired Vaughn R. Walker, the same judge who invalidated California’s Proposition 8 in one of the same-sex marriage cases currently before the Supreme Court.

    Continue Reading The Ninth Circuit Botches Regulatory Takings Again

    Earlier this week, the Hawaii State Bar Association’s Appellate Law Section put on a one-hour MCLE session on federal appeals featuring Ninth Circuit Judge Richard Clifton, our Damon Key colleague Mark M. Murakami, and Clare Connors (Davis Levin).

    While you can no longer earn MCLE credits (next time, attend in person!), you can take advantage of their tips and hints for how to win that next federal appeal. And most of the information is not limited to Ninth Circuit practice, so the rest of y’all should find benefit also.Continue Reading Federal Appeals: Tips And Hints

    This just in: the Ninth Circuit has issued an opinion in MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), reversing the District Court’s decision that the city’s mobilehome rent control ordinance was a taking under Penn Central.

    More, after a chance to review the opinion.

    MHC Financing Ltd. P’ship v. City of San Rafael, No. 07-15982 (9th Cir. Apr. 17, 2013)


    Continue Reading Ninth Circuit: No Penn Central Taking In Rent Control Ordinance

    Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.

    We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the…

    Continue Reading Fla Fed Ct: Exaction Scheme Is “Constitutional Mischief” To Avoid “Nettlesome Payment of ‘Just Compensation’”