2017

Keepout

What better way to bid farewell to 2017 than with a whopper case from the Hawaii Supreme Court? And we’re not exaggerating — this one is really big.  

Now you might think that given the amount of time this blog devotes to property interests and property rights, we’d be downright tickled when our home court — which may not be the friendliest court in the land for property owners and property rights — goes against expectations and actually recognizes a constitutional property right. A right that, as far as we can tell, no other court, state or federal, has ever recognized.

Despite the Hawaii Supreme Court’s recognition of a property right, however, we’re not at all on board, because In re Maui Electric Co., No. SCWC-15-0000640 (Dec. 14, 2017), concluded the Sierra Club possesses a constitutional property right in a “clean and healthful environment” entitling the organization to…

Continue Reading How Do You Exclude Someone From A Clean And Healthful Environment? Hawaii Supreme Court Rules The Public Has A Property Right In The Environment

Back in October, the William and Mary Law School awarded U. Hawaii lawprof David Callies the Brigham-Kanner Prize at a two-day conference in Williamsburg. Our summary of the conference is posted here.

We spoke at the conference, at the first panel entitled “The Future of Land Regulation and a Tribute to David Callies,” along with Professors Shelly Saxer and Jim Ely, and past B-K Prize winner Michael Berger. Of course, Professor Callies also delivered his opening remarks.

The law school has posted the audio from that session, which you can listen to here, or stream it above (via Soundcloud). 

We’re in the process of transforming our remarks into a short essay, to be submitted to the Brigham-Kanner Property Conference Journal if you want to wait for the expanded version. (Feb. 13, 2018 update: here’s the draft article.)Continue Reading Brigham-Kanner Podcast: “The Future Of Land Regulations And A Tribute To David Callies”

We’ve all heard the story of what may be the very first recorded eminent domain action — or at least the first case of eminent domain abuse — the Old Testament’s telling of the story of Naboth’s Vineyard.

You remember: Naboth the Jezreelite owned a vineyard that had been in his family for a while, but King Ahab wanted to make better use of the land to plant his own stuff. So he offered to buy it, but Naboth said no. So Ahab’s wife Jezebel (yeah, that Jezebel) told him “King up, man, you are the King. And it’s good to be the king. We’ll get that land.” So she plotted, and cooked up some false charges against Naboth. And after he was stoned to death, the King grabbed the land.

King James said it better:

And it came to pass after these things, that Naboth the Jezreelite…

Continue Reading Naboth’s Vineyard – Site Of The First Reported Case Of Eminent Domain Abuse – Discovered?

In Cappel v. Nebraska Dep’t of Natural Resources, No. S-16-1037 (Dec. 22, 2017), the Nebraska Supreme Court concluded the Department’s notices to Cappel pursuant to an interstate water compact which closed off his land’s ability to draw surface water from the Republican River for irrigating his crops was neither a physical nor regulatory taking. 

As you might expect, the central takings question which the court addressed was whether Cappel’s water allocations were “property.” The court held that because the closing notice was made pursuant to the Department’s obligations under the compact, “the water rights at issue were not a compensable property interest and the Cappels’ physical taking argument must fail.” Slip op. at 454. The court also dispensed with the regulatory takings claim by applying the Penn Central test. And you know what that means. 

Here’s the money quote, which reveals the court’s essential problem with the takings claims:…

Continue Reading Nebraska: No “Property” In Water Rights Subject To Interstate Compact

The facts in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., No. 53S04-1703-CT-121 (Dec. 20, 2017), are not all that complex and the result is pretty straightforward: the complaint did not show on its face when the plaintiff had knowledge that new rules caused an existing utility easement to expand in size, and thus dismissal under the statute of limitations was incorrect. But buried within the court’s short opinion is an interesting issue.  

More than 50 years ago, Bellwether’s predecessor-in-title granted a ten-foot-wide utility easement to Duke’s predecessor. Flash forward to 2002 when the Indiana Utility Regulation Commission adopted the latest version of the National Electric Safety Code, which established new safety guidelines for how close utility lines could be to structures. According to Bellwether, these new safety standards required a 23-foot-wide easement.

It brought an inverse condemnation claim in Indiana court in 2015. Duke argued that the…

Continue Reading Indiana Inverse Condemnation: No Statute Of Limitations Dismissal Unless Complaint Shows When Plaintiff Knew Of Claim

So begins a clip from the forthcoming feature film “Little Pink House,” the picture about the Kelo v. New London case. A phrase that many of us are familiar with, no doubt.

Those of you who are following along with the film remember that even before it was completed, we interviewed its producer, Ted Balaker, at the 2016 Austin ALI-CLE Eminent Domain Conference. Based on Jeff Benedict’s 2009 book, Little Pink House: A True Story of Defiance and Courage, the film stars Catherine Keener (Capote) as Susette Kelo and Jeanne Tripplehorn (The Firm, Basic Instinct) as the head of the New London Redevelopment agency. Ted gave us an inside look at the film (which had completed principal filming, but was not yet edited), brought some photos from the set, and gave us a preview of what the film covers. 

Now…

Continue Reading Art Imitating Life: “Mrs. Kelo, I have great news!” – ALI-CLE’s Advance Screening Of “Little Pink House”

The South Dakota Supreme Court’s opinion in Montana-Dakota Utilities Co. v. Parkshill Farms, LLC, No. 28174 (Dec. 13, 2017), resolved both a public use question, and one of compensation. In other words, something for every takings maven, no matter your interest. Read on!

This was a taking of permanent easements by publicly-regulated but privately-owned utilities. The owner asserted that just compensation and damages was $840,000. The condemnors valued the take at “only $73,097.” Slip op. at 3. The jury awarded $95,046.

The power-to-take question was whether the condemnation of private property by the power companies was “for public use” because the land taken was not going to be open to the public, nor were the transmission lines. Under South Dakota law, a taking is for public use when the property itself is going to be used by the public. But this was not as simple as the property owners…

Continue Reading Taking Of Power Line Easement Is For Public Use Because Public Has Right To Use The Electricity

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Here’s a story on which we’ve been waiting a while. ProPublica, which holds itself out as “an independent, nonprofit newsroom that produces investigative journalism with moral force,” has published a series of stories on eminent domain, focused on the border wall. As the above blurb notes, we served as one of the story’s sources.

The first piece in the series, “The Taking,” is a tour-de-force. It quickly traces the history of eminent domain (stretching back to Magna Carta, even), and rightly focuses on how the power of eminent domain has been used to take property from the politically powerless, detailing James Baldwin’s famous comment to U.S. Attorney General Robert Kennedy in the 1960’s that “blight removal” was in fact “negro removal.” Kelo is there, of course, as are the post-Kelo reforms. Even the Yellow Book gets a shout out.

But the focus of this series is…

Continue Reading “Abuse, Mistakes and Unfairness” In Border Wall Eminent Domain (But It’s Not Just Happening There)

Here’s the amici brief we filed earlier today in a case we’ve been following closely since its inception (and in which we filed an amicus brief when it was in the Sixth Circuit).

This is Brott v. United States, No. 17-712 (cert. petition filed Nov. 6, 2017), the case which asks whether Congress can require property owners asserting inverse condemnation or regulatory takings cases seeking just compensation against the federal government to sue in the Article I Court of Federal Claims. The Question Presented which the petition presents is straightforward:

Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?

Rather than go into detail about our brief’s argument, we’ll just post the Summary of Argument:

The government does not enjoy its usual sovereign immunity when it takes property, either affirmatively or inversely, and this Court has repeatedly confirmed that the Just Compensation Clause is “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (“We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of ‘the self-executing character of the constitutional provision with respect to compensation.”).

But what does this mean, exactly? Even as the Sixth Circuit recognized that property owners have a right to compensation that springs from the Constitution itself and the right to sue does not depend upon a waiver of sovereign immunity, it held that Congress is not compelled to provide an Article III forum to vindicate that right. Or indeed, any forum at all. Thus, even if the forum Congress created―the Article I non-jury Court of Federal Claims (CFC)―is not constitutionally adequate, well, that’s good enough. In the words of the Sixth Circuit, “[t]he Fifth Amendment details a broad right to compensation, but does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced.” Brott v. United States, 858 F.3d 425, 432-33 (6th Cir. 2017). That is sovereign immunity by another name.

However, we think this Court said it best in United States v. Lee, 106 U.S. 196 (1882), the takings lawsuit over what today is Arlington National Cemetery, when it held that courts (referring to Article III courts, and not what is, in essence, a Congressional forum), must be available for those whose property has been taken:

The [government’s argument it cannot be sued] is also inconsistent with the principle involved in the last two clauses of article 5 of the amendments to the constitution of the United States, whose language is: ‘That no person * * * shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.’ . . . Undoubtedly those provisions of the constitution are of that character which it is intended the courts shall enforce, when cases involving their operation and effect are brought before them.

Id. at 218-19.

The story of how the private estate of General Robert E. Lee’s family became Arlington National Cemetery is at the center of this case: the Court held that Lee’s heir was entitled—after a jury trial in an Article III court—to ownership of the property. The Court affirmed that in our system, unlike those in which monarchs rule over their subjects, the federal government could be sued in its own courts, and that the government had violated Lee’s due process rights and had taken Arlington without compensation. Lee may have been rendered 135 years ago, but the principles which the Court enunciated on sovereign immunity, the independent federal judiciary, and the Fifth Amendment, are still highly relevant today.

Others have filed amicus briefs in support, and we’ll post those shortly. Or, you can now go to the Court’s docket entry for the case and download them directly yourself.

Stay tuned, as always.

Brief of Amici Curiae National Association of Reversionary Property Owners, Owner’s Counsel of America, The… 

Continue Reading New Amici Brief: In Our System, Unlike Those In Which Monarchs Rule Over Their Subjects, The Federal Government Can Be Sued In Its Own Courts