August 2017

Pasadena, California, as we’ve written before, in addition to loving roses, apparently loves trees: the city owns 60,000 street trees as part of its “urban forest,” and it has a formal policy which designates an “official tree” for each street. Rock on, Pasadena. 

But in 2011, a storm blew down more than 2,000 of those city-owned trees, one of which, a 100-foot Canary Island pine, fell onto a home from an abutting parkway, causing $700,000 worth of damage. Mercury, the homeowners’ insurer, paid the claim, then sued the city for inverse condemnation as subrogee.

If all of this sounds familiar, you are correct. This same court of appeal considered a similar — but critically, not exactly the same — case a couple of years ago, concluding that the city was liable for inverse condemnation. In that case, the court concluded the trees were a “public…

Continue Reading If A Tree Falls In Pasadena’s “Urban Forest” And No One Knows Who Planted It, Is It Inverse Condemnation?

A quick one from the Ninth Circuit in a federal condemnation case. In Montanore Minerals Corp. v. Bakie, No.15-35707 (Aug. 16, 2017), the court, somewhat surprisingly concluded that a condemnation in federal court should have been stayed by the district court pending resolution of a state court quiet title action.

We say “somewhat surprisingly” because the standard of appellate review in the case is abuse of discretion, which gives a lot of leeway to the district court, and often, in our experience, results in it taking a lot to convince the court of appeals that it should reverse. Not here.  

Although there were no less than eight — count em, eight — “factors” which the court of appeals had to analyze and balance (what I call “throw into a blender and hit the on switch”) to determine whether Colorado River abstention was warranted.

Eight factors? And you thought…

Continue Reading 9th Cir On Parallel Universes: Federal Condemnation Should Wait For State Quiet Title Action

Topdowloads

We received a nice (although automatic) email note this morning from SSRN, letting us know that our draft article on Murr v. Wisconsin, Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?, “was recently listed on SSRN’s Top Ten download list for: Property, Land Use & Real Estate Law eJournal.”

Before we got too excited, we remembered that this means only that the article has been downloaded a grand total of 58 times. Which tells us that the “Property, Land Use & Real Estate Law eJournal” is a pretty niche market. But hey, we’ll take accolades where we can get them. We’re at the bottom end of the list, but are just happy to be in such stellar company.  Check it out: there are other things on the list that takings mavens will like reading. Like this article. And this one.  Continue Reading We’re Number 10! We’re Number … 10?

We’ve been offline lately, hanging out at the ABA Annual Meeting in New York, so haven’t had time to post, even though there is a lot to post about.

Thankfully, our colleague Brad Kuhn at the California Eminent Domain Report is on the ball, and has written up his thoughts about the California Court of Appeal’s decision in the case involving a Silicon Valley billionaire, surfers, beach access, and … California. 

We will have some thoughts once we find the time to sit down and write them up, but in the meantime, please read Brad’s thoughts on the case at “Court Holds Temporary Injunction on Martins Beach Access Dispute Does Not Constitute a Taking.”

More shortly. Continue Reading Cal Eminent Domain Report On The Strange “Martins Beach” Decision

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Regulato Takings!

A modest but very knowledgeable crowd joined us today at the ABA Annual Meeting in New York for a panel discussion and analysis of Murr v. Wisconsin. Here is the recording of our portion of the presenation (10mb mp3).

Here are links to some of the materials which we and the others discussed: 

Continue Reading Murr v. Wisconsin Sound Bytes From The ABA Annual Meeting Program

Here’s the Brief in Opposition in Nies v. Town of Emerald Isle, No. 16-1305 (Aug. 11, 2017), the case in which North Carolina property owners are asking the U.S. Supreme Court (cert petition here) to review a N.C. Court of Appeals decision which involves wet and dry sand beaches, the location of the public trust boundary, and other favorite topics.

The case arose because the N.C. Legislature by statute moved the public trust” shoreline landward, and allowed the public to use what had formerly been private beach.  We filed an amicus brief in the case, supporting the property owners. 

We’ll also post the reply brief when it is filed. Stay tuned. 

Brief in Opposition, Nies v. Town of Emerald Isle, No. 16-1305 (Aug. 11, 2017) 

Continue Reading Brief In Opposition In Public Trust Takings Case

ABA State and Local 2017-2017 conferences image

Later this week, if all goes as planned, I will become the Chair of the American Bar Association’s Section of State and Local Government Law. Several of my colleagues have asked why I participate in that organization since they don’t see the value in doing so. At the risk of repeating myself, I’m going to repost something I wrote a couple of years ago when asked the same question. 

* * * *

This is the ABA we’re talking about — an organization with a mixed reputation among members of our profession — and some of you have asked me why it is I am involved in the Association when many of our peers don’t see the value of joining or participating. So I’m going to take this opportunity to tell you about my reasons, and encourage those of you who are not currently with us to overcome…

Continue Reading ABA – Why?

Chair Reception SLG 8-11-2017 invitation

If you are scheduled to be in or near New York City on Friday, August 11, 2017, please consider attending one or both of the following events:

  • 10-11:30am, Midtown Hilton, Concourse E, Concourse level: “Murr and Beyond: Implications for Regulatory Takings.” Yes, Murr is the case that keeps on giving, and has already given CLE providers numerous opportunities to add to their coffers. The ABA is sponsoring this program, which includes the lawyers for the two main parties, and two (me included) lawyers who do this kind of thing. Come,  join your colleagues for a roundtable discussion of the case, and more importantly, what comes next. With John M. Groen, Principal Attorney, Pacific Legal Foundation, Sacramento,CA; Robert Thomas, Damon Key Leong Kupchak Hastert, Honolulu, HI; Hon. Misha Tseytlin, Solictor General , WI Dept. of Justice, Madison,WI; and Nancy Stroud, Land Use Attorney, Lewis Stroud & Deutsch, Boca Raton, FL. Our

…
Continue Reading ABA CLE, NYC: “Murr and Beyond: Implications for Regulatory Takings” – Aug 11, 2017

FERC

Here’s one that is taking a slightly different approach to challenging the taking of private property for privately-owned pipelines. Definitely a hot-button topic these days. 

In this federal court complaint, the plaintiff landowners challenge the approval by the Federal Energy Regulatory Commission of a private pipeline company’s exercise of eminent domain. The complaint seeks, among other things, a declaratory ruling that delegation of eminent domain power by Congress to FERC under the Natural Gas Act, and FERC’s further delegation of the power to pipeline companies, is unconstitutional.

You should read the whole thing, just to get a flavor. More on the filing here, from the Washington Post, and here from the local paper. 

Will this approach succeed? Your guess is as good as ours. 

Verified Complaint, Berkley v. Mountain Valley Pipeline, LLC, No. ____ (W.D. Val. filed July 26, 2017) 

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Eminent Domain Abuse,

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Continue Reading Challenge To Natural Gas Pipeline Takings In Virginia – Delegation To And By FERC Is Unconstitutional