July 2018

The plaintiffs owned mining and homestead claims on land in the Santa Fe National Forest. They claimed they own easements to access these lands, recognized by federal statutes. The government said no, these are just access rights, not easements. 

Then a fire, followed by flooding which severely damaged the Forest Service roads which the plaintiffs used for access. The Forest Service declined to repair the roads, but the plaintiffs said they’d intended to do so. But you have to do so by our rules, the Forest Service responded. Meaning the landowners would need to get a permit first. Apparently, they didn’t.

Instead, they brought suit in the Court of Federal Claims, asserting the loss of their easements was a physical taking. The CFC dismissed because the case was not ripe under Williamson County‘s “final decision” rule — the plaintiffs had not sought permission to repair the roads. 

In Martin …

Continue Reading Fed Cir: Takings Claim For Loss Of Access To National Forest Land Not Ripe

Remember that case from earlier this year where the Hawaii Supreme Court held that for purposes of Hawaii’s Due Process Clause, the Sierra Club (any “person,” actually) has a property right in a “clean and healthful environment?”

We asked if that were the case, then what does that “property” right look like? For example, how does the Sierra Club exclude others from this property? And if it is a property right shared by all, it it really a “property” right? 

In Delaware Riverkeeper Network v. FERC, No. 18-5084 (July 10, 2018), the U.S. Court of Appeals addressed that same question, but reached a different result. The court held that the Pennsylvania Constitution’s Environmental Rights Amendment’s guarantee of “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic [sic] values of the environment” was not a liberty or property interest triggering the Fourteenth Amendment’s due…

Continue Reading DC Cir: No Property Right In A Clean And Pure Environment Because No Right To Exclude Others

Here’s the amici brief we’re filing in an important Public Use case we’ve been following.

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking by the St. Bernard Port, Harbor, and Terminal District of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” private operator. The owner challenged the power to take, as well as the compensation awarded. We filed an amicus brief on the issue of compensation, arguing that just compensation isn’t limited to fair market value, but the jury must be allowed to consider replacement cost for a unique property like VDP’s facility. 

The Louisiana Supreme Court held that the Port has the power…

Continue Reading SCOTUS Amici Brief: Kelo Revisited – Louisiana Case Is An Opportunity To Clarify Eminent Domain Pretext

To lawyers, the word “and” between two clauses in a statute means that the requirements of both clauses must be met (aka “conjunctive”), while the word “or” signifies that either of the requirements are enough (“disjunctive”).

So you might think that when asked to interpret whether a statute that allows pipeline companies to enter land before a possible taking if those entries are necessary to satisfy regulatory requirements “and” to select the most advantageous route, the Virginia Supreme Court would easily conclude that both are required. 

Here’s the statute:

Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a, as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection…

Continue Reading Virginia: “And” Means “Or” – Eminent Domain Entry Statute Not Strictly Construed

Honolulu’s homeless problem is a tough nut to crack. There are no easy answers. People have rights, even if that means they have the freedom to live outside. But when a walk out the door of your downtown office becomes an exercise in dodging human waste, poor unfortunates in various stages of mental illness or addiction, and you pray for rain to wash away the odor, it really crystallizes what that that freedom sometimes means.  

So we follow the legal issues — not because we have any dog in the hunt — but from the perspective of an interested citizen, wondering where this is going. Reporter Gordon Pang, in today’s Honolulu Star-Advertiser has a piece “City lawyers work hard to ensure sidewalk bills will withstand challenges” about the City’s latest efforts to do something. We were asked for our thoughts on two bills, one dealing with an island-wide…

Continue Reading Honolulu’s Sidewalk Obstruction Prohibition Goes Island-Wide

The Colorado Supreme Court has agreed to review a public use case we’ve been following with keen interest, Carousel Farms Metropolitan District, No. 18SC30 (July 2, 2018), one we noted was the “most interesting” such case of 2017. 

The Court of Appeals held that the actual purpose of the taking was private, so it didn’t matter that the public was actually going to use the property being taken. In short: 

When the primary purpose of a condemnation is to advance private interests, even if there will be an eventual public benefit, the condemnation is not for a public purpose

Slip op. at 18. Read our summary of the case here for more details. 

The condemnor sought discretionary review, and the Supreme Court agreed to consider these issues:

[REFRAMED] Whether the court of appeals should review for clear error a trial court’s determination that a condemning authority sufficiently demonstrated…

Continue Reading Colorado Supreme Court To Review Major Eminent Domain Case: Does Public Use Save A Taking From A Private Purpose?

In Pacific Gas and Electric Co. v. Superior Court, No. C085308 (July 2, 2018), there’s no discussion of the inverse condemnation claims brought by property owners against Pacific Gas and Electric for the devastating 2015 Butte wildfire. But since we’re following the progress of all wildfire cases, we thought you might be interested in this one anyway.

The issue was pretty straightforward: could the utility be held liable for punitive damages to the more than 2,050 property owners under California law for a massive wildfire which started “when a gray pine (the subject tree) came into contact with one of PG&E’s power lines?” Slip op. at 2. The master complaint alleged inverse condemnation as well as negligence, nuisance, trespass, and related. 

The Superior Court denied PG&E’s motion for summary judgment, but the Court of Appeal issued a writ of mandate and held that given the undisputed facts, the…

Continue Reading Cal App: Utility Not Liable For Punitive Damages In California Wildfire

Here’s a cert petition we’ve been waiting to drop, in a case we’ve been following out of Florida.

In Town of Ponce Inlet v. Pacetta, LLC, No. 5D14-4520 (Fla. Dist. Ct. App. June 16, 2017), the Florida District Court of Appeal reversed a Lucas takings verdict, concluding the case might not even be ripe under the “final decision” prong of Williamson County (the prong not being directly challenged in Knick), and that the owner needed to prove a Penn Central taking, because as a matter of law, the town had not appropriated all economically beneficial use of the land. The court sent the case back down for another view by the trial court about whether the case was ripe, and if it was, for another takings trial.  

The case presents quite a developmental horror story (we all have ’em, don’t we?). Read the petition for a flavor …

Continue Reading New Cert Petition: The Other Williamson County Ripeness Test, Intentional Precondemnation Value Depression