Here’s the supplemental letter brief, filed today on behalf of Rose Mary Knick, as requested by the Supreme Court.
Two more — by the Township and by the SG — to be filed today as well. We shall post those as they become available.
Letter Brief of Rose Mary Knick, Knick v. Township of Scott, No. 17-647 (Nov. 30, 2018)
Continue Reading Supplemental Knick Brief: Time Of Invasion Is When Property Is “Taken”
Earlier this week, we spoke to Howard Mansfield, author of the recently-published book “The Habit of Turning the World Upside Down – Our Belief in Property and the Cost of That Belief.”
His book is about property, property rights, and how these ideas are processed by the American psyche. But instead of the usual scholarly (and very often dry) treatment of these topics that we might expect – especially those of us in the legal and academic world – Mr. Mansfield takes a slightly different approach. He relates stories of how property fits in with the culture – the different and often competing narratives that are attached to the notion of property – and the often-contradictory way in which we in the United States view the idea of ownership and possession.
Listen to our interview above (Sound Cloud stream), or if that does not work for you…
Here’s the Petition for Review we’ve been waiting to drop since last week’s ruling by a California Court of Appeal declining to review the California PUC’s decision to turn down the electric company’s request for a rate increase to cover the compensation and damages that it must pay as the result of a southern California wildfire.
Recall that under California law, a utility company with the power of eminent domain (such as San Diego Gas & Electric) can be liable under an inverse condemnation theory if it can be shown that “any actual physical injury to real property” was “proximately caused by [a public] improvement as deliberately designed and constructed” by the utilty, whether or not foreseeable.
Two California intermediate appellate courts have applied that general rule to wildfires, even though that state’s Supreme Court has not.
The petition argues that the two court of appeal opinions turn on the…
They’re going back, to reargue the case with a full contingent of justices. In the January oral argument calendar published yesterday, the Supreme Court gave us the date and time:
Wednesday, January 16, 2019, at 10:00 a.m.
We will be there, and will bring you our thoughts.
A unanimous opinion from the Supreme Court, which can only mean one thing: a narrowly-drawn opinion that doesn’t resolve much.
But we’re grateful anyway, because the opinion is one that appreciates the plight of property owners whose land is subject to being designated as “critical habitat” under the Endangered Species Act.
Intervenor Center for Biological Diversity raises an additional question in its brief, arguing that Weyerhaeuser lacks standing to challenge the critical-habitat designation because it has not suffered an injury in fact. We agree with the lower courts that the decrease in the market value of Weyerhaeuser’s land as a result of the designation is a sufficiently concrete injury for Article III purposes. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386 (1926) (holding that a zoning ordinance that “greatly . . . reduce[d] the value of appellee’s lands and destroy[ed] their marketability for industrial, commercial and…
Following the announcement that GM will be closing its Detroit-area Hamtramck assembly plant (originally a Cadillac plant), comes the reminder that it wasn’t supposed to be that way. This was the area, after all, condemned for “economic development” in the infamous Poletown case.
But as the Detroit Free Press reported in “GM’s Hamtramck plant closing reopens old controversy in Detroit,” “[m]aybe the naysayers were right all along.” Yes, the Michigan Supreme Court righted the ship later, in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), but that came too late to save the Poletown property owners.
For some commentary from someone who was there, check out Professor Gideon Kanner’s most recent post, “Bye, bye General Motors Poletown Plant,” where he writes, “This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed…
Continue Reading Prof. Gideon Kanner: “Bye, bye General Motors Poletown Plant”
With registration for the 2019 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs well underway, we thought it would be a good time to post up some of the materials from this year’s Charleston conference.
In “Alternative Dispute Resolution in Condemnation Cases: An Eminently Agreeable Solution,” an article in The Practical Real Estate Lawyer adopted from their conference materials, our colleagues Peter Buchsbaum (a retired New Jersey judge), and Cortney Young and Steve Silva (both from Nevada), discuss strategies which can be used to resolve eminent domain cases in ways other than trial. Well worth your time.
There’s a lot more like this on the Palm Springs program. This program and others like it are just a few of the reasons why attending the Conference is also well worth your time.
Buchsbaum, Young, & Silva, Alternate Dispute Resolution in Condemnation Cases: Continue Reading New Article: ADR In Eminent Domain – “An Eminently Agreeable Solution”
And belong to the owners of the mineral estate, at least according to two of three judges on a Ninth Circuit panel, applying Montana property law.
Update: our New York colleague Mike Rikon has posted a much better summary of the case and the court’s rationale here. You have to read any post that includes the sentence, “The case reminded me of a New York case dealing with a Mastodon.” Oh yeah.
Murray v. BEJ Minerals, LLC, No. 16-35505 (9th Cir. Nov. 6, 2018)16-35506
Continue Reading CA9: No Bones About It – Dinosaur Fossils Are “Minerals”
Here’s one person’s common sense view of quick-take-by-another-name (federal courts’ Rule 65 preliminary injunctions in Natural Gas Act takings). A topic we’re written about and briefed lately. Spot on. Continue Reading A Common Sense View Of Preliminary Injunctions In Pipeline Takings
Reading the fact section of the Federal Circuit’s recent opinion in Katzin v. United States, No. 16-2636 (Nov. 19, 2018), will make your eyes glaze over. It’s all about some property on an island near Puerto Rico, and is full of maps, diagrams, history, and even a photo of some “Keep Out” signs the feds erected. Important, but for someone who isn’t involved in the case, somewhat of a slog to get through.
Give it a read and see if you don’t agree.
But here’s the short story: both the plaintiffs and the feds think they own the land, a ten-acre parcel whose most prominent feature is an old gun emplacement. The Court of Federal Claims after a trial concluded that the plaintiffs owned the property, and that it had been physically taken when a federal official sent a fax to a prospective purchaser claiming that the feds, not…