July 2019

Usually, when we’re scanning the daily email from the Federal Circuit for takings decisions of interest, we look for “United States” as the defendant, and our eyes glaze over the other cases on the court’s docket such as patent matters. But today, we were rewarded: a takings issue in a patent matter.

In Celgene Corp. v. Peter, No. 18-1167 (July 30, 2019), the court concluded that the invalidation of an issued patent via inter partes review was not a taking. This issue was ripened by the U.S. Supreme Court’s recent decision in Oil States, which noted that patents may be “property for purposes of the Due Process Clause or the Takings Clause.” 

Celgene obtained patents for “a system to safely distribute thalidomide to patients.” Slip op. at 4. The Coalition for Affordable Drugs objected, and sought inter partes review, which according to the USPTO is, “a trial proceeding…

Continue Reading Fed Cir: Inter Partes Reexamination Of Patents Isn’t A Taking

Please read the Florida District Court of Appeal’s opinion in City of Fort Lauderdale v. Hinton, No. 4D18-2089 (July 24, 2019), especially the part starting on page 9 (the opinion is only 12 pages), where the court frames one of the arguments made by the appellant, Fort Lauderdale:

“The City contends that the Hintons cannot state a sufficient claim for inverse condemnation because they cannot prove a permanent physical occupation of their land that effectively deprives them of all reasonable and beneficial use and enjoyment of the property.” Slip op. at 9. Okay, we get that. The city didn’t like the trial judge’s ruling, and took an interlocutory appeal. No problem with that. Everyone is entitled to appeal. 

But next, the city raised what we thought was an issue that really isn’t up for debate: “Citing Florida Fish & Wildlife Conservation Commission v. Daws, 256 So. 3d …

Continue Reading Why Is A Florida City Still Wasting Time Asserting Takings Claims Are Subject To Sovereign Immunity?

There’s a bit of Inception-level dream-within-a-dream stuff in the U.S. Court of Appeals for the Third Circuit’s opinion in Tennessee Gas Pipeline Co. LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (July 23, 2019), because the court held in takings by a private condemnor exercising the delegated power of eminent domain under the federal Natural Gas Act, the governing rules about just compensation are provided by federal common law. But “[b]ecause federal law does not supply a rule of decision on this precise issue, we must fill the void with a common law remedy. In doing so, we opt to incorporate state law as the federal standard.” Slip op. at 3.  

So the applicable federal common law of just compensation incorporates state law. Got it. 

Here, the fight was over “consequential damages” which the property owner incurred as a result of the pipeline taking, such as professional fees…

Continue Reading In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law)

The Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:

Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right?

Friday, July 26 | 2 – 2:30pm ET

Here’s hoping you can join us for a half hour on the 5-4 SCOTUS decision in Knick v. Township of Scott (June 21, 2019). Knick overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.

Presenters Dwight Merriam and Robert Thomas will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater?

Continue Reading Upcoming Webinar – Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? (free for State and Local Govt Law Land Use Committee members)

IMG_20190719_102348

I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

…
Continue Reading Cases And Links From Today’s Eminent Domain And Pipelines Conference (Houston)

Posted without significant comment, the Court of Appeals of Washington’s recent unpublished opinion in Darland v. Snoqualmie Pass Utility District, No. 36002-4-III (July 16, 2019):

Snoqualmie Pass Utility District argues that the subsequent purchaser rule bars the Darlands’ inverse condemnation claim. We agree.

In Hoover v. Pierce County, 79 Wn. App. 427, 433, 903 P.2d 464 (1995), this court reinforced the general rule that a grantee or purchaser of land cannot sue for a taking or injury occurring prior to his acquisition of title, but rather, the subsequent purchaser may sue only for a new injury or taking. A prior owner’s right to damages for injury to property does not pass to a subsequent purchaser unless expressly conveyed. Crystal Lotus Enterprises Ltd. v. City of Shoreline, 167 Wn. App. 501, 505 n.8, 274 P.3d 1054 (2012). An exception to the doctrine exists when additional governmental action causes…

Continue Reading Where’s Palazzolo? Washington Appeals Court: Subsequent Purchaser Has No Taking Claim

Here’s what we’re reading this Friday:

…
Continue Reading Friday Round-Up: California Inverse Condemnation, Lawprof Epstein Litigates Public Trust, Property In Ecology, And More