July 2020

Like a lot of other jurisdictions, Hawaii’s emergency response statutes contain an “automatic termination” limitation on the governor’s or a mayor’s declaration of emergency:

A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.

Haw. Rev. Stat. § 127A-14(d).

Hawaii’s Governor David Ige issued a declaration of emergency way back in March, and as the coronavirus thing dragged on, later issued multiple “supplemental” declarations, some of which purported to adopt countermeasures or suspend laws past the original sixty-day window. The two-week quarantine for inbound travelers is one of those restrictions.

Here’s the Complaint filed yesterday in a Hawaii state court (Third Circuit, Kona), which challenges the Governor’s authority under section 127A-14. Check it out. …

Continue Reading New Challenge: Hawaii Governor’s COVID Orders Are Pau Already

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Here’s the latest in a case we’ve been following for what seems like forever. This is also a fact situation that has resulted in litigation in a variety of different fora, and at times has seemed like the final exam question in a Federal Courts law school class. We wrote about this latest phase — the issues raised by the Ninth Circuit’s opinion — in this article, even.

We won’t go into the background of the case, but if you are interested, you can find out more at this post (“What Constitutes a Loss“). The property owner has also summarized the situation thusly:

The State of Hawaii zoned for agricultural use land that it knew was not viable or appropriate for such use. At the property owner’s request, it rezoned it for urban use but, after Plaintiff Bridge Aina Le‘a began developing it, the State…

Continue Reading New (Mike Berger) Cert Petition: “This case is the proverbial ‘Exhibit A’ of much that is wrong [with takings law].”

This one is California process-specific, but we think the California Supreme Court’s opinion in Weiss v. People ex rel Dep’t of Transportation, No. S248141 (July 16, 2020), is still worth a read for you non-Golden Staters.

Why, you ask? Well, we all have been in the situation where, just before you are about to empanel your valuation jury, the court entertains motions in limine that look a lot like summary judgment motions. You know, things like “their theory of valuation is no good,” or “my theory is the only theory,” etc., etc. You can prepare a case for months, only to have it blown up on the literal eve of trial. It’s wasteful, based on unfair surprise. 

So California has a procedure — only applicable to eminent domain cases — that front-loads these type of questions. Any party may file what is called a “1260.040” motion (we’ll let…

Continue Reading Stay In Your Lane, Eminent Domain: California’s Eminent Domain Procedures Aren’t “Imported” Into Inverse Cases

Here’s the latest order in one of the various challenges to coronavirus-related shut down orders. (See here, here, here, here and here, for example.)

In Xponential Fitness v. Arizona, No. CV-20-01310 (July 14, 2020) (unpub.), the U.S. District Court for the District of Arizona denied preliminary relief in a case which sought an injunction against the Arizona governor’s orders. The complaint including a takings claim among others (contracts clause, due process, equal protection, as well as state law claims). The only relief sought for the taking was an injunction, not just compensation. 

[Sidebar: interestingly, there’s no mention of the Eleventh Amendment, despite the State of Arizona being the lead defendant in the case; we haven’t taken a dive into the docket to see if the State consented, or objected elsewhere to being haled into federal court.]

To the court, that was fatal to the likelihood of the plaintiffs’ success on the merits. Here’s the entirety of the court’s takings analysis:

Plaintiffs’ Fifth Amendment takings claim cannot support their request for injunction relief. See Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2176 (2019) (“As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government’s action effecting a taking.”). “The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), overruled on other grounds by Knick, 139 S. Ct. 2162. Thus, even if the June 29, 2020 Executive Order did violate Plaintiffs’ Fifth Amendment rights, Plaintiffs would not be entitled to injunctive relief because damages are the proper remedy for a taking. See Bridge Aina Le’a, LLC v. State of Hawaii Land Use Comm’n, 125 F. Supp. 3d 1051, 1066 (D. Haw. 2015), aff’d sub nom. Bridge Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610 (9th Cir. 2020).

Slip op. at 16.

Before we move on, a comment. We’re not sure that just compensation should be considered the only remedy for a taking. First, we’ve seen cases in which the Supreme Court has recognized that an award of just compensation is not the sole way to raise a takings claim. You can raise it as a defense to some government action (“you can’t do X, government, because to do X without compensation would be an unconstitutional taking” – this is more like a rule that government cannot act except in conformity with the constitution than an actual “takings” claim for compensation). The raisin case (Horne v. USDA) is a good example. Another is Kaiser Aetna v. United States, 444 U.S. 164 (1970), where the property owner raised a similar argument in response to the Corps of Engineers’ district court lawsuit under the Rivers and Harbors Act.

Or, you might raise a takings argument affirmatively by declaratory judgment:

MR. JUSTICE REHNQUIST suggests that appellees’ “taking” claim will not support jurisdiction under § 1331(a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that, since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees’ claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here, it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

Duke Power Co v. Carolina Env. Study Group, Inc., 438 U.S. 60, 71 n.15 (1979). We get that just compensation is the usual remedy, and the most common. But the sole remedy? Jury’s still out on that one, in our opinion.

Want more on the theory and practice of challenging these type of emergency orders? Please plan on joining us next week, Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on “Emergency and Police Power: Property Claims in Times of Crisis,” sponsored by the ABA Section of State and Local Government Law. Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I’ll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Would you like a deeper dive into takings and these type of emergency orders? Check out our soon-to-be-published article, “Evaluating Emergency Takings: Flattening the Economic Curve” (forthcoming 2020).

Xponential Fitness v. Arizona, No. CV-20-01310 (D. Ariz. July 14, 2020) (unpub.)

Continue Reading Federal Court: No Takings Claim To Enjoin COVID Shut-Down Order

It was mostly a win for the property owners in today’s Federal Circuit opinion in Hardy v. United States, No. 19-1793 (July 15, 2020).

The opinion isn’t heavy on the takings doctrine. It spent most of the time affirming the Court of Federal Claims’ conclusion that the plaintiff-owners owned property under Georgia law (their predecessors had conveyed easements, not fee simple interests, and thus maybe had their reversionary interests taken when, after the rails were abandoned, they were converted to trails use).

Check it out for the nuances of Georgia property law. Is this an easement, a fee, a right-of-way, or something else? Whatever the feds wanted them to be, the court agreed with the owners that Georgia said they were easements. And we know who defines property, mostly, for purposes of the takings clause in this case: Georgia.

The balance of the opinion was more of a draw…

Continue Reading A Not Too “Takey” Takings Opinion From The Federal Circuit

In Altman v. Brevard County, No. 5D19-1839 (July 10, 2020), the Florida District Court of Appeal considered a host of owner objections to a taking of easements over five beachfront lots:

(1) the County was required to obtain separate resolutions for each taking; (2) the County’s petition in eminent domain did not strictly comply with the Florida Statutes; (3) the resolution on which the County based its petition was nullified by an amended resolution; (4) the trial court crafted takings outside of the pleadings; (5) the County failed to establish a reasonable necessity for the takings; and (6) the County failed to present a good faith estimate of value for each easement.

Slip op. at 2.

The court rejected most of the objections, but agreed with three: “[w]e find that the County’s petition failed because it did not provide clear legal descriptions of the properties to be acquired and…

Continue Reading Condemnor Protip From Florida: Choose Wisely (Make Clear What You Want To Take)

Parslow article

I must say that am pretty chuffed that one of my (now former) William and Mary Law students published a law review article, and he wrote about…takings. And Blackstone, and history.

Read it: Andrew Parslow, A Defense of the Regulatory Takings Doctrine: A Historical Analysis of This Conflict Between Property Rights and Public Good and A Prediction for Its Future, 44 Wm & Mary Environ. L. & Pol’y Rev. 799 (2020).

Well done! Continue Reading New Article: “A Defense of the Regulatory Takings Doctrine: A Historical Analysis of This Conflict Between Property Rights and Public Good and A Prediction for Its Future”

Oklahoma! where reservations were created and remain!
And the waivin’ claims, won’t abate
Cos’ the claims come years behind the pain!

Things I learned from yesterday’s Supreme Court opinion in McGirt v. Oklahoma (the one where the majority concluded that for purposes of the Major Crimes Act, eastern Oklahoma is still part of a reservation):

  • There’s a difference between sovereignty and ownership.
  • Left bloc of Court signed on to this: “There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.” Slip op. at 20.
  • “[T]he magnitude of a legal wrong is no reason to perpetuate it.” Slip op. at 38. (As long as the legal wrong isn’t a court opinion, that is. In that case, stare decisis.)
  • “[T]hings could work out in the end,” and the parties may negotiate. Slip op. at 39. The epigram of history. Spoken like someone who’s never negotiated.

…
Continue Reading And The Land We Belong To Is Grand: What I Learned From McGirt v. Oklahoma!

Today’s case is a short one, but worth the short bit of your time it takes to read it.

In Borders-Self Storage & Rentals, LLC v. Ky. Transp. Cabinet, No. 2019-CA-000217 (July 2, 2020), the Kentucky Court of Appeals held that the assessed value of property for property tax purposes is admissible if the value was fixed by the property owner, and the condemnor offers it as an admission against interest. But if the landowner offers the same property tax assessed value, it is not admissible.

The Court of Appeals didn’t make up this uneven rule, but was merely applying a long-standing rule in Kentucky, first adopted by the Kentucky Supreme Court in Culver v. Commonwealth, Department of Highways, 459 S.W.2d 595, 597-98 (Ky. 1970). And the Court of Appeals has to follow Supreme Court precedent.

After Borders upgraded the property, it commissioned an appraisal which, in accordance…

Continue Reading Kentucky App Ct: Even Though We Don’t Agree, Tax Assessment Is Admissible In Eminent Domain Only By Condemnor Against Property Owner