September 2020

We were honored to be a guest on an episode of the Pendulum Land Podcast. Here’s the description from the show notes:

Hawaii inverse condemnation lawyer and William and Mary Law School adjunct professor Rob Thomas joins your hosts to discuss recording his classic single “Smooth” with Carlos Santana, whether the COVID moratoriums on evictions constitute a taking, and his favorite flavor of SPAM! (Don’t act like you don’t love SPAM.) This is the first of two episodes with the publisher of the popular eminent domain blog inversecondemnation.com.

We had to bring our “A game” because the hosts were full of rapid-fire questions, wit, and nerd trivia. It was hard to keep up at times. But we did our best (and yes, we did talk about our favorite flavors of SPAM). We also chatted about the coronavirus related takings claims, and an interesting takings case working its way up…

Continue Reading In Which We Go Over To The Dark Side: Our Guest Appearance On The Pendulum Land Podcast (SPAM, Takings, Star Trek/Wars, and More!)

Here’s the latest development in a case out of Maryland that we’ve been following for a while.

This is the one where Maryland Reclamation Association bought land back in 1990 to operate a rubble landfill. But after the purchase, the County changed its regs to prohibit (guess what) … rubble landfills. Mesne litigation ensued in various tribunals over the years. Eventually, MRA filed a regulatory takings claim under the Maryland Constitution’s takings clause in 2013, and the jury awarded a whopping $45 million in just compensation and interest. Hartford County asserted that MRA should have exhausted its administrative remedies by seeking a variance, and the claim was barred by the three-year statute of limitations because the takings claim accrued in 2007 when the Board of Appeals administratively denied MRA’s variance request.

The Maryland Court of Special Appeals concluded that the “final decision” for purposes of both ripeness and statutes…

Continue Reading Cert Petition: Can A State Agency Decide Whether There’s Been A Taking?

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Although it is set to launch this Friday, October 2, 2020, there’s still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn’t limited by the classroom size (this year’s registrations are at record levels), you don’t need to travel to Williamsburg, and the Conference is free if you don’t want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics…

Continue Reading There’s Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

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Today, the U.S. Supreme Court is considering our cert petition during the Court’s “long conference.”

This is the case focusing on the interplay between Williamson County‘s “final decision” ripeness rule and the “case and controversy” injury-in-fact standing requirement, and asks: if the government makes its final decision, but the plaintiff isn’t injured until later, has there been an actionable taking? 

Often, the date on which the government ripens a takings claim by making the final decision to apply the regulation to the plaintiff’s property, and the date on which the plaintiff’s property rights are actually affected are the same. But here, the two key events happened on different dates. The feds allege they made their final decision to jettison in the GM bankruptcy the plaintiffs’ tort and related claims on July 1, 2009. The Federal Circuit accepted the government’s assertion that final decision occurred when it uploaded its …

Continue Reading Considered In Today’s SCOTUS Conference: What Triggers The Takings Statute Of Limitations?

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The plaintiff owned property down in the land of the Delta Blues. The intersection of Highways 61 and 361 in Coahoma County, Mississippi. That’s a pic of the courthouse, taken a few years ago, by the way (yeah, we went there). 

The owner tried several businesses there, first a blues club, then another club known as “Showtime,” and later a restaurant. Between Showtime and the restaurant, the County’s public works department struck and damaged the water utility’s supply lines that run along Highway 316, including the line that supplies water to the property. The damaged line is on land on which the County has a right-of-way, and is about 1/2 mile away from the plaintiff’s land. 

Instead of repairing the line, it made more sense for the County and the water company to simply paid each property owner who was then currently receiving water service the cost to repair…

Continue Reading Miss App: Takings Statute Of Limitations Didn’t Expire Because There Was No Taking (And Even If There Was One, The Claim Is Too Late)

What place do you think of when you hear the word “earthquake? Most likely California, we’re betting.

And it’s also very likely that you didn’t think “Ohio.”

Well, that’s probably what everyone involved in the Ohio Supreme Court case State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2019-0493 (Sep. 23, 2020) thought too. Until AWMS sought salt-water injection well permits from the State of Ohio, and “[t]he next day, a 2.7-magnitude earthquake was recorded in Youngstown, Ohio, about seven miles from AWMS’s Weathersfield Township site and about one mile from an injection well known as “Northstar #1” that was not related to AWMS’s wells.” Slip op. at 3. Earthquakes? In Ohio?

A week later, the State determined that Northstar #1 should be taken out of operation, and the very next day, a 4.0 earthquake “was recorded within one mile of Northstar #1. Slip op. at 3. [That…

Continue Reading Earthquake In Ohio: The Jury Should Decide Lucas And Penn Central Takings After State Shut Down Injection Wells For Causing Earthquakes

Well, that didn’t take long: as we surmised back when the CDC first issued its order halting residential evictions until the end of the year due to COVID (see “How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment),” the order has resulted in a complaint in the U.S. District Court for the Northern District of Georgia that alleges the order is unconstitutional.

No takings claim (not the right court to raise a just comp claim), but there’s a lot “there,” so to speak: admin law (CDC exceeded its authority), violation of the right of court access, Supremacy Clause, Tenth Amendment, anti-commandeering, this is an invalid exercise of legislative power under Article I.

No takings claim, but read the complaint anyway.  

Complaint, Brown v. Azar, No. 1:20-cv-03702 (N.D. Ga. Sep. 8, 2020)

Continue Reading Complaint (N.D. Ga.): CDC Eviction Moratorium Is Unconstitutional (No Takings Claim, However)

A very quick one today from the North Dakota Supreme Court. In Cass County Joint Water Resource District v. Aaland, No. 20200272 (Sep. 15, 2020), the court rejected a property owner’s request for a stay pending appeal of a trial court’s order allowing the district to enter the owner’s property “to conduct examinations, surveys, and mapping, including geomorphic examinations requiring installation of survey monuments.” The District had tried to negotiate an easement, but the owner didn’t want to play.

The Supreme Court rejected the request, concluding that the owner didn’t show irreparable injury because he could always bring an after-the-fact inverse condemnation claim to remedy whatever injuries the entries caused. The court also concluded that a stay would harm the District, because it would delay the project, even though actual construction of the project has already been enjoined by a federal court. While the district might not be able…

Continue Reading No Injunction To Halt Precondemnation Entry, Since Owner Can Sue Later For Inverse

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Recently, we visited the site of a very well-known (and now very relevant) U.S. Supreme Court case. Why? Because we do things like that. See here, here, here, here, here, and here for some of our prior pilgrimages.

We’ll have more on the visit later. but we thought we would try and make Friday a bit more interesting by not telling you the location, but seeing whether you can guess what case this is.

The clues are all there.

[Hint: there are still a few apple orchards around, even after all these decades.]

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Continue Reading Takings Places (Preview)

[Barista’s note: is it any coincidence that Constitution Day is just one day — a single day! — before National Cheeseburger Day? Two awesome days in a row a coincidence? We think not.]

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk’s reading of the Preamble. 

KIRK: This was not written for chiefs.Hear me! Hear this! Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since. Tall words proudly saying We the People. That which you call “Ee’d Plebnista” was…

Continue Reading The Real “Prime Directive” – Happy Constitution Day