November 2022

Syllabus

Starting in January, we’ll be teaching the venerated, and oh-so-important Land Use course (Law 580) at the University of Hawaii’s Law School.

We’re at least temporarily stepping into some mighty big slippers (this is Hawaii, so we don’t always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to … well, you get the drift.

We’ll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeve – some impressive guest lecturers, explorations of dirt law careers…

Continue Reading Hawaii 5-80: Land Use Law At The University Of Hawaii

As we noted earlier this week, the Federal Quiet Title Act isn’t exactly on the public radar screens. Especially questions about whether the Act’s 12-year statute of limitations is “jurisdictional” or merely a claims processing rule.

Thus, you are not likely to see throngs of protesters on the Supreme Court steps today (Wednesday, Nov. 30, 2022 at 10:00 a.m). when the Court hears oral arguments in Wilkins v. United States, No. 21-1164.

Our law firm colleague Jeff McCoy is arguing, and you can watch him and the rest of our legal team explain what’s at stake in the above video. Or you can tune in and listen live to the audio here.

To hear what others think this case is about, read on:

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Continue Reading Today’s Dirt Law SCOTUS Arguments: Whether The Federal Quiet Title Act’s Statute Of Limitations Is Jurisdictional Is A Property Rights Question

Here’s the latest in a case we’ve been following.

In this cert petition, business owners on the losing end of a Co-19 shutdown order assert that the Sixth Circuit got it wrong when it concluded that the “overriding public purpose” of the shutdown orders should be given what amounts to dispositive weight under the “character of the government action” Penn Central factor.

The Sixth Circuit correctly (in our view) rejected the district court’s rationale that the takings claim could be rejected simply because “the state acts pursuant to its police powers to protect public health.” Slip op. at 15. But the Sixth Circuit didn’t stop there, and affirmed the dismissal because the “character” of responding to the Co-19 emergency was so overwhelming that it outweighed the other two factors (which the court had already concluded “weigh in favor of the Plaintiffs”).

As we explained in an article on …

Continue Reading New Cert Petition: There Must Be A Real Emergency Before Commandeerings Are Exempt From Compensation

Here’s a short one you might have overlooked because it’s an unpublished memorandum opinion.

In Kagan v. City of Los Angeles, No. 21-55233 (Nov. 10, 2022), a Ninth Circuit panel summarily affirmed the dismissal of property owners’ challenge to a city ordinance prohibiting eviction of “protected status” tenants from a duplex in order to regain the unit for family use. 

The takings claim was rejected for the now-familiar Yee rationale: there’s no physical invasion or a taking of the right to exclude, because the owner wasn’t forced to let the tenant on the premises in the first place. In other words, once you let someone in your property, you lose the right to exclude:

Here, as in Yee, the Owners “voluntarily rented their land,” and were not required to submit to physical occupation by another. Id. at 527. Moreover, the RSO allows at-fault evictions, such as evictions for creating…

Continue Reading Ninth Circuit: Property Owners Don’t Have A Fundamental Right To Use And Occupy Their Own Property

Screenshot 2022-11-28 at 12-12-00 Wilkins v. United States Is the Quiet Title Act’s Statute of Limitations Jurisdictional and How Does the Answer Affect Property Rights

The Federal Quiet Title Act isn’t exactly on the public radar screens. Especially questions about whether the Act’s 12-year statute of limitations is “jurisdictional” or merely a claims processing rule.

Thus, you are not likely to see throngs of protesters on the Supreme Court steps this Wednesday, Nov. 30, 2022 at 10:00 a.m. when the Court hears oral arguments in Wilkins v. United States, No. 21-1164.

Our hands are somewhat tied here from making major comments, since our law firm represents the property owners. But thankfully, our friend and colleague Stephen Davis has written up a summary of the issues in the case, and more importantly, explains why the issues are important to property rights:

The federal government’s litigation strategy in Wilkins attempts to deny landowners their remedy under the Quiet Title Act. The Supreme Court should carefully consider the potential ramifications for private property rights in deciding whether…

Continue Reading SCOTUS Argument Preview: Is The Federal Quiet Title Act’s Statute Of Limitations “Jurisdictional?”

CA

One from the U.S. Court of Appeals for the First Circuit.

In In re Financial Oversight & Management Board for Puerto Rico, No. 22-1048 (Nov. 22, 2022), the court affirmed the district court’s 12(b)(6) dismissal of a takings claim because the government didn’t actually force the plaintiff credit unions into buying what the complaint alleges are “worthless government-issued securities,” even where “the defendants knew – but did not disclose – that these would be losing investments given the precarious state and dire financial situation in which Puerto Rico found itself at the time.” Slip op. at 1.

Conned into purchasing junk bonds? That’s on you.

This is another Takings Clause claim arising out of the Puerto Rico governmental bankruptcy. [Disclosure: we represent some of the property owners/Respondents in that other matter, now at the cert stage in SCOTUS.] The complaint alleged that in a series of meetings over…

Continue Reading Shame On You: Govt Exerting “Irresistible Pressure” On (But Not Forcing) You To Buy Worthless Bonds Isn’t A Taking

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On this Thinks…uh Thanksgiving holiday, we’re grateful for all you property law and property rights mavens out there. Drive on, friends.

And no Thanksgiving gathering would be complete without the obligatory dramatic reading of John Stossel’s timeless holiday classic, “Private Property Rights Made the First Thanksgiving Possible.” We’re certain your relatives are eagerly awaiting your performance, including your interpretive dance. They’ll be very thinkful, we’re sure.Continue Reading We’re Thinkful For All You Dirt Law Lovers!

A quick one (2 page, per curiam) from the U.S. Court of Appeals for the Fifth Circuit to send you into the holiday.

In Devillier v. Texas, No. 21-40750 (Nov. 12, 2022), the court summarily concluded that “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right to action for takings against a state[.]” Slip op. at 1-2.

This is a very short opinion. Here’s the entirety of the decision (minus footnotes):

The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we VACATE the district court’s decision for want of jurisdiction and REMAND with instructions…

Continue Reading CA5: No Jurisdiction Over Federal Takings Claims Against A State

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Screenshot 2022-11-18 at 13-35-13 ALI CLE PA NY VA TX FL Continuing Legal Education

Here’s the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

  • Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

  • Private Utility Takeovers – Lessons From a 67 Day Trial

  • Valuation Issues When Billboards and Signs are Condemned

  • Setting Client Expectations and Identifying Red Flags

  • Developing Property Right Issues in Texas – Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

  • Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

  • Ethics:

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Continue Reading Here’s The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Well, that was quick. As we noted here, we recently argued a case in the Ninth Circuit (October 20, 2022) about whether a regulatory takings claim is ripe. 

Not long after we posted the argument recording, the Ninth Circuit panel issued a short memorandum opinion rejecting our arguments wholesale (November 1, 2022).

So earlier this week, we asked the entire Ninth Circuit to take a look. Here’s our en banc petition.

We’ll leave it to you to read it and see why we think this one is ripe.

Appellants’ Petition for Rehearing En Banc, Ralston v. San Mateo Cnty., No 21-16489 (9th Cir. Nov. 15, 2022…

Continue Reading Let’s Take A Deeper Look At Takings Ripeness, Ninth Circuit