You know the drill: permitting authorities know that if they take a definitive position about how a regulation works on a particular piece of property, a takings challenge is ripe. So in many cases we see either the authority taking affirmative steps to keep on saying “maybe,” or at least providing a definitive “no.” Or
Time to sign up for the upcoming “Unpacking Private Property’s Bundle of Sticks” Symposium, sponsored by our shop and George Mason Law Review. September 15, 2026, 12:15 – 5:45 p.m., Arlington, Virginia.
Continue Reading Register Now For “Unpacking Private Property’s Bundle of Sticks” Symposium (PLF & GMU Law Review) (Sep. 15, 2026)
Worth reading, if only for its somewhat odd logic is the U.S. Court of Appeals for the Seventh Circuit’s opinion in BBLI Edison, LLC v. City of Chicago, No. 25-1713 (July 22, 2026), where the court upheld, against a takings challenge, a city requirement that anyone who acquires a rental property via foreclosure must either enter into new one-year leases with any existing tenant who desires to remain, or pay $10,600 if a tenant chooses to vacate.
Continue Reading CA7: Takings Claim “has something to it,” But City Requiring Owner Pay Relocation Fee To Tenants Is A “Clunky” Form Of Rent Control, So You Lose
Here’s the latest in an issue we’ve been following for a long time: must a property owner first try to change the law which is claimed to work a taking before bringing a takings claim in court? In other words, in order for the government to have made a “final decision” for Williamson County purposes does the legislature have to decline to amend the very law being challenged?
Continue Reading New Cert Petition: Does A Property Owner Need To Seek A Legislative Change To Ripen A Takings Claim?
The essence of the infamous three-factor Penn Central test for whether a restriction on the use of private property under the police power “goes too far” and is treated as a de facto exercise of eminent domain is the Court’s admonition that the takings question is resolved by “essentially ad hoc, factual inquiries,” and not, generally speaking, by the application of categorical rules. To quote the unanimous Court (in an opinion authored by Justice Ginsburg), there is no “magic formula” to determine “in every case, whether a given government interference with property is a taking,” because “of the nearly infinite variety of ways in which government actions or regulations can affect property interests.” Thus, there are “few invariable rules in this area.”
Continue Reading CA9, 2-1: We Have A Magic Formula To Resolve Penn Central’s “Ad Hoc, Factual Inquiry” On 12(b)(6) In Every Case
Here’s the latest in a case we’ve been following. The owners of the trademark of the famous baseball player Roberto Clemente asserted a physical takings claim after the Commonwealth of Puerto Rico used a likeness of Clemente on commemorative license plates, among other things. The First Circuit rejected the takings claim…
Continue Reading New Cert Petition: Is Trademark Property Subject To The Same Takings Rules As Other Private Property?
Not a lot that’s earthshaking from the Supreme Court of the Commonwealth of the Northern Mariana Islands in Sablan v. Commonwealth Utilities Corp., No. 2024-SCC-0023 (June 20, 2026), but we’re posting it because its holding — an entity lacking the power of eminent domain may nonetheless be liable for inverse condemnation — is important because it rightly concludes that the focus of the calculus in these cases is on the infringement of the property owner’s rights, not the technicalities of the government’s power.
Continue Reading “The constitutional duty to provide just compensation arises from the act of taking private property for public use, not the formal possession of eminent domain authority.” Entity Lacking Eminent Domain Power Can Be Liable For Taking Property
Here’s the cert petition (filed yesterday) which asks whether a takings challenge to rent control which is justiciable under Article III (plaintiff has suffered a concrete injury that is fairly traceable to the challenged restrictions, and a ruling will redress that injury) may nonetheless be dismissed because the court believes that if the owner would only continue to chase the government via its own administrative procedures, she might get relief (thus relieving the courts of the burden of making a ruling). That’s right, the “prudential ripeness” question that has divided the lower courts.
Continue Reading New Cert Petition (Ours): Can Courts Choose To Avoid Constitutional Challenges To Rent Control By Making Owners Chase Pointless Denials?
The salient features of New Mexico’s elk management program, including the state’s introduction and efforts to build up the population of elk, the EPLUS (“elk private lands use system”), the mitigation assistance program, and the introduced elk becoming a nuisance, to private property owners are common in these type of things. But like a lot of what we call “wildlife” takings (like this and this, for example), the decision of the New Mexico Court of Appeals in Kiehne v. New Mexico Dep’t of Game and Fish, No. A-1-CA-42309 (June 3, 2026), does not go well for the owners.
Continue Reading Even Though They Have A “Relationship,” Those Elk The State Introduced Are Wildlife Not State Elk, So No Physical Taking When They Invade And Damage Private Property
Here’s the latest in a case we’ve been following for what seems like forever (and yes, it is one of ours, so we won’t be commenting). This morning the U.S. Supreme Court without comment denied the City of Marathon, Florida’s cert petition, which asked the Court to review an en banc opinion of the Florida District Court of Appeals which held that the City’s downzoning of Shands Key effected a Lucas taking as a deprivation of economically beneficial uses, notwithstanding that the property could be sold to a third party who could donate it to the city in return for some very watered-down transferable development rights (TDRs).
Continue Reading Good News: Lucas Cert Petition Denied – TDRs Go Only To Just Comp, Not Takings