Judicial Takings

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The U.S. Court of Appeals for the Ninth Circuit’s opinion in Epic Games, Inc. v. Apple, Inc., No. 25-2935 (Dec. 11, 2025), isn’t one the typical readers of this outlet might notice.

After all, it’s mostly about a tech company beef, as the caption might indicate. And the opinion is about one aspect of that beef, where the district court ordered Apple to do something, and then … it didn’t. As the opinion summary details:

After a bench trial, the district court enjoined Apple from certain anticompetitive business practices related to its App Store, and this court affirmed the injunction. Apple claimed to comply with the injunction, but it instead prohibited App Store developers from using buttons, links, and other calls to action without paying a prohibitive commission to Apple, and it restricted the design of the developers’ links to make it difficult for customers to use them.

Slip…

Continue Reading CA9: District Court’s Contempt Order Isn’t A Judicial Taking

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to

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Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

The owner’s land is a peninsula most of the time, but when Flathead Lake, Montana, rises a few months each year, it needed a bridge to access. So it asked the County “How about a bridge? We will only use it when the water rises.” County said yes, issued a permit.

NIMBY neighbors, however, had another idea, They sued the County to void the permit: “What about the Montana Lakeshore Protection Act?” they asked. Trial court agreed, declared the permit void, and ordered the owner to restore the area to its natural state. Montana Supreme Court affirmed.

Next up: the owner’s inverse claim against the County. We got a vested property interest, and “removal of the bridge by court order amounted to a taking[.]” Slip op. at 3. Trial court agreed with the County that the permit was void ab initio, and thus no vested property right. Moreover, the owner…

Continue Reading Montana: It Doesn’t Take Much To Allege An Inverse/Takings Claim (Nor Should It)

Screenshot 2024-07-14 at 09-00-18 Sheetz v. County of El Dorado Legislatures Must Comply with the Takings Clause by Brian T. Hodges Deborah La Fetra SSRN

Check this out: our Pacific Legal Foundation colleagues (Brian Hodges and Deborah La Fetra we on our Sheetz SCOTUS team), have posted a new scholarly piece on SSRN, “Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause.”

Here’s the Abstract:

For more than 30 years, the Supreme Court has recognized that building permit conditions requiring a dedication of property to the public implicate the Fifth Amendment’s Takings Clause and are therefore subject to the unconstitutional conditions doctrine as set out by Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). But for nearly as long as the Nollan/Dolan doctrine has been in place, state and lower federal courts have divided on the foundational question of whether the doctrine applies equally to all branches of government, or if it applies only to administrative…

Continue Reading New Article – “Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause” (Brian Hodges & Deb La Fetra)

Here’s the latest in an issue we’ve been following.

In SCS Carbon Transport LLC v. Malloy, No. 20230149 (May 30, 2024), the North Dakota Supreme Court held that that’s state’s statute which allows prospective condemnors to enter land to conduct surveys and the like before instituting eminent domain without liability is not unconstitutional, either on its face or as applied to SCS’s entries.

SCS is building a CO2 pipeline and decided it needed an interest in Malloy’s land. It asked if could enter to take a survey, but Malloy said no. So SCS sued, asserting its power under the statute, asserting it was planning on restoring the property to its “pre-examination” condition, and it was willing to pay compensation for any damage it caused:

In all cases when land is required for public use, the person or corporation, or the person’s or corporation’s agents, in charge of

…
Continue Reading ND: “Minimally Invasive” Precondemnation Entries Are Not Unconstitutional

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

In Romero v. Shih, the California Supreme Court recognized the doctrine of an “implied exclusive easement” (which sounds an awful lot like a fee simple interest, doesn’t it?) in a private easement disputed between Owner A and Owner B.

The owner on the losing end of the California decision has now filed a cert petition asking the U.S. Supreme Court to take up the case on judicial takings grounds. 

Here are the Questions Presented:

1. Whether a court order that excludes landowners from their real property and allows other private parties to permanently physically invade and occupy the owners’ land without compensation either effects a taking in violation of the Fifth Amendment to the U.S. Constitution or violates the landowners’ due process rights under the Fourteenth Amendment to the U.S. Constitution?

2. Whether the newly decreed judicial doctrine of…

Continue Reading New Cert Petition: Newly Decreed Easement Rule That Excludes Owners Is A Judicial Taking

Gorsuch concurring

Note: this is the second of our posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here’s our first post, which covers the case and the main opinion (“Sheetz pt. I – ‘Radical Agreement’ At SCOTUS: ‘Your Money Or Your Rights’ Isn’t OK Just Because A Legislature Does It“).

[Disclosure: this case is one of ours.]

In this post, we cover the three very short concurring opinions.

* * * *

The Court took no position on whether the County’s traffic impact fee has an essential nexus to the Sheetz development, or whether $23 grand is roughly proportional to any traffic his proposal might be responsible for. For this and more…

Continue Reading Sheetz pt. II: The Concurrences – Does Nollan/Dolan Operate Differently When Exaction Affects A Class?

A short one from the California Supreme Court. In Romero v. Shih, No. S275023 (Feb. 1, 2024), the court was presented with the question of whether Property Owner A had an implied easement over the driveway of Property Owner B.

The court held that easements may be created by implication, and “if there is clear evidence that the parties to the 1986 sale intended for the neighboring parcel’s preexisting use of the area to continue after separation of title, the law obligates courts to give effect to that intent.” Slip op. at 2. The court remanded for evidentiary findings.

Check out the opinion for all the reasons why.

But for a touch of takings, skip forward to page 28 where the court disposed of Owner B’s argument that deciding whether the driveway is subject to an easement worked a judicial taking. First, the court noted that the party “did…

Continue Reading Cal SCT: A Court Deciding Who Wins An Easement Dispute Isn’t A Judicial Taking

A quick one from the Arizona Supreme Court that isn’t so much a true takings case, but more like “takings adjacent.” In our view, it well illustrates the way that takings arguments can shape how statutes are interpreted, even if there isn’t a taking.

The case — Cao v. PFP Dorsey Investments, LLC, No. CV-22-0228-PR (Mar. 22, 2024) — was shaping up to be more in our area of operations because the Arizona Supreme Court granted review to decide this question (and others):

Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?

Seemed promising. The statute says that when property organized as a condominium regime decides to wind up and abandon the condominium format, the condo association shall sell “all the common elements and…

Continue Reading Condo Forced-Sale Statute Is Not A Taking Because It Does Not Allow Picking Off Individual Units, But Requires Sale Of Entire Condo

Be sure to check out this interview (“Rent Control Is a ‘New York Tragedy’“) on Hamodia, with law Professor Richard Epstein.

As you might expect, the interview is full of insights and bon mots. There’s even a reference to the judicial takings case, Stop the Beach Renourishment. And a lot of things that just make you shake your head because anyone who had done a modicum of thinking on the rent and vacancy control issue can tell there’s no real “exit strategy” by the governments who impose it, and that when the music stops — as it must, eventually — someone is going to be left standing up without a chair. It is not, at least as practiced in New York, “sustainable” (in today’s parlance).

And when you go to the New York courts, it’s a death trap. They’re all consistently pro-government in these cases. You try…

Continue Reading Interview – Professor Richard Epstein On Rent Control: The Powers-That-Be Don’t Take The “Exit” Option Seriously