Here's the motion for leave and proposed brief amici curiae we filed yesterday in an appeal pending in the U.S. Court of Appeals for the Eleventh Circuit.
This is a pipeline case (another one!) involving land in Florida. The district court got it right, concluding that the property owner/condemnee was entitled to recover attorneys' fees since state condemnation law governs the case, even though it was in federal court. The court also allowed the owner to testify about the fair market value of her property. The pipeline company appealed, arguing that the fact that Florida law allows recovery of attorneys' fees in eminent domain cases is irrelevant in a federal eminent domain action because attorneys' fees are not part of Fifth Amendment compensation. It also argues that the owner should not have been allowed to testify.
We filed the amicus motion and brief on behalf of Owners' Counsel of America, Southeastern Legal Foundation, and the National Federation of Independent Business Small Business Legal Center, to make two main points:
First, even if federal law controls, just compensation under the Fifth Amendment requires the owner recover the “full and perfect equivalent for the property taken.” And because Florida recognizes that one of the fundamental rights that owners of Florida property possess is the ability to recover attorney’s fees and costs, an award of compensation under the Fifth Amendment must compensate for that right.Second, property rights are personal rights, and the personal civil right of just compensation is secured by the general rule—recognized by the district court and most other courts nationwide—that an owner has a fundamental personal right to testify about the value of her property.Br. at 4.
Our point on what law governs compensation in federal condemnations is that under Florida law, one of the "sticks" in an owner's bundle of property rights is the right to recover fees and costs when their property is taken. And because the Fifth Amendment requires compensation for all property taken (as defined by state law), the district court was right when it allowed the owner here to do so, even if that is not a uniform national rule:
That one state’s property law differs from others should not be surprising. Florida’s property law stands mostly alone on this. But just because a property right recognized by state law is unique or unusual, doesn’t immunize it from the Fifth’s Amendment’s compensation requirement when taken by any condemnor, including the federal government. As the Supreme Court held, if a state has recognized it as a property right, "property it will be” –A right of this sort [in that case, a right of fishery] is somewhat different from those familiar to the common law, but it seems to be well known to Hawaii, and, if it is established, there is no more theoretical difficulty in regarding it as property and a vested right than there is regarding any ordinary easement or profit a prendre as such. The plaintiff's claim is not to be approached as if it were something anomalous or monstrous, difficult to conceive and more difficult to admit. Moreover, however anomalous it is, if it is sanctioned by legislation, if the statutes have erected it into a property right, property it will be, and there is nothing for the courts to do except to recognize it as a right.Damon [v. Territory of Hawaii], 194 U.S. [154] at 158 [(1904)] (emphasis added).
The federal interest is not in defining the property taken (an assumption on which Sabal Trail’s arguments are premised), but in ensuring the owner receives the equivalent in cash of the value of whatever state law defines as a property interest.Br. at 13-14.
On the "can the owner testify" question (one we've briefed before), we set out the general rule that yes, owners are competent to testify about property they own, the market for that property, and the value of what they own. Who better than the owner to know its value?
We won't go into further details of our argument, but leave it up to you to read the brief, if interested.
