Links From CRE's "Supreme Court Update: Is This Property's Moment?"

Here are the links to the cases and other materials that we mentioned (and some we didn't) earlier today at the Counselors of Real Estate's program on "Supreme Court Update: Is This Property's Moment?" Thank you to our colleagues at CRE for including us in the program.

I.  The evolving ground rules

• Takings cases can go to federal court:
  • Condemnation: PennEast Pipeline Co. v. New Jersey (eminent domain and the 11th Amendment)
  • Inverse and regulatory: Knick v. Township of Scott (opening back up federal courts to takings claims).
• How you define the “property” taken is key:
  • Murr v. Wisconsin (the larger parcel issue, applied in regulatory takings cases).
  • Koontz (money as property ... and exactions).
  • Brandt (easements, vel non)
• The exclusion “stick” is really important:
  • Any distinction between “permanent” and “temporary” takings is a matter of valuation, not liability: Cedar Point Nursery v. Hassid. 
  • Horne v. USDA (II) (California raisins and physical invasions)
  • Arkansas Game (physical invasions, again).
•  Remedies:
  • The remedy for a “taking” isn’t limited to just compensation: Horne v. USDA (I).
  • Winter v. Natural Resources Defense Council, Inc. (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).

 II.  Issues on the horizon

• Compensation and timing:
  • what to do when the condemnor doesn’t promptly pay up?
  • what is the date of valuation?
• Ability of condemnor to define the taken property:
  • Is there an obligation to value severance damages?
  • Fee take vs easement.
  • Temporary vs permanent.
• Does the Constitution protect property’s use, or value? Police power or takings?
• Whither Yee and the future of the physical occupation rule.
• Are eviction moratoria “takings?”
• Can you really get to federal court and stay there?
• The undivided fee rule ... constitutional?