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NY App Div: OK To Condemn Blighted Property To Sell To Private Developer

The New York Appellate Division's opinion in Huntley Power, LLC v. Town of Tonawanda, No. 22-011460 (June 9, 2023), is typically short (6 pages, including a dissent).

The town instituted eminent domain proceedings to take Huntley's riverfront property, including an electric plant decommissioned in 2016, and water intake structures. The asserted public use is "revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town[.]" Slip op. at 2.

That was enough for the court to "reject reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose[.]" Id. Rational basis, and so forth.

Nor was the condemnation "excessive," because it allegedly took more than it needed." There's no obvious abuse -- or at least any abuse that would qualify as an abuse of discretion. Slip op. at 3. The court also rejected the argument that the Town's "stated purpose for acquiring the property manifests and intent to engage in constitutionally-prohibited private enterprise because the Town intends to sell the property to a private developer." Id. No big deal here, because the "taking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use." Id. (citation omitted).

One Justice dissented from a part of the court's conclusions. The dissenter would have analyzed the takings separately, the first being the taking of the decommissioned electric plant is located. That taking is ok, and serves a public use and purpose for the reasons noted above. But the second taking -- of the intake structures along the river -- is another matter:

The majority finds that second taking to be lawful, but I do not.

Prior to the closure of its power plant, petitioner used theintake system to withdraw millions of gallons of untreated water to provide cooling for its generating units. Since closure of the plant, petitioner has allowed local businesses—specifically, Evonik LLC, Sumitomo Rubber Corporation, USA, LLC, and 3M Company—to obtain water for industrial uses from the river through its intake bays and screening facilities. Petitioner has granted easements and licenses to Evonik and Sumitomo to maintain pump houses and water lines on its property to facilitate the withdrawal and distribution of raw water, which is far less expensive than the treated water that the businesses would otherwise have to purchase for their manufacturing processes. The Town proposes to take petitioner’s water intake structures for the purpose of ensuring that local manufacturers have access to inexpensive raw water. Without that access, the Town asserts, there is a danger that the businesses will relocate out of the area, resulting in a loss of local jobs and tax revenue. But the Town’s proposed use of the water intake structures is no different than the existing use by petitioner, and there is no indication in the record that petitioner will refuse to continue providing water access to local businesses. Indeed, the money paid by the local manufacturers for the licenses and easements is the only revenue petitioner realizes from the property.

Slip op. at 5 (Lindley, J., dissenting in part).

The dissenting Justice concluded, "[i]n my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it." Id.

More on the decision here  from the Buffalo News ("Court upholds Tonawanda's right to take over long-shuttered Huntley power plant").

Huntley Power, LLC v. Town of Tonawanda, No. 22-01460 (N.Y. App. Div. June 9, 2023)

CAFED: Just Because The Govt Seized Property As Evidence Doesn't Mean It Can Keep It Without Compensation

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

Let's say the government thinks you have committed a crime (or someone else has). To investigate, it seizes property as evidence or potential evidence. But after things wrap up and it no longer needs the property as evidence, the government doesn't return it to its owner. Taking or no taking?

Some courts say it could be a taking. Others say no.

In Jenkins v. United States, No. 22-1378 (June 28, 2023), the U.S. Court of Appeals for the Federal Circuit said maybe. Or at least it isn't not a taking simply because the government was lawfully exercising its police power. And if there may be open questions about the whether the owner sought recovery of the property through available procedures or outright abandoned it, then a court entering summary judgment for the government isn't right.

Most of the facts of the case are clear: the DEA thought Jenkins was "involved in a drug conspiracy." In the course of its investigation, it seized two vehicles registered to Jenkins' mother, but used exclusively by Jenkins. It towed the vehicles to a private impound lot and put a "hold" on them (as the court noted, "[i]t is not entirely clear what a 'hold' is, but the parties appear to agree that it had the effect of giving the government control over the vehicles and preventing the impound lot from doing anything with the vehicles, such as selling the cars without the government's authorization.").

Jenkins eventually pled guilty to a drug charge and got a sentence of 252 months (21 years). "On October 21, 2013, between Mr. Jenkins’ guilty plea and his sentencing, the government contends that the hold on the vehicles was released." Slip op. at 3. The impound lot wrote to the titleholder (mom), telling her that if the accumulated fees were paid, the cars could be reclaimed. Mom said she never got this notice. Jenkins never got any notice at all, and the government didn't do anything to let him know beyond telling him in the underlying criminal case that he could go pick up the vehicles. And finally, the lot sent another (final) notice to mom to come get the cars in 10 days, or we're going to consider them abandoned. Mom "did not receive the letter because she was incarcerated." Slip op. at 4. Yikes. 

Jenkins had actual notice apparently, and tried to get the government to give back the cars under a special procedure available in criminal cases (Fed. R. Crim. P. 41(g) if you are interested). But even though the government told him that the cars were available in the impound lot and the court dismissed as moot Jenkins' separate claim that the government was wrongfully holding his cars (because the government indicated it was going to give back the cars), apparently the cars had been sold and the proceeds kept by the impound lot "apparently at least in part to satisfy towing and storage charges." Id. (

Next up, a Little Tucker Act physical takings claim in the district court. Yes, Little Tucker Act because these were used cars, not Sonny Crockett high-profile drug dealer cars. Jenkins threw in a due process claim for good measure and sought damages as a remedy for that. The district court dismissed the due process claim because there's nothing that allows you to get damages against the federal government for due process violations, and granted the government summary judgment on the takings claim on the basis that the cars were seized and retained by a valid exercise of police power (yes, we know the federal government arguably doesn't have general police powers, but work with us here), and there can be no takings claim in these situations. 

The appeal was transferred from the regional circuit (CA8) to the Federal Circuit (you CFC/CAFED mavens understand that process), which disagreed with the dismissal of the takings claim.

First, it made short work of the district court's rationale. Having a valid reason for the seizure and keeping does not insulate the government from takings liability:

The district court held that there was no takings liability because the government’s action was a lawful exercise of the police power. In this respect we think the district court erred. To be sure, as the government points out, we have consistently held that the government is not liable under the takings clause for property seizure during a criminal investigation or for damage to such property in its custody, even if the decrease in value renders the property essentially worthless. None of these cases, however suggests or even considers whether the police power exception immunizes the government from liability for failing to return property legally seized after the government’s need to retain the property ends.

While the United States’ police power may insulate it from liability for an initial seizure, there is no police power exception that insulates the United States from takings liability for the period after seized property is no longer needed for criminal proceedings. In this respect, we agree with the Third Circuit in Frein v. Pennsylvania State Police that “[t]hough valid warrants immunize officers who stay within their scope, they are not blank checks,” and once criminal proceedings have concluded the government “needs some justification” to retain the property without compensation. 47 F.4th 247, 252–53 (3d Cir. 2022). Even when the initial seizure and retention of property is properly done pursuant to the police power, the police power does not insulate the government from liability for a taking if the property is not returned after the government interest in retaining the property ceases. The district court erred in concluding that the legitimacy of the initial seizure precluded liability for failure to return the property.

Slip op. at 8-10 (footnotes omitted).

A good lesson, and one that many courts have not learned.

But that wasn't enough to send the case back, and the Federal Circuit concluded the factual record was not developed enough for the district court to make a decision, such as did the government retain the cars itself or did it surrender them to the impound lot? See slip op. at 11. Did the government notify Jenkins of his ability to recover the cars in a Rule 41 proceeding? And what about that "hold," and whether Jenkins abandoned the cars. Slip op. at 13. And finally, was the impound lot the agent of the government when it sold the cars? Slip op. at 14.

So this one is not over. And by the way, the Federal Circuit affirmed the due process dismissal, kind of: "The theory is that an illegal exaction occurred when and if the government transferred the cars to the impound lot. Mr. Jenkins’ problem is that while his pro se complaint generally alleged a due process violation, it nowhere asserted an illegal exaction theory. The district court did not err in dismissing this due process claim for lack of jurisdiction. However, on remand Jenkins may seek leave to amend to assert an illegal exaction claim." Slip op. at 16. 

Jenkins v. United States, No. 22-1378 (Fed. Cir. June 28, 2023)

Indiana SCT: We're Not Going To Decide Whether Indiana's Takings Tests Should Be The Same As Federal Tests (But We'd Like To In A Future Case)

In this Order the Indiana Supreme Court declines to take up the question of when property is taken by regulation. We post it here to note the statement of Justice Slaughter, who agreed that this case isn't the right vehicle to examine whether Indiana law should adopt a takings test different than the federal test but that he "remains open" to considering it in the right case.

So, Indiana friends, heads-up. Be sure in your next regulatory takings matter, you plead and argue both federal and Indiana takings.

Order at 2.

Order, Duke Energy Indiana,...

Chump Alert! Developer's Claim That City Can Be Held To Its Contract Limiting Exactions Goes About As Well As You'd Expect

We're not going to dwell all that much on the California Court of Appeal's recent opinion in Discovery Builders, Inc. v. City of Oakland, No. A164315 (June 22, 2023), mostly because it seems entirely predictable.

The developer thought it had an agreement with the city to pay certain fees (dare we say "exactions") the city required in order to approve and provide what the court calls "project oversight." The contract "provided that the fees set forth in the agreement satisfied 'all of the Developer's obligations for fees due to the City for the Project.'" Slip op. at 1. You know where this is headed, don't you?

That's right, eleven years later while the project was still underway, the city adopted new ordinances imposing new impact fees. When the developer sought additional building permits ... no permit without paying the additional exactions. The trial court thought the contract took care of that issue, and ordered that the city could not impose any new fees beyond what it had agreed to impose.

The court of appeal made short work of that, and held (as you probably predicted) that the city's agreement was pretty worthless because the new fees were a valid exercise of police power, and "the government may not contract away its right to exercise the police power in the future." Slip op. at 12. Against public policy, etc etc. You know the vibe.

"We trusted you," and "we had a deal," don't go very far when it comes down it it, and anyone who thinks they can actually hold the government to what it agrees to has a reckoning coming if the government chooses not to honor its agreement.  As Chief Justice Roberts noted in a different context: what chumps!

We're not suggesting that the developer here was in fact a chump. We feel for you -- you should be able to trust the government. But alas, no, the courts are just fine with treating those who rely on the government's promises like suckers for believing it.

Anyway, this one can't be too much of a surprise.

Discovery Builders, Inc. v. City of Oakland, No. A164315 (Cal. Ct. App. June 22, 2023)

Nectow Is Meaningless Because It "relies on pre-Lochner administrative review jurisprudence"

One from the Louisiana Court of Appeal, 3000-3022 St. Claude Avenue, LLC v. City of New Orleans, No. 2022-CA-0813 (June 22, 2023) demonstrating that the standard of judicial review for zoning matters (rational basis) is pretty powerful.

The owner wanted to develop its New Orleans property, but first needed a zoning amendment from residential to commercial, followed by a conditional use permit for its proposed use. The city denied the request. After much procedural back-and-forth, including a trip to the court of appeal to resolve, the case was sent back to the city council to state the basis for the denial. The council held a public meeting at which it denied the rezoning, and declined to state more, including the reasons why.

So back to court the owner went. The trial court thought it had been clear enough: you were supposed to say why you denied the rezoning. Hearing nothing satisfactory from the city in response, the trial court held that the denial was arbitrary and capricious, and sent the case back to the city council with an order that it approve the zoning change. Next stop, the court of appeal.

The city asserted this was wrong for two reasons. First, making us state the reasons why we denied the rezoning effectively shifts the burden from a challenger showing that what we did was arbitrary and capricious, to the city showing that it wasn't. Next, the city argued that the owner hadn't met its burden to show that the rezoning denial was arbitrary and capricious because it didn't overcome the rational basis standard of review.

The court of appeal accepted both arguments. A "zoning decision by the City Council is not invalid merely because the City Council did not include an explanation of its decision." Slip op. at 9. These things are entitled to a presumption that they are valid, and it's up to you, challenger, to prove why denial of rezoning is arbitrary and capricious. It isn't the government's duty to say why it does something. See slip op. at 12 ("The trial court’s October 12, 2022 judgment and Reasons for Judgment do not demonstrate a finding that the LLC established an arbitrary and unreasonable exercise of legislative authority so as to rebut the presumption of validity attached to the City Council’s decision and shift the burden of proof to the City Council. This was error for the trial court to do so."). 

Besides, it really doesn't matter because rational basis review is really conceivable basis - what the city might say about why it denied the rezoning doesn't matter as long as one reasonable government official might think it is related to the public's health, safety, welfare, or morals. Slip op. at 15 ("It is sufficient that the municipal council could reasonably have had such considerations in mind.").

What about Nectow v. City of Cambridge, 277 U.S. 183 (1928), where the very same U.S. Supreme Court that had a couple of years earlier upheld zoning against a facial constitutional challenge held that as-applied to a particular parcel, Cambridge's residential designation was arbitrary and capricious? The Louisiana court discounted Nectow, noting only in a footnote that "[b]ecause Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928) relies on pre-Lochner administrative review jurisprudence, we do not find it persuasive in the case sub judice."). Slip op. at 16 n.3. Lacking proof that the property here is "completely unsuited" for residential development in accordance with its current zoning, there's nothing for a court to do. 

It doesn't have to be this way, as the U.S. Court of Appeals for the Fifth Circuit recently held. Facts seem like they should matter.

Finally, the court rejected the takings claim:

The City Council received information regarding the ability of the Property to generate income in its current zoning because the structures present on the rear residential portion have previously served as residential rentals, so this refutes the LLC’s contention that the current designation constitutes a taking of the LLC’s property.

Slip op. at 21.

This portion of the court's opinion is pretty incoherent as it seems to apply a due process analysis to the takings question. See, e.g., slip op. at 20-12 (analyzing the possible reasons why the city council denied the rezoning, and why residential uses are preferred by neighbors). We'd appreciate it if anyone can explain this part of the opinion to us in a way that makes some sense.

3000-3032 St. Claude Avenue, LLC v. City of New Orleans, No. 2022-CA-0813 (La. App. June 22, 2023)

New Article: 2023 National Eminent Domain Update

Thanks to the editors at ALI-CLE's The Practical Real Estate Lawyer for publishing my friend and colleague Amy Boulris and my summary of what we think were the most interesting -- if not the most important -- eminent domain cases over the past year.

And more thanks for allowing us to post it here, ALI-CLE. Full citation: Amy Brigham Boulris & Robert H. Thomas, "2023 National Eminent Domain Update" July 2023 ALI-CLE Prac. Real. Estate Lawyer.

Amy Brigham Boulris & Robert H. Thomas, 2023 National Eminent Domain Update, July 2023 ALI-CLE Prac. Real E...

CA6: We Haven't Already Said Individual Govt Officials Can Be Liable For Takings, So They're Immune

In Sterling Hotels,LLC v. McKay, No. 22-1345 (June 22, 2023) the U.S. Court of Appeals for the Sixth Circuit considered whether a hotel could sue a state elevator inspector who barred the hotel from operating its elevators for reasons the state's Elevator Safety Board had not approved. As a result, the hotel couldn't rent rooms on five of its six floors. 

Federal complaint -- including a takings claim against the inspector in his individual capacity -- followed. The district court declined to address whether the inspector had qualified immunity from the takings claim. Next stop, Sixth Circuit.

Did the inspector violate the hotel's "clearly established constitutional rights" and thus not enjoy immunity? Nope:

Sterling next argues that McKay engaged in an unconstitutional regulatory taking when he sealed the elevators. At the time of the alleged taking, however, no court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity—which is the capacity in which Sterling sued McKay here—and at least one case suggested the contrary. See Viceroy v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) (“Plaintiff cites no case, and we can find none, that suggests that an individual may commit and be liable in damages for a ‘taking’ under the Fifth Amendment”). McKay’s potential individual liability for a regulatory takings claim was not clearly established when he sealed the elevators. That means McKay is entitled to qualified immunity on this claim.

Slip op. at 5.

So can a government official be liable for a taking in his individual capacity? Still don't know. But until the Sixth Circuit or the Supreme Court says yes, then the answer is going to be no. Or at least you can't sue for that. At least not in the Sixth Circuit.

The story isn't over completely, however, because the hotel also asserted a procedural due process claim that it was entitled to notice and a chance to be heard before the inspector tagged the elevators. On this, the Sixth Circuit agreed this right is clearly established, and the inspector enjoys no immunity. See slip op. at 5.

Sterling Hotels, LLC v. McKay, No. 22-1345 (6th Cir. June 22, 2023)

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Sad Birthday Wishes To Penn Central - Some Things Don't Get Better With Age

Thanks to lawprof Josh Blackman for the reminder that our un-favorite case, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), turned 44 today.

If you know, you know.

Time has not treated the opinion well. Practitioners, judges, and legal scholars across the spectrum have called the three-factor Penn Central test for an ad hoc regulatory taking "demanding," "fuzzy," a four-part test, "neither defensible as a matter of theory nor mandated as a matter of precedent," and "problematic" and "mysterious." Courts mess up the basic meaning of the factors, treat what is supposed to be a fact-centric "ad hoc" test as a legal question decided on the pleadings, and gatekeep most of these cases from juries.

The definitive deconstruction of the case was Gideon Kanner's "Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York," 13 Wm. & Mary Bill Rts. J. 679 (2005). A must-read for anyone who plays in the Penn Central sandbox. 

If you want to be a part of rethinking Penn Central, listen to this episode of Clint Schumacher's Eminent Domain Podcast with our colleague Jon Houghton ("Jon Houghton and His Penn Central Quest"), or submit a proposal for our "Rethinking Penn Central" symposium.

But until something better comes along, let's wish Penn Central an Un-Happy Birthday.

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)

Oklahoma: Private Necessity Takings Are OK, And Don't Require A Public Use Or Purpose

Before you get too excited by the headline and think this is a Kelo issue, a word of caution: this short one from the Oklahoma Supreme Court is on a really niche topic: private condemnations that permit the private owner of property to institute a private-benefit taking to force a neighbor to sell an interest in its property if doing so is necessary. 

Childers v. Arrowood, No. 119815 (June 20, 2023), involved whether it is proper under Oklahoma's private taking statute for the owner of property that isn't landlocked and can physically access the outside world but has no utility service, to condemn an easement over an adjacent parcel to obtain such service.

Until 2008, Childers' property was landlocked. But their predecessor-in-title secured an express access easement from the owner of the neighboring property, solving that problem. But then new owners bought the dominant parcel, and want to live there. Yes, they can physically access the property, but the utility company told them that it can't make a utility connection unless the owners also possess an easement for utility access.

The owners filed a statutory private eminent domain lawsuit against the owners of the servient parcel to secure utility access. Those owners objected: the statute is reserved for "private ways of necessity" and since you already have physical access and your parcel isn't landlocked, you can't use the statute to forcibly take a utility easement. Trial court approved the taking and the private condemnees appealed. 

The Oklahoma Supreme Court OK'd the taking. The purpose of these private ways of necessity takings is to prevent properties from being landlocked and to prevent those properties from being rendered useless: "What the common law easement by necessity and the statutory way of necessity share in common is their underlying purpose -- to prevent property from being land-locked and rendered useless." Slip op. at 5 (footnote omitted).

That being said, do the common law cause of action and the statutory way of necessity have the same elements of proof? Nope, "the Childers were not required to show the elements of a common law easement by necessity to acquire the easement." Slip op. at 6. The servient owners/condemnees countered: even these private takings require a public purpose. Slip op. at 6-7 (there's your Kelo goodness).

The court rejected the argument. The Oklahoma Constitution expressly exempts private ways of necessity takings from the public use requirement. Slip op. at 7. But the court doesn't address the property owners' other argument: that the Fifth and Fourteenth Amendments require all takings to have a public use. The court notes the argument was made. But then, silence from the court. We're not sure why.

After all, this seems like a worthy argument. At least one court has though so. See "Pa. Supreme Court: If It Walks Like A Private Taking And Quacks Like A Private Taking, It Might Be A Private Taking."

The remainder of the opinion is devoted to the court explaining why the private condemnor could take a neighbor's property to secure utility access. The statute is designed to help owners make use of their property, not simply to gain physical access. And if that means taking a utility easement from your neighbors, the statute allows it.

Childers v. Arrowood, No. 119815 (OK June 20, 2023)

Iowa Supreme Court Can't Decide Much Of Anything In Power To Take Challenge

At first, the Iowa Supreme Court's opinion in Juckette v. Iowa Utilities Board, No. 21-1788 (June 16, 2023) looks like a promising read. The issue -- is a utility expanding its use of an express road easement to install electric lines a taking? -- is one that we've been following.

But by the time you get to the end of the short opinion (10 pages), you realize the court didn't decide much, other than yeah, the utility has the statutory authority to use the easement this way. The court can't reach a decision on whether that's a taking for public use. Not because there's some problem with the case or the way it was presented, but because one of the Justices on the seven-member court sat it out and the remaining six couldn't agree. Affirmed by an equally divided court, 3-3. 

This apparently is not that unusual in Iowa, as the national media noted recently. This story ("Iowa Supreme Court split 3-3 on abortion ruling - How rare is a deadlock?") notes it is rare, "with only 18 cases ending in a non-decision deadlock in the last 15 years." To us, more than one a year seems like a lot, not rare.

Well, at least the six who showed up agreed on one issue: the utility met the statutory requirements of building utilities in a public road easement.

Here's the short story. Juckette's-predecessor-in-title granted the county an easement for a "road right-of-way." That road is now a county highway. Flash forward a few decades and the electric utility wants to build new lines to "satisfy the demands created by Microsoft's new data center." Slip op. at 8. On some properties it exercised the delegated power of eminent domain. But on Juckette's land, it didn't because it thought it could just use the road easement. As the court noted, based on a decision of the Iowa Supreme Court, Keokuk Junction Railway v. EIS Indus., 618 N.W.2d 352 (Iowa 2000), "the utility "would have been obligated to pay Juckette compensation to build electric transmission lines in the road right-of-way." But in 2004, the Iowa Legislature adopted a statute that authorized utilities to go ahead and build in a public road right-of-way.

The utility petitioned the Iowa Utilities Board to let it do just that. The Board agreed that the utility met the statute's requirements and that the electric project is in the public interest. The legislature had essentially overruled the Iowa Supreme Court's Keokuk decision. But wasn't Keokuk a constitutional ruling, meaning that the statute could not supersede the obligation to pay compensation? The Board (correctly) concluded that as an agency, it lacked the jurisdiction to determine constitutional matters, and declined to address the argument.

Next stop, the courts. The trial court affirmed the Board's application of the statute, and rejected the owner's claim that this is nonetheless a taking and compensation is required. Next stop, the Iowa Supreme Court to resolve all questions.

Or so the parties thought. That court affirmed the statute-allows-this ruling. It also agreed that the Board's determination of public use and necessity under the statute (a certificate of public convenience for you PUC mavens) resolved the question of whether this is a public use of the property for takings purposes.

The owners asserted this was a taking to benefit Microsoft, not the public. The court noted, "it does seem that the most immediate need for the project is to satisfy the demands created by Microsoft's new data center. But record evidence shows that MidAmerican's planned improvements will also benefit current and future customers other than just Microsoft." Slip op. at 8-9. But we don't have to resolve which side is right, because the Board already did so: the public use inquiry required by the constitution is undertaken and determined by the Board.

On the other issue -- is expanding the scope of a granted easement to include additional uses a taking -- the court split 3-3.

The only question is whether that construction could result in a taking that requires compensation under the Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution. As to this question, we are evenly divided. Christensen, C.J., and McDermott and May, JJ., would find that that construction could result in a taking; Waterman, McDonald, and Oxley, JJ., disagree. As a result, the district court is affirmed by operation of law. Iowa Code § 602.4107 (2023); Effler, 769 N.W.2d at 884.

Slip op. at 9-10.

Too bad.

Juckette v. Iowa Utilities Board, No. 21-1788 (Iowa June 16, 2023)

CA5 Makes Short Work Argument That Asserting A Rational Basis For A Short-Term Rental Ban Is Enough To Secure Pleadings Dismissal Of Arbitrary And Capricious Challenge

In this very short (but apparently published) opinion, the U.S. Court of Appeals held that it was not right to dismiss a claim on the pleadings and that factual development is warranted, even where the complaint alleges that a municipal land use ordinance is arbitrary and capricious, and the city claims it has a rational basis for the ordinance.

And when we say "short," we mean it. Here's the entirety of the opinion:

Plaintiffs here appeal the Rule 12(b)(6) dismissal of their complaint alleging that the City of New Braunfels’s zoning regulation banning short-term rentals of residential properties in certain areas of the city is unconstitutional. The district court ordered dismissal by approving a few conclusory paragraphs in the magistrate judge's recommendation. This court’s relevant case law, however, indicates that some factual development may often occur in these cases, and that summary judgment may often follow. See, e.g., Mahone v. Addicks Util. Dist., 836 F.2d 921, 935–37 (5th Cir. 1988). We make no prediction on the future course of this case, but based on the complaint’s well-pled allegations, plaintiffs are entitled to engage in discovery in an attempt to surmount the currently high bar for challenging local zoning ordinances under the Constitution.

VACATED and REMANDED.

One judge dissented, but didn't file an opinion.

[Before we go on, this disclosure: our law firm filed this amici brief in support of the property owners.]

This is a substantive due process challenge (yes, you read that right) to the city's ban on short-term rentals in residential areas. The district court, adopted the recommendation of the magistrate who as noted above, dismissed because "the Court need not use its imagination to conceive of the way zoning ordinances preserve the nature of a city center or understand a community member's concerns; these are scenarios that already exist." Recommendation at 14. Yes, it is arbitrary to draw a line between short and longer term rentals, but "[t]his complaint is irrelevant under rational basis review because municipalities must draw the line somewhere." Id. at 15. 

The Fifth Circuit made short work of that, concluded that some facts may be relevant to the question, and that the plaintiffs are entitled to have their day in court. Or at least engage in some discovery, Texas style.

If only more courts would do this at the pleadings stage. Instead, in land use and constitutional property cases, courts often act as gatekeepers by dismissing cases under Rule 12(b) if they deem pleadings not to have a likelihood of success on the merits, or by applying an overly-deferential standard of review, effectively shielding these type of cases from juries or other finders-of-fact.

Marfil v. City of New Braunfels, No. 22-50908 (5th Cir. June 16, 2023)

They're Here, Ready For Shipment: Your Inversecondemnation.com Fleecy Swag Vests (Just In Time For Summer!)

As we noted here ("Would You Like A Fleecy Inversecondemnation.com Swag Vest? If So, Here's How To Get Yours"), we have produced the first post-prototype batch of swag attire.

After several delays ("supply chain" they said, but that's probably what everyone hears nowadays), we have received the production order from the manufacturer and done our quality checks. All good, and we're ready to ship the pieces out to those of you who placed an order.

What next, and what do you need to do? Look for an email from me with an invoice ($42 USD, USPS shipping included). As we noted earlier, this is at-cost, no gravy for us. After you send in payment (PayPal) and your mailing address, and it will go out in the US Mail shortly thereafter. 

Then all you need do is wait for the weather to cool off a bit (or, if you crank up the A/C in the office).

Thank you to everyone who ordered and is wiling to sport one of these things.

If you would like one but didn't already place an order, please let me know - I will probably be producing another batch of these before the fall.

Texas Supreme Court: We Want To Resolve Whether Short-Term Renting Property A Natural Right, Just Not In This Case

In this order, the Texas Supreme Court declined to review a case we've been following, in which the court of appeals held that Grapevine's total ban on short-term renting of property -- banning even owners who had been doing so for a while -- might be a taking. The court held that even though the owners did not possess a classic vested right to continue using their properties to rent on a short-term basis, they owned their properties and that was enough. Property ownership comes with the "fundamental" right to rent it out and there's no need to show more, such as a vested right under state law. More details on the city's ban and the court's reasoning here.

The city sought discretionary review and somewhat unusually, the property owners agreed that this is an important issue worthy of the Supreme Court's review.

But even with everyone agreeing on that point, the Supreme Court passed. The court didn't offer any reasons for the denial 

Justices Young and Blacklock concurred separately to explain their reasoning. Agreeing that the "questions presented in this petition is of increasing and demonstrable importance[,]" and "this Court needs to weigh in on the heady constitutional issues at stake[,]" and that they both "tend to agree" with the parties and amici that the issue is teed up, they "nevertheless concur in the denial of the petition for review."

Why? Vehicle problems. Some of the usual administrative thicket to navigate. Maybe a future case will be simpler (in this case, the owners are challenging a single city ordinance, but in order to resolve the case, Justice Young noted that the court would be required to interpret a separate ordinance as well). And, somewhat oddly, the concurring opinion seems to invite the city to "adopt new regulatory measures if it deems necessary to do so." 

So let's wait, which might let "other lower courts ... opine on the issue."

Part of the chief appeal of the parties’ joint request that we take this case is that the issue is prevalent and important. I believe them. If that premise is right, then plenty of cases will come. If they do not, then today’s perceived importance and urgency will have turned out to be illusory. Either way, our State will be better served by a measure of patience from this Court, as frustrating as it may be to us and, even more, to the parties to this case. I accordingly concur in the denial of the petition for review.

Concurring op. at 5.

And hint for you advocates: don't forget to include analysis under the Texas Constitution (a thought Justice Young has expressed before).

So stay tuned. This one isn't likely over.

City of Grapevine v. Muns, No. 22-0044 (Tex. Jun 16, 2023) (Young, J., and Blacklock, J., concurring in the...

New Takings Ripeness Cert Petition (Ours): Knowing The Permissible Uses "to a reasonable degree of certainty" Is All You Need For A Claim To Be Ripe

Here's the cert petition, filed last week, in a case we've posted about. See here (Ninth Circuit arguments) and here (en banc petition).

The Ninth Circuit affirmed dismissal of a takings claim because (it held) the claim isn't ripe. The government hasn't made up its mind, and just might allow the owners to make some use of their residentially-zoned land (even though the property is also subject to an overlay zone that expressly prohibits residential development). More background here. 

This is one of ours, so we're not going to be saying too much more about it. The petition also lays out the situation.

Here are the Questions Presented:

Randy Ralston and Linda Mendiola (Ralstons) wish to build a retirement home on their residentially-zoned land in San Mateo County, California. However, their property sits entirely within an overlay zone, the Montecito Riparian Corridor (Corridor), which categorically bans residential development. The County nonetheless instructs landowners who wish to build a home to submit their “intention” to the Community Development (Planning) Director and County Counsel, who must undertake a “takings analysis” to decide whether to “override” the Corridor’s absolute ban to prevent a taking. When the Ralstons followed this procedure, the Planning Director and County Counsel responded that there was no justification “to override the Local Coastal Plan limitations on development within wetland and riparian areas in order to accommodate a reasonable economic use.” No procedure exists to challenge this decision. In short, the answer was an unambiguous and unappealable “no.” The Ninth Circuit held that the Planning Director and County Counsel’s response, though they were speaking for the County, was “informal,” and that the Ralstons’ takings claim is ripe only if they submit—and the County formally denies—a Coastal Development Permit application.

The questions presented are:

1. Is a takings claim ripe when the government establishes a mandatory process requiring property owners to ask whether any development on their land is possible, and responds with a definitive and unappealable denial?

2. Are takings complaints subject to a higher pleading standard than other civil rights complaints?

Stay tuned.

Petition for Writ of Certiorari, Ralston v. County of San Mateo, No. ____ (U.S. June 16, 2023)

CAFED: Temporary But Recurring Flooding Is A Categorical Taking, Not Penn-Central-Plus

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

In Ideker Farms, Inc. v. United States, No. 21-1949 (June 16, 2023), the U.S. Court of Appeals for the Federal Circuit held that temporary, but recurring government-caused flooding was correctly treated by the Court of Federal Claims as a categorical per se taking, and not under Arkansas Game & Fish's Penn-Central-plus multifactor test. The court also held that the property owners are entitled to just compensation for their lost crops.

The opinion is pretty dense (39 single-spaced pages) so we're not going to provide a blow-by-blow account of the arguments and the court's reasoning. But we will hit some of the highlights:

• The Missouri River floods annually. In the 1990s, the Corps of Engineer and Fish and Wildlife Service "began discussions concerning proposed changes to the River designed to mitigate the environmental impact" of the federal flood control measures built and installed long ago. Eventually (you know where this is going, don't you?), the federal agencies decided to "restor[e] the Missouri River to a more natural state," and abandoned its former policy of prioritizing flood control (2004 Changes).
• Well guess what? "While the period from 2000-2006 was largely a drought, periodic flooding returned in 2007, 2008, 2010, 2011, 2013, and 2014." Slip op. at 7. Property owners on the short end "alleged the 2004 Change caused frequent and severe flooding on Plaintiffs' farms between 2007 and 2014 that amounted to permanent, physical takings under the Fifth Amendment." Id. 
• Eventually, the CFC concluded the government caused the flooding and after a trial held the government liable for taking a permanent flowage easement. Just compensation awarded to the three representative plaintiffs: $7 million. That compensation did not include anything for the loss of the crops destroyed; the CFC held that loss was a consequential damage and not recoverable. Slip op. at 8. Both sides appealed: the government from the liability judgment, the owners from the denial of crop compensation.
• The Federal Circuit first rejected the government's statute of limitations argument (there always seems to be one of those, doesn't there?). The "stabilization" doctrine, which instructs courts to look when the impact of the government's acts or omissions stabilized when the impacts are spread out over time, applies here. See slip op. at 15 ("When a reasonable plaintiff knew or should have known that his claim stabilized does not need to correspond identically with the physical event giving rise to liability."). Thus, a takings claim need not invariably be triggered by the physical event giving rise to liability occurs. When the harm stabilizes is a fact question, and the CFC was not clearly erroneous when it concluded the damage settled in 2014, not earlier. Slip op. at 16.
• On to the merits of the takings claim. The court rejected the government's argument that the flooding must be analyzed under the Penn-Central-plus factors for temporary flooding outlined by the Supreme Court in Arkansas Game & Fish. True, the flooding here did not cover the plaintiffs' properties permanently with water. "The [CFC] accepted based on the parties' stipulation that the flooding in this case is permanent, not temporary, in nature. In short, the Government has not ceased and does not plan to cease flooding Plaintiffs' lands." Slip op. at 19. If it wasn't clear enough from Arkansas Game & Fish that permanent-yet-intermittent flooding is treated as a categorical taking, then the Supreme Court's more-recent Cedar Point opinion makes that "abundantly clear."

Where the government takes a permanent right of access, akin to an easement in gross, even if used only intermittently, it is unquestionably an appropriation of the owner’s right to exclude. It is undisputed that the Corps has permanently burdened Plaintiffs’ land with a right to access their land with flood waters.

Slip op. at 20.

• Here's the holding: "Accordingly, Arkansas Game & Fish II’s multi-factor test does not apply to permanently recurring flooding. Instead, such flooding that foreseeably or intentionally results from government action is a categorical physical taking." Slip op. at 21-22.
• Some clarification: "To be clear, we do not alter or amend our trespass-versus-takings jurisprudence or question the applicability of Arkansas Game & Fish II to temporary floodings. Cedar Point, 141 S. Ct. at 2078 (“[O]ur holding does nothing to efface the distinction between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right.”). Nor do we establish a hardline rule for establishing what is a permanent or recurring flooding. We simply reinforce the principle that the permanent appropriation of a flowage easement is 'clear enough' to be on the side of a per se taking and not a trespass." Slip op. at 22 (some citations omitted).
• The Federal Circuit also upheld the CFC's causation analysis. Check out pages 22-29. We think the critical part of this analysis is the court's rejection of the government's assertion that this case is like the MR-GO case in which the Federal Circuit held that Katrina-related flooding is a tort not a taking. 
• The crop-damage analysis begins at page 31. The court agreed with the property owners that their crops are "property" for which they are entitled to receive just compensation and the loss of the crops aren't (uncompensated) consequential damages. Those damages are damages that flow from the taking and are collateral. After all, the flooding wiped out the crops, and it wasn't just some side effect. Slip op. at 33.
• "Plaintiffs do not claim compensation consequential to the taking of an easement—rather, they seek compensation for the government’s appropriation
  of two distinct property interests." Slip op. at 34.  

Will the federal government try and take this one further up the chain? We'll see.

Ideker Farms, Inc. v. United States, No. 21-1849 (Fed. Cir. June 16, 2023)

Join Us August 9, 2023: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

On Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

Happy 808th (The) Magna Carta (Charta) Day!

808 years ago today* on a grassy plain down by the river, the barons convinced bad King John to affix his seal to Magna Carta. Or the Magna Carta. Or Magna Charta. However you want to grammarize it. (And no, he didn't "sign" it, they didn't do things like that back then.)

And boy was that guy bad even by the standards of medieval royals: when you type "bad king..." in your search engine, the first suggested search is "bad king ... John."

There's a lot of good stuff in Magna Carta -- and a lot of stuff that has been rendered irrelevant or quaint by the passage of time, and even some stuff that we'd consider cringe-worthy today (see art. 10, for example).

But we takings geeks all know and continue to appreciate article 28:

Nullus enarius aries, vel alius ballivus noster, capiat enar vel alia catalla allcujus, nisi statim inde reddat enarius, aut respectum inde habere possit de voluntate venditoris.

Magna Carta art. XXVIII (1215).

If, like us, you don't know Latin, here's the English version:

No constable, or any of our bailiffs, shall take anyone’s corn [grain] or any other chattels, unless he immediately [statim] pays for them in cash, or else he can agree with the seller to postpone payment.

Magna Carta art. XXVIII (1215). Just Compensation...stat!

Sounds familiar, no? If you ever wondered where James Madison got the backwards, somewhat weird syntax of the Takings Clause, we don't think you have to look much further than article 28. If it ain't Latin, it ain't the law (as a lawprof of ours once counseled).

And does that part about the duty to provide compensation for takings "statim" (immediate, without delay) have continuing relevance today? We sure think so. As does the MC itself, which continues to get a lot of love in Supreme Court opinions.

For a non-technical and highly-readable (and enjoyable, even for non-history buffs), you can't do better than Dan Jones's "Magna Carta - The Birth of Liberty."

The book starts off by giving the reader the background that led to Runnymede, the details of why King John came to the negotiating table, how well he honored Magna Carta (one guess - he didn't - they didn't call him "Softsword" for nothing), and how the document only grew in relevance in the intervening centuries. Even half a world away.

The front door of the U.S. Supreme Court:
No "the," and it is spelled "Charta"

Long live the Magna Carta!

---------------

* Yes, we know of the Gregorian calendar reform so when we say "today," we're not being 100% correct. But come on man, work with us here.

Tuesday Round-Up: Sackett, Tyler, Defending Zoning, Canada Property Rights ... And More

Here's what we're reading this Tuesday:

• Tiffany Lashmet's Ag Law in the Field podcast: "Episode #155: Jesse Richardson and Anthony Schutz (Sackett v. EPA)"
• Lawprof Ilya Somin, Brennan Center for Justice: "Supreme Court Strengthens Federal Protection for Property Rights"
• Also from Prof Somin, Volokh Conspiracy: "A Flawed Attempt at a Libertarian Defense of Exclusionary Zoning"
• Here's the piece Prof Somin is responding to - Robert Poole, "A Brief History of Single-Family Zoning"
• Professor Malcolm Lavoie, SSRN, "Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality" (assessing the Supreme Court of Canada's latest ruling on property rights)
• Note, "The Contract Clause: Reawakened in the Age of COVID-19," 136 Harv. L. Rev. 2130 (2023)
• Lawprof Ilan Wurman, "Reconstructing Reconstruction-Era Rights," 109 Va. L. Rev. 885 (2023)

Worth checking out.

ICYMI: "Property Rights Hat-Trick: Breaking Down PLF's Supreme Court Victories" (vid)

Missed our law firm colleagues Jeff McCoy, Damien Schiff, and Christina Martin when they were live, talking about their SCOTUS wins in Wilkins v. United States (is the statute of limitations in federal Quiet Title Act cases a jurisdictional bar?), Sackett v. E.P.A. (scope of Clean Water Act wetlands jurisdiction), and Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking)?

We recorded it, so you can watch and listen at your leisure.

This is more than just a victory lap, the advocates offer their thoughts on the implications of the wins, and what might be next.

Bon appétit.

California Supreme Court Reviewing The Murderer's Creek Inverse Case

Check out this now-under-consideration Petition for Review, which asks the California Supreme Court to take up a case involving Murderers Creek, in Pleasant Hill, California. (Now there's a jarring juxtaposition for you.)

The case started off as a "routine inverse condemnation case." Pet. at 2. When Murderers Creek flooded, it damaged the plaintiffs' land. The County, the plaintiffs allege, didn't maintain a 40-year old concrete spillway which is part of a drainage system the County required a private developer to install in the 1970s as a condition of subdivision. The County never actually took over the drainage system, but it did accept the dedication "for recording only."

The plaintiffs said this should have been enough to establish a claim for inverse against the County: it has been a longstanding rule in California that drainage infrastructure that diverts surface waters onto private property triggers inverse liability even if privately constructed, when the infrastructure was approved or accepted by the government. Relying on a 1963 inverse condemnation case that has been a pillar of California inverse doctrine, the plaintiffs argued that public entities are liable for inverse when public drainage improvements collect and divert surface water out of its natural drainage channels onto private property. And the government can't avoid liability by using the subdivision approval power to force private property owners to construct the public drainage improvements that cause the diversion.

But in this opinion, the Court of Appeal concluded that this leading case - and presumably about a dozen other case that had followed it over the years had been "implicitly overruled" 30 years ago in another case. Which means that unless the County had unequivocally and unconditionally accepted the dedication of the infrastructure back in the 1970s, flooding it caused wasn't the County's problem.

Hang on. You mean the County could require a developer build and dedicate the flood control infrastructure to serve public drainage needs as a condition of securing subdivision approval, but the County also has the choice of ambiguously accepting the dedication and thereby avoids any obligation for inverse? That sounds a lot like that old law maxim against having your cake and eating it too, doesn't it?

Well, that's what the plaintiffs thought too. So they submitted the petition asking the California Supreme Court to take a look. Here are the Issues Presented:

1. Did this Court, in Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin), “implicitly overrule” Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 (Frustuck), one of California’s leading inverse condemnation cases, without citing Frustuck and without addressing either of the two legal issues that Frustuck decided?

2. Does Locklin and/or the Subdivision Map Act (Gov. Code, § 66410 et seq.) establish a procedure whereby respondent County of Contra Costa (the “County”) could compel a private property owner/developer to install drainage improvements on his property to receive surface water diverted from its natural drainage channels and convey that water across his property to Murderer’s Creek (a “natural watercourse”), and also compel him to dedicate irrevocable public drainage easements over those improvements “to the County for public use,” but then allow the County to avoid any obligation to maintain either the improvements or the public drainage easements by accepting the easement dedications “for recording only”?

3. Did the Court of Appeal improperly adjudicate that the County did not enter into a contract to maintain the storm drainage improvements that it required a developer to install on private property to serve two of the County’s off-subdivision storm drainage needs, despite Petitioners’ evidence that the County did enter into such a contract?

4. Did the Court of Appeal misapply the Locklin/Van Alstyne “reasonableness analysis” by adjudicating, as matters of law, that Respondents’ joint management of the Murderer’s Creek watershed (a) did not incorporate the Creek into the public drainage system, and (b) is not placing an “unreasonable” (disproportionate) burden on the downstream riparian property owners?

Pet. at 1-2.

If left unreviewed, the court of appeal decision seems like a pretty dramatic expansion of government power and reduction of private property rights. It alone is review-worthy in our thinking for its rationale that a case can be "implicitly overruled" merely by silence (the 1994 decision which the court of appeal points to never mentions the case it is overruling, and doesn't even address the same issues). Overrule a rule, sure. But overrule it by silence? Come on.

Stay tuned. The California Supreme Court's docket shows that there's been no response from the County, which means it is now in the court's hands. Look for a decision in the next month or two.

Petition for Review, Shenson v. County of Contra Costa, No. S279857 (Cal. May 5, 2023)

Iowa: City Of The Monks Keeping Part Of Your Tax Refund Isn't A Taking, Red-Light Runners

In Livingood v. City of Des Moines, No. 22-0586 (June 9, 2023), the Iowa Supreme Court held that the city's use of the Iowa's process by which the government can satisfy all or part of a taxpayer's debt to a public agency by grabbing someone's tax refund. In a nutshell, after trying to collect the debt by more conventional means:

the income offset program allows the department of administrative services to collect debts for public agencies by offsetting the debts against any income tax refund owed to a taxpayer. The city entered into a memorandum of understanding with the department of administrative services to use the income offset program.

Slip op. at 4-5.

The debt owed in Livingood is for traffic violations caught on camera.

Is it a taking under the Iowa Constitution to not give the taxpayer/cam-violator the full amount of tax refund?

No. First, the court held that someone's income tax refund is "property" protected from uncompensated takings. So far so good for the plaintiffs. But the court held that this isn't a taking, because money property claims are treated differently under the takings clause. For that proposition, the court relied almost exclusively on authority interpreting the U.S. Constitution. And here, the city isn't taking property for a public use, and is not requiring the plaintiffs to bear a burden that should be borne by the public as a whole.

Because they are traffic violators, and the city has the power to impose a fee for driving badly and violating the law, and in keeping tax refunds it is merely collecting what's owed for the penalty. Thus, "[t]he government's collection of money for the payment of fines in the exercise of its police power is not a 'taking' for 'public use' and does not implicate the takings clause." Slip op. at 12.

Livingood v. City of Des Moines, No 22-0586 (Iowa, June 9, 2023)

Has Not Aged Well - SCOTUS, June 11, 1923: "The necessity for appropriating private property for public use is not a judicial question."

Continuing in our line of posts noting milestones in dirt law, we bring you Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923), decided 100 years ago today.

For any of you who have driven the Pacific Coast Highway through Malibu, you will know the site of this eminent domain case. As described by the Supreme Court in its opinion:

The plaintiffs in error are the owners of a large tract of land lying on the shore of the Pacific Ocean, known as the Malibu Ranch, extending in an easterly and westerly direction about twenty-two miles and varying in width from one-half mile to one and one-half miles. It lies at the base of a high and rugged mountain range which parallels the shore at a distance of from three to four miles, its northern line extending along the slope and foothills of this mountain range, and is traversed by many ridges and intervening canyons leading from the mountains toward the shore. It lies about ten miles west of Santa Monica, one of the principal cities of Los Angeles County, situated on the coast to the southwest of the City of Los Angeles, and is mainly in Los Angeles County, but extends about a mile and a half into Ventura County, the adjoining county on the west. It is traversed lengthwise by a private road of the ranch owners which was formerly used by farmers and settlers living north of the ranch on the slope of the mountains and west of the ranch in Ventura County, but which has been for several years closed by the ranch owners to the public.

Id. at 702-703.

LA County wanted to turn that private road into a public thoroughfare to be known informally as the "main road" and officially as "Roosevelt Highway," so adopted resolutions declaring it to be in the public interest and necessity to take the property by eminent domain to build a public highway. Based on those resolutions the County instituted condemnation proceedings. The owners "vigorously resisted," raising two primary issues: lack of a public use, and lack of necessity.

The public use objection fared as well as you might predict. "That a taking of property for a highway is a taking for public use has been universally recognized from time immemorial. The California Code specifically declares 'highways' to be 'public uses' for which the right of eminent domain may be exercised. Here, the Board of Supervisors, familiar with local conditions, has declared these highways to be for public uses, and the local and appellate state courts have likewise held them to be for public uses authorized by law. Id. at 706.

But this isn't a "genuine highway" argued the property owners. The road is a "sham[] under the name of public improvements, which cannot, in fact furnish ways of convenience or necessity to the traveling public." Id. The "main road" doesn't go through and connect with other public roads, but end on the owner's property.

Sorry, the Court concluded, the roads will be open to the public, and if drivers want to go into areas with "no adequate outlet" that is their business. And other owners who now need to use the private road to get out to LA, can use the "main road" to exit. That's good enough. Id. at 706-707. A road taken by eminent domain doesn't need to connect to a public road in order for the taking to be for public use. Id. at 707. ("otherwise, great embarrassment and difficulty would be experienced in establishing highways across state lines").

The Court rejected the owner's necessity challenge even more emphatically. While public use questions are for judicial resolution (even with the thumb firmly on the scale on the condemnor's side), the question of necessity doesn't even get that:

The necessity for appropriating private property for public use is not a judicial question. This power resides in the legislature, and may either be exercised by the legislature or delegated by it to public officers.

Id. at 709.The necessity question is "purely political, [and] does not require a [predeprivation] hearing, and is not the subject of judicial inquiry." Id.

In other words, the County's resolutions that the taking was necessary "were conclusive evidence as to the necessity for the taking of these public highways[.]" Id.

Roosevelt Highway eventually gets renamed PCH and designated California Highway 1. And Malibuans have been trying to keep outsiders out ever since.

Interested in the briefing? Here you go:

• Opening Brief of Plaintiff in Error
• Brief of Defendant in Error
• Reply Brief of Plaintiffs in Error

More on the case:

• Martha Groves, "One ranch owner nearly stopped PCH from running through Malibu," Los Angeles Times (July 13, 2015) ("If Malibu ranch owner May Rindge had prevailed against public sentiment and the U.S. Supreme Court a century or so ago, Pacific Coast Highway might never have been built through the coastal enclave of Malibu. She fought with a fury in the early 1900s to maintain Malibu’s peaceful qualities and keep the state from seizing her ranchland for the road through eminent domain.").

• Hadley Meares, "How Malibu Grew," Curbed Los Angeles (Nov. 21, 2018) ("By 1918, the feud had gotten out of hand. Her chauffeur and a ranch hand were even involved in a gunfight with squatters, and there were attempts to capture May herself. But all of May’s lawsuits, injunctions, and walls could not stop the coming of the age of the freeway. In 1923, the U.S. Supreme Court agreed that the government had the right to build a highway through the Rindge property. May had lost tens of thousands of dollars, all for naught.").

Think about that next time you take the drive.

Rindge Co. v. County of Los Angeles, 262 U.S. 700 (June 11, 1923)

CA1: Despite Two Variance Denials, Takings Case Not Ripe Because It Isn't Futile To Try Again

Here's the latest from the U.S. Court of Appeals for the First Circuit on takings ripeness, Haney v. Town of Mashpee, No. 22-1446 (June 6, 2023). 

The case centers on Gooseberry Island, Massachusetts, which is zoned by the Town of Mashpee as R-3. But under the Town's zoning code, any residence must have at least 150 feet of frontage and a paved access roadway within 150 feet.

Which is problematic because Gooseberry Island is, well, an island -- separated from the mainland by a 40 to 80 foot channel depending on the tides. There's no bridge, although you can wade across the channel at low tide. No bridge means no roads, and no roads means no residential development.

So the owner sought variances from the frontage and roadway requirements in 2013. Denied. The road and frontage requirements are about emergency access. Next, the owner sought approvals to build a bridge. If emergency vehicles can get to the island, then maybe we can build roads, and home. The owner proposed a wood bridge, which was opposed by the Mashpee Wampanoag Tribe, which holds a shellfish grant from the Town in the adjacent water. The Tribe claimed a bridge would adversely impact the shellfish habitat. Consequently, the bridge proposal was rejected the Town under state and municipal environmental law.

The owner sought review by the Massachusetts Department of Environmental Protection. Also denied, because 17 square feet of salt marsh would be destroyed by the bridge piles, and because the bridge itself would cast shade on shellfish. The owner appealed up the state's administrative chain, and in the interim revised its proposal to make it a steel bridge, which would not require pilings and would not cast as much shade.

That change seemed at first to have the desired effect, because the DEP told the owner that a steel bridge was entitled to approval under state environmental law. In light of that, the state appeal office -- which was considering the administrative appeal -- stated that the appeal should be granted. But the Town opposed the change, asserting that the switch from wood to steel was not authorized in accordance with the change rules. When the state appeal office issued its final decision, it was not good news for the owner: steel bridge denied, because the change didn't conform to the requirement that any plan changes are not substantially different than the original proposal.

The office of appeals concluded that if the owner wanted the state to review a bridge proposal, it would have to resubmit a new steel bridge proposal. The owner appealed to the state court of appeals, which only recently affirmed. Haney v. Dep't of Env't Prot., 173 N.E.3d 55 (Mass. App. Ct. 2021).

Undaunted, the owner set the wheels in motion again. It applied to the Town for another variance from the frontage and road requirement. "In an effort to address the perceived reason behind the Board's denial of the 2013 Variance Applications [emergency vehicle access], the Trust provided the Board with a '2014 plan depict[ing] a bridge and Gooseberry Island." Slip op. at 7.

Unanimously denied, because "the bridge needs to be approved prior to building on the lot." Slip op. at 7. At that time, the state's decision on a bridge was still in-process It would not be resolved by the court of appeals until a few years later). The owner suggested that a conditional variance would be ok: how about approving the variance, conditioned on the state's later approval of a bridge? Nope, variance denied.

Federal court takings lawsuit followed. As did the government's 12(b)(6) motion to dismiss, which the district court granted. The takings claim was not ripe "because the Trust never applied to build a steel bridge." Slip op. at 9. The owner could have (and thus should have) "followed through with the filing of a New Notice of Intent with the [state] for construction of a steel bridge, even though[it] 'expressed support for this proposal.'" Slip op. at 10. The state might just grant that application, and "pursing the steel-bridge proposal would not be futile." Id.

The First Circuit affirmed because there hasn't been a final no. Those two variance denials? Not enough. The court rejected the owner's argument that it couldn't get approval from the state for a bridge without already having a variance from the Town already in hand. According to the opinion, the owner didn't need a variance from the Town in order to apply for permission to build a bridge from the state, so that issue was irrelevant. Slip op. at 13. 

The court also rejected the owner's assertion that the Town strayed outside its jurisdiction when it considered whether to condition a variance on a bridge. The Town can issue permits with conditions generally, and here, "the Board never determined whether that permit should or should not issue." Slip op. at 14. 

And what about the owner's main argument, that the Town actually denied the two requests for a variance? The Town didn't exactly condition a variance on the owner building a bridge, it's only that some of the Town Board members mentioned it. Or so argued the owner. The Town's actual decisions, according to the owner, were clear denials. Not quite, the court concluded. And here's where it seems to get a bit ack-basswards. The court concluded the Board member's statements "constitute the reasons for its decision." Slip op. at 15.

We thus see no support for the contention that we must disregard the statements made by the Board members as recorded in the 2018 Variance Decisions, at least when such statements are plausibly related to the concluding explanation given by the Board for denying the variances.

Slip op. at 16. The court concluded that the owner's argument was "underdeveloped" and thus waived.But is ripeness concerned with the why of the denial, or just that you get a denial? What's the deal with the reasons?

The court next noted that "Haney offers no argument as to why the denial of the 2018 Variance Applications should be interpreted as with prejudice." Slip op. at 15. The written denial "fails to specify whether the denials were with or without prejudice[.]" Wait, what? What's this prejudice thing? The Supreme Court only requires a decision, not an unequivocal no and an expression that the government won't consider you again, property owner. And remember that Pakdel only requires "de facto" finality, not more.

Finally, the First Circuit rejected the owner's argument that to chase more would be futile:

This futility exception -- which has been part of our caselaw for three decades -- was recently endorsed by the Supreme Court in Pakdel. 141 S. Ct. at 2230. In addressing the state-forum finality requirement, the Court held that a landowner only needs to show "that there is no question about how the regulations at issue apply to the particular land in question." Id. (cleaned up). The finality requirement is therefore met once it is clear to the federal courts that the initial decisionmaker has reached a "definitive position on the issue." Id. at 2230 (quoting Williamson Cnty. Reg'l Plan. Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193 (1985)).

Through Pakdel, our caselaw's futility exception is now simply part and parcel of the finality requirement.

Slip op. at 17-18. Here, the Town "Board has never represented that it would deny any and all variance applications -- even if the [owner] presented applications accompanied by an approved steel-bridge plan." Slip op. at 19.

So go get a steel bridge approved, property owner. And with that, come back to the Town and submit a third application for a variance. Who knows, maybe the Town just might grant that one.  

Haney v. Town of Mashpee, No. 22-1446 (1st Cir. June 6, 2023)

Another Cert Petition Challenging NY's Draconian Rent Control As A Taking

Here's the latest in a case we've been following, one of the multiple challenges to New York's latest ratcheting up of rent control.

We think the Questions Presented spell out the issues pretty well:

New York has implemented the most sweeping and onerous rent control provisions the United States has ever seen in its Rent Stabilization Laws and accompanying regulations (“the RSL”). As recently amended, the RSL makes New York’s once “temporary” rent stabilization regime permanent for over one million apartments. Petitioners are owners of apartment buildings regulated by the RSL. The RSL expropriates a definitional feature of Petitioners’ real property—the right to exclude—by granting their tenants a perpetual right to renew their leases. The RSL closes off all viable exit options for Petitioners to change the use of their property and thus avoid RSL regulation. These provisions, when combined with the RSL’s ceiling on the rents that landlords can collect, have ensured that Petitioners cannot earn a just and reasonable rate of return. The RSL has dramatically reduced the economic value of Petitioners’ property beyond any reasonable expectation. Nevertheless, the Second Circuit held the RSL did not effect any taking of Petitioners’ property without just compensation.

The questions presented are:

(1) Does the RSL effect a per se physical taking by expropriating Petitioners’ right to exclude?

(2) Does the RSL effect a confiscatory taking by depriving Petitioners of a just and reasonable return?

(3) Does the RSL effect a regulatory taking as an unconstitutional use restriction of Petitioners’ property?

Stay tuned here, or follow along on the Court's docket.

Petition for a Writ of Certiorari, 335-7 LLC v. City of New York, No. 22-1170 (U.S. May 30, 2023) by RHT on Scribd

Colorado: Only The State Can Assert The Public Owns A Riverbed

Hill went down to the fishing hole on a Colorado river, the one he claimed was his favorite. Until those darned landowners "chased him off the property, sometimes with force." He claimed they didn't take too kindly to his efforts to go fishing on their land: "Specifically, Hill alleges that they threatened to have him arrested for trespass, thew baseball-sized rocks at him, and shot a gun at his fishing buddy."

Hill sued, asserting that the landowners don't actually own the riverbed, and thus he had a legal right to be there. His complaint asserted two claims: (1) he sought a declaratory judgment that the riverbed is public land, owned by the State of Colorado (Equal Footing Doctrine and public trust alert!), and (2) he sought to quiet title, apparently in the State. 

In State v. Hill, No. 22SC119 (June 5, 2023), the Colorado Supreme Court sent the case out with more of a whimper than a bang. It didn't deal with the Equal Footing or public trust arguments, but rejected the lawsuit because Hill lacking standing. As the court put it in the first paragraph of the opinion:

This dispute has produced hundreds of pages of briefing from the parties and amici involving extensive discussions of the public trust doctrine, the equal footing doctrine, and arguments around who is best positioned to determine legal policy on access to rivers. But those subjects are ultimately irrelevant to the issue before us. Rather, this case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment “that a river segment was navigable for title at statehood and belongs to the State.” He does not. Hill has no legally protected right independent of the State’s alleged ownership of the riverbed onto which he can hook his declaratory judgment claim. His asserted legally protected interests rest entirely on an antecedent question of whether the State owns the property at issue. Therefore, they cannot provide him with standing to pursue a declaratory judgment action.

Slip op. at 4.

The State didn't want to make any claim to own the riverbed, and the court concluded that Hill could not do so himself. Lacking any interest in ownership other than as a member of the public, he lacked standing to make these claims. Yes, Hill alleged injury, but he didn't meet the second part of Colorado's standing test, that he has a legally protected interest that was injured.

[Disclosure: our law firm colleagues filed an amicus brief in this case.]

State v. Hill, No. 22SC119 (Colo. June 5, 2023) (en banc)

Upcoming Event: "The History [That Doesn't Suck] of Eminent Domain" (Wed, June 7, 5pm ET - Free!)

Mark your calendars to join us on Wednesday, June 7, 2023 at 5pm Eastern Time, as the Eminent & Right of Way Club welcomes Professor Greg Jackson, host of the History That Doesn't Suck Podcast.

We're going to have a discussion about the history of eminent domain, what zoning looked like in the 19th Century, and if the Founders planned for the infrastructure we have today.

RSVP for this Lounge Event on the App (register for the (free) Clubhouse App here).

What's this "Clubhouse" thing, you ask? More here on that. Come, join us!

New Just Comp Cert Petition: Is Due Process Property Just Compensation Property?

A new cert petition to check out. We don't need to explain it much, because the petition does a good job of it.

Here's the Question Presented:

New York State redevelopment agency seized, via eminent domain, a large tract of real estate occupied by an existing building in downtown Brooklyn for redevelopment. The building, partially used for office space, included a useable basement of over 13,000 square feet, which had a government-issued certificate of occupancy. During eminent domain proceedings, the lower court ignored the certificate of occupancy’s determination of a usable basement as a valued property interest.

The question presented is:

1. Are government-issued attributes of private property (e.g., certificates of occupancy, building permits, business permits) entitled to constitutional protection under the Fifth Amendment when they are seized under the government’s eminent domain power, just as they are presently entitled to constitutional due process protection under the Fourteenth Amendment?

Follow along on the Court's docket here.

Petition for Writ of Certiorari, Pacific Carlton Dev. Corp. v. New York State Urban Dev. Corp., No. 22-1149...

ALI-CLE First Look At "Sackett v. EPA and the Future of the Clean Water Act"

Want to find out what the experts -- including arguing counsel for the property owners, our law firm colleague Damien Schiff -- think about the Supreme Court's recent Clean Water Act decision, Sackett v. EPA. And most importantly, what is next?

You are in luck: on Wednesday, June 7, 2023 at 1:00 - 2:15pm Eastern, ALI-CLE is producing a webinar, "Sackett v. EPA and the Future of the Clean Water Act."

Here's the program description:

The U.S. Supreme Court’s May 25 landmark decision in Sackett v. EPA ends over 30 years of volleying between the judicial and executive branches of the federal government over the jurisdictional reach of the Clean Water Act (CWA). In finding that the “significant nexus” test is not authorized by the CWA, and instead setting out a new, much narrower test, the effect of the Sackett decision on federal and state regulation of discharges to and modification of waters and wetland will be immediate and substantial. The decision also provides important insights into the Court’s view of the federal government’s role in environmental protection and the role of the courts in reviewing agency interpretations of statutes. This hot-topic webcast, jointly organized by ALI CLE and ACOEL, features an all-star cast that includes the attorney who argued for the Sacketts at the Supreme Court, a renowned water law scholar, and two practitioners with vast experience in advising clients on CWA issues. In just 75 minutes, they will dissect the Court’s opinion and offer insights regarding the future of CWA regulations and federal environmental law in general.

More here, including the faculty list, CLE credits, tuition information, group discounts, and how to register.

Hey Boo Boo! This Case Is Better Than Your Average Warrantless Search Case: Camera-Toting Bear Accused Of Violating The Fourth Amendment

The (allegedly) offending Bear Number 119.

Check this out.

As reported in the Law360 story, "Does A Bear Film In The Woods? Couple's Suit Says Yes," a Connecticut property owner has filed this federal court complaint asserting that state game and fish officials tagged a wild bear and turned it into a state-sponsored, photo-taking, mobile-camera-platform to perform warrantless searches of the plaintiffs' persons, houses, papers, or effects.

Here are the critical allegations in the 3-page complaint:

6. During all times mentioned in this complaint, the defendant knew that bears, including a bear the defendant had tagged as Number 119, frequented the said property.

7. On an unknown date prior to May 20, 2023, but subsequent to January 1, 2023, the defendant affixed a collar to Bear Number 119 which contained a camera. The defendant thereupon released the camera-carrying bear in the vicinity of plaintiffs' property.

8. At approximately 9:30 a.m. on May 20, 2023, Bear Number 119 approached to within 200 yards of the plaintiffs' residence, which is located near the center of their property. It was wearing the aforesaid camera at the time and, upon information and belief, that camera was activated and taking and transmitting pictures or video of the interior of the plaintiffs' property to the defendant.

9. Upon information and belief, the defendant[*] did not have a search warrant authorizing or permitting photographic surveillance of the interior of the property of the plaintiffs.

And who said property law is dull?

[* We really wanted the complaint to allege the bear did not have a search warrant.]

In all seriousness, this case might be a good one to highlight the property-based vision of the Fourth Amendment.

If nothing else, this case should be a field day for headline and law journal title writers.

Complaint, Brault v. Connecticut Dep't of Energy & Envtl. Prot., No. 3:23-cv-000696-OAW (D. Conn. May 20,

New Takings Cert Petition (Ours): Can Govt Thwart Federal Court Regulatory Takings Claims By Seeking Abstention In Favor Of State Courts?

Here's the latest in a case we've been following since before it became one of ours.

In Gearing v. City of Half Moon Bay, No. 21-16688 (Dec. 8, 2022), the Ninth Circuit upheld the district court's dismissal of a regulatory takings case, holding that federal courts should abstain from considering regulatory takings cases in favor of pending state court eminent domain actions, even when the condemnor instituted the state court action after the federal takings lawsuit was filed.

In the time since the Ninth Circuit issued the opinion, our law firm has joined up with our colleague Kristen Renfro who represented the owner in the court of appeals. That's why we won't be commenting further, and instead suggest you read the cert petition we filed today, chiefly authored by Counsel of Record Deborah LaFetra (lately of the Tyler v. Hennepin County takings case). 

Here is the Question Presented:

Thomas and Daniel Gearing are categorically prohibited from building on residentially zoned vacant land that the City of Half Moon Bay prefers as an open space public park. They exercised their choice of forum by filing a lawsuit in federal court under 42 U.S.C. § 1983, alleging a regulatory taking in violation of the Fifth Amendment, and seeking just compensation, costs, and attorneys’ fees. The City responded by filing an eminent domain lawsuit in state court that significantly limits the issues and the Gearings’ remedies. The City then convinced the federal court to abstain from deciding the Gearings’ first-filed federal lawsuit under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). As a result of the forthcoming state court decision to which federal courts are bound to give full faith and credit, 28 U.S.C. § 1738, the Gearings will be deprived of full just compensation as well as other recovery authorized by the Civil Rights Act.

The question presented is:

Whether federal courts may deprive takings claimants of their chosen forum by invoking the prudential Pullman abstention doctrine to require them to first litigate their claims in state court.

Stay tuned, as always.

Petition for Writ of Certiorari, Gearing v. City of Half Moon Bay, No. ___ (June 1, 2023)

Twister: Can You Get There From Here At "Corner Crossing" Properties?

Your mission: go from blue squares to blue squares
without touching any of the red squares

Check out this Order from the U.S. District Court for the District of Wyoming in a case that presents a very interesting -- some might say metaphysical -- property issue; an issue we were not really aware of until one of our law students brought it up a few months ago.

The diagram above is from the court's Order, and depicts the "checkerboard" land ownership patterns in the relevant area of Wyoming. Hunters, who wanted to hunt on public BLM-managed land (blue) adjacent to Iron Bar's private property (red) needed a way to get to the public hunting grounds without trespassing on Iron Bar's private property. That meant no touching of the red squares.

The hunters' journey is called "corner crossings" because, well, they are crossing the land at the corners of the boundaries. Here are the actual parcels, and some of the corner crossings at issue (again, from the Order).

Of course, these lines on a map don't actually exist on the ground. As the Order notes, the "actual points of contact" for the parcels "meet at an infinitely small point" that "like a point in mathematics, are without length or width." Order at 2 (quoting Mackay v. Uinta Dev. Co., 219 F. 116, 118 (8th Cir. 1914)). 

But the corners are marked and the hunters could locate at least the approximate location of these infinitely small points. "[T]he three hunters were met with two steel posts, each with a 'No Trespassing' sign, that were connected together with a chain, a padlock, and some wire." Order at 6. A locked "gate" that doesn't prevent anyone from actually getting from here to the other side of that chain, but nonetheless represents the corners and the private nature of the adjoining parcels.

Schrödinger's Gate

The post in the ground between the signs is the location of the corner. Other than what is depicted above, "there were no posts, fencing, or buildings within one-quarter of a mile from the corner." Order at 7.

The hunters could not squeeze between the signs and the chain to get from one BLM parcel to another. What to do? No one seems to be watching, so how about just walking around? That would entail physically trespassing on Iron Bar's private property, and these hunters were very conscientious.

And here's where it gets metaphysical.

Did they try the Twister thing? No, "one by one, each grabbed one of the steel posts and swung around it, planting their feet only on Section 14 (BLM) and section 24 (BLM), but passing through the airspace above Section 23 (Plaintiff [Iron Horse]) and/or Section 13 (Plaintiff)." Id. In holding onto the steel posts and swinging around them to cross from Section 14 to Section 24, there is no evidence the Defendants caused any damage to Plaintiff's property." Id.

During other hunts in later years, the hunters wanted to avoid all this grabbing and swinging and "in an effort to not touch Plaintiff's steel posts when crossing ... they brought a steel A-frame ladder[.]" Order at 9. They propped up this and use it for crossing without touching Iron Bar's land, nor its posts.

Now that is dedication.

All this time, Iron Bar was objecting. It didn't really believe the hunters did not step on its land, became "much more aggressive about expelling the hunters" (Order at 11), confronted and surveilled them, drove vehicles nearby "in an effort to scare away the game" (id.), and "instituted an ongoing practice of having its employees confront or interact with a 'suspected trespasser' found on or near Plaintiff's property, even if the person was found on public land." Order at 8. It dropped dime to Wyoming Game & Fish, and pressed criminal charged. Finally, it sued the hunters in civil trespass actions.

With that background, the district court addressed whether the hunters violated Iron Bar's private property rights in its airspace. First question: does Iron Bar have any private rights in the airspace. Second, if so, did the hunters jumping over Iron Bar's land and physically entering -- if only momentarily -- the airspace when they jumped or used the ladders, violate any private rights?

We won't go into the great detail that the district court's Order does. We think it is well-worth your time to read yourself. Strap on your old school dirt law glasses and enjoy the ride.

Short story: the airspace is Iron Bar's private property. The Wyoming Supreme Court has held that the air above the ground is private property, "subject to the right of [aircraft] flight." Order at 14. You may not own all of the airspace, but you do own some of it. And as private property, Iron Bar has the right to exclude others. Essential stick, and all that.

But that wasn't the end of it, because the court held that there are some legal restrictions on the right. Among those restrictions is that members of the public have a right to a reasonable way of passage to access public lands. Next, the court analyzed the scope of that limitation, and held that there must be some damage from an intrusion into airspace. Order at 24. 

With that, the court concluded that the hunters' corner crossings are not unlawful trespasses. No physical touching of Iron Bar's land. No damage. Only airspace, and even then only briefly. And Iron Bar didn't heed its own advice: "the locked chain that was installed between the steel posts by Plaintiff hung through airspace over the adjoining public land of Section 14 and 24. Order at 27. These metaphysical "gates" also "constituted an improper attempt to 'prevent or obstruct ... any person from peaceably entering upon'" public land. Order at 28 (quoting a Wyoming statute that makes it illegal to try and keep the public off of public land).

Summary judgment to the hunters on most of Iron Bar's claims (there was one crossing, however -- not at a corner -- at which there remains a factual dispute about whether one of the hunters actually stepped on private property). So this one is mostly over, but not quite.

The entire Order is well worth your time, Dirt Lawyers.

Order on Cross Motions for Summary Judgment, Iron Bar Holdings, LLC v. Cape, No. 2:22-cv-ooo67-SWS (D. Wyo....