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Ohio: Property Got Nominated Real Good - Saying You Want To Put Up Site For UNESCO Designation Is Enough To Support Taking

Check out the Ohio Supreme Court's 6-1 opinion in State ex rel. Ohio History Connection v. Moundbuilders Country Club Co., No. 2020-0191 (Dec. 7, 2022), in which the court held held that the taking of the Country Club's lease for the property served a public use.

Court News Ohio beat us to the punch is summarizing the case and the dissent, so instead of us repeating, we suggest you go check it out:

The Ohio History Connection can proceed with its efforts to transform the Octagon Earthworks of Newark into a public park by extinguishing the Moundbuilders Country Club lease on the land, the Supreme Court of Ohio ruled today.

A Supreme Court majority affirmed a Fifth District Court of Appeals decision allowing the History Connection to take the land through eminent domain. The state agency wants to convert the Octagon Earthworks into a public park so that it can nominate the structures to the World Heritage list as part of the interconnected Hopewell Ceremonial Earthworks.

Writing for the Court majority, Justice Michael P. Donnelly stated that establishing the earthworks as a public park will “help preserve and ensure perpetual public access to one of the most significant landmarks in the state of Ohio.”

Chief Justice Maureen O’Connor and Justices R. Patrick DeWine, Melody Stewart, and Jennifer Brunner joined Justice Donnelly’s opinion. Justice Patrick F. Fischer concurred in judgment only.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that under Court precedent, if the public use of the land is “contingent and prospective” and the private use is “actual and present,” then taking the land by eminent domain is not lawful. She wrote the History Connection presented that its ownership of the land would only allow for the federal government to nominate the earthworks to the World Heritage list, and there are no assurances it will be named a heritage site.

Please do read the entire story: "State Can Acquire Octagon Earthworks From Country Club."

That, and the opinion. And the dissent which argued that Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006) (a case most readers of this blog will be familiar with) required that the Country Club's allegations needed to be resolved by the trial court, and not disposed of by law-and-motion.

The ultimate reason for the appropriation, however, is more than a nomination. The History Connection stated in its resolution, “The Ohio History Connection strongly desires the Hopewell Ceremonial Earthworks, including the Newark Earthworks, be approved for inclusion on the World Heritage List. Such an inclusion would provide historical and educational benefits to all Ohioans, as well as future generations.”

Op. at 19.

More here ("Ohio Supreme Court rules against Moundbuilders Country Club in Newark Earthworks case") from the Columbus Dispatch.

State ex rel. Ohio History Connection v. Moundbuilders Country Club Co., No. 2020-0191 (Ohio Dec. 7, 2022)

Hawaii 5-80: Land Use Law At The University Of Hawaii

Starting in January, we'll be teaching the venerated, and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

We're at least temporarily stepping into some mighty big slippers (this is Hawaii, so we don't always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to ... well, you get the drift.

We'll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeve - some impressive guest lecturers, explorations of dirt law careers, and maybe a field trip or two. We'll bring you the highlights here, as they happen.

Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

CAFED Hears Arguments In Two Takings Cases

Ideker Farms, Inc. v. United States, No. 21-1849

As written up in the FedCircuitBlog (a must-follow for all you federal takings mavens):

It concerns the federal government’s liability for taking private property. Specifically, in this case, the Federal Circuit will review the conclusion of the Court of Federal Claims that the government’s action was the cause-in-fact of flooding damage and that, as a result, a taking-by-flooding occurred. The government appeals the CFC’s judgment, while Ideker Farms cross-appeals.

Behrens v. United States, No. 22-1277

Also from the FedCircuitBlog:

Behrens v. United States, which concerns a claim the federal government was liable for taking land for public use through the National Trails System Act. Specifically, in this case, the Federal Circuit will review the determination by the Court of Federal Claims that the plaintiffs were not entitled to compensation because the scope of the easement in question was broad enough to encompass railbanking and the construction of a hiking and biking trail.

What's "The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid"? Incoherent (But Getting Better)

For the last week, the blog has been a bit idle. That hasn't been because we're slowing down, but was mostly the result of our blog platform being worked on behind-the-scenes, which knocked a lot of the hosted blogs offline, this one included. But things look good now, so here we are.

We were also on the road, traveling to New York for the Seventeenth Meeting of the American College of Business Court Judges, where we were able to join an august panel of takings mavens (pictured above, L-to-R: Judge Paul Wallace, Professor Julia Mahoney, some guy, Nancie Marzulla, and Professor Richard Epstein) to talk about the state of takings law.

The title of our program was "The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid," and we spent our time discussing and debating the state of takings law and theory.

When it came our turn at the mic, we started by answering the call of the question: the current state of takings law is "incoherent...but with the footnote that it appears to be getting better." We won't go into the details of why we so concluded, but you can guess: the default test for a regulatory taking, Penn Central, is hardly a model of coherence and when you add in the various procedural traps that remain, you get ... a lot of fodder for panels like these.

Our appreciation goes out to George Mason U. Law School and Professor Donald Kochan, who were kind enough to include us among these august speakers.

Brigham-Kanner Property Rights Conference Wrap-Up

The William and Mary Law School has posted David Morrill's summary of the recent Brigham-Kanner Property Rights Conference.

In addition to a full day of academic and practicing bar speakers on Friday, and the award banquet on Thursday evening, the Conference included two full days of student-oriented programming earlier in the week, where practicing land use and property rights spoke about their practices, the hot topics in the field, and how they ended up in this practice area. Every session was well attended, as the photos from the events show.

Check it out. And please join us at future Conferences!

New Takings Cert Petition: Can An Agency Decide Constitutionality Of Delegation Of Federal Eminent Domain Power?

Here's a recently-filed cert petition in a pipeline case. This one asks whether an agency -- here, FERC -- has primary administrative jurisdiction over a facial challenge to Congress' delegation of federal eminent domain authority to a private party. 

Here are the Questions Presented:

Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

We shall follow along, naturally. Or you can shadow the docket.

Petition for Writ of Certiorari, Bohon v. Fed. Energy Reg. Comm'n, No. 22-256 (Sep. 19, 2022)

Brigham-Kanner Property Rights Conference 2022 Report: It's Chief Justice Roberts' Property World, We Just Live In It

We spoke on the second panel of the day at the 2022 Brigham-Kanner Property Rights Conference at the William and Mary Law School. The subject of our panel -- which included Professors David Callies, Tim Mulvaney, and Dave Owen -- was "Reshaping the Framework Protecting Property Under the Roberts Court."

Here's a rough transcript of my remarks.

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President Reveley, Professor Butler, distinguished Brigham-Kanner Prizewinners (present and future), mentors, colleagues, family and friends: thank you for the opportunity to speak today.

The story goes that when asked what it was like to be a part of the "Rat Pack,*" that Dean Martin responded "It's Frank's world, we just live in it."

When I first heard the title of this portion of the program and the discussion of how and if the Roberts Court is reshaping property, my first reaction was a paraphrase of Dean Martin's quip, with a legal twist:

It's the Chief Justice's property world; we just live in it.

Now let me explain. Our session asks if the Roberts Court is reshaping the framework of property protections, and if so how.

I can answer the first part with a definitive yes. The Roberts Court is reshaping the way we look at property, and specifically the term “private property” as employed in the Fifth Amendment.

Summed up, this is property’s “moment” at the Supreme Court.

And to me, there's no question that it is the Chief who is, in Reggie Jackson’s immortal words, “the straw that stirs the drink.”

The “how” takes us to a series of decisions by the Court, most of which have seen the Chief take the lead in producing the opinion. Or at least providing the intellectual steam and the vision of how the Court views this thing called “private property” and its role in the pantheon of civil and human rights. In addition to Cedar Point, how many of the Court's property or property-related opinions has he authored? Knick. Penn East. Horne II. Murr dissent. Winter. This recent per curiam sure reads a lot like he wrote it, too. Those opinions he didn't author he played a big part in: the fifth vote in Koontz; presumably employing his role as Chief to organize unanimous or nearly unanimous decisions in Arkansas Game, Horne I, Brandt, Hawkes, and Sackett; and joining in very pro-property rights pluralities when there wasn't a majority. (Did we miss any?)

So let’s take a look at the vibe of these decisions, starting with the most recent, Cedar Point Nursery v. California. And before we go further, let me proudly disclose my bias, as my own law firm – the same law firm as our Brigham-Kanner honoree, Pacific Legal Foundation – represented the property owner in Cedar Point.

There, the narrowest framing of the issue would ask whether there’s any difference between a temporary and permanent physical invasion. The Court has already told us that a permanent physical occupation is considered a taking, which shifts the burden to the government to either pay up, or back off.

And on that, let another hat tip to my former law partners Diane Hastert and Charlie Bocken who bucked more than a century of seemingly contrary law and started us down this path with 1979’s Kaiser Aetna v United States in a decision authored by then-Associate Justice Rehnquist (who, the following Term, would be the boss of a young Harvard Law grad named John Roberts).

In Kaiser Aetna, the majority concluded that just because a navigable waterway might be subject to federal regulatory authority didn’t mean that along with the regulatory authority came the public. If those regulations invited the public to “come on in, the water’s fine,” that’s such a dramatically different nature than mere regulation, and triggered the obligation to pay compensation. Or, in that case, decide whether the price of regulation was worth the cost. It was not, and the federal government chose to back off instead of pay, leaving the owner to bar the public if it chose.

Kaiser Aetna re-introduced us to the centrality of the “right to exclude” (another hat tip to Prizewinner Tom Merrill) and the notion that permanent invasions triggered the Fifth Amendment calculus. Leaving open the natural question: what if the invasion isn’t “permanent?”

Let’s set that aside for a moment, and get to the issue the Kaiser Aetna Court was able to avoid dealing with: what might be the more difficult question of the source of the right to exclude and other property rights deemed to be within the scope of how private property is defined in the Fifth Amendment (and Kaiser Aetna was a pure Fifth Amendment case, as the federal government was the party pushing the closed gates open).

I say this was an easier question in Kaiser Aetna because there, the Court noted that under Hawaii law – all the way back to the Kingdom days – these type of waterways were not considered “navigable” in the sense we do (even though many of them were, in fact, navigable. Thus, the majority reasoned, if state law recognizes an admittedly unusual right to exclude, who are we as mere federal judges to say otherwise? On that, they were on firm footing, going at least as far back as Justice Holmes in another case out of Hawaii, Damon v. Hawaii, in which he noted in the most Holmesian language that if local law recognizes portions of the ocean as private property, then so does the Fifth Amendment.

So let’s flash forward to Cedar Point which resolved that permanent vs temporary question, holding that permanence is not the sine qua non of takings. But the Court did have to grapple with the issue of where the property interest the owner asserted was taken actually came from. (Or maybe “who” defines property.) We all know that state law is the touchstone of private property and states have a lot of latitude about how to define and redefine it. As the Court noted in Cedar Point, "[a]s a general matter, it is true that the property rights protected by the Takings Clause are creatures of state law."

But, as we all know, a state’s notion of property cannot go below the floor of the Fifth Amendment, and the Court has never countenanced state law defining property in a way that eliminates “fundamental elements” of “central importance to property ownership.” Indeed, the Cedar Point majority rejected California’s argument that state regulations limited the fundamental right to exclude). The Court held that core property right such as the right to exclude are not “empty formalities, subject to modification at the government’s pleasure.”

For that notion, I think there’s no better statement of the issue than Justice Thurgood Marshall in PruneYard Shopping Center v. Robins, where he emphasized that property includes a “normative dimension” insulated by the Fifth Amendment from state tampering. These fundamental rights protect individual autonomy:

I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.

Justice Marshall continued:

Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.

For more, see the Chief’s dissenting opinion in Murr v Wisconsin, where he argued that Justice Kennedy’s multifactor test (surprise!) for defining the denominator property in takings isn’t so much defined by state law as the baseline, but turns on a multiplicity of factors (what one advocate in that case called Penn Central squared).

The Chief argued that the question of property should always start with state law and traditional understandings (this is my property line) but doesn't always end there. And that gets me to my point here: when trying to predict what the Court might do about property and how it might analyze it, the best place to start isn't with "new property," but with old property. So dirt lawyers and scholars, dust off your Lord Coke, your Blackstone, and your Grotius. State law goes only so far, and cannot dominate the conversation and shape an owner's expectations (if expectations are even part of the calculus).

Let me suggest what some of those "normative" dimensions of property might qualify as "core" would look like. What, in addition of the right to exclude, are fundamental to the notion of property?

• The right of reverter. This is where Yee v. Escondido may come into play. If I invite you on my property subject to certain terms (you can only stay for a year or a month, or can only stay if you continue to pay rent), can the government alter that deal?
• The right to timely compensation when your property is taken.
• The right to be indemnified when property is taken. Can "other law" interfere with the natural operation of compensation? Or, what does it mean when the Court says the Just Compensation Clause is "self-executing?"

Before I sign off, let me wrap up by recognizing the people who attend this Conference. The William and Mary law students who take advantage of this great event and spend the day (or more!) with us, seeing how the things they are leaning in class are applied in the world.The alums of our Land Use course, and our Eminent Domain and Property Rights course. It was heartening to see that many lawyers who first attended this Conference as students continue to come as lawyers. And I am thrilled to see several emerging property law scholars in attendance, because among them may be the next generation of B-K Prizewinners.

And finally, to Jim Burling for his hard earned, well-deserved recognition. This Conference is the Cooperstown of Dirt Law, and I'm thrilled to be here sharing in the celebration. And if it isn't out of place, this student (and yes, I continue to consider myself a law student -- a 38L at this point) would like to honor one of his teachers. I do consider Jim Burling to be one of those legal mentors who shaped my own views of property and law.

I anticipate many years of continued studying at your side, Jim. And I might have to modify slightly my opening thoughts; I should say that it isn't the Chief Justice's property world we live in: it's Jim Burling's Property World.

Congratulations, Jim.

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*We refer to the Rat Pack in its Vegas iteration, not the original RP formed by Humphrey Bogart.

Still Time To Join Us (In-Person Or Remote) For The 19th Annual Brigham-Kanner Property Rights Conference

One last reminder that there' still time to register for the upcoming Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia, September 29-30, 2022. If you can't make it to the historic campus, there's an option to attend remotely.

In our opinion, the Conference is the best of its kind because it brings together legal scholars and the practicing bar to talk dirt law theory and practice. We also a have a full supplemental program for law students, that covers property law and careers in eminent domain law, a recruiting session, a program on international property rights, and a program on land use law.

Registration for the Conference is ongoing, and you can sign up here.

Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court.")

Come on, join us!

 

It's The Vibe! - Eminent Domain In Pop Culture

Be sure to check out Anthony Alderman (MRICS, SR/WA, CRE, Senior Managing Director at Cushman & Wakefield), who guests on Episode 98 of Clint Schumacher's Eminent Domain Podcast, "Eminent Domain in Pop Culture."

You know we are going to really appreciate an episode "about depictions of eminent domain in popular culture – often a juror’s only prior exposure to condemnation law." Whether it's the vibe of contitution, or how eminent domain can show up in novels, Netflix, Russian and Australian movies, memes (and meme briefs), or nerding out on Star Trek metaphors. We love this topic.

But it's not all distractions, because the episode also covers "what makes appraising for eminent domain acquisitions different from other appraisal projects as well as current issues of interest in the appraisal field."

What a fun episode. Don't miss it.

Indiana: Before Taking Property, Condemnor Must Provide Notice Reasonably Calculated To Put The Owner On Actual Notice

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

In 624 Broadway LLC v. Gary Housing Authority, No. 22S-CT-140 (Aug. 29, 2022), the Indiana Supreme Court held that the Authority failed to provide the property owner adequate notice that it would be taking its property as part of a redevelopment project.

The Gary Housing Authority wanted to redevelop 624 Broadway's commercial property in downtown Gary into mixed-use residential. The Authority instituted an "administrative taking" under Indiana law, which is "an alternative to the 'traditional' lawsuit route" that "occurs when an authorized governmental body condemns property and awards damages through resolutions." Slip op. at 2.

The administrative taking statute only requires notice to the property owner by publication. And that's exactly the notice the Authority gave 624 Broadway. "It twice published notice of the resolution and upcoming meeting in two area newspapers of general circulation." Id. Broadway's agent found out about the meeting from a reporter, and he appeared at the meeting and spoke. At the meeting, the Authority confirmed the taking and assessed $75k in damages, and set another meeting to consider objections.

The owner asked to postpone that meeting, but the Authority refused. The owner even sued (unsuccessfully) to get a TRO to stop the meeting so that the owner's appraiser could evaluate the property. With nothing stopping it, the Authority held the meeting, at which it concluded it could take the property, and awarded the $75k in damages. One day after that meeting, the owner's appraiser inspected the property, and a short time later issued a report valuing it at $325k.

624 Broadway raised a constitutional due process argument, asserting that the notice provided by the Authority was insufficient. Hold on, the Authority countered, the statute only requires us to publish notice of the taking and our hearing, and there's no question we did that. Although the lower courts bought that assertion, the Indiana Supreme Court didn't.

Taking property required due process notice, and that process requires some kind of hearing. The notice provided must be reasonably calculated to inform. Yeah, the Authority complied with the statute and published notice, but that alone doesn't mean the notice of the hearing was "constitutionally sound." The court noted that "[c]ertainly, a statute can provide more protection than the Constitution. But when a statute provides less, the government must do more." Slip op. at 5 (footnote omitted).

Not that notice by publication is always bad. You can publish notice where it isn't possible or practicable to give other kinds of notice. But if you know where to find someone, or can easily figure that out, then you have to make an effort.

The Housing Authority admittedly knew the identity and address of 624 Broadway’s registered agent. Indeed, its September 19 damages resolution included his address. 624 Broadway’s articles of organization, filed with the Indiana Secretary of State, listed its registered agent, his address, and an email address for service. Further, the Housing Authority demonstrated its ability to successfully communicate with 624 Broadway during its eminent domain lawsuit. See L.D., 938 N.E.2d at 671 (finding notice by publication insufficient when a party “had successfully given notice” in a previous case but “made no attempt to do so” in the instant case). Yet once it transitioned to an administrative taking, it apparently became incapable of sending a letter or email to 624 Broadway. An administrative taking may be a “streamlined procedure for taking private property,” Util. Ctr., Inc. v. City of Fort Wayne, 985 N.E.2d 731, 736 (Ind. 2013), but it cannot circumvent the Constitution. “[W]hen notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315. Because the Housing Authority knew how to provide personal notice, its notice by publication was a “mere gesture.”

Slip op. at 6.  

But wait, the owner's agent actually knew about the meeting (found out from a reporter) and showed up. That's not enough? No, the court concluded, "we cannot say 624 Broadway was not prejudiced: under our harmless error standard, and error's 'probable impact' is "sufficiently minor' if it did not 'affect the substantial rights of the parties.'" Id. (citation omitted). It is likely that if the Authority provided adequate notice, 624 Broadway could have at least had its appraisal ready to go. 

Having found a problem the next question was remedy. The court concluded that the owner is not entitle to vacate the taking, because the court was not convinced that it was for a bad purpose. "And nothing indicates that the taking was 'subterfuge ... to convey private property to a private individual for private use' or that the Housing Authority acted arbitrarily and capriciously." Slip op. at 7. So the court declined to vacate the taking, and sent the case back for a properly-noticed hearing on damages where the Authority can consider all of the owner's evidence. Yeah, that'll surely change things.

We shall see.

More on the decision here ("Gary Housing Authority violated Constitution in eminent domain case").

624 Broadway LLC v. Gary Housing Authority, No. 22S-CT-140 (Ind. Aug. 29, 2022)

Registration Underway - 19th Annual Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

There's still space for you to join us -- preferably in-person, but remotely if that is not possible for you -- at the 19th Annual Brigham-Kanner Property Rights Conference, September 29-30, 2022, at the William and Mary Law School in Williamsburg.

The American Law Institute was kind enough to post a notice about the Conference and the ALI members who are on the speaking faculty here.

Registration for the Conference is ongoing, and you can sign up here. Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court."

In our opinion, the Conference is the best of its kind, and brings together legal scholars and the practicing bar to talk dirt law. So please come join us.

CA11 Oral Arguments In Pipeline Taking: If Florida Law Says The Owner Gets Compensation Plus A Car, Does A Federal Court Have To Recognize That?

Here's the latest in a case we've been following. The U.S. Court of Appeals recently heard oral arguments in a case where a private Natural Gas Act condemnor (the Sabal Trail pipeline) exercised the delegated federal power of eminent domain to take the property of a Florida owner.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, "just compensation" does not include attorneys' and other fees, while under the Florida Constitution's "full compensation" provision (which we noted here), a property owner may recover fees and costs. The District Court held that Florida law, not federal, applied, and Sabal Trail appealed to the Eleventh Circuit.

The arguments are worth listening to. Is this a question of "choice of law?" Or does it go to how the "property interest" is defined in these takings (by state law). Or do the federal standard of "just compensation" govern? In our opinion, the most interesting part of the arguments starts at the 20:48 mark, where one of the judges asks the property owner's lawyer (our colleague Thor Hearne):

Let me give you what I think is a tough hypothetical for you. Maybe you'll be able to distinguish it. Florida decides in its wisdom that when any government decides to take property for eminent domain, whether it's permanent or an easement, or something like that, not only do you get just compensation as that term is commonly understood, you get attorneys fees and costs, and you get a brand new car. So a federal court has a case under the Gas Act and the question is: do you get the car?

(Note: we think the answer is "Yes, you get the car because Florida law defines the property interest being taken, and Florida law has included attorneys fees and costs and a car as part and parcel of an owner's rights when their land is taken.")

More on the arguments here: "11th Circ. Wary Of Axing Atty Fees In Pipeline Easement Cases."

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

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

I.  The evolving ground rules

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

 II.  Issues on the horizon

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

Ye Olde Law 608: Eminent Domain & Property Rights, S5E1 @ William & Mary Law

Is there a more appropriate place at which to study property rights and dirt law than William and Mary Law School? After all, it is a stone's throw from Jamestown, the place where there's a good argument the concept of property law and property rights first took hold in the New World. As noted by author David Price in "Love and Hate in Jamestown - John Smith, Pocahontas, and the Start of a New Nation" -

The introduction of private property for the common citizen had a salubrious effect on the owners' sense of initiative, as John Rolfe would observe. By the end of 1619, he reported, the "ancient" (or longtime) colonists had chosen their allotments, "which giveth all great content, for now knowing their owne lande, they strive and are prepared to build houses and to cleare their grounds ready to plant, which giveth ... greate incouragement, and the greatest hope to make the colony florrish that ever yet happened to them."

Was it a coincidence that at the same time as property rights took hold, that the seeds of representative and republican government were also planted? As Price writes:

The other major liberalization of 1619 sprang from the company's desire for "a forme of government there as may bee to the greatest benifitt and comfort of the people, and wherby all injustice grevance and oppression may be prevented." That form of government would be English America's first representative legislature. Sir Thomas Dale's authoritarian "Lawes Divine, Morall and Martiall" would be superseded by enactments of a locally elected body, to be known as the General Assembly.

And also just down the road from the Law School, coincidentally, is where the "new birth of freedom" took hold, again by way of a property-centric argument. So yes, William and Mary Law is a very appropriate venue for the study of property rights and property law.  

With that background in mind, in just over three weeks, we're about to get underway with the fall semester at the Law School, where we're again teaching two upper-division courses: Eminent Domain and Property Rights (Law 608), and Land Use Controls (Law 425). For a sampling of what we cover, check out some of the final papers our students produced last year - pretty compelling stuff.

The enrollment in the courses has really grown over the five years we've done them, which might be a reflection that the word is getting out. in the Eminent Domain and Property Rights class we cover not only eminent domain and just compensation, but takings, civil forfeiture, property theory, the cultural view of what it means to "own" something, and international approaches to property law and property rights. And, importantly, how to lawyer up these cases (this is a professional school after all). Of course, we take advantage of the opportunity to have some of the nation's best property law scholars "guest lecture" during the Brigham-Kanner Property Rights Conference. Here's the official description of the course:

Property rights and the sovereign's power of eminent domain have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. This course will introduce students to the practical lawyering and analysis necessary for eminent domain practice, including the nuts and bolts of takings practice as well as the study of recent (and ongoing) U.S. Supreme Court cases. In addition, this course will focus on the history, policy, and, to some extent, the politics of property rights, eminent domain law, and related legal topics. We will examine how the right of private property was developed in common and constitutional law, the relationship of property rights to other civil rights and the sovereign's power to take land, the role of federal and state courts in protection of property rights, how private property squares with environmental law, and the proper 'place' of property rights in the modern administrative state. Course materials will be cases and selected portions of books and journal articles, and other materials which will be made available. Grading will be based on a take home paper and class participation.

The Land Use Controls class is your class land use regulation class that focuses on things like zoning and planning, the administrative process, vested rights, nonconforming uses, due process, Euclid, private land use controls, nuisance, and other dirt law topics.   

Students: it's not too late to join (add/drop will commence soon after the first day of classes). We can't promise that you will gain instant knowledge of the subjects, but can guarantee a rewarding semester taking a deeper dive, coming out of it in December with a greater appreciation of these areas of law, and a working understanding of what it takes to actually practice. Come, join us!

IRWA's Summary Of Major Eminent Domain Cases & Legislation (Jan-May 2022)

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States."

And what is really nice is that they make the report available. 

We're posting it here because we're one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn't contain a lot of fluff. Just what you wanted.

New Cert Petition (Ours): Can Condemnor Delay Actually Paying Compensation Indefinitely?

Last week, along with my colleagues Deborah La Fetra and Kady Valois, we filed this cert petition in a case we've been following (even before we joined as counsel).

The petition seeks review of the Fifth Circuit's opinion holding that there's nothing a federal court can do if a local government does not pay a state-court just compensation judgment for an unreasonably long time. Because we are counsel in the case we won't go into further detail, but will leave it to you.

Here's the Question Presented:

A fundamental element of just compensation is "certain payment of the compensation without unreasonable delay.” Bragg v. Weaver, 251 U.S. 57, 62 (1919). In 2013, the Sewerage & Water Board of New Orleans inversely condemned the properties of 70 home and business owners for a flood control project. The property owners obtained state court judgments starting in 2018. Louisiana law prohibits enforcement of judgments against state and local governments—even just compensation judgments—which go unpaid unless government voluntarily appropriates the funds. The Sewerage Board has refused to do so, in some cases for years. The question presented is:

May the government, consistent with the Fifth and Fourteenth Amendments’ self-executing command of Just Compensation for takings of private property, indefinitely delay paying just compensation?

Follow along here, or on the Court's docket.

Petition for Writ of Certiorari, Ariyan, Inc. v. Sewerage & Water Board of New Orleans, No. 22-52 (July 20,...

More Than Just A Property Lawyer: A Salute To Three Decades Of Service

An officer and a gentleman.

Before I go on, a note: we're posting this with a slight bit of reluctance, because we know that friend and colleague Mark M. Murakami does not crave the spotlight, but is the type to downplay this sort of thing. But I think it is important to acknowledge milestones -- especially the accomplishments of friends in public service -- so please read on.

You may already know of many of his professional legal accolades: Owners' Counsel member, SCOTUS amicus brief author, Best Lawyer in a slew of categories, regular CLE faculty member and presenter, and land use, eminent domain, and property law legal scholar (he will be returning this fall to the U. Hawaii Law School on the adjunct faculty) to name a few. But he isn't just an accomplished lawyer, and you may not have known of his military accolades that the rack of decorations and awards his uniform reveals.

Last Saturday, Captain Murakami officially retired from the U.S. Coast Guard after more than thirty years of active and reserve service, donning his whites for one final time to celebrate and reflect with family, friends, colleagues, and comrades-in-arms in a brief outdoor ceremony at Coast Guard Base Honolulu.

Mark began his military service at the Coast Guard Academy in New London, Connecticut (yes, that New London if you are looking for another eminent domain connection here), and after commissioning served in command and other assignments, rising in rank and responsibility. Eventually he attended law school while on active duty, and after graduating first in his law school class, returned to service as a Judge Advocate.

But his devotion to his young family and the prospects of a full-time civilian law practice resulted in the difficult decision to step away from a life at sea and of active service. He transferred to the reserves, and returned home to Hawaii. That's when I was lucky enough to get to know Mark -- every major law firm in town wanted him, but as my (former) firm's Hiring Chair, I and my colleagues pressed hard: come join us in our eminent domain and property practice, Mark!

This wasn't exactly his existing legal expertise, but we made the pitch that land use, takings, and property law were really exciting topics, that a lawyer with his smarts would not have any trouble catching up, and that there's no better place to practice property law in town than in our firm. We were rewarded when Mark joined our law firm, where today he remains a partner.

Our predictions were correct. Mark quickly became one of the best land use, property, and eminent domain lawyers (and not just these topics).

Not only was this the best professional decision I ever made as Hiring Chair, it began our long professional association and personal friendship. I followed Mark's continuing military career with pride and admiration, amazed how he could balance a successful full-time private law practice, his ever-expanding and far-flung responsibilities in reserve military service (that required way more than the advertised "one weekend a month"), public service to the Bar and the profession, and of course his devotion to his family. And to "be there," as impossible as it sounds, paying full attention to each. Always worried that he wasn't doing enough in every role he took on, when the reality was he not only pulled his own weight, but brought others along with him.

It was with that same pride and admiration that we gathered last Saturday to celebrate and to express our appreciation to Mark for serving our Nation, and to recognize his family for sharing him with all of us. We were all able to sleep better each night with the knowledge that Mark was standing the watch.

Thank you, my friend.

John Quincy Adams Loses A Takings Case

No, not that JQA. (Sorry for the clickbaitey headline.) But who could resist the Fifth Circuit's per curiam opinion in John Quincy Adams v. Pearl River Valley Water Supply District, No. 21-60749 (July 20, 2022) which held that Mr. Adams, who owned property near a reservoir, could not sue state officials in federal court for injunctive relief for due process violations and takings.

Adams alleged that Mississippi water district officials were violating a state statute by not allowing him to exercise the option to re-acquire property that the water district had condemned decades earlier. His federal court complaint avoided directly asking for money damages because those claims would mean the state officials would have Eleventh Amendment immunity. Instead, "[t]he Adamses requested a declaratory judgment that the District’s sales and leases of property without notice were ongoing constitutional violations and asked the court to fashion whatever injunctive relief it deemed necessary to correct the violations going forward, including ancillary monetary relief." Slip op. at 4.

Motion to dismiss for lack of jurisdiction granted, and the Fifth Circuit affirmed.

But doesn't the Ex parte Young exception to the usual rule that you can't sue state officials in their official capacities in federal court apply? After all, Adams sought to enjoin what he claimed were ongoing violations, which counts as prospective injunctive relief, right? Not here, the Fifth Circuit concluded, because although Adams alleged that the officials had violated his rights in the past, he had not alleged enough to show that they would do so again:

Once any claims for monetary relief were properly dismissed because of sovereign immunity, all that remains was in essence a demand for the court to order the District to comply with state law in the future as to any of the family’s former land. Even if the Adamses’ rights were violated in the past, the Adamses have at best offered “[a]llegations of possible future injury” that they have not claimed is imminent, or “certainly impending,” or anything other than speculative. See Clapper, 568 U.S. at 409 (quotation marks and citation omitted).

Slip op. at 7.

One correction to the district court's dismissal: the Fifth Circuit noted the dismissal should have been made without prejudice.

John Quincy Adams v. Pearl River Valley Water Supply Dist., No. 21-60749 (5th Cir. July 20, 2022) (per curi...

CA1 Splits With CA9: "[T]he Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

Here's the latest in an issue we've been following for a while. You recall that several years ago, a divided panel of the Ninth Circuit held there's nothing particularly special about an unresolved takings claim for just compensation that sets it apart from other creditor claims in a government bankruptcy.

The Ninth Circuit majority held that owners who assert their property was taken by the debtor-government before the bankruptcy -- but who have not been compensated -- are just unsecured creditors who must "share[] the pain" of the government going broke and sloughing off debt, even if it means that as a result the owner has had its property taken without just compensation. See "Ninth Circuit: Inverse Condemnation Plaintiff Must "Share The Pain" - City Can Shed Obligation To Pay Just Compensation In Bankruptcy, Which Is 'Purely A Monetary Claim'."

Next up, Round 2: In In re Financial Oversight & Management Board for Puerto Rico v. Cooperative de Ahorro y Credito Abraham Rosa, No. 22-1119 (July 18, 2022), the First Circuit went the other way.

Here's the setup. Puerto Rico property owners had claims for just compensation against the Commonwealth. One set of owners was (allegedly) owed compensation for the straight-up eminent domain-ing of their land by quick-take; they claimed the deposits didn't cover the actual amount of compensation. The other group of owners had inverse claims. The court noted that "[f]or purposes of this appeal, all parties agree that the Commonwealth ... took private property from at least some of the takings claimants before petitioning for [bankruptcy]." Slip op. at 18. That agreement would have consequences in the court's later analysis, so remember this point.

The Commonwealth's petition ("perhaps the largest and most consequential public bankruptcy in the nation's history") sought relief for "sovereign debt ... under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act." Slip op. at 8. The Commonwealth's reorganization plan proposed to treat the claims of the property owners as general unsecured debt, payable "at a pro-rata share of the overall recovery for general unsecured creditors." Slip op. at 12. In other words, likely pennies on the dollar, if that. 

The property owners objected: hold on, we have had our property taken without compensation, and our claims are not plain-old unsecured debt because the constitution says we get just (full) compensation. Thus, a claim for compensation can't be wiped out in bankruptcy. Confirming the plan would leave us holding the bag, and thus, the court can't confirm the plan with our claims listed as unsecured debt. 

And guess what? The Title III court agreed, and "directed the Board to modify the plan of adjustment to provide for full payment of any valid eminent domain and inverse condemnation claims if the Board wished to make the plan confirmable." Slip op. at 12-13. The Board did so (while reserving its right to appeal, which it eventually did).

The First Circuit started off by noting that the "appeal raises important questions about the interplay between the power to equitably restructure debts in bankruptcy and the Constitution's requirement that just compensation be paid whenever the government takes private property for public use." Slip op. at 8. Let's get to the holding first:

[O]therwise valid Fifth Amendment takings claims arising prepetition cannot be discharged in Title III bankruptcy proceedings without payment of just compensation.

Slip op. at 9. And by "just" compensation, the court meant whatever full compensation is owed to the owners. How did the court reach this result? Read on.

First, the court rejected the federal government's argument that this isn't a constitutional right vs bankruptcy power issue at all, but that the Article III court's holding was merely it exercising its equitable powers. No, the court concluded, "we read the Title III court's ruling to say precisely what it appears to say: that discharging valid, prepetition takings claims for less than just compensation would violate the Fifth Amendment and render a plan providing for such discharge unconfirmable under PROMESA." Slip op. at 16.

Next, having rejected the feds' invitation to avoid the constitutional question, the court concluded, "we move on to assessing whether the Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy. For the following reasons, we conclude that it does." Slip op. at 18. Can bankrupt governments "eliminate their obligation to pay just compensation and instead pay only reduced amounts based on a formula applicable to most creditors[?]" Slip op. at 19. The court held no.

First, "the Supreme Court has been very clear: the bankruptcy laws are subordinate to the Takings Clause." Slip op. at 20. Bankruptcy laws are subject to the Fifth Amendment.

Second, the court rejected the Commonwealth's argument that the Fifth Amendment protects only property held by the owners at the time of the bankruptcy. And because their real property had already been taken by the Commonwealth -- either through expropriation by eminent domain, or inversely taken by seizures -- the only "property" possessed by the owners at the time of the bankruptcy were unsecured claims.

The Commonwealth -- get this -- relied on Knick for that argument. Yes, you read that right. Because the right to compensation "arises at the time of the taking" the theory goes, the claim doesn't arise later when the government denies compensation. And by the time the goverment denies compensation, the owners have already lost their real property: "because the takings at issue here all occurred prepetition, the [Commonwealth] contends, any constitutional violation would have arisen only at the time of the taking." Slip op. at 22. The Commonwealth asserted therefore, that compensation is "untethered from the substantive Takings Clause violation itself." Id. 

The First Circuit rightly held no, that Knick does not "cast doubt on the Fifth Amendment's requirement that just compensation be paid." Id. And here's the critical part:

Recognizing that the "right to full compensation arises at the time of the taking," id., does not imply that the subsequent denial of that compensation does not also raise Fifth Amendment concerns. We decline to read Knick as changing the Fifth Amendment right to receive just compensation into a mere monetary obligation that may be dispensed with by statute.

Id.

The court rejected an argument that the Fifth Amendment protects only rights in specific property, and not unsecured claims for money. Slip op. at 23. That isn't looking at the issue the right way, the court noted. This isn't a question of "whether a bankruptcy law has effected a taking of property" (i.e., whether bankruptcy law wiped out the ability to enforce a contract or other claim), but rather "whether the denial of just compensation for a taking" that "no one disputes" has occurred violates the right to compensation. Slip op. at 24.

Having disposed of that argument, the court next rejected the contention that "nothing about a claim for just compensation makes it any different for bankruptcy purposes than a claim for money damages for any other kind of constitutional violation." Slip op. at 25. Relying on the "language and nature of the Takings Clause," the First Circuit held that "compensation is different in kind from other monetary remedies." Slip op. at 26. The court concluded:

Just compensation then does not serve only as a remedy for a constitutional wrong; it serves also as a structural limitation on the government's very authority to take private property for public use. As the Court has stated, "where the government's activities have already worked a taking . . . , no subsequent action by the government can relieve it of the duty to provide compensation." Id. at 321. Simply put, the Fifth Amendment contemplates a "constitutional obligation to pay just compensation."

Id. (citing First English, 482 U.S. at 315).

Thus, the court concluded, "payment of just compensation [is] unlike most other instances in which the government engages in a constitutional violation and is required to remedy that violation by paying money." Id.

The court expressly rejected the Ninth Circuit's reasoning in the Stockton case. Instead, the First Circuit found "the dissenting opinion of Judge Friedland in that case to be more persuasive." Slip op. at 27. Dissenting in Stockton, Judge Friedland wrote:

The majority instead holds that Cobb has forfeited all property rights in the condemned parcel under California law, and that his pending claim is "simply" a statutory claim for monetary damages. But the statutory character of Cobb’s claim does not diminish its constitutionally protected status—indeed, a constitutional claim for just compensation is a statutory claim for monetary damages under California law.

Here's how the First Circuit wrapped up:

Reduced to its nub, the issue we decide is rather simple. The Fifth Amendment provides that if the government takes private property, it must pay just compensation. Because the prior plan proposed by the Board rejected any obligation by the Commonwealth to pay just compensation, the Title III court properly found that the debtor was prohibited by law from carrying out the plan as proposed.

Slip op. at 30-31.

Naturally, given our view that Stockton was ever-so-wrong, we feel validated by the First Circuit here. So remember that part-and-parcel of the power to take property is the corresponding obligation to, you know, actually pay for it. All of it. And anything that interferes with that right, whether it is, as here, a Congressional bankruptcy statute, a state statute, or anything else must yield to the Just Compensation imperative.

In re Financial Oversight & Mgmt Bd for Puerto Rico v. Cooperative de Ahorro y Credito Abraham Rosa, No. 22...

New Novel: "Wise-Cracking Lawyer" Gets Caught Up in Eminent Domain ... And Murder!

A "brash, wise-cracking unapologetic lawyer" gets caught up in "two innocuous words of legalese" and next thing you know, he's embroiled in "lies, deceit, and ultimately murder." Sound like your practice? (ha!) If so, then have we got a novel for you: "Eminent Domain" by Ronald D Demmans.

Yes, a novel where condemnation is a central plot point:

Brett Simmons and the town of Lenore are inextricably linked. Brett Simmons, the brash, wise-cracking, unapologetic lawyer and Lenore, the hometown he loves. Two innocuous words of legalese will lead Brett down a dangerous path of lies, deceit and ultimately murder. He has taken a look behind the curtain…the wrong curtain. He has seen too much and what he has uncovered could cost him everything: his career, his freedom, even his life. With the odds clearly stacked against him and the future of Lenore at stake, Brett engages in a battle with Warren Winfield, Lenore’s corrupt mayor and a ruthless international criminal cartel. Alone, Brett Simmons stands little chance of winning. But Brett is not alone in his fight. He finds himself partnered with Melanie Stockton, a beautiful, tough-as-nails cop. The rapport is instantaneous; the attraction, unexpected. With Brett going undercover and Melanie forced to confront a well-armed band of mercenaries, whatever feelings they have for each other will have to be put on hold…and the waiting might take forever. This is Brett Simmons’ story…and only he can tell it.

This isn't the first time that eminent domain drives a factional story. See "Netflix And Take: Expropriation And Redevelopment UK Style In 'The Stranger,'" for example, and of course, our old favorite, "The Castle."

Check it out. More about the book and the author here.

So, fellow dirt lawyers, what other ideas can we suggest for legal thrillers? Some of the suggestions we've received thus far: "Quiet Title, Whispering Death" (the new Spenser adventure where Spenser and Hawk investigate a claim of prescriptive rights but end up with a cold case of murder); "Colonial Ordinance - Murder on the Beach" (a Martha's Vineyard dirt lawyer investigates the mysterious death of a stranger who dared walk on private tidal flats); "Ancient Lights, Ancient Frights" (a lawyer representing a home owner deprived of her view gets caught up in a byzantine maze of extortion and murder). 

DC Circuit OK's Pipeline That's Already Built

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

In City of Oberlin v. FERC, No. 20-1492 (July 8, 2022), the U.S. Court of Appeals for the D.C. Circuit held FERC adequately explained why, in granting a certificate of public convenience, it relied in part on evidence that some of the natural gas in the pipeline was slated to go to Canada. 

Earlier, the court held FERC had not explained why well enough (or at all), and sent the case back down to give FERC the chance to do so. The handwriting was on the wall in the remand order because the court pointedly did not vacate FERC's order granting the certificate: "we remand without vacatur, because we find it plausible that the Commission will be able to supply the explanations required, and vacatur of the Commission's orders would be quite disruptive, as the Nexus pipeline is currently operational."

If you build it, they will approve.

So full steam ahead, pipeline, while FERC gets its ducks in a row.

This is one of those Natural Gas Act pipeline cases, involving FERC's approval of a certificate of public convenience. That, as you know, is the trigger to a private pipeline exercising the NGA's delegated power of eminent domain, because it effectively settles the question of whether the takings are for a public use or purpose. Also, as you know, an agency's decision is, generally speaking, subject to a highly deferential judicial standard of review under the Admin Procedures Act, and a certificate may only be set aside if it is arbitrary and capricious.

Here, the city argued that FERC didn't do it right, and the certificate should be set aside. FERC concluded that the agreements the pipeline company already had made to distribute the gas to be transported was sufficient to support a determination of public use or purpose. But, the owners argued, a large percentage of that (42%) would be going to -- the horror! -- Canada, and FERC never reached any conclusion whether the remaining gas for distribution in the U.S. would support a finding of public use.

Perhaps not surprisingly in light of the D.C. Circuit's remand order, FERC "elaborated on its reasoning for considering the export precedent agreements in its decision to grant the certificate." Slip op. at 8. Even though some of the gas was headed to the Great White North, some gas was still in U.S. interstate commerce and not within a single state.

Was this "arbitrary and capricious" or "contrary to law" as the standard of review commanded? We'll give you one guess (no). See slip op. at 11-3. 

Let's skip to the Public Use analysis. "[T[he City maintains that FERC's crediting export precedent agreements as a benefit runs afoul of the Takings Clause because a pipeline shipping gas for export 'does not serve a public use.'" Slip op. at 15. Given the court's answer to the earlier question of whether FERC's reasons for granting the certificate of public convenience was not arbitrary and capricious, what do you think the court's answer was to the public use question?

The court upheld the taking, concluded that FERC's reasons were adequate, even if the evidence about exports was excluded. The pipeline "was needed to alleviate a bottleneck from the Appalachian Basin and to increase supply to Midwestern markets." Slip op. at 17-18. "FERC also explained that building a pipeline with excess capacity would enhance the pipeline grid for the future." Slip op. at 18.

The court rejected the city's other public use objections:

The City launches a few objections at FERC’s analysis, but none render the decision arbitrary and capricious. First, the City contends that FERC did not identify which pipelines FERC considered in determining that existing pipelines did not have enough capacity to transport the gas the Nexus Pipeline would move. But FERC identified the pipelines on remand in precisely the same manner it did in its initial order—by looking at “other pipeline compan[ies’] electronic bulletin boards.” Compare Remand Order P 27, with Certificate Order P 40 n.29. Even assuming that is insufficient, the City did not challenge this aspect of FERC’s order in Oberlin I and therefore cannot do so now. Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (“It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.”).

Second, the City complains FERC did not analyze a hypothetical pipeline specifically sized to transport 42% of the Nexus Project’s capacity. But given that FERC had analyzed a pipeline sized to transport 59% of the Nexus Project’s capacity, there was no need for FERC to start its analysis anew. FERC had already found that shrinking the project would barely reduce the amount of land that the project would require, and that excess capacity could reduce the costs and disruption from constructing additional pipelines in the future. Certificate Order PP 42–45. FERC’s determination that this reasoning applied to a pipeline sized for 42% of the Nexus Project’s capacity was reasonable.

Slip op. at 18 (footnote omitted).

City of Oberlin v. Fed. Energy Reg. Comm'n, No. 20-1492 (D.C. Cir. July 8, 2022)

Eminently Outplayed: Condemnation Lawyer Is The New Jeopardy! Champion - Well Done, Steve Clarke!

Check this out: our friend and colleague, eminent domain lawyer Stephen J. Clarke is the new Jeopardy! champion.

And it wasn't just a plain-old win for Steve. It was an exciting, come-from-behind triumph, based (no doubt) on his careful, strategic thinking and thoughtful play (this is chess, not checkers!). Just like his eminent domain cases!

Watch the above, or see "BUZZER BEATER Jeopardy! fans stunned by WILD upset in final round after champ lost by shocking dollar amount in game with Mayim Bialik."

The big moment:

But as many of you know, this wasn't Mr. Clarke's first rodeo. Recall that he served as a contestant at our Ethics Jeopardy! at the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference. So yes, in addition to valuable CLE credits, the Conference is great training for your game show appearances!

Well done, and congratulations Steve.

Here's The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here - space is limited - fee ranges from free to $195 - a bargain!). And you know that our colleague Jim Burling is this year's B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here's the full agenda. The list of speakers is too long to list here but check out these topics:

• Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
• Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that's the panel we're speaking on)
  
• Roundtable: Emerging Issues in Takings and Property Rights Litigation
• Panel 3: Choosing A Property Regime
• Panel 4: Property Rights in Times of Scarcity and Crisis

Who can resist these subjects? Plan on joining join us in September.

2022 Brigham-Kanner Property Rights Conference Speaker Panels

Texas: Proposed Bullet Train Is An "Interurban Electric Railway" And May Exercise Eminent Domain (At Least It Isn't A Fish)

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

Now before you get all worked up about the Texas Supreme Court agreeing that the private company proposing to build a bullet train between Dallas and Houston may exercise the sovereign power of eminent domain (see Miles v. Texas Central RR & Infrastructure, Inc., No. 20-0393 (June 24, 2022), remember that this is a case involving only the construction of Texas statutes. Not the court deciding whether the state's delegation of eminent domain power conforms to some constitutional public use standard. 

That being said, the opinion may have limited reach (thank goodness) but is still worth reviewing for those of you not in Texas.

Property owners objected to the company taking their property, arguing that it did not qualify under Texas statutes delegating the state's eminent domain power to a "railroad" and to "interurban electric railways." This thing may call itself a train, but to the property owners, it didn't look like a train. And simply calling yourself a train doesn't cut it. As the opinion noted:

• Texas Central Railroad did not own any railroad tracks;
• Texas Central Railroad did not own any rolling stock (trains);
• Texas Central Railroad had not constructed any train stations;
• Texas Central Railroad had secured only a small fraction of the necessary financing for the project; and
• Texas Logistics had no employees, officers, or office space independent of Texas Central Railroad.

Slip op. at 6.

The Supreme Court rejected the owners' two main arguments. First, you don't need to be actually operating a railroad in order to meet the statutory definition of "railroad." Lack of tracks and trains doesn't disqualify a company from operating a railroad.

Second, just because this type of electric bullet train was probably not in the minds of Texas legislators back when the statute was adopted when electric streetcars were high-tech (1907), the plain language of the statute encompassed this company: "corporation[s] chartered for the purpose of constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of . . . passengers."

The majority also rejected the argument that qualifying under the statutory definition wasn't enough, that there must be some reasonable probability that an interurban railway company will actually build an interurban railway:

While both the Texas Constitution and our precedent preclude an entity from obtaining condemnation authority by checking a box, they do not support the reasonable-probability-of-completion test Miles proposes, which would constitute an unwarranted sea change in eminent-domain law with far-reaching consequences.

We agree with Miles that, under Denbury I, the Texas Central Entities do not qualify as interurban electric railway companies with associated eminent-domain authority merely by claiming as much in their charters, the equivalent of “checking a box.” However, there is no dispute that the Texas Central Entities (1) were actually chartered for the statutorily authorized purpose of “constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both freight and passengers,” TEX. TRANSP. CODE § 131.012; and (2) are engaged in activities in furtherance of that purpose. Nor is there any question that the proposed railway is for “public use.” See TEX. CONST. art. X, § 2 (“Railroads heretofore constructed or which may hereafter be constructed in this state are hereby declared public highways, and railroad companies, common carriers.”); see also West v. Whitehead, 238 S.W. 976, 978 (Tex. App.—San Antonio 1922, writ ref’d) (“If a railroad invoking the power of eminent domain is to be a highway, or a common carrier, and open to the promiscuous and uniform use of the public, such facts conclusively make it a public use . . . .”). Miles’s argument that the Texas Central Entities must further show a reasonable probability that the railway will be successfully completed finds no support in Denbury or the Constitution.

Slip op. at 23, 24-25 (footnote omitted).

So this is a train. At least it isn't a fish.

More on the case here, including links to the multiple dissents, concurring opinions, briefs, and arguments.

Now that it has legal clearance, will the project move forward? We shall see.

Miles v. Texas Central RR & Infrastructure, Inc., No. 20-0393 (Tex. June 24, 2022)

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted!

In honor of property rights advocate and trial lawyer Toby Prince Brigham (1934-2021), Owners' Counsel of America has endowed a scholarship for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in Austin, Texas, February 2-4, 2023.

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

To apply or to find out more, contact OCA's Executive Director Leslie Fields. Deadline is October 1, 2022.

Toby Prince Brigham OCA Scholarship Brochure (2022)

Monday Round Up: Aina Lea Out With A Whimper, 30 Years Of Mabo, Seneca Village

Here's what we're reading today:

• Aina Lea regulatory takings case dismissed for lack of standing. State of Hawaii's press release here.
• It's the constitution...it's Mabo. It's justice. It's law. It's the vibe. "How the Mabo decision changed Australia 30 years on" "On June 3, 1992, after years of legal struggle, the High Court of Australia handed down its decision, overturning the centuries-old legal fiction of 'terra nullius'."
• "Indiana Supreme Court hears arguments in Gary restaurant eminent domain case" (referring to this case).
• A celebration at New York's (former) Seneca Village. NYT: "New Yorkers Honor a Thriving Black Village Displaced by Central Park" (we visited the site a few years ago)
• Speaking of New York City, here's "This Is Why Your Holiday Travel Is Awful" from Politico, about the "sordid history of New York's Penn Station." Any mention of the takings case about the other big NYC transit hub, Grand Central (owned by Penn Central)? Nope.

Happy 807th Birthday, Magna Carta. We Need Just Compensation "Stat!"

807 years ago today on a grassy plain down by the river, the barons convinced bad King John to affix his seal to Magna Carta. 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.

And does that part about the duty to provide compensation for takings "statim" (immediate, without delay) have continuing relevance today? We sure think so.

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.

Utah: Sale "Under Threat Of Condemnation" Means Only A "Specific Threat To Take," Not That Govt Authorized Condemnation Lawsuit

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

A Utah statute requires that if a condemnor doesn't actually use property it acquired "under a threat of condemnation," it must try and sell it back to the (former) owner. The statute defines "threat of condemnation" as when "an official body of the state or a subdivision of the state, having the power of eminent domain, has specifically authorized the use of eminent domain to acquire the real property." 

So what does "specifically authorized" mean? The Utah Court of Appeals held it means only when the potential condemnor takes a "final vote" and actually and finally "approves the use of eminent domain powers."

In Cardiff Wales, LLC v. Washington County School District, No. 20210221 (May 26, 2022), however, the Utah Supreme Court disagreed, concluding it means any specific threat to take. The condemnor must do something more than indicate it is thinking about eminent domain, but need not take the final step in approving an eminent domain lawsuit.

The school district wanted Cardiff Wales's property, and offered to buy it. During the negotiations for sale, the district reminded Cardiff Wales that the district possess the power to simply take the property if CW didn't agree to a voluntary sale. And with that kind of offer, CW agreed to the sale.

Flash forward a decade. The district decided it wasn't actually going to use the land, and no longer needed it, so decided to get rid of it. But it didn't offer it back to CW, and instead sold it to a developer. Now hold on, CW asserted, you acquired the property under threat of condemnation (we remember your "reminder" that you could just take the property if we didn't sell), so we have the right of first refusal and we want to exercise that right.

The trial court disagreed that the sale was "under threat of condemnation," and as noted above, the court of appeals agreed: the condemning authority must authorize an eminent domain lawsuit in order to trigger the statute's right of first refusal. As the Supreme Court put put it, the court of appeals held that "to survive the motion to dismiss under the theory that [the School District] acquired the Property by threat of condemnation, Cardiff [Wales] must allege that [the School District] voted and approved the use of its eminent domain power to acquire the Property." Slip op. at 5. "Specific authorization" means final vote.

The Supreme Court disagreed. It held that the process doesn't need to be that far along in order to for a sale to be under the threat of condemnation. The court held that it isn't enough when a potential condemnor simply signals "the government's general ability to condemn land."  That alone isn't enough to constitute a threat of condemnation, and a "general fear" by the owner that the government might take the land if it isn't voluntarily sold won't support a right of first refusal. Slip op. at 11. (After all, every property owner lives under such a general fear, no?) But the Supreme Court wasn't willing to draw the line as late in the game as the court of appeals, either:

Instead, to meet her statutory burden, a landowner must plead and prove some government action that indicates the government has authorized the use of its eminent domain authority in a way that bespeaks a specific intent to condemn the landowner’s property.

Id.

What does this mean when pleading a right of first refusal under the statute? "This means that to survive a motion to dismiss, Cardiff Wales needed to plead that the School District took some sort of action that transformed its general eminent domain power into a specific threat to take Cardiff Wales’s parcel by eminent domain." Slip op. at 12. CW's complaint "did not use the words 'specifically authorize' in its complaint," but it did allege enough to infer that the district did enough to have made a "specific threat" to take. Things like:

• The district told CW that we want to buy your property, but it you don't sell, we're going to condemn it.
• CW also alleged that it sold in order to avoid eminent domain.

Slip op. at 13. In other words, it doesn't take the condemnor formally adopting a resolution of taking, but on the other hand, a general power to condemn isn't enough either. The answer lies somewhere in between.

This is a statutory case, so may have limited utility to those of you not in Utah. But the overall vibe seems pretty Goldilocks: not too late, but not too soon, emphasizing that these things are all about facts, facts, and facts, and the presumption should be that these cases are resolved on proof of those facts, not the law.

So maybe the jury should decide. Sounds about right to us. 

Cardiff Wales, LLC v. Washington County School District, No. 20210221 (Utah May 26, 2022)

Texas: At Least One Customer Is Served So Pipeline Is A Public Purpose, But Let's Loosen Valuation Rules For Energy Corridors

On one hand, there's nothing terribly surprising about the Texas Supreme Court's opinion in Hlavinka v. HSC Pipeline Partnership, LLC, No. 20-0567 (May 27, 2022) holding that yes, "polymer-grade propylene" qualifies as an "oil product" under Texas statutes that allow a private pipeline company to take property to transport oil products, and that yes, a private pipeline counts as a public use. After all, the first sentence of the opinion sets the context for those of you who may not realize how important the energy industry is to that state:

Recognizing the important role that pipeline development plays in meeting our state's manufacturing and energy needs, the Legislature grants common carriers the right to condemn private property for the construction of pipelines that transport certain products.

Slip op. at 1.

But on the other hand, the very last portion of the opinion gives a hint that maybe the court is loosening up the rules about proving valuation in pipeline and other energy corridor takings.

We won't spend a lot of time on the statutory analysis ("oil product" includes polymer-grade propylene), or even on the public use issue (where the court applied precedent to conclude that as long a single member of the public is served by a private pipeline, the taking by a private common carrier is a public use), because there's not a lot new there, as we see it. You can read the court's analysis there if you are interested.

But we'd recommend reading the opinion from page 20, at least. There, the court dives into the valuation issue. Here, the owner testifed that he purchased the property to develop it as a pipeline. The land was pretty good for pipeline use (it is "directly between" two refining hubs), at least one pipeline already ran across the land at the time of the purchase, and by the time of trial, "closer to 25" pipelines criss-crossed the land. The owner sought to introduce evidence of his negotiations with other pipeline companies in the time immediately before the taking as comps.

The condemnor objected, asserting that the project rule (value resulting from the condemnation itself can't be used) meant this testimony was not admissible. The court rejected the argument, concluding that this was different - the testimony was to show the value of the property because of the condemnor's project, but because "purchasers other than HSC also value the easement's geographic qualities." Slip op. at 24. 

Such a valuation is not based on value HSC created by its interest, but instead is based on the value of the easement were the Hlavinkas to sell it to another ready and willing market participant. The multitude of pipelines crossing the tract, including those parallel and adjacent to HSC’s pipeline—and the prices paid to secure those easements—is some evidence that the land is valuable to other pipeline carriers for its intrinsic qualities, notwithstanding HSC’s decision to condemn it.

Id.

The court distinguished "the ordinary condemnation case" in which there is no evidence of an existing market for the property interest being taken. Slip op. at 25 ("In the ordinary condemnation case, there is no credible evidence to suggest that, if the land had not been condemned, a pipeline easement could be sold to another."). But "[t]his is no ordinary condemnation case" because there are other pipeline projects (apparently this place is Pipeline Central - 25 pipelines already on the land!) and thus, a reasonable factfinder "could conclude that the [owners] could have sold to another the easement that they instead were compelled to sell to HSC." Slip op. at 25.

In light of what appears to be the frequency of pipelines criss-crossing Texas, we'd expect that -- despite the court's noting this case isn't "usual" -- that our Texas colleagues are going to be seeing more of this argument.

Hlavinka v. HSC Pipeline P'ship, LLC, No. 20-0567 (Tex. May 27, 2022)

Tuesday Round-Up: Austin Airport Taking Its Own Land?, The Right To Exclude, And More

Here's what we're reading today:

• "ABIA attempts 'unusual' use of eminent domain to force out South Terminal operator" Austin Airport, which already owns the property, is condemning it?
• "Gun Rights, Property Rights, and Takings" from lawprof Ilya Somin
• "Can tenants have it both ways? - Some demand the freedom of renting and the stability of ownership" (via The RealDeal)
• "When Is it a Taking of Private Property to Bar a Property Owner from Excluding Unwanted Visitors?" Thoughts on Cedar Point and PruneYard from lawprof Eugene Volokh
• "The City of Portland Tried to Undo Gentrification. Black Portlanders Are Conflicted About the Results" "'It’s kind of a typical Portland reaction to an injustice,' Millner says. 'It’s a feel-good story that doesn’t move the needle very much.'" (via Willamette Weekly)
• "Grand Ronde moves to intervene in Willamette Falls land condemnation" A tribe seeks to intervene in a condemnation case, asserting cultural and historical interest in the land (WestLinn Tidings)

District Court: City Liable For Physical Taking For Destroying Home While Apprehending A Criminal

Here's a pretty rare one: a trial court entering summary judgment on liability in favor of the property owner in a takings case. Yes, you read that right.

And to top it off, this ruling comes in a case in which the taking alleged was a police invasion and destruction of a home for the valid public purpose of apprehending a holed-up criminal, a brand of claim that has not met with a whole lot of success. See, for example, this case from the Tenth Circuit, and this case from the Supreme Court of South Carolina.

In this order, the U.S. District Court for the Eastern District of Texas held the City of McKinney liable for a physical taking. The entire order is worth reading, but here are some of the highlights.

• The court rejected the Tenth Circuit's rationale, which concluded that these are "police power" actions, and thus never a taking.
• Lech relied on cases like Mugler (the one where the Supreme Court held that Kansas' banning manufacture and sale of liquor was a valid exercise of its police power).
• But there's a difference between physical takings (the case here) and regulatory takings (not this).
• Check out the law review article the district court cited, Emilio Longoria, Lech's Mess with the Tenth Circuit: Why Governmental Entites Are Not Exempt from Paying Just Compensation When They Destroy Property Pursuant to Their Police Powers, 11 Wake Forest J. L & Pol'y 297 (2021).
• The district court's opinion also picked up on a familiar vibe: a valid police power action doesn't mean it isn't a taking, merely that the government action likely qualifies as a public use. Slip op. at 19 (citing Zachary Hunter, You Break It, You Buy It—Unless You Have a Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation, 82 Ohio St. L.J. 695, 703 (2021).

Definitely check it out.

Memorandum Opinion and Order, Baker v. City of McKinney, No. 4:21-cv-00176-ALM (E.D. Tex. Apr. 29, 2022)

It Isn't An "Easement" When Condemnor Is Taking Everything, Permanently

The Cass County Water Resource District wanted to acquire the Sauvageau property for a flood control project. That means flooding the property, removing all trees and vegetation, and taking dirt. Putting the land underwater, permanently. Cutting off the public access road. And removing the Sauvageau home.

The District offered to buy the fee interest from the Sauvageaus for $460,000, the appraised value of the fee interest. They declined. So the District offered $460,000 for a permanent easement. Also declined.

Next up, eminent domain, with the District seeking a "permanent right of way easement" by quick take. We're taking it now, so you have a few months to get out of your home and get off the land. The Sauvageaus objected. You might be able to take our property for a flood control project, but you can't take our property by quick take. Under the North Dakota Constitution, quick take is reserved for acquisitions of "rights of way."

But wait, the District countered, we are taking a right of way: what we're taking is a permanent easement. It's right there in the quick take petition. The Sauvageaus responded that the District might call it an "easement," but in reality, it was trying to get their fee simple interest. The District sought to acquiring the entire property (seeking possession "upon, over, in, under, across, and through" their land). The District is going to permanently occupy the land and cut off access. The District's offered compensation was $460,000, the value its appraiser assigned to the fee simple interest (the appraiser also valued the reverter at $0).

In Sauvageau v. Bailey, No. 2022080 (Apr. 28, 2020), the North Dakota Supreme Court agreed with the owners. Although labeled a "right of way," the interest the District actually sought to acquire is a fee simple interest.

On the basis of the pleadings and the facts in the record, as a matter of law the District is taking much more than an easement or right of way in the Sauvageaus' property. The District is not acquiring a strip or a parcel of the Sauvageaus' property for a right of way. The District intends to close the public road, remove all structures from the property, engage in disturbance of the surface and subsurface, and inundate the property with water. The District is taking the entire property for full value while leaving the Sauvageaus with only a reverter interest with no value.

Slip op. at 9-10.

Thus, no quick take. "By labeling the interest in the Sauvageaus' property as a 'permanent right of way easement," the District is attempting to evade the requirements and property owner protections of [the straight (slow) take process]." Slip op. at 10.

Sauvageau v. Bailey, No. 20220080 (N.D. Apr. 28, 2022)

Rational Basis, My Butt! Taking For Bike Trail Isn't For "Conservation of Natural Resources"

Here's one we've been meaning to post for a while. In Bd. of Comm'rs of Mill Creek Park Metro Dist. v. Less, No. 20MA0074 (Apr. 14, 2022), the Ohio Court of Appeals held that the Park District lacked the authority to condemn Less's property for a bike path, which did not qualify under the authorizing statute as the "conservation of natural resources."

The District adopted a resolution to build a bike path on an old railroad right of way, a portion of which had already been constructed, and a resolution to acquire a perpetual easement. Ohio statues require the condemnor to provide written notice to the owner 30 days before filing of an eminent domain case. Ohio law also limits the power of agencies such as the District to take to property for forest reserves, and "the conservation of natural resources."

The owners objected to the taking, asserting that the District had not complied with the notice requirement, and that a taking for a bike path doesn't qualify as the preservation of natural resources. The owner sought summary judgment, but the trial court rejected the motion.

The court of appeals reversed and entered judgments in favor of the property owner. The court concluded that the District's taking of a bike path is beyond its statutory authority to take because a bike path isn't a forest reserve, nor is it the conservation of natural resources, even though under a very generous and deferential reading of the statute, a bike path kinda sorta could be the conservation of a natural resource. As the court noted:

The primary question, in our view, is whether the creation of bikeways or recreational trails, which are for public use, constitute the conservation of natural resources of the state, a purpose which is required under R.C. 1545.11 in order for a park district to appropriate private property for a park or parkway.

Slip op. at 22. Although the court acknowledged that an argument could be made that nearly anything might count as conservation of natural resources (Barista's note: this recalls the Berman "well-nigh conclusive" language), it adopted a much more sensible reading:

In our view, despite the reasoning set forth in both MacNAB and Snyder, characterizing essentially anything that serves the public and contributes to the health and welfare of the community as the “conservation of natural resources” is a bit of a stretch, especially when considering that the statutory grant of authority contained in R.C. 1545.11 should be strictly construed and it should be construed in favor of the property owner.

Slip op. at 26. A "bit of a stretch" indeed: because "the public need is speculative at best and the harm to the private property owners is great[,]" the court concluded the District lacked the authority to take. Slip op. at 28 ("Although the 2018 resolution is more elaborate, it is still devoid of any language tying the expansion of the bikeway to the general health and welfare of the public or the conservation of natural resources."). Throw in the rule of construction that eminent domain statutes are read liberally in favor of the property owner and against the taker, and you have the court's rationale. Having determined that the District could not take Less's property, the court considered the lack of notice argument moot.

In sum, the ruling on appeal terminated the case in favor of the property owner. Game over, with a very limited remand so the trial court can "carry this judgment into execution."

We think this is a good one for you to read, and recommend you check it out.

Bd. of Comm'rs of Mill Creek Park Metro. Dist. v. Less, No. 20MA0074 (Ohio App. Apr. 14, 2022)

Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu - Join Us!

It's back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here's a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We'll be speaking during the session on Takings, along with our colleagues Greg Kugle, Brad Saito, and Ellen Ashford.

Register here (limited to 70 registrants, no walk-ins, so be sure to get your spot now). Travel to and from Hawaii is back open and no more Co-19 hassles at the airport, so take advantage of the opportunity for a little R&R and CLE. 

As Jack Lord would say, "be there, aloha!"

Links From Last Week's Georgia Bar Association Eminent Domain Conference

Here are the links to the cases and other materials that we talked about last Friday at the Georgia Bar Association's annual Eminent Domain Conference. Our talk was entitled "It's the Chief Justice's Property World, We Just Live In It: National Trends in Takings, Property, & Eminent Domain," and was part of the Eminent Domain Section's (yes, the Georgia Bar has a Section entirely devoted to eminent domain!) annual conference on the topic. I was honored to have been asked to chat with this august and expert group of lawyers.

• Knick (opening back up federal courts to takings claims).
• Penn East (eminent domain and the 11th Amendment)
• Horne II (California raisins and physical invasions)
• Murr (the larger parcel issue, applied in regulatory takings cases).
• Winter (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).
• The per curiam CDC eviction moratorium opinion.
• Koontz (money as property ... and exactions).
• Arkansas Game (physical invasions, again).
• Horne I (compensation isn't the only remedy for "takings").
• Brandt (easements, vel non)
• Help me help you!
• What to do when the condemnor doesn't promptly pay up.
• Abstention as the new Williamson County?
• The undivided fee rule ... constitutional?
• Whither Yee and the future of the physical occupation rule.

I look forward to future collaborations with our Georgia colleagues!

Are The Federal Courts Powerless When A Condemnor Doesn't Pay Just Compensation?

Not too long ago, we posted the Fifth Circuit's panel opinion in a case where the court held that there's nothing a federal court can do if a local government does not pay a state-court just compensation judgment. We filed an amicus brief in that case arguing "[t]he Takings Clause does not permit the Sewerage Board to take property and hand the owner an IOU the Board might pay sometime in the future if and when it feels like it. Instead, it requires the Sewerage Board to pay the court ordered just compensation without 'unreasonable delay.'"

Well, in the interim we've traded in our amicus hat for a co-counsel hat, and last week asked the Fifth Circuit to rehear the case en banc, via this en banc petition.

Since we're now co-counsel in the case, we won't go into further detail, but will leave it there for you to digest. Here's a summary of the argument:

This Court should consider this case en banc. The panel concluded that it never violates the Fifth and Fourteenth Amendments for a local government to delay paying just compensation after it takes property, no matter how long the delay. Or even if the government outright refuses to pay. The panel affirmed the District Court’s dismissal for failure to state a claim, even though one of the plaintiffs alleged that the Sewerage Board not provided compensation for more than four years. The panel held that federal courts are categorically barred from considering any claim that the government has unreasonably delayed complying with a state-court judgment ordering it to provide just compensation.

The panel decision conflicts with decisions of the U.S. Supreme Court. See Fed. R. App. P. 35(a). In Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 688 (1923), the Court held that “the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment.”) (emphasis added). See also Bragg v. Weaver, 251 U.S. 57, 62 (1919) (“it is settled by the decisions of this court” that unless “adequate provision is made for the certain payment of the compensation without unreasonable delay” a taking “contravene[s] due process of law in the sense of the Fourteenth Amendment”). To maintain uniformity and compliance with the Supreme Court, the full court should consider whether an allegation that the government has “unreasonably delayed” providing compensation plausibly pleads a violation of the Fifth and Fourteenth Amendments.

The case also involves a related issue of exceptional importance. See Fed. R. App. P. 35(b). The self-executing nature of the right to just compensation (meaning that no waiver of sovereign immunity is needed for judicial enforcement of the right) distinguishes just compensation judgments from run-of-the-mill judgments against the government which are only justiciable because the government waived immunity.

In sum, a judgment for just compensation that is not paid without undue delay violates the Fifth and Fourteenth Amendments. 

Pet. at xii-xiii (footnote omitted).

Appellants' Petition for Rehearing En Banc, Ariyan, Inc. v. Sewerage & Water Board of New Orleans, No. 21-3...

What Can A Property Owner Do When A Condemnor Doesn't Pay? (Fifth Circuit: Nothing)

Here's an issue that we've been following for a while. What will a court do when a condemnor is ordered to pay (the property owner has a judgment in hand), but the condemnor says "no thanks"?

The latest incarnation is the U.S. Court of Appeals' opinion in Ariyan, Inc. v. Sewerage & Water Board of New Orleans, No. 21-30335 (Mar. 21, 2022). There, a group of property owners successfully brought Louisiana law takings claims against the Board after its flood control project caused "property damage and economic loss." In the various cases, verdicts were rendered, and judgments were issued from 2018 through 2020.

Well, you know what is supposed to happen next. Judgment debtors are supposed to pay up, or else the judgment creditor may satisfy the judgment by other means.

But when the government is the judgment debtor, the creditor can't just put a lien on City Hall, or go and levy the government's account at the local bank. No can do. Sovereign immunity and all that. In most jurisdictions, a governmental judgment debtor must secure the legislature's approval via an appropriation before it pays a judgment. Even a judgment that it has taken property without compensation. And there's not a lot a property owner can do if the governmental debtor doesn't lift a finger. So even though the government does not enjoy sovereign immunity from takings liability, it does enjoy it when it comes to, you know, actually paying just compensation.

What is a property owner to do in a case where the government simply says "no thanks" (such as this recent case from Florida), or does nothing at all (like this case from the Commonwealth of the Northern Marianas Islands, where the government just went silent for nearly two decades). It can sue, arguing that the refusal to satisfy the takings judgment is itself a taking of a new property interest.

Those claims have met with mixed success and a variety of judicial responses. Much of the time is a flat no. That's what the Fifth Circuit held in Ariyan:

More than a century ago, the Supreme Court decided the case of a pair of litigants in a similar situation as the Plaintiffs here. In Folsom v. City of New Orleans, 109 U.S. 285 (1883), two relators had obtained state court judgments against the City of New Orleans for property damage caused by riots in 1873. In 1879, a new state constitution limited the taxes New Orleans could levy to just enough to cover the City’s budget. Id. at 287. The effect was that the relators were prevented from collecting on their judgments. Id. The relators argued that this state constitutional change deprived them of property without due process of law in violation of the Fourteenth Amendment. Id. The Supreme Court rejected the argument, agreeing that the judgments were property, but holding that “the relators cannot be said to be deprived of them so long as they continue an existing liability against the city.” Id. at 289. In dissent, Justice Harlan wrote that an unenforceable judgment is no judgment at all. “Since the value of the judgment, as property, depends necessarily upon the remedies given for its enforcement, the withdrawal of all remedies for its enforcement, and compelling the owner to rely exclusively upon the generosity of the judgment debtor, is, I submit, to deprive the owner of his property.” Id. at 295.

Slip op. at 5. We guess this isn't surprising given the Fifth Circuit's read of Folsom, plus the fact that the same court rejected a similar claim just a couple of years ago.

Before we proceed, a disclosure: we (along with our law firm colleague Kady Valois) filed an amicus brief in support of the property owner, arguing that "[t]he Takings Clause does not permit the Sewerage Board to take property and hand the owner an IOU the Board might pay sometime in the future if and when it feels like it. Instead, it requires the Sewerage Board to pay the court ordered just compensation without 'unreasonable delay.'"

And that, we continue to think, is the heart of the issue. Instead of a blanket rule that just compensation judgments are not property protected by the Fifth and Fourteenth Amendments and thus cannot be the subject of federal claims (especially in federal court!) this claim should be resolved on the factual merits of whether the delay in payment is unreasonable. An issue that cannot be determined by a categorical "no liability" rule in a motion to dismiss. After all, are there not some some circumstances in which the delay in providing just compensation is unreasonable and therefore not just compensation at all? Yeah, they may get compensation somewhere down the road if the government wants to provide it and actually gets around to asking the legislature for the money.

Under the Fifth Circuit's categorical rationale, however, the Constitutional requirement of just compensation is merely a suggestion. After all, the property owners here have undoubtedly had their property taken, and just as surely have not been provided just compensation. The Fifth Amendment provides that "nor shall private property be taken for public use, without just compensation," not that it shall not be taken without an I-O-U.

Stay tuned.

Ariyan, Inc. v. Sewerage & Water Board of New Orleans, No. 21-30335 (5th Cir. Mar. 21, 2022)

OK: Inverse Is A Two-Way Street - Utility Has Eminent Domain Power, So Is On The Hook For Inverse

When you are building a sewer, grading is important. Otherwise, the stuff might not "flow" correctly, if you get our drift. Okay Public Works Authority built a sewer, and guess what? "The work performed by OPWA caused extensive damage" to private property, and the "lines installed by OPWA had not been properly graded."

Not good. The jury in the inverse condemnation lawsuit that followed awarded $73k in compensation. The court of appeals, however, tossed the verdict because OPWA did not possess the power of eminent domain to take property for sewage lines. And to be liable for inverse in Oklahoma, the defendant must possess the eminent domain power.

In Barnett v. Okay Public Works Authority, No. 117792 (Mar. 8, 2022), the Oklahoma Supreme Court concluded that the utility possesses the eminent domain power to take property for sewer lines. The decision turned on the language in the statute delegating the power to a "public trust" such as OPWA. The statute delegates to OPWA the power to take property for transporting, delivering, treating, and furnishing water. That, OPWA argued, is a one-way street. Taking sewage away from homes is not "delivering" clean water to those homes, it asserted.

The Supreme Court disagreed. "The transportation of potable water goes hand-in-hand with the transportation of wastewater or sewage. To take OPWA's position would leave public trusts empowered with the right of eminent domain to run potable water lines to residents but deny public trusts the power to run wastewater sewer lines from household [sic] after use." Slip op. at 9. Having concluded that, the Supreme Court also found it easy to conclude that the sewer was a public use. 

This avoids what we think is the more interesting question -- must a property owner even need to show that a public utility has the eminent domain power in order to assert an inverse claim? We don't think so, but that bridge wasn't necessary to cross in this case, so we get why the court didn't.

Barnett v. Okay Public Works Authority, No. 117792 (Okla. Mar. 8, 2022)

New Article: Common Sense and Common Law: Defining "Property" in Cedar Point v. Hassid

Thank you to the editors over at The Practical Real Estate Lawyer for publishing my missive on Cedar Point Nursery v. Hassid, the U.S. Supreme Court's recent blockbuster regulatory takings decision (and for letting me post a copy of the article here so it is available even if you are not a PREL subscriber). And you know this, but I'm going to disclose it again: my law firm represented the property owner in that case, so yes, I do have a viewpoint; take that into account while reading. 

By the way, you might consider becoming a subscriber. The journal publishes just what the title suggests it does - practice-oriented articles about dirt lawyering. Good stuff.

Thomas, Common Sense and Common Law: Defining "Property" in Cedar Point v. Hassid, 38 Prac. Real Estate Law...

IRWA's Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2021)

Check this out: the International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available. 

We're posting it here because we're one of the co-authors. The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to ask me for some input.

Brad and Jillian wrote up more at the California Eminent Domain Report.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person--yes, in-person--at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us - thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year...

Our 2022 Proof of Life Photo.

Every year, as we open the program, I take to the lectern for what I call my "proof of life" photo. Our Conference ends up in some really fun, exciting places. Nashville. Palm Springs. San Diego. Austin. San Francisco. Charleston. And I want to prove to the folks back in the office that yes, we really are in the room, learning stuff. And not out enjoying all that our venues have to offer (we save that for after-hours).

In this photo, we're in the room, spread out (the Resort put us in its massive ballroom, so we had room to spare).

Thank you to our sponsors. Without your generosity, the Conference would not be as good as it is.

Lawprof Karen Bradshaw presented our keynote address on Friday, "Do Animals Have Property Rights?" with more from her recent book "Wildlife as Property Owners." Her talk was followed by a book signing, too. Interesting stuff for sure.

Our main room was nicely filled for every program. A real testament to the subjects discussed, and the quality of the faculty.

The program includes a mix of practice and substantive topics. Here, Virginia's Steve Clarke in one of the breakout rooms (also nicely filled), presenting on "Federal Court and the Daubert Challenge – How To Prepare."

But it wasn't all eminent domain, property, and CLE credits. Naturally, with the beautiful Arizona winter weather, we found time to get out-of-doors and do things. Like this intra-firm golf tournament.

Which firm prevailed? You'll have to ask them who has the bragging rights.

What was especially nice was that our sponsor tables and the ALI-CLE registration table could be outside of the presentation rooms. Love that AZ weather.

New Jersey's Tony Della Pelle and Connecticut's Dwight Merriam on "COVID-19 Takings."

Our faculty includes not only lawyers and law professors. We also have other industry professionals come and present. Here, Washington's Martyn Daniel, Texas' Kristen Bennett, and (lawyer) Alan Ackerman from Michigan speaking about "Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness."

Ah, ethics. A tough subject to cover. Especially at 8am. But Georgia's Ivy Cadle (with the obligatory "go dawgs!"), Michigan's Darius Dynkowski, and (off-screen) Virginia's Kelly Sheeran and Texas' Justin Hodge filled the room with "Ethics Jeopardy! Live."

Yeah, Justin really did go for the end zone for his role as Ethics Jeopardy! host.

We understood the situation. Our faculty, staff, and attendees came to Arizona from around the nation. Some places have opened up, others are still getting there. We minimized any risks. Spread out in a huge room, and everyone was pretty cool with the modest requirements from ALI-CLE. What was especially good was that nearly every event but the actual programming were outside. 

Another featured panel was on the Supreme Court's big decision in Cedar Point Nursery. We brought together three expert perspectives on the case and what it means for the future. "Did the Supreme Court Signal a New Direction for Property Rights in Cedar Point Nursery?" featured California's Joshua Thompson (prevailing counsel in the case), U. Virginia lawprof Julia Mahoney, and (off-camera, since he remoted in) Maryland's Matthew Littleton, who filed a government-side amicus brief in the case.

Also pictured: the moderator, some guy who writes a blog.

Colorado's Katie Gray and Nebraska's Bill Blake on "Project Abandonment: How to Position Your Client for the Fallout When Projects Don't Get Built." Really useful.

Tag swag (aka badge flair) courtesy of our Platinum sponsor.

Our two fave tags.

Outdoors at night - really nice under the lights by the fire, after a long day of CLE programming.

Hawaii's Mark Murakami teamed with Wisconsin's Smitha Chintamaneni for "Why Jurisdictional Offers Must Include an Assessment of Severance Damages."

Even our final programs each day attracted a substantial crowd, often tough to do after long days of sitting in class. A testament to the strength of the faculty and the topics. Here's the audience for "Defending the Appraisal in the Courtroom - The Insider's View."

We put speakers with competing views on these panels, to get the blood pumping and keep everyone's attention.

Saturday morning, after two full days of (great) programming, is still a tough spot for a speaker, because they have to keep us focused, and interested.

That's why we always reserve these spots for two old hands, who will keep us zeroed in. Above is California's Jim Burling, with a tour-de-force solo hour on "What Are the Top 20 Ways to Increase the Cost of Housing? The Answer May Surprise You!"

Below, Michael Berger (looking a bit like Big Brother, admittedly), who remoted in from California with his annual "Regulatory Takings Update."

Feral cats and property rights had us smiling (ask Michael about what this refers to).

Michael Berger is Watching You.

A group photo of the William and Mary Law School contingent at the Conference (minus two other WM Law colleagues who could not be there for the photo). Recent and long-time alumni, current law students, a law prof, and (fourth from left) Jim Burling who later this year will be awarded WM Law's Brigham-Kanner Property Rights Prize at the B-K Conference in September 2022.

A pretty good showing for the alma mater.

There was a whole lot of podcasting going on. Thanks, Infrastructure Junkies and Eminent Domain Podcast. Can't wait for the episodes you recorded.

Again, thank you sponsors!

What about next year? Usually, on the last day of a Conference, we announce the dates and the venue for the following year. This year, due to some slowdowns, ALI-CLE couldn't quite get all the requirements in place to make a formal, official announcement. As soon as we know the venue, we'll go loud here.

As for the date: same date as usual - last week of January or first week of February, depending on the football schedule (which we're trying to avoid).

Stay tuned.

 

New Article: "'Equitable Compensation' as 'Just Compensation' for Takings" (Brigham-Kanner Property Rights Journal)

An article, from the just-published issue of the Brigham-Kanner Property Rights Journal, about a rarely-covered academic topic, just compensation.

Brian A. Lee (Brooklyn), “Equitable Compensation” as “Just Compensation” for Takings, 10 Brigham-Kanner Prop. Rts. J. 315 (2021).

Here's the Abstract:

The Fifth Amendment’s requirement that the government pay “just compensation” to owners of taken property is typically assumed to mean “full” compensation, equivalent to the taken property’s fair market value. In this symposium contribution to the Brigham-Kanner Property Rights Journal, I explore an often overlooked alternative understanding of “just compensation” for takings, one freed from automatic equation with full, fair-market-value compensation. Rooted in traditional equity, this “equitable compensation” alternative has significant historical roots, starting with the Fifth Amendment’s drafters’ striking choice not to follow the Northwest Ordinance of 1787’s requirement of “full” compensation, and running through a line of cases and commentary that has emphasized takings compensation’s equitable nature. I argue that recognizing takings compensation’s equitable dimension—particularly equity’s attention to reciprocal obligations—can help takings law more naturally respond to thorny difficulties caused by specific rigidities in takings doctrine, rigidities that create challenges when takings doctrine is forced to address situations that differ from core cases of eminent domain. Attending to the relative weights of parties’ reciprocal duties, and equitably adjusting compensation in response, can help resolve such cases more plausibly, including takings for private projects with public benefits (as in Kelo v. New London) and regulatory takings.

Check it out.

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights, And Land Use Courses

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But if there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication.

Episode 80, Eminent Domain Podcast: Holiday Special (And ALI-CLE Conference Preview)

The latest episode of Clint Schumacher's Eminent Domain Podcast has dropped.

A Holiday Special in which Dave Arnold, Kristen Bennett, Ivy Cadle, Anthony DellaPelle, Carolyn Elefant, Clint Harbour, Justin Hodge, Patrick McCallister, Richard Rothfelder, and Adam Sanders share their seasonal traditions.

We also visit with Clint for a preview of the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale, Arizona.

As always, check it out!

Shane Rayman On Expropriation And Compensation In Canada

You probably already know our Toronto friend and colleague Shane Rayman. He's the lawyer responsible for the fascinating Supreme Court (Canada, naturally) decision in Antrim Truck Centre, wherein the Court recognized that under the Expropriation Act, Ontario had an obligation to compensate a property owner for "injurious affection" even though the highway project did not formally expropriate any part of the owner's truck stop.

Shane is also a regular guest lecturer at our William and Mary Law School Eminent Domain and Property Rights class (where he speaks on comparative property rights), and has been a faculty member at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference. He also recommended we visit Montreal's Mirabel Airport (a trip only a true dirt lawyer could love).

To catch up on the latest from Shane, check out this Canadian Lawyer story, "Expropriation expands with more infrastructure projects," in which he discusses the issues involved in the taking of property for Metrolinx.

Much of this will be familiar to U.S. eminent domain lawyers. But some will not. Injurious affection, for example ("any reduction in the land value of the remaining (non-expropriated) land caused by the expropriation and associated works"), disturbance damages ("damages relating to a business, including any out-of-pocket costs, business losses, relocation expenses or any consequential losses arising from the expropriation"), and "reasonable legal costs to the owner."

Check it out here.

NY App Div: Taking In Albany's "Parking Lot District" Meets Low Redevelopment Standards, Even Though No One Seems To Want To Redevelop

If you knew nothing about a case except that it was public use challenge to a redevelopment condemnation in New York, you'd be on firm footing if you guessed the outcome was not going to be favorable to the property owner. New York, after all, is what one colleague called the worst in the nation at protecting property owners, and has produced such stinkers are the Atlantic Yards decision, and the Columbia-takes-Manhattanville case. 

The facts in PSC, LLC v. City of Albany Indus. Dev. Agency, No. 432952 (Dec. 9, 2021), might not be as dramatic as those two cases, but the result is the same: the New York Supreme Court Appellate Division upheld a redevelopment taking of a holdout owner, concluding that the agency's decision to take a public parking lot was not subject to any serious judicial questioning. Same as it ever was.   

The court first rejected the property owners' claims that the taking was beset by procedural errors. Slip op. at 3-4. Page 4 is where the more interesting stuff begins. The court concluded that the agency properly determined the property was blighted (and in New York that means just about anything). And then the plan. There was something called a "Concept Plan Report" that provided some details about the area (ominously known as "The Dead Zone" or less Rod Serling-ish as "the parking lot district"). Redeveloped, the area would contain the usual stuff of redevelopment dreams: 300 apartments, a hotel, thousands of square feet of retain, office space, and yes, even replacement parking. And the other usual predictions: jobs (a whopping 572 new jobs!), and tax revenue to the city.

Sounds great, no? Developers must have beaten down the door to get a shot at this opportunity!

Apparently not, because here's the kicker:

The report noted that a request for proposals on development of this area had previously been made, but no "legitimate" proposals were received "due in large part to the challenges of obtaining full site control."

Slip op. at 6.

Hold on...you mean there were no takers? Thus, the owner argued, "the public notice was too speculative to be proper because Capitalize Albany did not yet have any specific plans for redeveloping the area and that, without knowing the specific manner in which the properties will be used, it is impossible to determine whether they will be used for a public purpose." Slip op. at 4. As we know, future public benefit doesn't equal present public use, even in New York. Did the court address that argument? Not as far as we can tell. Instead, it was same as it ever was:

Given the foregoing, we discern no error in the Agency's determination that the properties are in a state of blight, that the taking of petitioner's 0.88 acre was necessary to develop the remaining seven acres already owned by Liberty Square, and that said development would serve a public purpose.

...

Further, the Agency is not required to know the specific redevelopment plan in order to use its power of eminent domain and may condemn the property to gain full title in order to permit economic redevelopment.

Slip op. at 6-7 (citations omitted).

So we need to take in order to know what the plan is? Oh well, if it works in Chicago, why not here? 

The court also rejected the owners' claim that the taking ran afoul of New York's environmental reporting requirements, but you can read pages 9 and 10 if that interests you. 

More on the decision here ("Court ruling clears way for massive downtown development in Albany") from the Albany Times-Union.

PSC, LLC v. City of Albany Industrial Development Agency, No. 432952 (N.Y. App. Div. Dec. 9, 2021) (mem.)

Pennsylvania: To Be Liable For Inverse Condemnation, Taker Need Not Have Eminent Domain Power

Here's how the Pennsylvania Supreme Court stated the issue in Hughes v. UGI Storage Co., No.J-69A-2021 (Nov. 29, 2021):

In these consolidated appeals, we consider the Commonwealth Court’s holding that, to be held liable for damages under Pennsylvania’s inverse condemnation statute, an entity must be clothed with the power of eminent domain – not only in a general sense, in that it must be a governmental or quasi-public entity to which condemnation powers may be delegated – but also, the entity must be invested with eminent domain authority specific to the property in issue.

Slip op. at 1.

If all you need to know is "what did the court answer?" you can stop right here: the court held that UGI Storage did not need to have been delegated the power of eminent domain, nor must it be delegated the power to take the property at issue, in order to be (potentially) liable for inverse condemnation under Pennsylvania law.

For more details on why, we recommend you read the entire 26-page opinion, even though the way the inverse claim arose is a bit convoluted. The short story: UGI was going to acquire underground natural gas storage fields, and made known what appeared to be its intention to obtain the necessary private property. It obtained FERC certification. There seems to be some question of whether it really intended to, or how much it accomplished, but eventually the actual owners of these properties sued UGI for inverse condemnation in a Pennsylvania court, alleging that UGI's "securing of FERC certification ... constituted a de facto taking of Plaintiff's oil, gas, and mineral rights." Slip op. at 10.

The trial court agreed that a taking had occurred, and continued with the valuation process. But UGI objected, asserting that it was not authorized by FERC to use the plaintiffs' property to store natural gas. UGI also argued that it does not possess the power to condemn, and therefore cannot be liable for inverse condemnation. The trial court agreed. Slip op. at 14. The intermediate appeals court split, and remanded the case to gather further evidence on the scope of the property allegedly acquired. On remand, the trial court doubled-down on its earlier no-eminent-domain-power-means-no-inverse ruling, and back up to the court of appeals they all went.

The divided appeals court affirmed that to be liable in inverse, a defendant must have the property-specific power of eminent domain. No inverse, but hey, try tort! Slip op. at 19 ("The majority concluded with a comment that the landowner might not be without a remedy, as they could perhaps pursue causes of action in tort.").

The Pennsylvania Supreme Court's analysis starts at page 21. The court focused on the definition in the eminent domain code of three terms. First, "condemn," which the court noted means "to 'take, injure or destroy property by authority of law for a public purpose.'" Slip op. at 22. Second, the court looked at the definition of "acquiring agency," and concluded that no part of the definition relates exercise of the power of such an agency to specific property. Finally, the court concluded that the statute references inverse condemnation as a "condemnation," which the legislature described as the taking, injuring, or destroying property by authority of law for a public purposes. In doing so, the court noted, the legislature "said nothing about a power of eminent domain." Slip op. at 23. All the inversely condemning authority needs is the authority of law and a public purpose:

The plain terms of the enactment, therefore, support Appellants’ position, or in other words, the statute simply does not signify a requirement of a property-specific power of eminent domain.

Slip op. at 23. The court also noted decisions such as Nollan, where "the Supreme Court hasn't parsed through whether or not each offending agency has a power of eminent domain." Slip op. at 24. The court concluded:

we do not presently discern a constitutional requirement that a quasi-public entity alleged to have invoked governmental power to deprive landowners of the use and enjoyment of their property for a public purpose must be invested with a power of eminent domain in order to be held to account for a de facto condemnation.

The Eminent Domain Code says so, of course, of both public and quasi-public entities, see 26 Pa.C.S. §103 (definitions of “condemn” and “acquiring agency”), and this case does not call for us to resolve any incongruities between the Legislature’s prescription that the statute provides an exclusive procedure to secure a remedy and federal constitutional takings jurisprudence. Rather, for present purposes, we merely adopt a plain-meaning interpretation of the Eminent Domain Code – which, as between the competing positions before us, is the one most consonant with constitutional norms – and we hold that a public or quasi-public entity need not possess a property-specific power of eminent domain in order to implicate inverse condemnation principles.

Slip op. at 25 (footnote omitted).

The entire opinion is worth a read.

Hughes v. UGI Storage Co., No. J-69A-2021 (Pa. Nov. 29, 2021)

Indiana App: Even When Federal Agency Steps Into The Shoes Of A Local Redevelopment Agency, It Has To Follow Local Rules

Like a lot of things in Gary, Indiana, the Housing Authority was "troubled." So troubled, the feds took it over. The Housing Authority received big money from the feds, and was required to agree to an annual contribution agreement, by which the Authority ok'd a HUD takeover in the even of the Authority's substantial default.

Next up, default. The city dissolved the Housing Authority's Board of Commissioners, and HUD appointed one of its employees to be the administrator of the Authority and to serve as the Board of Commissioners. Back in business.

Part of the administrator's ... ahem ... "Authority's" business was redevelopment. The Authority decided to take 624 Broadway's property (which, not surprisingly, included 624 Broadway) to do some mixed-use and affordable housing. The taking was undertaken under Indiana's eminent domain procedures. Attempts to purchase the property were not successful, so the Authority instituted an administrative taking.

The property owner thought that the Authority wasn't adhering to the required process, and filed lawsuit which sought to enjoin the taking. The trial court entered summary judgment in favor of the Authority.

In 624 Broadway, LLC v. Gary Housing Authority, No. 21A-CT-653 (Nov. 10, 2021), the Indiana Court of Appeals agreed, but only in part.

The court first concluded that a HUD employee could step into the shoes of the Authority's Board of Commissioner's. Federal law preempts Indiana's requirement that a Board of Commissioners be comprised on seven people. Seven commissioners isn't one HUD administrator, the property owner argued. Moreover, Indiana law requires Commissioner decisions to be ok'd by the Gary Common Council, and the HUD administrator had not done so before the taking. The court concluded these requirements conflict with federal law, and in this case, Indiana law "must yield the HUD administrator's authority under the United States Code." slip op. at 12 (footnote omitted).

Next, the court also rejected the property owner's argument that the Authority was not authorized by Indiana law to exercise eminent domain for mixed-use development because the statue only authorizes low-income housing. No, the court concluded, a fair reading of the enabling statute's requirement of low-income housing only means that a part of the project be for low-income housing:

The plain language of section 36-7-18-2 does not restrict a housing authority from providing “safe and sanitary dwelling accommodations for persons of low income” in a mixed-use development, or from otherwise acquiring a specific property when that property is within an area of unsanitary or unsafe housing conditions.

Slip op. at 14.

The court also rejected the owner's argument that the HUD-helmed Authority violated the Uniform Relocation Act. But as we all are aware, the URA does not recognize a private cause of action. It's mostly the Pirate's Code.

Things were not looking good for the property owner.

But hold on! On the fourth claim -- that the Authority did not provide the owner with proper notice and a chance to be heard -- the court sided with the owner. Although the owner framed the argument as one of due process, the court treated it as a statutory claim because Indiana's eminent domain statute sets out the requirements for notice and hearing. And if the HUD administrator stepped into the shoes of the Authority, then she also has to live with whatever requirements Indiana law places on the Authority.

Strictly construing the statute (you know, the canon of construction of eminent domain statutes is that they are read strictly "both as to the extent of the power and as to the manner of its exercise," slip op. at 16-17), the court concluded that the statute's requirements for published notice at a certain time, along with service on the property owner, mean what they say, and that the record in the case was clear that the Authority didn't mail notice to the owner, and that it didn't publish notice within the prescribed time.

The court rejected the Authority's argument that this was all harmless (the owner apparently found out and showed up):

Further, while the Gary Housing Authority suggests that its failure to serve written notice of the resolutions on Allen was harmless as he still learned of the two meetings and attended, we cannot agree. 624 Broadway moved to continue the October 17 hearing to obtain its own appraisal of the property, which motion the Gary Housing Authority denied. The Gary Housing Authority’s failure to properly serve 624 Broadway and its failure to hold its damages hearing no fewer than thirty days after the date of last publication contributed to 624 Broadway’s inability to obtain its own appraisal of the property prior to the October 17 hearing and to 624 Broadway’s inability to present competing evidence of its damages at that hearing. We cannot say with confidence that, had the Gary Housing Authority complied with Chapter 2, as it was required to do, it would have assessed the same damage award for the property to 624 Broadway.

Slip op. at 21.

Will the remand for the correct process stop the HUD-led eminent domain train? Has the delay in the taking derailed the project? We shall see.

624 Broadway, LLC v. Gary Housing Authority, No. 21A-CT-653 (Ind. Ct. App. Nov. 10, 2021)

Still Time To Sign Up For Northwestern L. Rev.'s Symposium: "Reimagining Property Rights in the Era of Inequality" (Friday, Nov. 12, 2021)

"This year, the Northwestern University Law Review presents a symposium on property and inequality, which brings together scholars of legal history, property, tax, land use, fair housing, environmental law, natural resources and water rights, family law, education, and constitutional law, to highlight new scholarship at the intersection of these fields."

More information, as well as registration to attend remotely, here.