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Feb. 16, 1833: Unhappy 192d Birthday To The First SCOTUS Takings Case, Barron v. Baltimore

This Sunday, February 16, 2025, will be the day, 192 years ago, when -- a mere 5 days after oral arguments -- the U.S. Supreme Court issued its (in)famous opinion in Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833).

Generations of law students study this decision in their Con Law classes, and it is mostly known as the case in which the Court held that the Bill of Rights limits only the federal government and does not limit the power of states. For the latter, one must look to state constitutions. Barron, of course, was overruled or otherwise neutralized by the Fourteenth Amendment (privileges or immunities clause or the due process clause, take your pick). And it was formally abrogated in Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) (states and their instrumentalities are bound by the Fourteenth Amendment to respect the Just Compensation Clause).

But the reason we're posting our sad birthday wishes today isn't for that reason, but more because in our estimation, Barron was the first "takings" case considered by the U.S. Supreme Court.

The case was instituted by the owners of a mostly-prosperous wharf on Baltimore Harbor against the City of Baltimore. The municipality had undertaken street upgrades and improvements on one of the city's several hills nearby, which resulted in increased runoff into the harbor and the eventual silting up of the plaintiffs' wharf. And guess what happens when a wharf loses its access to the water? Well, it's not really a wharf any longer, is it.

Next up, a claim against the city for what today we'd call an inverse condemnation or maybe a takings claim. Your actions, Baltimore, destroyed the use and value of our property, a wharf. As the claim worked its way up the judicial food chain, it morphed from a more common-law vibe to a constitutional question: did the Fifth Amendment require that the city provide just compensation if indeed its actions effectively had taken the plaintiffs' property?

As the opinion put it:

The plaintiff in error contends that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favour of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States.

Barron, 32 U.S. at 247.

Remember, this was a time when no one really knew whether the limitations on government in the Bill of Rights was something that was supposed to apply to all governments, state and federal, or were only intended to limit the federal government (as in, say, the First Amendment, where the phrasing was "Congress shall make no law...").

As we know, it turned out badly for the property owner plaintiffs. Sorry, held Chief Justice Marshall (in the final opinion in his long career), the Bill of Rights only limits the federal government. If you want protection from your state (or local) governments, you can look to your state constitutions. Relying on no cited authority whatsoever, in the Chief's words:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.

Id. The Chief relied on a maxim of statutory construction, concluding that if the ratifiers of the amendments wanted them to apply to the states, they would have said so. 

In light of Mr. Justice Marshall's track record on the Court of being a pretty hard-core "national" guy (his more famous rulings, after all, were all about the power of the Constitution to forge a strong, continent-wide national government, in which the states had their places), you might have been a bit surprised that he was a poodle when it came to bringing states to heel when it came to individual rights. So what gives, JM?

For some answers -- and a great backstory of the case and some its more famous personalities such as Roger Taney, Esq. -- you could not do better than Professor William Davenport Mercer's "Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty" (U. Okla. Press 2017). Professor Davenport details the case, and the arguments. But also sees the decision in the larger context and asks the vital question: why did the Court rule the way it did?

We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.

Id. at 250-251.

Here's the book's description:

The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century.

Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.

We've read the book, and recommend it. It is a real-eye opener. 

And over the past 192 years, history has not been kind to Barron. The Civil War was the end-product of Barron's vibe, one might say. And the Fourteenth Amendment expressly recognized that indeed, states are limited by the Constitution, and that our civil liberties and freedoms are not only acknowledged in state constitutions.

If there was any doubt, the takings aspects of Barron ended up in history's dustbin with the Chicago Burlington case, which held that indeed, states and their instrumentalities are bound by the Fifth Amendment's requirement of just compensation. And whatever might have been left of Barron was finally left fully behind in Pennsylvania Coal.

So happy... er sad birthday, Barron v. Baltimore!

Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (Feb. 16, 1833)

Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don't Miss Out!)

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

• Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
• Slow Take: Possession, Rent, Relocation, and Offset
• The Jury's View: How Jurors See Your Case
• From Penn Coal to Penn Central: How to Prove "Too Far"
• Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
• Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
• Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
• Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
• "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures

And more. Check out the complete agenda here. Registration information here. 

We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.

Don't miss out: we have had record attendance in recent years, so hold your space now.

Come, join us!

Links From Today's ABA Land Use Session

Here are the cases and other materials we discussed in today's Section of State & Local Government Law Land Use group meeting on takings:

• By The Thinnest Of Margins, SCOTUS Declines Public Use Pretext "Spite Taking" Case
• SCOTUS Declines To Review NYC Rent Control Challenge
• Sheetz pt. I - "Radical Agreement" At SCOTUS: "Your Money Or Your Rights" Isn't OK Just Because A Legislature Does It
• In DeVillier v. Texas, The Winner Takes It All
• Unanimous SCOTUS: "state law cannot be the only source" Of Property Rights, And "traditional property law principles" As Enforced By The Takings Clause Play A Role
• "Final decision" ripeness incentivizes government to be opaque, and avoid saying no.
• Texas takes a more practical (and realistic) approach to takings ripeness: City of Buda v. N.M. Edificios and City of Kemah v. Crow
• New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?
• Inverse liability for wildfires?
• New Law Review Article: John Groen, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central," 39 Touro L. Rev. 973 (2024)
• Yee v. Escondido and physical occupation takings lower court split: CA8: Yee v. Escondido Doesn't Save Eviction Moratorium From Takings Review and CA9: No Physical Commandeering In Eviction Moratorium Because Yee Says "You Let The Tenants In, So You Can't Complain About Keeping Them (For Free)"
• Florida Appeals Court: TDRs, Beekeeping, And Camping Are Not Economically-Beneficial Uses, So Downzoning Is A Lucas Taking

PS: If you are not a member of the Land Use group, you really should be. We summed up the reasons why here.

Oral Arguments In Texas Takings Case: If The Govt Limits Use For Healthsafetywelfaremorals, Is It Exempt From Takings?

Charles McFarland, arguing.

Here's the latest in a case we've been following closely (and disclosure: our firm filed an amicus brief in the Texas Supreme Court).

In The Commons of Lake Houston, Ltd. v. City of Houston, the Texas Court of Appeals held that the city could not be liable for a taking for an ordinance that limited development and use within the city's 100-and-500-year floodplains because the ordinance was a valid exercise of police power and otherwise survived the rational basis test.

As we wrote here, that seems like utter nonsense to say that a valid police power reason categorically insulates a government action from a takings challenge. After all, the entire regulatory takings doctrine is built on the notion that an otherwise-valid exercise of government power (here, the police power, delegated from the State to the city) can so impact an owner's property rights that the law will treat it as a de facto exercise of eminent domain, and require just compensation. The doctrine pretty much presumes that the governmental action is valid, and challenges to what are claimed to be invalid government actions fall under the due process label.

Our friend and colleague Charles McFarland represents the property owner. Last week, he presented oral argument at the Texas Supreme Court (watch the video here). 

Here are the Issues Presented by the property owner:

1.     The lower court erred in applying a bright-line flooding mitigation exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

2.    The lower court erred in applying a bright-line “police power” exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

3.    The lower court erred in failing to apply the state-law standard of the Texas Constitution’s takings clause, which allows for compensation when government action damages private property for public use.

The State of Texas does not agree with this formulation of the issues. Instead, it argues these are the issues (apparently leaving nothing, kitchen sink included, off the table):

1.    Whether Petitioner has standing to assert purported takings/damaged property claims?

2.    Alternatively, whether Petitioner’s purported takings/damaged property claims are ripe?

3.    Alternatively, whether Petitioner’s claims are redressable; therefore, whether Petitioner was improperly deprived of review under Penn Central or any other requested test?

4.    Alternatively, whether Houston is immune from Petitioner’s takings/damaged property claims because local floodplain regulations that track FEMA/NFIP requirements do not constitute a taking?

5.    Alternatively, whether Houston is immune from Petitioner’s claims because this Court’s decision in Turtle Rock and its progeny hold that the application of Houston’s floodplain regulations to Petitioner’s property, if any, is not a compensable taking?

6.    Alternatively, whether Petitioner’s new, blanket rule—that all local land-use regulations that adversely affect property automatically constitutes a taking and/or “damaged” property under article I, section 17, entitling the landowner to Penn Central or other compensation analysis—contravenes Texas law?

7.    Whether Petitioner’s “damaged” property claim is time barred?

8.    Whether Petitioner has suffered a compensable injury under Article I, Section 17’s “damaged” property provision?

Watch the oral argument recording to see how the court addresses these seemingly very divergent worldviews.

More on the case here, including all the briefing.

Stay tuned. We'll bring you the court's ruling when it is issued.

Va App: It Doesn't Take Much To Allege Public Use In Inverse Condemnation

On the surface, the Virginia Court of Appeals' opinion in Town of Iron Gate v. Simpson, No. 1588-23-3 (Sep. 17, 2024) deals with a straightforward issue in a straightforward way: the property owner's inverse complaint adequately alleged that the Town's flooding of her property was for a public use, and thus properly survived the Town's demurrer.

As the Virginia Supreme Court has held, one of the elements of pleading a legally-adequate inverse condemnation complaint for flooding is an allegation that the flooding was for some public use. The court of appeals rejected the Town's argument that Simpson failed to allege public use, holding that the complaint's allegation that the Town "used her 'property as a 'makeshift storage site for excess stormwater,' which was accomoplished for the public use of maintaining and operating the Town's stormwater system[,]'" was certainly good enough:

She alleged that the Town “purposefully uses, operates, and maintains a stormwater system in a manner that directs storm water onto [her] property” and “purposefully declined to resolve the issues or to discontinue use of the [p]ipe, and has continued to intermittently direct stormwater through the [p]ipe for the public use of stormwater drainage, despite being fully-informed that the action will result in flooding to [her] property.” She alleged that the pipe was “part of the Town’s stormwater control system,” which was used to “direct, transport, and control the flow of stormwater,” that the Town had “full knowledge of the issues with the [p]ipe” dating back to 2011 when it “fitted a ‘boot’ on the pipe . . . to prevent leakage, but the repair was ineffective,” that the prior owner “informed the Town repeatedly of the problem,” that the Town “purposefully declined to resolve the issues or to discontinue use of the [p]ipe,” and that the Town admitted the problem “should have been dealt with a long time ago,” yet continued to use the pipe.

Slip op. at 10. Seems pretty obvious to us, too.

But we urge you to read the entire opinion (it isn't that long, a mere 18 pages) to get an understanding of how the Town acted here. If you are like us, you will come away from it thinking "what gives?" The picture the opinion paints isn't a good one: the government appeared to be obstreperous, and intent on making the conduct of the litigation hell for the property owner, despite the just compensation here being only $37,586. A significant amount for sure, but not worth going to war over.

Yet to us, that it what is appears the Town did. It claimed the trial judge was biased. Its questioning of the owner's appraiser was riddled with inappropriate questions based on facts not in evidence (that the Town tried to mitigation). The Town seemed to blame the owner for the problem by trying to create a narrative that the owner didn't give the Town time to fix the issue; the Town claimed to be ever-so-ready to fix it, but didn't do so and apparently never has. Read the opinion for more.

As a result, the Town got whacked for $206,785 in fees and costs, more than five times the amount of compensation. Forest and trees, anyone?

Congratulations to friend and colleague Joshua Baker for the win.

Town of Iron Gate v. Simpson, No. 1588-23-3 (Va. Ct. App. Sep. 17, 2024)

Devillier v. Texas (Part II): After Rope-a-Dope By Texas, Unanimous SCOTUS Saves The State Immunity Issue For Later

Note: this is the second of our posts on the U.S. Supreme Court's recent decision in Devillier v. Texas. The first -- which tries to put the weird post-opinion controversy over which party "won" at the Supreme Court into its proper perspective -- is here.

In this post we'll cover the case's facts, the odd procedural path that Texas dragged everyone through (only ultimately abandon a key position once at the Supreme Court), and what the Court actually decided, if anything.

The State Flooding Private Property is a Taking Under Everyone's Constitutions

After the Texas DOT flooded his property as part of a freeway project by creating a dam that caused rainwater to collect on his land, Devillier and other landowners sued the State of Texas for a taking, aka inverse condemnation.

The state flooding someone's property is one of those "classic" cases which are considered takings, triggering the obligation to provide compensation to the owner, even where the government has not formally instituted eminent domain. 

But Texas didn't acknowledge its obligation to provide compensation, so Devillier sued Texas for a de facto taking seeking just compensation under both the U.S. and Texas Constitutions.

Devillier Sued Texas For Federal Compensation in Texas's Own Courts

Devillier sued in a Texas court. Importantly, he did not seek redress for his federal compensation rights under a statute, but asserted his right to just compensation directly under the U.S. Constitution. He did not (because he could not) bring this federal constitutional claim pursuant to the commonly-employed procedural vehicle for raising such claims, a post-Civil War civil rights statute 42 U.S.C. § 1983. There, Congress created a cause of action subjecting "any person" who violates someone's federal rights "under color of state law" to liability for legal and equitable remedies.

We often see section 1983 employed in takings cases seeking Fifth Amendment just compensation, but only when the government alleged to be doing the taking is a local (municipal) government. Why? Because the Supreme Court has held that states themselves and their officials are not "persons" covered by the statute.

So if you want to sue a state for just compensation because it has taken your property, you can't use section 1983, and must look elsewhere for the authority to do so.

Devillier: I Don't Need Texas's Preclearance to Sue Texas for Federal Just Compensation (in a Texas Court)

In most cases, before you can sue the government for money it must consent to be subject to lawsuits. Sovereign immunity, grounded in notions that the Crown can do no wrong, seems like both a very un-American concept, and very anachronistic. But in American law, the doctrine is very robust. One question in takings law has plagued the lower courts: does a property owner need the government to waive sovereign immunity before an owner can sue for compensation for a taking?

Devillier thought he didn't need seek permission from either Congress or Texas to sue for just compensation. Government doesn't have the power to take property without providing compensation, and every right has a remedy doesn't it? Or as it is often phrased, a waiver of sovereign immunity isn't necessary to sue for just compensation.

Why so, if a waiver is needed in nearly every other area of law? Because the text of the Fifth Amendment (which is a limitation on the states via the Fourteenth Amendment) lays out the remedy: "nor shall private property be taken for public use, without just compensation." Thus, the U.S. Constitution itself provides him all the authority a property owner needs to bring a claim for compensation if the government has taken property.

He also asserted that the Supreme Court has long described the Just Compensation Clause as "self-executing," which in his view (and the view of many others, us included) means that the Fifth Amendment of its own force and authority allows owners whose property has been taken to sue for just compensation.

That, Devillier argued, means that if Texas had taken private property for public use but hadn't acknowledged its obligation to provide compensation, he could sue for compensation whether or not Texas had consented. Especially in one of Texas's own courts.

Texas's Two-Step: Removal to Federal Court

Before the state trial court got to that question, however, Texas (somewhat unusually) removed the case to federal court. Recall that in certain cases filed in state courts, the defendant has the final choice of forum (state or federal court). If a case could have been brought in federal court in the first instance -- in other words, there is federal jurisdiction over the claim the plaintiff asserts, but the plaintiff has chosen to bring the claim in state court -- the defendant may "remove" it to federal court. Texas did so, alleging federal question jurisdiction.

Check out the Master Complaint filed in federal court. Scroll down to page 25, and Count 2, paragraph 78, for how Devillier pleaded the federal takings claim:

In addition to, and in the alternative to, their claim under the Texas Constitution, Plaintiffs seek recovery for the State’s permanent and/or temporary taking of their real and personal property without paying just compensation in violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution, a self-executing constitutional provision applicable to the State through the Fourteenth Amendment of the U.S. Constitution.

District Court: Just Compensation Clause is Self-Executing

After it removed the case to federal court, Texas asked to dismiss Devillier's case. Here's how the Magistrate Judge described Texas's request:

In its motion to dismiss, the State argues that Plaintiffs’ federal inverse condemnation claim should be dismissed for a number of independent reasons. First, the State contends that Plaintiffs’ federal takings claim cannot be brought directly under the Fifth Amendment, but rather must be brought under 42 U.S.C. § 1983. According to the State, this dooms Plaintiffs’ federal takings claim because § 1983 claims cannot be brought against a state actor. Second, the State argues that Plaintiffs’ federal claims are barred by the applicable statute of limitations. Third, the State insists that Plaintiffs have failed to properly plead a valid federal inverse condemnation claim.

Pet. App. 12a.

The Magistrate recommended denial of Texas's motion. The U.S. District Court agreed, concluding that the Just Compensation Clause is self-executing and thus Devillier had all the permission he needed.

Fifth Circuit: No Cause of Action, No Jurisdiction

But when Texas appealed to the Fifth Circuit, that court held that the federal courts lacked jurisdiction to hear Devillier's federal claim for compensation because property owners like Devillier who claim to have suffered a taking at the hands of a state government do not have a "right of action for takings claims against a state[.]"

Texas, the court concluded, "recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking; nothing in this description of Texas law is intended to replace its role as the sole determinant of Texas state law."

The Fifth Circuit concluded that the case belonged in Texas state courts (where Devillier had originally brought it, remember) and sent the case back to the federal trial court with instructions to bounce it out of federal court, and "return this case to the state courts."

Texas To Supreme Court: Devillier Is Required To Vindicate His Federal Constitutional Rights in a Texas Court Under Texas Law

Devillier asked the U.S. Supreme Court to review this Question Presented:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

Once at the Supreme Court, Texas continued to argue that you may possess a constitutional right -- and a self-executing remedy -- but that's not enough because you also need a cause of action. What that means is you need to have some ability to bring a lawsuit to enforce your rights and obtain a remedy, and for that you must have some sort of government authorization to use the courts.

But Texas seemed to subtly change its tack. It now claimed to be a champion of property rights! It opened its arguments with this astonishing claim (we say astonishing because it was Texas which had removed Devillier's lawsuit from a Texas court to the federal courts and then sought to dismiss it, a very cynical and wasteful tactic and hardly the kind of thing you'd think a property rights champion would do):

MR. NIELSON: Mr. Chief Justice, and may it please the Court.

The Court will be hard-pressed to find any government more committed to property than Texas. The Texas constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions.

This appeal thus isn't about substantive rights. All Petitioners had to do was use Texas's cause of action.

Tr. at 38-39 (emphasis added).

Rope-a-Dope

Hold on, "all Petitioners had to do was use Texas's cause of action?" Didn't we just say that Devillier filed his lawsuit in a Texas court? Yes, he brought a Texas claim for compensation under the authority of Texas law. And a federal claim for compensation under the authority of federal law (the U.S. Constitution) in a Texas court. Wasn't that enough?

No. Texas claimed that suing for a federal remedy in a Texas court was only a half-measure. Instead, it asserted that Texas law recognized a property owner's ability to sue Texas for federal compensation, so Devillier needed to make clear in his complaint that he was bringing his federal constitutional claim under the authority of Texas law (and Devillier merely bringing his federal claim in a Texas court was not enough to make that clear). If Devillier had only pleaded clearly that he was asserting his federal claim under state procedure, then Texas would have welcomed his federal claim!

Or so it said. It wasn't at all clear that this had been Texas's position all along, and from our perspective it reeked of a late-breaking strategic concession to keep the court from deciding the Question Presented. After all, if Texas had made the position it took in Supreme Court clear when the case was in the lower courts, then everyone could have avoided the sturm und drang for the past several years, and the parties' and the Court's time would not have been wasted.   

There were some encouraging signs during the arguments that the Court was skeptical. Several of the Justices, for example, taking Texas to task for shifting the lawsuit from one where Texas argued it could be sued (state court), to one where it argued it couldn't (federal court) -- and then arguing that Devillier could have brought his claim in a Texas court. But like all SCOTUS oral arguments, the Devillier arguments concluded without a decision. All we could do was wait.

Did the Court Actually Decide Anything Other Than Which Party Won the Appeal? (Hint: No)

Last week, we were rewarded with a decision that didn't really decide much of anything. Make no mistake: Devillier definitively won the Supreme Court phase of the case. The Court vacated the dismissal of his case, and sent it back down for more, including explicit directions to allow Devillier to include in his complaint the magic words that Texas claimed were missing. But did the Court decide the Question Presented (does an owner who seeks just compensation for a taking need the legislature to recognize a cause of action)?

No, the unanimous Court said it accepted Texas's oral argument concession that Devillier has always possessed a cause of action to sue for federal compensation because Texas recognizes inverse condemnation under state law. As a consequence the Court concluded there was nothing for it to decide.

The opinion acknowledged that it continues to be a good question whether a property owner needs the government's permission in order to sue for just compensation for a taking. But because Texas (finally) admitted that Devillier does have a procedural vehicle by which he may seek to vindicate his right to compensation, that issue is a no-go here:

Texas state law provides a cause of action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. And although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured this Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one. This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation.

Slip op.at 6-7.

Instead, the Court said that it would wait for a case in which it can be satisfied "of the premise that there is no cause of action." Slip op. at 6. The Court vacated the Fifth Circuit's judgment and remanded the case "for further proceedings consistent with this opinion." Slip op. at 7.

The Supreme Court phase of the case thus ended disappointingly: it's satisfying that Devillier has his win and can continue the fight; but we have no answer from the Supreme Court on the still-open question. What if a state doesn't recognize a state cause of action to raise a federal compensation claim, can a property owner still sue for compensation? 

SCOTUS: "[T]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action."

There are some hints in the decision (dicta), although it is too soon in our thinking to tell what those hints eventually might mean. There are a lot of questions remaining.

        1.  Future cases?

For example, the Court noted that the question of whether the Constitution itself provides a cause of action for compensation "do[es] not arise when property owners have other ways to seek just compensation." Slip op. at 6. And the "other ways" here is a state law cause of action in state court. Does that mean that if a state recognizes an inverse condemnation cause of action like Texas, then there isn't a claim directly under the Takings Clause for compensation?

No, the Fifth Amendment itself may recognize a cause of action, irrespective of state law and section 1983. The opinion recognized that "[t]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action." Slip op. at 6. It's just that, like here, the issue will never come up in a case where a state recognizes a process under its own law for a property owner to seek federal compensation. That question will only be answerable in a narrow band of cases where a state does not recognize an inverse condemnation cause of action at all, or if it does, limits the remedy to state constitutional law.

Are there states whose law like that? Yes, we can think of a few. (Stay tuned for more on that.)

        2.  Williamson County Revived?

Next, doesn't the Court's rule in Devillier -- that if state law recognizes a cause of action for federal compensation, then a property owner can use the state's procedures to vindicate her rights when a state is the defendant -- revive the "state procedures" requirement from Williamson County?

Sort of looks like the same requirement, but no. Before the Court overruled the state procedures requirement in Knick v. Township of Scott, it required property owners to chase state procedures for compensation before coming to federal court on a takings claim. That rule applied to all takings claims, against both state and municipal defendants. Devillier only applies when a state is the defendant, and says if a state recognizes a way to prosecute a claim for federal compensation, then property owners need to use that process to vindicate their federal rights. That way, the Court can avoid the broader questions these issue present -- such as whether a property owner can sue a State in federal court for compensation -- until the right vehicle is presented.

        3.  So What Does "Self-Executing" Mean? 

The Court didn't really clarify what "self-executing" means. At the very least, it means that property owners must have a cause of action for federal just compensation in some court. If a local or municipal government takes your property, you already have a section 1983 cause of action which can be prosecuted in federal court (federal question jurisdiction) or in state court (concurrent jurisdiction). If a State takes your property and state law, like Texas, recognizes a cause of action that "provides a vehicle for takings claims based on both the [State] Constitution and the Takings Clause[,]" slip op. at 7, then go to state court. But if a State takes property without paying, but does not recognize a federal cause of action to vindicate that right, then the property owner may go to [court to be determined]...

        4.  No More Takings Games?

By declining to consider the Question Presented, and instead holding that Devillier's original claim and his choice of forum are to be respected, the Supreme Court seems to have concluded that the last few years of federal court litigation caused by Texas’s removal and failure to make its position clear were utterly needless, and that Texas should have just let Devillier proceed with his original choice to sue in a Texas court.

The "removal game" (where owners file for compensation in state courts, only to see the government remove the case to federal court and seek dismissal), a tactic the Court has viewed skeptically before, is now quite clearly not at all favored by the Justices. This opinion seems very much like a pushback on the tactics Texas deployed here.

Summing Up

We don’t think that Devillier moved the needle very much at all on the substantive question the Court declined to answer: does the Just Compensation Clause recognize the right of property owners to seek compensation of its own force? That question, and the even larger issue of sovereign immunity, are still very much in play.

As a U.S. Senate report noted once, "'Sovereign immunity or the infallibility of the Crown, so to speak, became embedded in the common law of England and so came into our American law,' but 'this principle is not appropriate where the courts are established … to serve the people.'"

Devillier v. Texas, No. 22-913 (U.S. Apr. 16, 2023)

In Devillier v. Texas, The Winner Takes It All (Part I)

The winner takes it all
The loser's standing small
Beside the victory
That's her destiny

Note: this is the first of a short series of posts on the U.S. Supreme Court's recent decision in Devillier v. Texas.

In Part II, we'll cover the case, the procedural path that Texas dragged everyone through, only to abandon it at the Supreme  Court), and what the Court actually decided, if anything,

Three Common Questions for Lawyers

In the classroom, I often ask students to use their intuition to guess the three most common questions that lawyers almost always get from potential clients. Put yourself in a client's shoes: what would you want to know?

The students mostly get it right. "What's this going to cost?" Check. "How long will this take?" Check. And perhaps most obviously, "What are my chances of winning?"

That last question -- am I going to win? -- is perhaps the most common. And when they ask, I'm thinking that that most clients don't have an overly nuanced approach to what it means to "win" a case: I get what I want; I keep on fighting; I recover just compensation; I get vindication from the justice system; I lose but get my day in court, even.

It doesn't seem all that difficult to figure out what a "win" looks like, does it?

Deviller v. Texas II: the Afterfight

So you might think that after the U.S. Supreme Court issued a unanimous opinion in Devillier v. Texas (that's 9-0 if anyone is counting), a property rights case we've been following, you'd be able to figure out which party "won" in the Court.

Nope. It turns out that like the post-Oscar afterparties, there's a weird post-opinion afterfight going on between Devillier's lawyers and the Texas Attorney General. Before the ink (ok, toner) was seemingly dry on the opinion, a dispute broke out on social media over who "won" the Supreme Court case after the AG issued a press release and tweeted about what he claimed is Texas's big win:

Texas: We're down for the big win!

Devillier: Not so fast, pard. 

So Who "Won?" (Hint: Devillier)

We really don't want to get bogged down in secondary dispute who won a unanimous Supreme Court decision. After all, the more interesting question in many Supreme Court cases is what the decision means to a wider scope of players than just the parties to the case, and not which litigant can legitimately claim to have won a phase of the litigation.

Besides, we don't think it's that hard to figure out who prevailed. Prior to the Supreme Court rendering its decision, Devillier was facing legal oblivion: the Fifth Circuit had dismissed his lawsuit. As in gone. Bye bye. Get outta here. The Supreme Court undid that (vacated the lower court judgment, in technical terms), and sent the case back down the federal court chain for further proceedings. It may even end up eventually back in state court right where Devillier started. In short, Devillier is back from the brink as if the last few years never happened, and gets to continue his legal pursuit of Texas for just compensation. That sure looks like a "win."

And Devillier's lawsuit will continue mostly in the in way he set it up; yes, it is in federal court (at least for the time being), and not a Texas court where Devillier originally brought it, but (a) if it stays in federal court maybe the federal forum will be more favorable so he might be in an even better position than where he started; (b) the case might eventually go back to state court, which is literally Square 1 for this lawsuit; and (c) the Supreme Court ordered the lower federal courts to allow Devillier to amend his complaint to make it clear he is asserting his federal right to just compensation (but, kinda weirdly, pursuant to a Texas cause of action), a procedure Texas belatedly but ultimately conceded in the Supreme Court, something it had not earlier (more on that later). We'd call that a Devillier "win" also. And any time a property owner can convince all nine Supreme Court Justices reject a government's denial of its obligation to provide just compensation when it has taken property, that seems like a good thing.  

Spin City?

If so, then how could Texas with a straight face claim this was a big win?

On one hand, it could be written off as the very cynical product of political spin. Elected AG's are known as "Aspiring Governors" for a reason. On the other, could Texas legitimately claim that it got what it wanted from the Supreme Court, and that's a "win?" For that, you have to start viewing the litigation like a lawyer and not a normal person. Especially as a lawyer for a defendant. In those cases, it often it isn't about the final outcome of the case as much as it is about damage control, minimizing your losses.

Or (as we suspect here) seeing how long you can slow-walk a procedural strategy and hope the other side eventually bleeds out and gives up, broke and exhausted. And if the owner somehow holds on through years of the procedural nonsense you throw at him, you can then offer up a late-breaking concession and ask the reviewing court to avoid the issue. Legal rope-a-dope.

Maybe the Supreme Court being convinced to not decide in this case (but to save it for the future) whether the Fifth Amendment itself allows owners to sue for compensation when a state takes their property, was enough for Texas to claim a "win."

Our bottom line is this: the more important question than which party won the Supreme Court phase of the litigation was did the Court actually decide anything beyond which party won the Supreme Court phase of the litigation? If so, then what? And what does the Devillier case mean for the future, if anything? So let's shuck this "who won" distraction and focus on what is important, if anything, about the Supreme Court's decision.

* * * *

In our next post, we'll cover the case, the weird procedural path that Texas dragged everyone through (only ultimately to say "nevermind" in the Supreme Court), and what the Court actually decided, if anything.

Devillier v. Texas, No. 22-913 (U.S. Apr. 16, 2023)

Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we're always ready to go. You know that. But this year's version -- the 41st -- was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn't an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here's a photo essay of some of the Conference highlights.

And if you missed out, the webcast was recorded and is available for viewing. Or, better yet, hold on your calendar January 30 through February 1, 2025 for the 42d Conference, to be held at the Westin Bayside San Diego.

Excitement this way...

The view from the podium.
Say "hello" to our opening plenary session in wide-angle.

Prepping the space.
The finished stage that Conference attendees
see isn't how the room starts off.
It takes a lot of work by the ALI-CLE staff
to get the place camera-ready.

The live webcasting of the sessions also takes a lot of
set-up and a ton of equipment. This is just some of it. 

Here's more. 

The badges were arranged on the table with care...

...in trust that our faculty and registrants would soon be there.

No conference would be complete without swag.
Here is but a sampling.

As always, a huge thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.


The Conference site was right on the routes of several parades.
It was difficult to keep focusing on severance damages and larger parcel
when the music and excitement was just outside.
But we tried.


The opening plenary session -- on the U.S. Supreme Court's
big takings case -- got us off to a solid start.


Thanks to Christina Martin and Steve Silva for speaking
on Tyler v Hennepin County.

The view from the podium as Amy Boulris speaks about the most
significant eminent domain decisions of 2023.

The speakers are a mix of practicing lawyers, judges, other eminent domain
professionals, and legal academics. Here, two property scholars --
Timothy Harris and Jessica Asbridge --
discuss how state property law and state courts
can drive the constitutional issues.

Kinnon Williams, Esq. and Christina Thoreson, SR-WA, MAI, CRE 
present on "Valuation of Wasting Assets."

Lawprof Emilio Longoria and attorney Tony Francois
on "What Condemnation Lawyers Need to Understand
About the Clean Water Act After Sackett"
(hint: it goes to highest and best use).

Matthew Ackerman, Marianna Baggett, and Kenneth Haywood
on "The Pitfalls of Objectively Measured Just Compensation:
When Market Value Isn't Enough."

It was not all work and no play.
Again, a big thanks to our generous sponsors.

Our speakers take questions, of course.
We solicit them the old-fashioned way (thanks, James Masterman).

William and Mary Law School Professor
Emerita Lynda Butler (and her former student, North Carolina's
Jeremy Hopkins" discuss property rights in an age of coastal retreat.

Luis Gallardo-Rivera, Dana Berliner, and (off-camera)
Sophia Holley on "Proving and Defending Pretext,
Public Use, and Necessity."

James Masterman and Martye Kendrick on "Preparing Your Witness
to Overcome Obstacles to Highest and Best Use."

Jeff McCoy, Robert McNamara, and Kristen Renfro on
"Getting to Federal Court and Staying There:
Navigating Procedural Mazes in Federal Takings Claims."

Sean Metherell and Nathan Farris zero in on
"How to Win a Future Highest and Best Use Claim: Proving Reasonable
Probability of Rezoning and Other Issues."

Michael Berger is Watching You:
SCOTUS Property Rights Maven Michael Berger zooms in with his
annual "Regulatory Takings Update."

We always hold a spot for Jim Burling on Saturday.
Why? Because his tours-de-force always are interesting
and put people in seats, even on a Saturday morning.

More Big Michael.
Here, sharing his memories of Professor Gideon Kanner.

See you in San Diego!
January 30 - February 1, 2025
Westin San Diego Bayside

No FOMO: There's Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Don't miss out!

We promise: this is the last time we're going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin last year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration is still open. Sign up now, and don't miss out.

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

Links And Materials From "Inverse Condemnation & Paying for Disasters"

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, "Inverse Condemnation & Paying for Disasters."

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

• Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine
• Cal Supreme Court: Stop Saying Inverse Condemnation Is "Strict Liability"
• MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit
• Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
• Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires
• Shelley Saxer, Paying for Disasters, 68 Kan. L. Rev. 413 (2020)
• Inverse Condemnation And Wildfires

To those of you who were able to join us -- mahalo!

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Asserting His Property Right To Exclude "toxic fecal matter," Joe Montana Sues San Francisco For Inverse Condemnation

We're posting this Complaint, not because it raises any new or novel issue, but because one of the plaintiff/property owners is San Francisco 49ers legend Joe Montana, who is suing San Francisco, alleging that the city's maintenance of its stormwater/wastewater system (yes, the systems are one and the same) caused sewage to flood their Marina district homes.

Read the story here from SF Gate ("49ers legend Joe Montana sues San Francisco alleging 'toxic fecal' matter in home").

We're going to dust off the California Supreme Court's latest ruling on inverse condemnation liability for flooding, since we haven't looked at the doctrine in-depth in a while.

Complaint for Damages, Declaratory and Injunctive Relief, Armstrong v. City and County of San Francisco, No...

Washington: "The right to inverse condemnation belongs to the property owner at the time of the taking; the right does not pass to a subsequent purchaser unless expressly conveyed."

In Masloka v. Public Utility District No. 1, No. 101241-1 (Aug. 3, 2023), the Washington Supreme Court held that a takings claim did not automatically transfer to a new property owner when the property was sold.

Your first reaction might be like ours, "what about Palazzolo!?" Didn't that case say that transfer of property after an alleged taking does not wipe out the transferee's right to assert a takings claim:

Were we to accept the State's rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.

Palazzolo, 533 U.S. at 607.

So what gives, Washington Supreme Court?

After reading the court's opinion, and upon further reflection (always a good thing), the story becomes a bit clearer: the Washington court did not conclude that the takings claim disappeared by virtue of the transfer of the property to the new owner, but considered only how a court should determine whether a takings claim was transferred.

And one other big point: this case involved an allegation of a physical taking, not a regulatory taking as in Palazzolo. We'll see how that makes a different shortly.

Back when the first owner owned the land, the utility district maintained a nearby dam and its operation occasionally caused flooding on the land. The Maslonkas then purchased the property. "The previous owners informed the Maslonkas that the land occasionally flooded." Slip op. at 2. The flooding did not stop.

Next:

In 2016, the Maslonkas sued the PUD, alleging its operation of the dam entitled them to damages based on inverse condemnation, trespass, nuisance, and negligence.

The trial court found the subsequent purchaser rule barred the inverse condemnation claim, and that the PUD established a prescriptive easement barring the trespass and nuisance claims. The Court of Appeals reversed, holding that the PUD could not benefit from the subsequent purchaser rule because it failed to prove its conduct constituted a taking prior to the Maslonkas’ purchase. The Court of Appeals also the PUD’s alternative argument that the Maslonkas could not bring their tort claims alongside their inverse condemnation claim.

Slip op. at 2.

The issue was whether the court should presume the takings claim transferred along with the land (and thus the district had the burden to prove it didn't), or whether this was an element of the Maslonkas' claim. As the court put it, "in other words, whether the ["subsequent purchaser"] rule is a doctrine of standing or an affirmative defense." Slip op. at 2.

The court came down on the side of standing. It framed the issue as whether the Maslonkas have the ability to assert the rights of the former owners. In other words, the takings claims belong to the former owners: "[a]lthough our case law does not expressly characterize the subsequent purchaser rule as one of standing, it limits who may sue for inverse condemnation by prohibiting a subsequent purchaser from asserting the legal rights of the owner at the time of the alleged taking." Slip op. at 13.

This conclusion, although not supported in the opinion, is supported by Palazzolo, which noted:

In a direct condemnation action, or when a State has physically invaded the property without filing suit, the fact and extent of the taking are known. In such an instance, it is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser. See Danforth v. United States, 308 U. S. 271, 284 (1939); 2 Sackman, Eminent Domain, at § 5.01[5][d][i] ("It is well settled that when there is a taking of property by eminent domain in compliance with the law, it is the owner of the property at the time of the taking who is entitled to compensation").

Palazzolo, 533 U.S. at 628.

The Washington court didn't presume that the claim transferred upon sale, but noted that it could be transferred: "the right does not pass to a subsequent purchaser unless expressly conveyed." Slip op. at 1 (emphasis added). It wasn't here, so the court analyzed whether the Maslonkas established a new taking -- one that took place after their purchase. Sorry, no:

The Maslonkas produced no evidence that the dam’s operations changed after 1993 to increase flooding; any increase cannot be, on this record, attributed to the PUD. Without evidence of a new taking, the Maslonkas’ inverse condemnation claim cannot survive summary judgment.

Slip op. at 16.

Although the court's holding that it cannot be presumed that a takings claim transferred upon sale to new owners does not help the property owners here, we take solace that the opinion tells our transactional colleagues how to avoid this problem down the road. We'll leave it to them to come up with some reuseable language that can be used to convey everything the seller owns (including takings claims).

And breathe a sigh of relief that the court did not depart from the Palazzolo rule or, worse yet, adopt the goofy theory that the purchase price must have been a reflection of the decline in value of the land attributable to the taking.

Maslonka v. Pub. Util. Dist. No 1 of Pend Oreille Cnty., No. 101241-1 (Wash. Aug. 3, 2023) (en banc)

California Supreme Court Reviewing The Murderer's Creek Inverse Case

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

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

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

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

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

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

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

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

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

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

Pet. at 1-2.

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

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

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

New Article: Alex Boone, "The Tide's Coming In: A New Case for Beachfront Property Rights in South Carolina" (Wm & Mary Envt' L & Pol'y Rev)

Check this out, a new student-authored note from William and Mary third-year law student Alex Boone, "The Tide's Coming In: A New Case for Beachfront Property Rights in South Carolina," 47 Wm. & Mary Envtl. L. & Pol'y Rev. 383 (2023).

Here's the Abstract:

Part I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South Carolina court to find that the state’s regulations create an unconstitutional taking of private property without just compensation. Lastly, Part IV recommends a policy change designed to mitigate the consequences of the CTWA [Coastal Tidelands and Wetlands Act] on South Carolinians in the absence of a judicial finding that the CTWA constitutes a regulatory taking.

It's really rewarding to see this kind of writing and analysis from a law student. Yes, we appreciate the subject-matter and the conclusion (naturally), but that aside, it is a good day when a soon-to-be colleague does this kind of work and lays it all out there for the world to see. Congratulations to the ELPR editors, and especially to Mr. Boone!

When It Rains, It Floods: Intermittent Flooding, Inevitably Recurring, Is Treated As A Permanent Invasion

A quick one from the Indiana Supreme Court (thanks to our Pacific Legal Foundation colleague Sam Spiegelman for the heads-up on this one).

In Town of Linden v. Birge, No. 22S-PL-352 (Mar. 7, 2023), the court held that intermittent government-induced flooding of property is treated as a permanent invasion and a per se taking if the flooding is inevitably recurring.

A Town owned and maintained drain fell into disrepair, "resulting in frequent flooding of the Town" so replacement and upgrade was in order. The Town did so and formed an improvement district to fund it. The Birge property was assessed $7k, and after some back-and-forth about the location and placement of a manhole cover on the Birge property, the upgrade project went forward. But "[a]fter completion of the project in late 2012, low-lying portions of the Birges’ Property flooded after any heavy rainfall, encumbering the Birges’ farming enterprise. So, rather than pay the $7,679 assessment, the Birges sued the Town, County, and others (collectively, the Defendants) for inverse condemnation." Case dismissed for governmental immunity, but the court of appeal reversed.

Now dealing with the merits, the trial court concluded this was a taking. The Town solved its own flooding problem by, in essence, shifting the flood waters from its own property to the Birge property. Their property floods during every heavy rainfall. While merely recurring because the floodwaters eventually recede, the trial court treated this as a permanent physical invasion.

The court of appeals, however, had a different view. True, under Arkansas Game and Fish, flooding need not be permanent to be deemed a taking. But when flooding isn't permanent, the court applies that long list of factors that Arkansas Game set forth.

The Indiana Supreme Court agreed to hear the case and disagreed with the court of appeals:

Based on this precedent, we analyze a flooding-related takings claim as follows: (1) if the flooding is continuous or “intermittent but inevitably recurring,” and the invasion is “substantial,” then it results in a per se taking; (2) if, on the other hand, the flooding is temporary or of “finite duration,” then the Arkansas Game factors apply.

Slip op. at 8.

The court relied on United States v. Cress, 243 U.S. 316 (1917), where the Supreme Court held that although the flooding itself was temporary and the waters eventually receded, the government's building of a lock and dam that resulted in frequent flooding was a "permanent condition" resulting from the dam being built. "The 'character of the invasion' determines whether a taking occurred, the Court emphasized, “not the amount of damage resulting from it, so long as the damage is substantial." Slip op. at 7 (quoting Cress, 243 U.S. at 329).

In contrast to Arkansas Game where the flooding was temporary and finite (by the time the Court heard the case, the feds had stopped flooding Arkansas' property), here, the flooding is recurrent and indefinite. It rains, it floods:

Unlike in Arkansas Game, where the “recurrent floodings” were of “finite duration” (lasting from 1993 to 2000), 568 U.S. at 27 (emphasis added), the floodings here are repetitive and of indefinite duration—i.e., they amount to a “permanent condition,” see Cress, 243 U.S. at 327. As the trial court expressly found, and as the record evidence supports, the drain reconstruction project has resulted in “repeated flooding events” on the Birges’ Property due to increased pressurization at the Transfer Point during “every heavy rainfall.” App. Vol. 5, p. 59; see Tr. Vol. 2, p. 56 (expert testifying to the same effect). In other words, the flooding here amounts to a permanent physical invasion by way of “intermittent but inevitably recurring overflows.” See Cress, 243 U.S. at 328 (emphasis added). Indeed, so long as the Property sustains “heavy rainfall” (or unless and until the County takes the necessary corrective measures), the flooding will persist indefinitely. This type of physical appropriation reflects the “clearest sort of taking,” which we assess by “using a simple, per se rule: The government must pay for what it takes.” See Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (internal quotation marks and citations omitted).

Slip op. at 9.

But the Birges are not out of the woods just yet. The trial court concluded the flooding made it "more difficult" for the Birges to farm the land. The standard, the Indiana Supreme Court concluded, is a bit higher. The owner must show that the flooding resulted in "substantial" damage. Back down it goes to determine if the Birges meet this standard.

Town of Linden v. Birge, No. 22S-PL-352 (Ind. Mar. 7, 2023)

CA7: Riparian Owner Has No Property Right In Water Level On Navigable River

There's not a lot new to report in the U.S. Court of Appeals for the Seventh Circuit's opinion in Kreuziger v Milwaukee County, No. 22-2489 (Feb. 13, 2023). But there's a bit of old that make it worth posting.

The issue the court considered was whether riparian property owners have any protectable interest in the level of the water which their property abuts. After the County demolished a long-standing dam on the Milwaukee River resulting in a four-foot lowering of the water next to Kreuziger's upriver property, he sued for a taking. Slip op. at 3 ("The lower surface level of the river exposed a ten-foot strip of marshy land between Kreuziger’s seawall and the water’s edge that had previously been submerged.").

You probably already understand the general rule in these situations: riparian owners have no compensable property interest in any particular water level, as long as the waterway was navigable in its natural state. See United States v. Willow River Power Co., 324 U.S. 499 (1945). But when a waterway is non-navigable in its natural state, the rule may go the other way, with riparian owners having a protectable interest. See United States v. Cress, 243 U.S. 316 (1917).

Here, the Seventh Circuit noted that the Milwaukee River was navigable before Wisconsin dammed it in 1937. Slip op. at 2 ("In 1937 Milwaukee County obtained a permit from the Wisconsin Public Service Commission to build a dam on the Milwaukee River, a navigable waterway, at a location near the northern border of Estabrook Park."). The court rejected the owner's argument that "the defendants owe compensation for taking his riparian right to a higher water level on the river because their removal of the dam did nothing to improve navigation." Slip op. at 5.

Rejecting reliance on a Wisconsin case that seemed to hold that riparian rights were affected when a dam removal caused lowering of water levels on a lake, the Seventh Circuit held that this case only involved private-to-private riparian rights, and not private-to-public. Slip op. at 6. ("That case dealt with a clash of rights among private riparian owners. This case involves the government’s interest in maintaining navigable waterways in the exercise of its responsibilities under the public-trust doctrine."). When the public right of navigation is involved, a different rule applies. Interestingly, the court relied on Wisconsin's public trust doctrine to conclude that "[r]iparian property owners cannot interfere with the public's navigation rights on the state's navigable lakes." Id.

That may be correct as a matter of Wisconsin riparian law, but to us it doesn't really matter because Willow River should control: because the Milwaukee River was navigable, the federal navigation servitude (and not the state's public trust) means that riparian owners have no interest in any particular water level. Yet the opinion casts the issue as one of public trust and not the navigational servitude. See, e.g., slip op. at 8 ("Put more succinctly, the riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine."). That doesn't seem quite right to us. The main reason that the riparian owners here have no property right in the water level isn't the public trust, but rather the federal navigational servitude.

Either way, same result: no private property interest in any particular level of water on the Milwaukee River. Slip op. at 9 ("So Kreuziger’s argument that removing the dam did not actually improve navigation is beside the point.").

Yes, having an "unsightly strip of land abutting his property" instead of the gently-lapping sounds of the river may be "unjust, inequitable and unconscionable," slip op. at 10-11, but that's just too bad: "neither the Wisconsin Constitution nor the United States Constitution promises to 'socialize all losses .. which result from a taking of property." Slip op. at 10 (quoting Willow River, 324 U.S. at 502).

Kreuziger v Milwaukee County, No. 22-2489 (7th Cir. Feb. 13, 2023)

Cases And Links From Today's Land Use Institute Session: "The Use of Eminent Domain for Redevelopment & Economic Development Projects"

Here are the opinions that we spoke about this afternoon at the Land Use Institute on "The Use of Eminent Domain for Redevelopment & Economic Development Projects."

• Redevelopment: You Can't Just Say "Redevelopment" - Take Now, Decide Later Isn't A Public Use
• Due Process: Before Taking Property, Condemnor Must Provide Notice Reasonably Calculated To Put The Owner On Actual Notice
• Scope of delegation: A Hospital Parking Lot Isn't An Authorized Reason To Take
• Necessity: No Necessity: Landowner Met Burden - Condemnor Did Not Consider Other Sites
  
• After the taking: First Circuit: "[T]he Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

Thanks for joining in.

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, 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 in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

An Ordinance Isn't A Taking Because It's A Valid Exercise Of Police Power?: What The Heck Is Going On In The Texas Court Of Appeals (First District)?

If your first reaction to the Texas Court of Appeals (First District)'s decision in City of Houston v. The Commons of Lake Houston, Ltd., No. 01-21-00369-DV (Jan. 12, 2023) is scratching your head, then please come join us in bewilderment.

After all, the court held that a takings claim failed because the city is immune from inverse condemnation. Say what? We thought that the self-executing nature of the just compensation requirement of the U.S. Constitution (and the Texas Constitution) means that claims of sovereign immunity don't hold water in inverse cases.

The Commons wants to develop "The Crossing," one of those big master-planned communities. The usual development activities entailed: master plan, subdivision plats, city approvals for infrastructure, and even some actual site work. "By April 2018, The Commons had invested millions of dollars in planning and infrastructure for The Crossing." Slip op. at 2.

But in reaction to Hurricane Harvey, the city adopted an ordinance amending the city's approach to development in floodplains. And "[s]ignificant portions of The Crossing are located within the City's 100-year or 500-year floodplains." Id. The ordinance was based on FEMA maps, which are required to be used as a condition of obtaining flood insurance. The regs changed the way the city was going to regulate development in the predicted 100 and 50 year floodplains. Instead of requiring that residences in the 100-year floodplain build one foot above flood elevation (and having no requirements for the 500-year floodplain), the new ordinance "required that new residential structures
within the 500-year floodplain be built at least two feet above the flood elevation." Slip op. at 6. 

The Commons asserted that applying the new ordinance to its already-underway project "would substantially damage the market value of the property and that the current development plan would be unfeasible." Slip op. at 7. State court inverse condemnation claim (under the Texas Constitution only) followed.

The city responded to the lawsuit by asserting the claims were not ripe because it had not reached a final decision denying the project (the new ordinance contains a variance mechanism), and when the trial court disagreed and held the case ripe, the city appealed and the court of appeals reversed: not ripe.

The Commons then went through the motions it needed to go through to confirm that yes, indeed, the city wasn't going to let The Crossing continue as originally ok'd. There was some of the usual "your application isn't complete" dance, after which The Commons submitted a new plan with a 72% reduction in developable land. "The City granted The Commons' amended plan." Slip op. at 10.

Next up, Round 2 of the lawsuit. Or more accurately, the Second Lawsuit. "The Commons alleged that the City's amended floodplain ordinance 'intentionally and unreasonably restricted The Commons' [] use and enjoyment of its property,'" and took it without compensation (asserting a Lucas-like and a Penn Central-like theory under Texas law). Id. 

The city tried the ripeness gambit again, but its main attack was that the takings claim was "barred by governmental immunity because the 2018 Floodplain Ordinance does not give rise to a takings claim as a matter of law." Slip op. at 11. Jump ahead to page 18 of the slip opinion for the reasons why the Court of Appeals agreed.

The city argued that The Commons could not assert a takings claim because the amended ordinance merely complied with FEMA requirements, and "requiring compliance with local laws consistent with FEMA/NFIP requirements does not constitute a taking." Slip op. at 18. Moreover, the ordinance can't be a taking because it is a police power regulation, "adopted to accomplish legitimate goals, [which] are substantially related to the public's health, safety, or general welfare, and are reasonable." Id.

Hey, we were just "track[ing] the criteria of the NFIP," claimed the city. Id. The court agreed that the U.S. Court of Appeals had already determined that if the government is just following FEMA and NFIP requirements, then, well, it just can't be a taking. See Adolph v. Federal Emergency Management Agency, 854 F.2d 732 (5th
Cir. 1988). But when did compliance with other law constitute some kind of safe harbor from the Just Compensation requirement? The parties argued about the applicability of Adolph and the details (see slip op. at 20-22), but to us, the bigger issue is what does compliance have to do with it at all: either the city's regulations go "too far" and affect The Commons' use of its property, or they don't. Does it matter why the city adopted the new floodplain ordinance?

To us, if the city is required to conform to FEMA requirements that means only that the regulation is likely to pass due process and public use muster, and really has no bearing at all on the impact of the regulation on a property owner's rights.

As if the court concluding that Adolph controlled wasn't enough, starting on page 25 the opinion alternatively held that there could not be a taking because -- get this -- the new floodplain ordinance is a valid exercise of the city's police power.

Yes, healthsafetywelfaremorals. But as we noted above (and have noted here many many times), the validity vel non of a regulation has little to do with whether it works a regulatory taking. You'd think that a valid regulatory purpose was the prerequisite to a takings claim not the stop sign. Some courts get it right.

We ask you: go read pages 25-28 of the Texas court's opinion. Sounds a lot like a due process analysis, doesn't it? All about the purpose of the ordinance. How it is reasonably designed to protect the public. How it survives the rational basis test.

Our response (since this is a case from the South, we feel entitled): bless your heart.

In case we're not being clear: the entire regulatory takings doctrine would make no sense if all the government need do to avoid liability is show that the regulations claimed to effect a taking are valid exercises of the police power. Indeed, the takings doctrine pretty much presumes that the taking is the consequence of an otherwise valid exercise of power. To conclude, as the court did, that the regulation can't be a taking because it is a valid exercise of the power to protect the healthsafetywelfaremorals of the public simply gets you into a self-proving rule.

Come on, Texas! We thought you got this stuff better than that.

City of Houston v. The Commons of Lake Houston, Ltd., No. 01-21-00369-DV (Tex. Ct. App. Jan. 12, 2023)

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

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
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers 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

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

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-...

Law Of The Lava - Who Owns New "Accreted" Land? (And Other Questions)

Due to our 808 roots, we've been fielding a lot of questions related to the ongoing eruption of Mauna Loa on the Big Island.

It's big, it's spectacular (see video above), and (for us) it's law.

The questions (who owns "accreted" lava?, how does the NPS let the public out to see this?, what uses can be made of property covered by lava?) made us realize that we had addressed some of those issues in prior posts. So we're reposting:

• Visitors At The Volcano: Is The NPS Nuts?
• "Accretion," Hawaii Style
• What Constitutes a Loss? - Bridge Aina Lea and takings

Hope you find useful these things that make Hawaii property law pretty interesting at times.

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.

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?

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

CA6: Dammed If You Do - Takings Claim Is Ripe When Govt Decides To Physically Invade And You Don't Need To Wait 'Til It Actually Invades

We've been meaning to post the U.S. Court of Appeals for the Sixth Circuit's opinion in Barber v. Charter Twp of Springfield, No. 20-2298 (Apr. 11, 2022) for a while because it emphasizes an important point about "final decision" ripeness, and the sometimes ridiculous arguments made to support an argument that a takings claim isn't ripe.

In many situations a takings claim is backwards looking, and seeks compensation or some other remedy for something the government has already done. You flooded my property, or your project encroached on my land, or you designated my property for future acquisition and prevented me from using it in the interim are good examples. But not always. Sometimes takings claims are forward looking. Your regulations require me to allow a cable TV company to install a box on my building's roof, or you are threatening to open my private marina to public navigation. Do you have to wait for the bad thing to happen in order to get a court to review your takings claim?

Back to our case. Barber owns land next to Mill Pond Dam, built in 1836 (wow). Apparently, the old dam was not going to hold up forever. After looking at a number of options, the Township and the County decided that removing the dam was the best option. Or at least that's what it looked like they decided. The Township hired engineers and included the removal project in its budget. Its web site noted that "the project has moved to the next phase which included preliminary engineering and conceptual park design." And the local newspaper reported that "Mill Pond Dam to be Removed Next Year."

Barber asserted that removal of the dam would have all sorts of bad impacts on her adjacent land, including flooding of her house. State court inverse and takings claim (§ 1983) followed. "She sought to enjoin the Dam-removal project, alleging that it would constitute a taking under the federal and Michigan constitutions and a trespass under Michigan law." Slip op. at 3.

The Township and the County removed the case to federal court, and followed with a motion to dismiss on the usual grounds - takings case filed too early (ripeness) and lack of standing. The district court agreed, and dismissed the complaint. 

The Sixth Circuit rejected the Township's argument that it had not made the final decision to remove the dam. "Ordinarily" a claim that the government is physically invading property is ripe when the government invades. But that rule only applies when the remedy sought is backwards-looking (compensation), not when the owner seeks injunctive relief. An "impending physical taking could warrant injunctive relief." Slip op. at 7.

In Cedar Point Nursery, the plaintiffs sought to enjoin a local regulation that allowed union representatives to enter private property and speak to agricultural workers. Id. at 2070. The Court, treating the claim as a per se physical taking, allowed the plaintiffs to proceed with their motion for a preliminary injunction even though union representatives had never set foot on one plaintiff’s property. See id. Thus, the plaintiffs could bring suit even without experiencing a physical intrusion because the regulation allowed future physical intrusions. See id. at 2070, 2072–73. Accordingly, a claim for injunctive relief is ripe if the government has reached a final decision that will enable a future physical taking.

Id. The decision to remove the dam gave rise to two takings claim: a regulatory taking (the decision to remove), and the "inevitable demolition" that will amount to a physical taking. So if the Township reached a final decision to remove, both claims are ripe. 

The court concluded that the Township did so. That newspaper article noted the removal project is "scheduled to begin in 2022." At oral arguments, the Township's lawyer acknowledged that "the choice has been made" to remove the dam. But that doesn't mean the taking is ripe, the Township responded, adjudication must wait until the dam is actually removed. The court rejected the idea that a property owner has to wait for the Sword of Damocles to fall before trying to, you know, prevent it:

Having conceded this point, Defendants are left with one argument; until the Dam is actually removed, there is no way to know whether Barber has a viable takings claim. But this cannot be the case in the wake of Cedar Point Nursery. As the Supreme Court made clear, plaintiffs may sue for injunctive relief even before a physical taking has happened. Cedar Point Nursery, 141 S. Ct. at 2070, 2072–73.4 Barber’s claims are therefore ripe.

Slip op. at 8.

Next, the court concluded that Barber had standing because the Township's actions threatened her with injury. If the Township had not made the decision to remove yet, the injury might be too speculative. The court looked at the same facts as its ripeness analysis focusing on the Township's admission that it "planned to remove the Dam in the near future." Slip op. at 11.

One judge dissented, concluding that yes, the Township was thinking of removing the dam, but had really not actually decided to do so because "they had yet to draft - much less approve - blueprints for the project." Dissent at 14. Nor had the Township had not rounded up the money to do so. This was a municipal "hope" to remove, not an actual decision to do so:

Applying an ounce of “experience and common sense” reveals that Barber had little idea how the project, should it come to fruition, would affect her property. Iqbal, 556 U.S. at 679. Instead, her fears rested on “mere speculation and assumptions,” a far cry from the “certainly impending” injury necessary to establish standing where harm has yet to occur. Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 410 (6th Cir. 2019) (cleaned up) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 411 (2013)).

Dissent at 15. This was nothing "more than an abstract policy disagreement about the dam’s future." Dissent at 17.

Barber v. Charter Twp of Springfield, No. 20-2298 (6th Cir. Apr. 11, 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)

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.

 

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Keynote: Do Animals Have Property Rights?
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Property Rights as Civil Rights
• Eminent Domain National Update
• Federal Court and the Daubert Challenge: How to Prepare
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Takings Maven Dream Job® (x2): Property Rights Constitutional Litigator at Pacific Legal Foundation

You've got big dreams, you want fame...

If so, here's your chance: two (2!) Takings Maven Dream Jobs® are now available.

Pacific Legal Foundation requesting applications for positions as a Property Rights Constitutional Litigator. Job description includes "You will find and win the next important Supreme Court property rights case."

Oh, have we got your attention now?

You: An entrepreneurial freedom fighter with a passion for, and significant experience in, property rights litigation. You find and win cutting-edge property rights cases across the country. You are a national spokesperson for property rights—you speak at conferences, engage the media, and publish scholarship on property rights. You are a leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation. You have demonstrated a dedication to public interest law and property rights throughout your career.

...

You will be a leader in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery, PLF’s property rights litigation is unparalleled. (If you can’t describe these four cases without checking your notes, do not apply!) You will find and win the next important Supreme Court property rights case. Your ideas will help shape PLF strategy by identifying and litigating emerging property rights theories. And you will be recognized as a nationwide leader on property rights: giving speeches, attending conferences, appearing on radio and television, and publishing op-eds and scholarly articles on property rights.

You will also be a key contributor to PLF’s property rights practice group. You will work on teams with junior and senior attorneys, providing your expertise and knowledge and elevating the talent and skill of our attorneys. You will have the latitude to think big and the resources to execute. You will be at the forefront of shaping property rights for all Americans.

In a nutshell, we’re seeking someone who’s passionate about liberty and property rights, someone who is confident and magnanimous, and someone who is a bold and relentless freedom fighter.

Sound good? We made the jump earlier this year, now you can join in the fun.

You love coffee, and as we know, coffee is for closers!

More here, including application information and deadline.

South Carolina: City Reconnecting Stormwater Pipes That Previously Flooded Land Is The "Affirmative, Positive, Aggressive Act" Triggering Inverse

A short one from the South Carolina Supreme Court. In Ray v. City of Rock Hill, No. 28045 (Aug. 4, 2021), the court held that the city's re-connecting its pipe that had previously flooded Ray's property qualified as the "affirmative, positive, aggressive act" required by S.C. law as an essential element of a new inverse condemnation claim.

Short version of the facts. The city ran a stormwater pipe under Ray's property. No record of any easement for the pipe. Ray's property had "a history of sinking and settling[,]" and this went on for many years. Slip op. at 2. Eventually she sued for inverse. The lawsuit alleged that the flooding and damage to her property and home was caused by the deterioration of the city's pipe.

Apparently unrelated to this, at about the time of the filing of the lawsuit, the city began maintenance work on a sewer line. To access the line, it had to sever three nearby stormwater pipes, which happened to stop the flow through the pipe under Ray's land. That stopped the damage to her property caused by the invasion of water. So naturally, Ray asked the city to not reconnect the three pipes. The city did not respond positively, and instead reconnected all three. 

After Ray amended the complaint to allege that the re-connection of the pipes was the trigger to inverse liability, the trial court granted the city summary judgment, concluding that the city hadn't done anything affirmatively and that the re-connection was merely "maintenance." But the court of appeals reversed, concluding that a trial was needed to resolve the factual disagreement about whether what the city did qualified as affirmative conduct. 

The Supreme Court agreed. Whether the city undertook an affirmative act is a question of fact and by the time the case reached the Supreme Court, the city had acknowledged that it severed, and then re-connected the three pipes, and as a result the water flowing under Ray's land stopped. It also acknowledged that "stormwater flow into the Pipe resumed when it reconnected its three pipes to its catch basin[.]" Slip op. at 6. 

The court rejected the city's argument that its refusal to comply with Ray's demand that it not reconnect the pipes was merely a failure to act, and not an affirmative act. Wrong, the court held:

When the City reconnected its three pipes to the catch basin, it directed water into the catch basin and through the Pipe. This is sufficient evidence to overcome summary judgment on the issue of whether the City merely "failed to act" with respect to the water flowing through the Pipe. We also conclude Ray has presented sufficient evidence that the City's reconnection of its three pipes to the catch basin and the resumption of the flow of water through the Pipe caused damage to her property.

Slip op. at 7.

The court distinguished the damage and invasions resulting from earlier flooding that occurred pre-repair. Those damages were not recoverable because Ray knew of the damage as early as 2008, and her original lawsuit wasn't filed until 2012, one year after the three-year statute of limitations had expired. Slip op. at 7 ("Ray conceded this point during oral argument before this Court."). But that didn't prevent her from recovering from damage caused by the new act of the city (re-connecting the pipes, starting the problem all over again). 

File this one under the "you sure you want to do that?" department.

Ray v. City of Rock Hill, No. 28045 (S.C. Aug. 4, 2021)

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

New L Rev Article: "Floods, Fires, and Inverse Condemnation"

Here's what we're reading today (inter alia): Walter W. Heiser, Floods, Fires, and Inverse Condemnation, 29 N.Y.U. Envtl. L. J. 1 (2021).

From the Introduction:

This Article examines the proper application of the doctrine of inverse condemnation in two important areas: flood damage to private property caused by a public improvement (e.g., a flood control, storm drain, or sewer project), and wildfire damage to private property caused by a project (e.g., electricity or telephone lines) undertaken by either a public or privately-owned utility. Under the doctrine of inverse condemnation, a plaintiff may recover for a physical injury to private property caused by a public improvement as deliberately designed, constructed, or maintained.

....

How courts define the standard of liability in inverse condemnation cases will become increasingly important in both the flooding and wildfire contexts. The continuing nature of climate States and more wildfires in others. This Article examines issues concerning the standard of liability in both contexts with the goal of determining their proper resolution by the courts. While the analysis will often focus on California authorities, it draws upon sources from other jurisdictions as relevant.

We recommend you check it out.

Texas' Takings Statute Allows Claims For Both Physical And Regulatory Takings

Here's one we've been waiting to drop. In San Jacinto River Authority v. Medina, Nos. 19-0400, 19-0402 (Apr. 16, 2021), the Texas Supreme Court held that "statutory takings" under the Texas Government Code include both physical invasion takings as well as regulatory takings.

This case stems from flooding allegedly caused in part by the San Jacinto River Authority's release of water in response to Hurricane Harvey. The property owners whose land was flooded sued, asserting takings and inverse claims under both the Texas Constitution, and the "Private Real Property Rights Preservation Act." The Authority sought dismissal of the statutory claim arguing that it covers only regulatory takings, not physical takings like the takings here.

In case you are not familiar with the statute, it is a waiver of governmental immunity for lawsuits "to determine whether the government action of a political subdivision results in a taking under this chapter. Tex. Gov't Code § 2007.004(a). "Taking" is defined as actions that are defined as takings under the Texas or U.S. Constitutions, and actions that result in a diminution of value of at least 25%. The remedy under the statute are the ones not usually available in takings cases: invalidation or rescission of the government action that results in a taking. 

The Authority had a tough argument because the statute includes on a list of actions that are takings, "an action that imposes a physical invasion." But the Authority tried anyway, arguing that each action on the list refers to regulatory action by a local government, not as in this case, the Authority opening up the floodgates. The list, it argued, includes only those physical invasions that result from regulatory actions. Get it?

No deal, held the Supreme Court's majority:

The chapter provides that private property owners may bring suit to determine whether governmental action results in a “taking under this chapter.” Id. § 2007.021(a). “Taking” is defined broadly to include governmental actions that satisfy the takings standard under the federal or state constitution or that reduce the market value of the affected property by at least 25 percent. Id. § 2007.002(5). A compensable taking under the state or federal constitution can be physical or regulatory. Gragg, 151 S.W.3d at 554. And we have held under somewhat similar circumstances that a political subdivision’s decision to flood downstream properties for a public purpose can be compensable as a physical taking under the Texas Constitution. Id. at 554–55 (citing TEX. CONST. art. I, § 17). Chapter 2007 thus authorizes a statutory takings suit for governmental actions that constitute takings under the state or federal constitution (either physical or regulatory) or that cause a reduction of at least 25 percent in market value.

The River Authority does not deny the breadth of these provisions, nor does it deny that “physical invasion” may refer to a physical taking. Rather, it argues that a physical invasion can also be the consequence of a regulatory taking and that we should construe the language here to reference only that type of taking because that construction better fits the statutory scheme and its remedies. For example, Subchapter C of the statute envisions an orderly process through which a political subdivision proposes a covered governmental action that may result in a taking, prepares a written takings impact assessment of that action, and provides a 30-day public notice of its intentions. TEX. GOV’T CODE §§ 2007.042 (public notice), .043 (takings impact assessment). If the governmental action is found to be a taking under the chapter, the “property owner is only entitled to, and the governmental entity is only liable for, invalidation of the governmental action.” Id. § 2007.023. The chapter does not obligate the governmental entity to pay damages. Instead, the River Authority submits that this statutory scheme establishes a new procedure for preventing excessive regulatory takings before they occur, allowing for a single remedy: a judgment rescinding the challenged action. Id. § 2007.024(a). It submits that these requirements cannot be satisfied during a tropical storm and that the chapter’s remedy is of no benefit to the property owners, in any event, because they seek only damages caused by the flooding.

Slip op. at 10-11.

One Justice dissented, arguing that the statute's remedies (invalidation or rescission of the government action) didn't make any sense in this case because the flooding was already done and in a sense irreversible, and "[c]ontrary to these well-established limitations on the judicial power, the Court’s decision authorizes a statutory takings claim under Chapter 2007 of the Government Code even though a favorable judgment on that claim would do nothing to redress the plaintiffs’ alleged injury." Dissent at 3. No redress, no standing.

The majority rejected that line of reasoning, concluding that even though the court can't order the Authority to rescind its opening of the floodgates, the court could still determine whether there was a taking, and "invalidate" the Authority's actions, award attorneys' fees, and importantly determine the money damages the owners suffered, even if they cannot recover those damages under the statute. See slip op. at 12.

Want to find out more about what motivated the majority? Check out these resources:

• Briefs of the parties
• Oral argument video

San Jacinto River Authority v. Medina, Nos. 19-0400, 19-0402 (Tex. Apr. 16, 2021)

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

Law Students: Register Free For The 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, 2021)

Are you a law student interested in takings, eminent domain, land use, environmental, and other dirt-lawyering related topics? If so, good news: thanks to the generosity of ALI-CLE, you can register gratis (free!) for the upcoming 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics, risk-free. 

To register or to find out more, email me.

Surf And Turf (Our Beef With The Virginia Oyster Takings Case): Although Leases Are "Property," They Don't Confer A Right To Exclude Government Sewage

Often, the dispositive question in many takings cases tuns on whether the plaintiff owns "property," and if so, what rights does that recognize. If you define the property in such a way that ipse dixit excludes the "stick" the owner claims was taken, then the answer is always going to be no property, no taking. To us, this is largely a question of definitions and policy: is this interest, in a judge's view, worthy of constitutional protection?

And that's the wrong approach, because this analysis often seems more like a semantic exercise, undertaken by the wrong party. Instead of concluding, for example, that the property in a case is a lease (a recognized property interest) and then going on to ask whether there's been a sufficient interference with an owner's distinct investment-backed expectations, the question shifts from what we think is the proper focus (a fact question of the impact on an owner's use and actual expectations decided by a jury) to a policy question where the court decides what does and what does not merit protection as a matter of law. Not entirely satisfactory in our view, and leads to some analytical needles being threaded that just are not clear at all. 

Here's the latest example, in which the Virginia Supreme Court opinion has just dropped in a case we've been following since its inception, Johnson v. City of Suffolk. This is what we call the "oyster takings" case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting).

Short story: the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest. Or at least not a property interest worthy of constitutional protection. Thus, no takings claim when Suffolk and the Sanitation District dumped sewage into the river and pretty plainly interfered with some kind of right the plaintiffs owned in the lease. Just not enough of a right to require compensation.  

This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of jus publicum. The oystermen own a lease from the State of Virginia for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under the Virginia Constitution's taking or damaging clause (article I, § 11).

The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919). Put another way, the oystermen's bundle of property rights do not include the "stick" of either a clean environment, or harvestable oysters. The trial court acknowledged that the oystermen's lease is property, but concluded that the city and sanitation district possess a superior right to pollute the river with sewage. So the oystermen asked the Virginia Supreme Court for discretionary review (as did the municipalities, which cross-appealed).

The court heard arguments only a few weeks ago, and even though the Justices acknowledged that "[e]nvironmental protections certainly have changed a great deal in the years since we decided Darling[,] the court concluded that enlarging the scope of environmental protection did not expand the scope of the property rights the oystermen obtained. Slip op. at 8. We're not quite sure what to make of this, except to note that the court in essence concluded that all of the environmental protections and regulations are only limitations on government power and private rights, but don't create any rights that can be enforced outside of the regulatory context. In the words of Kaiser Aetna, these governmental actions did not "lead to the fruition of a number of expectancies embodied in the concept of 'property' expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property."

The Virginia court examined what rights the leases recognized:

The statutes and case law governing oyster leases lead to several conclusions. First, the petitioners’ leases confer on them the right to physically occupy state-owned bottomland and to exclude others. Code § 28.2-618; Power, 66 Va. (25 Gratt.) at 789. The respondents did not interfere with the petitioners’ rights to be on the leased lands. Second, the leases confer on the The statutes and case law governing oyster leases lead to several conclusions. First, the petitioners’ leases confer on them the right to physically occupy state-owned bottomland and to exclude others. Code § 28.2-618; Power, 66 Va. (25 Gratt.) at 789. The respondents did not interfere with the petitioners’ rights to be on the leased lands. Second, the leases confer on the petitioners the right to physical possession and harvesting of the oysters raised on the leased grounds, to the exclusion of other possible claimants. See Town of Cape Charles v. Ballard Bros. Fish Co., Inc., 200 Va. 667, 673 (1959). The respondents did not remove or physically destroy the oysters themselves. Third, there is a distinction between the water bottoms and the water itself. The petitioners do not own or control the waters that pass over the leased oyster grounds. Fourth, nothing under the governing statutes and case law or the leases themselves confers or presupposes a right to grow oysters in conditions free of pollution or guarantee a lessee a commercially viable oyster lease. To the contrary, the governing statutes contemplate the condemnation of polluted growing areas and oysters when sanitary conditions render the oysters unhealthy for human consumption. See Code §§ 28.2-804 through -807. The statutes further contemplate an abatement of rent if oyster grounds become polluted, Code § 28.2-627, and allow for the possibility of harvesting and “relaying” of oysters to cleaner grounds, see Code §§ 28.2-800, -811.

Slip op. at 8-9. And there's the problem: to us, these are questions that juries should be reviewing as factual matters, not policy questions by judges (or Justices). The takings inquiry, we've been repeatedly told, is a factual inquiry that looks at the character of the government action (physical invasion or not), and the extent of the interference with "distinct" (i.e., subjective) investment-backed expectations. But like the Virginia court here, many courts routinely treat these as questions of law, to be decided on the predicate "property or not" question.

And thus, we get analysis like this: the court also distinguished the cases on which the oystermen relied for their takings arguments, noting that while these cases concluded that a taking had occurred, the nature of the property right at stake was different:

The petitioners rely on a number of cases in support of their position: AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469 (2017); Livingston, 284 Va. 140; and Hampton Rds. Sanitation Dist. v. McDonnell, 234 Va. 235 (1987). In AGCS, the insurer for a grocery store sought to recoup insurance payments made when sewage overflows damaged the inventory of the grocery store. 293 Va. at 473-74. We concluded that such overflows constituted a public use, the personal property that was damaged as a result was recoverable, and the trial court erred in declining to grant the insurer leave to amend. Id. at 486-96. In Livingston, the Virginia Department of Transportation failed to maintain a relocated stream and instead “elected to use” nearby residential developments as “makeshift storage sites for excess stormwater.” 284 Va. at 159. We concluded that the improvements at issue constituted a public use, and that the damage to the plaintiff’s personal property was compensable. Id. at 160. Finally, in McDonnell, we rebuffed a number of challenges to an award for damage to private property when a bypass valve, operating as designed, poured excess sewage onto an adjacent landowner’s property. 234 Va. at 241-42. Arguments advanced by the Commonwealth included a claim that sovereign immunity barred recovery, that the statute of limitations applied, and that the plaintiff had failed to prove his damages with sufficient particularity. Id. at 238-42. None of those cases involved an oyster lease under Code § 28.2-603 and the limited rights conferred by such a lease. In addition, the landowners in those cases had a right to exclude floodwaters or sewage from their property. The lessees here have no right to control the water that flows over their oysters. The nature of the property right at stake here differs from the property right at issue in Livingston, AGCS, and McDonnell, and it compels a different outcome.

Slip op. at 10. In other words, if you are a Harris Teeter grocery store and your oysters get ruined because government floodwaters (AGCS), you may pursue a takings claim, but if your oysters are in a river and are ruined by government sewage, tough s**t.

We'll conclude by circling back to our original thought that the property analysis often gets us to analytical needles we can't mentally thread. Here's an example. The court concluded by noting that "[t]he petitioners also rely on Ballard Bros. Fish Co., 200 Va. 667. In that case, we held that the physical destruction or physical removal of the oysters due to a dredging operation did invade a property right conferred by a state lease, and was, therefore, compensable. Id. at 673. Lessees have a right to prevent others from physically taking or destroying their oysters or oyster beds. The right to avoid physical confiscation or destruction of the oysters, however, differs from an asserted right to raise them in favorable environmental conditions." Slip op. at 11.

We ask: were not the oysters here physically destroyed no less than the food destroyed in AGCS's grocery store? Yes, in both cases, the product still existed after the inundation, but they were economically and otherwise useless. 

We're not suggesting that the oystermen here should have been able to obtain compensation, merely that a jury -- not a judge or a panel of Justices -- should have made the call.

Johnson v. City of Suffolk, No. 191563 (Va. Dec. 10, 2020)

Recording Now Available In Virginia Supreme Court Oral Arguments In Takings, Property, And Public Trust Case

We listened live last week, but the court has now made the recording available in Johnson v. City of Suffolk.

This is what we call the "oyster takings" case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting).

This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of jus publicum. The oystermen own a lease from the State of Virginia for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under the Virginia Constitution's taking or damaging clause (article I, § 11).

Very interesting arguments that focused in large part on the "stick" question. What is the nature of the property right? Do the oystermen have a property right to useable, unpolluted oysters? Does the City have a duty to not put sewage into the river? Does it matter that the City lacks the power to condemn oysters by using its power of eminent domain. What is the effect of statutes which the Virginia General Assembly adopted after Darling, which limit the ability of municipalities to pollute? Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question.

Stay tuned.

Sixth Circuit: You Still Can't Sue States In Federal Court For Takings, Even After Knick

Property owners sued the State of Ohio Department of Transportation's Director (in his official capacity) in federal court after ODOT's highway project resulted in flooding of their land. They raised two claims: the first, a taking under the Fifth (and Fourteenth) Amendments, and the second a claim under 42 U.S.C. § 1983. The relief sought: a declaration that this is a taking along with just compensation, and damages for the section 1983 violation.

If you are thinking "what about the Eleventh Amendment?," you would be thinking like the U.S. Court of Appeals for the Sixth Circuit. In Ladd v. Marchbanks, No. 19-4136 (Aug. 20, 2020), the appeals court affirmed the district court's dismissal of the complaint. No federal court lawsuits against a state is the general rule. There are exceptions, of course, most notably when Congress abrogates the states' immunity, but the Supreme Court has held that section 1983 isn't one of those exceptions. 

The Sixth Circuit concluded that it was bound by an earlier circuit ruling (DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004)) which held that takings claims are not excepted. And Eleventh Amendment immunity includes not only the State qua State, but also when, as here, a state official is sued in his official capacity and the remedy sought would impact the state's treasury (in other words, the state is the real party interest).

The only new twist since DLX was that in the interim, the U.S. Supreme Court decided Knick. The plaintiffs asserted that the Court's use of the term "government" means that the Court implicitly recognized the Eleventh Amendment immunity did not govern takings claims against states. See slip op. at 5. The Sixth Circuit rejected the argument:

The fatal flaw in Plaintiffs’ argument is that the Court’s opinion in Knick says nothing about sovereign immunity. And as Plaintiffs concede, the defendant in Knick was a municipality, so it had no sovereign immunity to assert. (Id. (“As the Opinion in Knick dealt with the actions of a Pennsylvania township the Court was not forced to directly address the interplay between the Fifth Amendment’s taking clause and the state sovereign immunity of the Eleventh Amendment.”)); see N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006) (“[T]his Court has repeatedly refused to extend sovereign immunity to counties.”); Jinks v. Richland County, 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.”). Knick held only that takings plaintiffs are no longer required to exhaust their claims in state court before filing a federal claim—overruling Williamson Cty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)—it did not alter the sovereign immunity framework discussed above.

Slip op. at 6.

And what about the self-executing nature of the Fifth Amendment (footnote 9 from First English)? No, there too, held the court:

We held that “closer examination of [First English] reveals that [it is] concerned not with abrogating the states’ Eleventh Amendment immunity in federal court, but with noting that the Fifth Amendment’s requirement of just compensation forces the states to provide a judicial remedy in their own courts.” Id. And in Knick, the Supreme Court also rejected Plaintiffs’ reading of First English. It cited footnote nine in support of its holding about when a Takings Clause violation occurs, not against whom and in what forum such a claim can be brought. Knick, 139 S. Ct. at 2172–73. So First English also doesn’t require reconsideration of our holding in DLX.

Without a Supreme Court case that mandates modification of DLX’s holding, it binds us. Thus, Ohio’s sovereign immunity protects Marchbanks from Plaintiffs’ § 1983 claim for damages and erodes our subject matter jurisdiction.

Slip op. at 7 (footnote omitted).

Finally, what about the declaratory and injunctive relief sought by the plaintiffs? That would not impact the state's treasury. The court also rejected that argument, concluding that the complaint did not seek prospective relief because the property owners were seeking relief for damage already caused (not to stop future damage), so could not invoke the exception to Eleventh Amendment immunity from Ex parte Young, 209 U.S. 123 (1908).

Ladd v. Marchbanks, No. 19-4136 (6th Cir. Aug 20, 2020)

Federal Circuit: Be Grateful Your Property Was Flooded (It Could Have Been Worse)

It's been a long week, and it's Friday with a filing coming up. So we're not going to spend a lot of time digesting the Federal Circuit's opinion in Alford v. United States, No 19-1678 (June 19, 2020). Plus, it is a short one (11 pages) that makes one major point.

Short story: after an unusual amount of rain, to save a levee from a predicted 95% chance of breach, the Corps of Engineers decided to raise the normal levels of Eagle Lake, causing damage to the plaintiffs' lakefront properties. Their land was flooded for three months. The CFC agreed this was a taking, and awarded $168,000 in just compensation.

The Federal Circuit reversed (opinion by Judge Dyk, are you that surprised?). The court held that on the whole, the property owners should be grateful that the Corps flooded their lands, because the "relative benefits" doctrine. If the government flooding isn't greater than that which would have occurred if the government had not acted, no taking. See United States v. Sponenbarger, 308 U.S. 256 (1939).

The Federal Circuit concluded that if the Corps hadn't flooded the plaintiffs' properties to save the levee, a levee breach would have resulted in even worse flooding:

Even assuming that this narrow focus was correct, the plaintiffs make no claim that they would have been better off if the government had allowed the levee to breach. The government’s uncontested evidence showed that, in the event of a breach of the levee, the water level of Eagle Lake would have far exceeded that caused by the Corps’ intentional flooding. Each of the plaintiffs suffered considerably less damage due to the government’s planned flooding of Eagle Lake than if the levee had breached. The Claims Court expressly found that the plaintiffs had directly benefitted from the government’s action. The Claims Court found that it was “certainly true” that the flood protection offered by the levee and Control Structure “benefitted the plaintiffs.” J.A. 3. Absent government intervention, “the likelihood of [a] breach [of the levee] was over 95%.” J.A. 2. “If the levee had broken,” the “[p]laintiffs’ propert[ies] would have been totally inundated” and would have “suffered more serious damage than they actually did.” J.A. 3. “[T]he plaintiffs would have been far worse off . . . .” Id. Under the Claims Court’s findings, the benefit of the government action, with respect to preventing a breach of the levee, outweighed the damage caused by the government’s flooding of Eagle Lake.

Slip oop. at 8-9 (footnote omitted).

The court rejected the CFC's analysis, which looked a lot like a "special benefits" approach: if the benefits to the general public were substantial, it didn't matter whether the plaintiffs also benefitted. Slip op. at 10-11 ("The relative benefits doctrine considers only government actions directed to the particular property at issue and considers only government activities directed to mitigating the type of problem that caused the damage.").

The plaintiffs would have been "far worse off" if the Corps had not acted. Be thankful you ingrates!

Alford v. United States, No. 19-1678 (Fed. Cir. June 19, 2020)

Upcoming Judiciary History Center Program: "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic" - Wed., June 17, 2020, 5:30pm HST

Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we'll be speaking for the King Kamehameha V Judiciary History Center about "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic."

This is a one-hour program, open to the public, where we will take a dive into Hawaii's emergency preparedness and response laws, how Hawaii's courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center's YouTube channel. Here's the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during epidemics, as well as explain how courts in other jurisdictions are currently evaluating legal claims related to the Fifth Amendment.

The webinar will conclude with a live Q&A. Space is limited to 100 webinar attendees.

Register to learn about Robert's responses to popular questions that arose during quarantine, including:

• Can government officials require me to wear a mask?
• Can the police keep me from going to the beach?
• Can Hawaiʻi treat residents and tourists differently?

To join the live webinar, please register using the sign-up button below. Or, visit our Youtube channel to view the program's live stream feed on June 17, 2020 at 5:30 pm. The webinar will be recorded and posted to our Youtube and Facebook pages.

Register here.

Hope you can join us.

PS - once the ongoing situation is over, when you have a chance, you really should pay an in-person visit to the Center's facility, which is on the first floor of Aliiolani Hale, directly underneath the Supreme Court's courtroom. There's a historic trial courtroom, and displays on Hawaii's legal history.

Three New Property And Takings Articles From William & Mary Law Review

Looking for some property and takings scholarly reading while you cool your heels at home? Well, the William and Mary Law Review has recently published no less than three worthy pieces, all available for download.

• Charles D. Wallace, When (and Why) the Levee Breaks: A Suggested Causation Framework for Takings Claims That Arise From Government-Induced Flooding, 61 Wm. & Mary L. Rev. 603 (2019). An article authored by a (recently) former student of ours about takings liability for flooding, focusing on the "MR/GO" case and related issues. (The author is so modest, he didn't tell me his note was published!)
• Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019). The latest on exactions, focusing on whether the third part of the trilogy -- Koontz v. St. Johns River Water Management District -- has provided "momentum for a more significant expansion of [heightened judicial] scrutiny in takings cases[.]" The article contends "that Koontz's footprint thus far is rather light."
• Lee Anne Fennell, Property Beyond Exclusion, 61 Wm. & Mary L. Rev. 521 (2019). We all talk about the right to exclude being among the most fundamental sticks in the property rights bundle. Has that right to exclude become a "less useful, less necessary, and more expensive way of regulating access to resources[?]" Read the article and find out how Professor Fennell thinks about this intriguing question. 

Check them all out.

Join Us This Week: May 12-14, 2020 For (Virtual) Land Use Institute Webinar Series

Join us starting tomorrow, Tuesday, May 12, 2020 for the 34th Land Use Institute. Originally scheduled for April in Tampa, we obviously couldn't do tha, so we did the next best thing -- moved this venerable course online. The Planning Chairs (Frank Schnidman and Dean Patricia Salkin) have assembled the usual hot topics session and a lineup of expert faculty (we're speaking at the 2:45 ET session on Federal Laws (in our case, NEPA, Water, and Wetlands (including the Maui case from SCOTUS)). 

The program takes place over three days Tuesday, Wednesday, and Thursday, and you can either register for the sessions or all three days, with various discounts if you are a member of the American Bar Association, and even more if you are a member of the Section of State and Local Government Law. 

Here's the three-day agenda. There is a lot here to like, and we hope you can join us:

Tuesday, May 12th: Updates and Current Issues Explored

1:00-2:35pm: Update on Planning, Land Use, and Eminent Domain Decisions

2:45-4:15pm: Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making

Wednesday, May 13th: Climate Change, Land Use Practice and COVID-19

1:00-2:35 pm: Annual Richard F. Babcock Faculty Address: Overview of National and International Best Practices to Address Climate Change and Sea Level Rise

2:45-4:15 pm: Land Use Practice and COVID-19 (The Future of Zoning: The View from the COVID-19 Lens & Seeking and Dealing with Variance and Rezoning Requests)

Thursday, May 14th: Hot Topics in Land Use

1:00-2:35 pm: Hot Topics, Part 1 (Regulating Personal Transportation, Housing the Homeless, Redevelopment/Opportunity Zones)

2:45-4:15 pm: Hot Topics, Part 2 (Affordable Housing, Sustainability/Resilience, Eminent Domain and Takings)

Details on the faculty and each day's agenda here. Register for the program (all sessions, or ala carte) here. 

See you online! 

Join Us Next Friday, May 15 (2:30pm ET, 11:30am PT, 8:30am HT): FedSoc Teleforum: "COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?"

Please mark your calendars for Friday, May 15, 2020 at 2:30pm Eastern Time, for the teleforum sponsored by the Federalist Society's Environmental Law & Property Rights Practice Group, "COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?"  

The issue: how should courts evaluate the claims for compensation arising out of emergency measures? This question is on the front burner at the moment (and will continue to be because the courts will likely be confronted from these type of claims as the fallout continues). For example, here are some of the complaints that have been filed in courts around the nation: see here, here, here, here and here.  

Please join the program (public welcome). It will be a moderated discussion between two experts in the area, both of whom have been following the issue closely, and who have written about it:

• Professor Ilya Somin (George Mason Scalia School of Law)
• Professor F.E. Guerra-Pujol (University of Central Florida)

Professor Guerra-Pujol recently wrote "The Kelo Case Provides a Strong Legal Argument for Takings Clause Lockdown Compensation," while Professor Somin responded with "No, the Kelo Case Doesn't Require Takings Compensation for Businesses Closed by Coronavirus Shutdown Orders." We wrote up our thoughts in "Evaluating Emergency Takings: Flattening The Economic Curve."

I shall moderate the program. More details on the teleforum here. 

New SCOTUS Amicus Brief Highlights Govt's "Categorical Duty" To Compensate, Even Without Substantial Damage To Remainder

CHALLENGE: find the "damage" on the Loretto building

Here's the amicus brief filed today by Pacific Legal Foundation that urges the Supreme Court to grant our cert petition in a case that asks:

To constitute a taking under the Fifth and Fourteenth Amendments, must a physical invasion also destroy or substantially impair an owner’s economically beneficial uses of property?

Yes, takings mavens, we're talking Loretto and related. (If you want to see the truly "de minimis" invasion -- and no damage -- that resulted in Justice Marshall in that case concluding that the Takings Clause imposes a "categorical duty" to provide compensation for physical invasions, check out some recent photos of the Loretto building on Manhattan's Upper West Side.)

Here's the amicus brief's Summary of Argument:

The Fritzes’ petition for a writ of certiorari raises an important question concerning the protections provided by the Takings Clause of the Fifth Amendment of the U.S. Constitution. Specifically, it asks whether a property owner who is subjected to an actual physical invasion of property by government-induced flooding must show that the invasion deprived the owner of “all economically beneficial use” before the government will be obligated to pay just compensation for a taking. App. 36.

The answer is no: “when there has been a physical appropriation, ‘we do not ask . . . whether it deprives the owner of all economically valuable use’ of the item taken.” Horne v. Dep’t of Agric., 576 U.S. 350, 135 S. Ct. 2419, 2429 (2015) (quoting Tahoe–Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002)). Instead, this Court has consistently held that when the government causes a physical invasion of private property, it has a “categorical duty” to compensate the owner for the full extent of the taking. Arkansas Game & Fish Comm’n, 568 U.S. at 31 (quoting Tahoe–Sierra Pres. Council, 535 U.S. at 322). This duty arises whenever the government invades private property—it is not contingent upon the degree to which the physical invasion interferes with the owner’s ability to use unaffected portions of the property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (requiring compensation where the government required property owner to install a small cable box on the property).

In the decision below, however, the Nevada Supreme Court held that that a physical invasion of private property will not constitute a compensable taking without a showing that the invasion resulted in “substantial injury,” which the court wrongly defined as a deprivation or impairment of all economically beneficial use of the land. App. 5, 36. Based on that conclusion, the Nevada court held that Washoe County was not obligated to compensate the Fritzes for having taken a flowage easement over their property simply because the Fritzes were able to make use of their home while the property was flooded. App. 5. That conclusion is premised on a fundamental misunderstanding of takings law and conflicts with this Court’s many precedents holding that government-induced flooding constitutes a substantial injury, e.g., Pumpelly v. Green Bay Co., 80 U.S. 166, 177–78 (1872), and that the Fifth Amendment requires compensation to the extent of the taking—even if the invasion is temporary, intermittent, or results in minimal damages. Arkansas Game & Fish Comm’n, 568 U.S. at 31, 38; Loretto, 458 U.S. at 435.

Amicus urges this Court to grant the Fritzes’ petition to resolve the conflicts created by the Nevada Supreme Court and to reaffirm the principle that the Fifth Amendment obligates the government to pay just compensation for a physical invasion of private property by the government to the full extent of the taking. A rule that relieves the government of this obligation whenever a physical invasion leaves the property owner with some residual use of the property would turn the Fifth Amendment on its head by effectively authorizing the very type of physical taking that this Court has always held to be compensable.

Br. at 2-4. 

Now we wait. Washoe County has waived response, and the case is scheduled for the Court's May 1, 2020 conference. Stay tuned. 

Brief Amicus Curiae of Pacific Legal Foundation, Fritz v. Washoe County, No. 19-1175 (Apr. 24, 2020)