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Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this "breaking news" report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

• 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.

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.

Don't miss out on San Diego: we have had record attendance in recent years, so hold your space now. #EminentDomain2025

Montana: It Doesn't Take Much To Allege An Inverse/Takings Claim (Nor Should It)

The owner's land is a peninsula most of the time, but when Flathead Lake, Montana, rises a few months each year, it needed a bridge to access. So it asked the County "How about a bridge? We will only use it when the water rises." County said yes, issued a permit.

NIMBY neighbors, however, had another idea, They sued the County to void the permit: "What about the Montana Lakeshore Protection Act?" they asked. Trial court agreed, declared the permit void, and ordered the owner to restore the area to its natural state. Montana Supreme Court affirmed.

Next up: the owner's inverse claim against the County. We got a vested property interest, and "removal of the bridge by court order amounted to a taking[.]" Slip op. at 3. Trial court agreed with the County that the permit was void ab initio, and thus no vested property right. Moreover, the owner could not show that the County had taken or damaged the partial bridge for public use (the bridge came down because of the Montana Lakeshore Act, not us said the County). Back up to the Montana Supreme Court.

In Flathead Props. v Flathead County, No. DA-24-0233 (Dec. 31, 2024), the court reversed. This was an appeal from a motion to dismiss, so the court took as true the allegations in the complaint. There was reliance on the permit, and "[o]nce the bridge was constructed, Appellant presumably owned the bridge in fee and had the right to use, exclude, transfer, or dispose of the property ... [and] seemingly had a constitutionally protected property interest in the bridge itself." Slip op. at 7.

The court also analyzed the complaint's allegations as a regulatory taking (even though it was pleaded as an "inverse" claim):

Here, appellant’s complaint asserts it had a vested property right in the bridge, as described above. Additionally, appellant asserted the bridge added value to its property and the removal of the bridge thus deprived appellant of all use of the bridge. Appellant’s complaint also asserts it relied on the County’s permit to expend money and construct its bridge. Finally, appellant asserts the County deliberately issued the permit which later turned out to be faulty. As such, we find the facts asserted by appellant’s complaint are also sufficient to withstand a 12(b)(6) dismissal under a regulatory takings analysis

Slip op. at 8-9.

What about the notion that an owner cannot reasonably rely on an invalidly-issued permit? Not dispositive: "[t]his Court has not yet considered whether reliance on a faulty permit" can result in a vested right. Slip op. at 5. And what about the idea that no bridge for part of the year does not seem to lead to a conclusion that the entire property can't be used, or that the bridge removal rendered it valueless. Indeed, the court carefully avoided the merits of the case, noting only that "[w]e make no judgments on whether Appellant's claims would win at trial or survive a motion for summary judgment after further development of the factual record." Id.

This is the right approach at the pleading stage. The place to weed out factually weak claims is summary judgment, not motions to dismiss. More courts should take heed and approach this the same way. Instead, we see most courts serving as gatekeepers, throwing out many if not most takings claims at the pleadings. Rather than having the complaint do what complaints do (provide notice of the basic facts and the plaintiff's beef with the defendant), takings complaints are often treated by courts as technical exercises like when you plead fraud -- they require particularity, invocation of magic words, and hypertechnical pleading.

Be like Montana!

Flathead Props. v Flathead County, No. DA-24-0233 (Montana Dec. 31, 2024)

New Article: "Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution"

For those of you who follow the wildfire/inverse cases (centered in, although not exclusively, California and Hawaii), you might want to check out this article by a fire engineer: Vytenis Babrauskas (aka "Dr. Fire"), "Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution."

As the title suggests, the article is an analysis of the situation, including the legal liability (see Section 5: "Tort Laws, Strict Liability, and Inverse Condemnation"). Dr. Babrauskas argues for abrogation of a lawsuit-based system, and replacement with a compensation scheme akin to worker's comp.

Here's the Abstract:

If electric power is distributed by an overhead network of cables, the ignition of wildland fires is unavoidable, although prudent management efforts can reduce the losses. The economic aspects of these fires are driven by tort litigation, which tends to create serious problems of social fairness. The present system does not contain adequate incentives towards minimizing these costs, nor appropriate measures to ensure that costs are allocated in a fair manner. The problems are universal, but a specific focus on the wildfire situation in California is assumed. The electric utilities there are regulated by the California Public Utilities Commission, and the regulations are almost wholly prescriptive. Striking is the absence of any benefit/cost considerations in the regulation of utilities. Regulations have also created distortions in the insurance market, notably subsidizing fire-unsafe behaviors. The legal and regulatory system should be changed to promote fire-safe behaviors. It should also be changed to more fairly apportion the cost burdens. A strategy which should be adopted more widely is that of Public Safety Power Shutoffs. The optimal solution is to enact legislation to create a no-fault system, similar to Workers’ Compensation. In such a system, tort-based liability litigation is replaced by a system which provides basic compensation to wildfire victims, irrespective of the cause and associated fault. However, reform of insurance regulation and zoning are also required.

Worth checking out.

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!

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)

Govt: We Were Really Really Really About To Pay...Until You Forced Us To Pay! Sewer Board Seeks Rehearing In Self-Executing Just Comp Case

Just a few posts ago, we put up the Louisiana Supreme Court's opinion in a case where property owners obtained a final inverse condemnation judgment ordering the New Orleans Sewer Board to pay just compensation.

Then...crickets. The sewer board did not satisfy the judgment. It relied on a provision in the Louisiana Constitution that says that the state and local governments don't need to pay civil judgments except when they want to.

The Louisiana Supreme Court didn't see it that way, and held that just compensation is "self executing" and that paying it is a ministerial duty, meaning that no statutory authorization is needed, and mandamus to compel payment is an available remedy for non-payment.

Now, the sewer board has asked the court for a do-over. In its motion for rehearing, it asserts that that earlier federal litigation is res judicata and already resolved the issue (although that case only held that a federal civil rights claim was not available, at least absent a showing that state law mandamus is not a viable remedy, which it turned out to be).

Perhaps the oddest -- or most chutzpah-y -- claim the sewerage board makes is that it is ready to pay up ... if only you gave us more time!

In truth, Korban and the SWB have been chronologically paying judgments, consistent with the SWB’s policy. Some of Plaintiffs were next in line to be addressed pursuant to the SWB’s policy and an offer of settlement would have been made promptly even in the absence of this litigation.

Br. at 7.

Come on, man, we're getting to it!

If you want to read more, here are the briefs:

• Sewerage Board's brief in support of motion for rehearing
• Property owners' brief in opposition

Stay tuned.

Plaintiffs-Respondents' Brief in Opposition to Application for Rehearing, Watson Memorial Spiritual Temple...

WVa: Tort, Not Inverse (At Least Where Municipalities Are Involved)

The line between negligence torts and inverse condemnation can be a fine one. In Roman Realty, LLC v. City of Morgantown, No. 220587 (June 11, 2024), the West Virginia Supreme Court came down on the tort side.

Now before we go on, a caution: technically speaking the claimant did not assert an inverse condemnation claim. Rather, after the city removed trees and altered the slope of land such that surface water increased on the owner's land, it brought a petition for mandamus to compel the city to institute eminent domain proceedings. There are places that approach it that way.

Here's the gravamen of the petition:

In its verified petition for writ of mandamus to compel eminent domain proceedings, Petitioner alleged that during project construction, eleven trees were removed from its property and “approximately 1,000 square feet of Petitioner’s property was excavated and used as a dump site.” Additionally, Petitioner stated that eight additional trees were heavily damaged by the project. Finally, Petitioner averred that the slope of its property was greatly altered and surface water increased as a result of Respondent’s activities, leading to “a massive issue of surface water” on Petitioner’s property.

Slip op. at 2.

The trial court granted summary judgment to the city, because the owner could sue in tort (and thus has an adequate remedy at law, and thus no mandamus).

The Supreme Court affirmed. It first acknowledged that the West Virginia Constitution requires just compensation or damages when property has been taken. [B]ut it does not mention or require that such compensation be in the form of eminent domain." Slip op. at 4. Thus, a property owner's rights may be protected if West Virginia law recognizes a tort remedy here.

The court next distinguished such claims against the state (as opposed to claims against a municipality). Yes, the mandamus-to-compel-eminent-domain is a well-settled feature of West Virginia procedure. But that is only in cases against the State, because the State has sovereign immunity from tort claims. But that immunity does not necessarily cover municipalities, which can be sued in tort for damages. And here, the city's lawyer at oral argument conceded that the city does not enjoy "blanket immunity" for torts. Slip op. at 6-7 ("Because Respondent’s counsel plainly stated there was no blanket immunity for Respondent, Respondent did not raise statutory immunity in its amended summary judgment motion before the circuit court, and the circuit court did not address statutory immunity in its order, the Tort Claims Act is not a bar to Petitioner’s ability to receive just compensation through a tort action in this case.").

The court also rejected the owner's argument that a tort claim for damages is not as good as the just compensation remedy. No, the court concluded, "remedies available to a property owner in a tort action against a municipality are, in fact, the same as those available from the State in a condemnation proceeding." Slip op. at 7.

Because the owner was granted leave to amend its complaint to allege a tort claim for damages, the court was satisfied nothing would be lost substantively (at least in this case, as opposed to a future case where the municipality did assert a greater scope of sovereign immunity). Here, the owner merely alleged the incorrect cause of action, an action that amendment would remedy.

Roman Realty, LLC v. City of Morgantown, No. 22-587 (WV June 11, 2024)

Cal App: Inverse Complaint Alleged That Wildfire Was Substantially Caused By Inherent Risk, And That's Good Enough

In Simple Avo Paradise Ranch, LLC v. So. Cal Edison Co., No. B320948 (May 23, 2024), the California Court of Appeal (Second District) held that a complaint adequately alleged a claim for inverse condemnation by asserting a privately-owned public utility's actions substantially caused a wildfire.

The court rejected the utility's argument that alleging that the utility knew its infrastructure was old and improperly maintained and it failed to remediate these known risks was not enough to show substantial causation, and that this negligence shows only that its actions were a concurrent (and therefore not substantial) cause of the wildfire.

The court's analysis turned on the California Supreme Court's Oroville decision in which the court refined the "substantial causation" requirement where a secondary concurrent cause may be enough to absolve the government from inverse liability.

A large part of the opinion is about whether a stipulated judgment is appealable (yes, it is), and if you are an appellate wonk, please read that part. But start on page 20 if you want to understand what drove the court's conclusion on what it takes to adequately plead an inverse claim in a California wildfire (or other "negligence-like") inverse claim.

Here, the master complaint alleged that SCE knew its infrastructure was old and improperly maintained for safety, yet it failed to properly assess and remediate these known risks, resulting in the Thomas Fire and other wildfires. On December 4, 2017 SCE’s electrical distribution system, including its power lines, conductors, electrical infrastructure and equipment and transformers “arced,” igniting the Thomas Fire at two separate locations. Although it had the authority to do so, SCE did not power down its electrical infrastructure before the Thomas Fire ignited, despite a “Red Flag Warning” of high winds and hazardous conditions. The Thomas Fire burned more than 281,000 acres in Santa Barbara and Ventura Counties. Simple Avo further alleged its property in Ventura was destroyed causing damage to its crops, structures, and loss of profits. The master complaint concluded, “The above described damage to Plaintiffs’ property was legally and substantially caused by the actions of SCE in their installation, ownership, operation, use, control, management, and/or maintenance of the electrical distribution system for a public use.”

These allegations are sufficient to allege Simple Avo’s damages were “substantially caused” by SCE’s old and improperly maintained electrical distribution system.

We are not persuaded by SCE’s argument that its own negligence is a concurrent cause of the Thomas Fire that absolves it of inverse condemnation liability.

Slip op. at 34-35.

Case remanded for more.

Simple Avo Paradise Ranch, LLC v. So. Cal. Edison Co., No. B320948 (Cal. Ct. App. May 23, 2024)

Texas: If TxDOT Intentionally Cut Down Trees Outside Of Easement Area...You Have An Inverse Claim

The Texas DOT had an easement over a portion of the Self property. The Selfs rebuilt a fence a few feet inboard of the easement (in other words, well into the part of the land not burdened by the easement). On the TxDOT side of the fence -- but still outside the TxDOT easement area -- grew some old trees.

As part of a highway maintenance project, TxDOT worked with a private contractor which it hired to remove brush and trees from the easement. The trees to be removed were supposed to be marked with an "X," but the instructions to the contractor said to "clear everything between the fences." Whoops.

The contractor did as instructed and "cut all trees up to the Selfs' fence line." TxDOT acknowledged that the trees were cut at its direction and that it has not undertaken a survey, but asserted that the trees were on its side of the fence. Hold on, replied the Selfs. Here's a survey showing that 28 oaks and elms were removed from our side of the fence. And 13 of those trees were entirely outside the TxDOT easement (and another 7 partially outside). The cost of those trees that you were not supposed to cut down is $250k. TxDOT: sorry, no.

Lawsuit followed, alleging (1) negligence, and (2) inverse condemnation. Trial court denied TxDOT's plea to jurisdiction, and the court of appeals affirmed in part. The court of appeals concluded that the negligence claim might not be subject to the state's claim of sovereign immunity, but that there was no evidence that TxDOT intentionally destroyed the trees (and thus no claim for inverse condemnation). Cross-petitions followed.

In Texas Dep't of Transportation v. Self, No. 22-0585 (May 17, 2024), the Texas Supreme Court, which concluded that the negligence claim is subject to the State's sovereign immunity defense, but that the inverse claim could proceed because they alleged facts sufficient to raise a dispute about whether TxDOT intentionally destroyed the Selfs' trees. We're going to let you read that part of the opinion devoted to negligence claims if that floats your boat, and focus here on the inverse analysis, which begins on page 18 of the slip opinion.

There's a lot to like in Justice Busby's explication of property rights and inverse doctrine. Most illumination for us was the notion that in Texas, and inverse claim requires some proof that the government acted intentionally. Why is this so? "Although the Constitution does not expressly require an intentional act, we have explained that such a requirement helps ensure that the taking is for 'public use.'"  Slip op. at 20. To show intent, the owner must show the government either intended to damage the property, or knew that its conduct would cause harm (or was substantially certain to do so).

The Selfs argued they met that standard by showing that a TxDOT employee expressly told the contractor to cut down the trees:

Here, the Selfs alleged and the evidence shows that TxDOT intended to damage the property: a TxDOT employee expressly directed TxDOT’s agents to cut down the trees at issue, and it is undisputed at this stage that doing so destroyed the Selfs’ personal property. The Selfs owned the land on which the trees stood—and thus the trees themselves—both within and outside TxDOT’s right-of-way easement. And their survey shows that at least twenty of the felled trees were wholly or partially outside the easement, so TxDOT cannot rely on that easement to show consent. In addition, the record contains ample evidence—including TxDOT’s contract with TFR—that TxDOT directed the trees’ destruction as part of exercising its authority to maintain the highway right-of-way for public use.13 That is all the plain text of Article I, Section 17 and our precedents require to maintain a constitutional claim of compensation for inverse condemnation.

Slip op. at 21-22.

The court held that unlike other cases where the government's intentional conduct merely set a chain of events into action that eventually resulted in the damage to the property, "[h]ere, TxDOT employees intended to physically destroy the trees for a public use and directly ordered TxDOT’s agents to cut them down, which they did. This intentional government conduct was not the cause of an eventual taking—it was the taking." Slip op. at 25.

Finally, the court rejected TxDOT's argument that "intent" requires a showing that it meant to cut down what it knew were trees outside of the easement area. Not so, held the court, it is enough that you intended to cut down the trees. Slip op. at 27 ("The words of our Takings Clause do not remotely suggest that a property owner must prove the government had a particular “impetus” or mindset regarding whether its intentional taking of property for public use was permissible."). 

Overall, an opinion well worth your time to read and savor. A hearty congratulations to our colleagues at Barron Adler for the successful outcome. Especially Andrew York, who argued the case.

Texas Dep't of Transportation v. Self, No. 22-0585 (Tex. May 17, 2024)

Oregon: Statute Of Limitations On Physical Inverse Claim Runs From The Occupation, Even If It Was Permissive

Before we go on, a disclosure: this is one of ours (we filed an amicus brief in support of the property owners).

In Walton v. Newkowin Regional Sanitary Authority, No. S069004 (May 23, 2024), the Oregon Supreme Court held that the six-year state statute of limitations applicable to physical invasion inverse condemnation claims (under both the Oregon and U.S. Constitutions) begins to run at the time of the invasion, and not when subsequent events show that the invasion was adverse to the owner's property rights. 

This case went up the appeals chain after the trial court granted the Authority's motion for summary judgment. The background of the case is that back in the day (1995, although some of us actually remember that far back), the Authority installed two sewer lines on land belonging to the plaintiffs' father. This was done without the owner's permission. Slip op. at 3. 

But three years later, the Authority entered into an agreement with the plaintiffs' father under which the Authority was granted an easement, provided that if the Authority ever required the landowner to connect to the sewer system, the owner could do so for free. "But [the Authority] 'never prepared an easement document' and 'never recorded an easement.'" Id. 

Flash forward to 2014. By now, father was no longer the owner, and the kids had it. The Authority informed them that their septic system had failed and "they needed to connect to the sewer system." Id. No sweat they thought, the Authority agreed with dad that if required, it would be a free hook up. Well you guessed it, after the kids asked the Authority, it said no. Slip op. at 4.

Next stop (2017): an Oregon trial court on state and federal inverse claims (the kids did not assert a breach of contract claim). They alleged that the Authority installed the sewer lines without acquiring an easement by agreement or by eminent domain, and sought just compensation. What about the fact that the physical invasion was in 1995, well beyond any statute of limitations? The kids asserted that a state statute cannot limit the right to seek compensation for a taking. "In other words, plaintiffs asserted that their claim could not be subject to a statute of limitations." Slip op. at 5.

The Authority responded by agreeing that it installed its sewer lines in 1995 without the owner's permission, but denied that it ever agreed with father for a free hook up if later required. And if there was an oral agreement, it wasn't in writing so therefore could not be enforced (statute of frauds). And yeah, the inverse claim was subject to Oregon's six-year statute of limitations for "waste or trespass upon or for interference with or injury to any interest of another in real property," and the SOL long ago ran, with the lawsuit window opening when the Authority installed the sewage lines in 1995. Slip op. at 6. It sought, and the trial court granted, a motion for summary judgment "on the ground that plaintiffs' inverse condemnation claim was untimely." Id. The court of appeals affirmed. 

After some background on inverse condemnation doctrine (both Oregon and federal - see pages 9-17), the court noted this is a physical and not a regulatory takings claim. It reviewed and rejected each of the kids' arguments that the six-year SOL did not stand in the way of the 2017 complaint.

First, the court rejected the argument that just compensation claims generally are beyond the reach of a legislature's ability to place a time limit on them. Yes, it is a constitutional obligation to provide just compensation when property is taken, but the U.S. Supreme Court and other state courts have at least implicitly applied legislative time limits to compensation claims. See slip op. at 18. Statutes of limitations are part of the "processes for obtaining such compensation," and must be complied with. Slip op. at 21.

Second, the court rejected the argument that physical takings claims cannot be subject to time limits. Nope, these are just a subspecies of just comp claims noted above.

Third, the court rejected the argument that the trigger for the statute beginning to run is not the physical occupation, but when the government refuses to provide compensation. The kids argued that merely taking property is not unconstitutional, and as the U.S. Supreme Court has emphasized, the bad act is the failure to provide just compensation. If that's so, the statute didn't begin to run until the Authority denied that it owed anything, which didn't occur until 2014. Not so, held the court. The SOL starts to run when the aggrieved party can sue on it (noting that federal law puts it as when the cause of action is complete and present). Slip op. at 26. And owners can bring inverse claims "when the physical occupation occurs." Id. The court differentiated between Oregon law (which says that it is ok to take and not pay, as long as there's a subsequent process available for the owner to obtain compensation), and federal law says the same thing (but in a different way). 

The court rejected the kids' argument that Knick suggests otherwise, concluding that the U.S. Supreme Court has concluded that owners can't stop takings merely because compensation isn't provided contemporaneously. "Therefore, the Court continued, as long as post-taking compensation is available, prospectively preventing the government from committing the violation in the first place is unwarranted." Slip op. at 30 (citing Knick, 588 U.S. at 202). Compensation is a remedy for a taking, not a condition precedent.

Having rejected each of the owner's arguments, the court had little difficulty holding that the statute started to run when the Authority placed its sewer lines in 1995. That's when "plaintiffs' father could have initiated a takings claim." Slip op. at 34.

But what about that (alleged) oral agreement that father said he entered into with the Authority? Even assuming there was such an agreement, it only mattered if the agreement "somehow tolled the running of the limitations period." Id. But, the court concluded, "the plaintiffs have not made a tolling argument." Id. Moreover, even if there were such an agreement for a free hook up, the occupation by the Authority was permissive, and the remedy for the Authority breaching the agreement is in contract, not takings. Slip op. at 36 ("The [owner's] concern related to the breach of an agreement; it was not a claim that his property had been taken without his consent. Consequently, he needed to bring a contract or quasi-contract claim, not an inverse condemnation claim.").

We'll wrap this post up with this, from our amicus brief:

The Court of Appeals’ categorical rule has resulted in an absurdity: the only timely physical takings claim the Waltons could have asserted must have been filed at a time when they believed the Authority’s sewer line was on their property with their permission. They obviously did not know at that time that, decades later, the Authority would assert that the free hook-up agreement never existed. The Court of Appeals’ rule would require the Waltons to have brought their physical invasion takings claim in the early 2000’s, long before they even sought to connect to the Authority’s sewer line.

As we've noted previously, statutes of limitations cases can be difficult if not impossible to navigate for property owners. First, if an owner doesn't sue early and often, she is subject to government claims that she waited too long. But if the owner sues at what appears to be the first opportunity, she is very frequently met with government's claim that it is too early to sue because the claim isn't fully developed yet (ripeness). In some cases, the government actually argues that the lawsuit is both too early and too late. And courts eager to get rid of these cases are mostly just fine with it. 

Walton v. Neskowin Regional Sanitary Authority, No. S069004 (Or. May 23, 2024)

La Cour suprême du Canada: In Constructive Takings, Compensation Calculated Without Reference To "The Scheme"

Readers know that from time-to-time, we like to cover the going's on in the courts of our neighbors to the north. See here and here, for example. Although property rights are not a constitutional principle in Canada (the people did not include property as a fundamental constitutional right when the Constitution was amended last), there's a lot for U.S. lawyers to learn from the way Canada law treats those from whom the government must expropriate property (either directly, or in what they call "de facto" or constructive takings (i.e., regulatory takings and inverse condemnation). In some ways, their system treats property owners slightly better than our constitutional system.

Well, here's the latest in a case we've been following.

In St. John's (City) v. Lynch, 2024 SCC 17 (May 10, 2024), the Supreme Court held that compensation in a de facto taking is calculated by excluding the effects of the challenged regulation. What they call up there the "Pointe Gourde principle" -- the idea in expropriation valuation that the effects of "the scheme" should not influence the calculation of compensation -- what we call "the scope of the project" rule, or even the "before and after" rule. 

Rather than continue to delve into areas well beyond our expertise and understanding, we're going to refer you to a blog post by our Toronto friend and colleague Shane Rayman and his firm colleagues Conner Harris and Leah Cummings. They filed a friend-of-the-court factum on behalf of the Canadian Home Builders Association. The Court adopted much of their reasoning, by the way.

In "Supreme Court of Canada Clarifies Law of Constructive Takings," they write:

The Court confirmed that the Pointe Gourde principle, also known as “screening out the scheme”, applies to constructive takings in the same way as it does to statutory or de jure expropriations. The Pointe Gourde principle is a common law rule invoked as part of the determination of market value when land is expropriated. The principle seeks to remove extrinsic influences associated with the taking, ignoring both increases and decreases in value caused by the expropriation scheme to avoid placing an economic burden on the expropriated owner or granting to them a windfall gain (para 37). The Court clarified the application of the Pointe Gourde principle and confirmed that land-use regulations undertaken “with a view to the expropriation” must be screened out when determining the market value of expropriated land. This is the case regardless of whether the taking is de jure or constructive.

Check both the opinion and their post out.

Many good lessons await for U.S. property lawyers.

St. John's (City) v. Lynch, 2024 SCC 17 (Supreme Court of Canada, May 10, 2024)

"Breaking Down the Supreme Court Ruling on Permit Fees" (Thursday, Apr. 25, 2024, 4pm ET/1pm PT)

Be sure to join our Pacific Legal Foundation colleagues Brian Hodges and Larry Salzman, and Paul Beard (arguing counsel) and Chance Weldon (Texas Public Policy Foundation) tomorrow, Thursday, April 25, 2024, at 4pm ET for a free webinar on Sheetz v. El Dorado County, the Supreme Court's recent decision holding that all permit conditions are subject to the nexus and proportionality tests of Nollan and Dolan.

Here's the description:

Pacific Legal Foundation just won its 18th Supreme Court victory! Join us for a virtual discussion to learn more about the case, Sheetz v. County of El Dorado, and how it helps secure property rights (and lower housing costs) for everyone. 

When George Sheetz wanted to build a modest manufactured home on the property he bought in El Dorado Country, California, the government told him he was going to have to pay a “traffic impact fee” of more than $23,000 in exchange for a building permit. Even worse, the fee would go toward projects that were not tied to the actual impact of George’s home.  

George challenged the fee as an unconstitutional abuse of the permitting process. On April 12, the Supreme Court sided with George in a unanimous decision. At this post-victory discussion, attendees will hear from Paul Beard, the former PLF attorney now at Pierson Ferdinand who argued George’s case before the Court. You’ll also hear from PLF attorney Brian Hodges, who worked on George’s case, and Texas Public Policy Foundation’s Chance Weldon as they break down the Sheetz decision and its significance for property rights and housing costs. 

Register here (free)!

 

Our thoughts on the decision here ("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 (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)

New Article: 2024 National Eminent Domain Update (Practical Real Estate Lawyer, May 2024)

Thanks to our co-author, the ever-wonderful Amy Boulris, and the good people at ALI-CLE for shepherding us through the process of getting the 2024 National Eminent Domain Update published in The Practical Real Estate Lawyer, and for allowing us to post it here.

This is our summary of what we think were the most interesting -- if not the most important -- eminent domain cases over the past year from state and federal courts.

Amy Brigham Boulris & Robert H. Thomas, 2024 National Eminent Domain Update (ALI-CLE Prac. Real Est. Lawyer...

"What is Inverse Condemnation?" Join Us In the EDROW Clubhouse, March 6, 5pm, To Find Out (And More)

Save the date (and time): next Wednesday, March 6, 2024, at 5:00 p.m., Eastern Time, as we rejoin our friends and colleagues Patrick McAllister and Beth Smith, as they co-host the Eminent Domain and Right of Way Club.

We'll be joining them to try and answer that question, "What is Inverse Condemnation?" As Patrick and Beth note, "[w]e will find out what it is, how it works and when does it happen....and probably a lot more." Sounds intriguing.

For those of you who may not have participated in one of these sessions before, you may be wondering "what is this 'Clubhouse' thing?" Here's the description, straight from their site:

The Eminent Domain & Right of Way Club is on the Clubhouse Drop in audio app. This Club is geared toward right of way professionals & anyone interested in the acquisition of land rights for infrastructure projects.

In short, it is a smartphone-only app, that connects participants to an audio-only chat room, where you informally hang out and listen to Pat and Beth speak with a guest, followed by a moderated open-mic (again, audio) chat room. Having participated before, we can say it is a very informal, friendly, and collegial venue to learn and discuss things. No pressure, no big whoop. It's just talk.

Come give it a try!

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

Dig Property Rights? Join Our Firm As A Courtroom Property Rights Lawyer

If you dream such dreams as this photo, read on.

My law firm, Pacific Legal Foundation, is on the hunt for lawyer to join our Property Rights group (yours truly is the Director of Property Rights Litigation, so you will be working with me and the other takings and con law mavens in our practice). Here's the full description of the spot:

You: An entrepreneurial freedom fighter with a passion for property rights litigation. You work with more senior-level attorneys to find and win cutting-edge property rights cases in trial and appellate across the country. You work as a part of a collaborative team, but are also self-motivated and able to work independently with minimal supervision. You are eager to learn, relentless, and a focused lawyer.

Them: Bureaucrats, city councils, mayors, governors, and federal agencies stripping Americans of their rights every day. There’s a lot of government overreach out there, and it’s backed by seemingly endless resources. But fortunately, like all lumbering giants, abusive government is most vulnerable when countered by individuals who act strategically and nimbly, take calculated risks, have each other’s backs, and are confident in, and passionate for, the cause—the very sort of property rights swashbucklers we employ in spades here at PLF.

Us: We fight back. Pacific Legal Foundation is the nation’s first and most successful public interest law firm dedicated to vindicating individual liberty and protecting the fundamental right to property as the “guardian of every other right.” PLF has an unmatched record in the United States Supreme Court, with 17 victories in the Court. We also are actively litigating more than a hundred cases in trial and appellate courtrooms across the nation.

We are a next-generation public interest law firm. What does “next-generation” mean for a legal nonprofit? It means we aren’t interested in doing the same thing as everyone else. We aspire to be the best player in a constantly changing game.

Here’s what you get to do in this role:

You will be a courtroom lawyer in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery to Tyler, PLF’s property rights litigation is unparalleled. You will help find and win the next important Supreme Court property rights case, becoming recognized as a nationwide leader on property rights litigation. Occasionally, You will have opportunities to speak at conferences or with the media about your cases or important property rights issues.

You will be a key contributor to PLF’s property rights practice group. You will work in teams with junior and senior attorneys, growing in your expertise and knowledge and elevating the team’s efforts to defend property rights. You will have the latitude to think big and the resources to execute. At PLF, you will be at the forefront of shaping property rights for all Americans.

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

Getting down to brass tacks, your specific job duties likely will include:

• Winning property rights cases! Finding, developing, and litigating important property rights cases.
• Working with other attorneys to develop and litigate PLF’s property rights cases to protect the constitutional rights of Americans.

Qualifications

• 1-3 years of litigation or judicial clerkship experience
• Passion to litigate property rights cases
• A deep understanding of the moral and constitutional basis for property rights is a huge plus
• A track record of successful legal work
• Outstanding interpersonal communication skills
• A knowledge of, and passion for, the ideas of freedom and individual liberty
• The ability and willingness to travel approximately 10% to 15%

General Information

Pacific Legal Foundation identifies and litigates important legal issues to set landmark precedents that benefit Americans nationwide. Using strategic and principled litigation, communications, and research, we battle for freedom in the nation’s courts and the court of public opinion.

As a national nonprofit organization, PLF has brick-and-mortar offices in Sacramento, California; Arlington, Virginia; and Palm Beach Gardens, Florida, although approximately half of the staff work from home offices across the country. You can work physically in any of our offices or request to work virtually. This position is particularly suited for a lawyer who would like to be in one of our offices, or who is a focused and relentless self-starter eager to take advantage of our cross-country virtual office environment by proactively collaborating and communicating with colleagues, clients, and other professionals.

This is a full-time, permanent position. PLF is committed to recruiting and retaining the highest-quality talent available nationwide, and we offer a total compensation package that includes a competitive salary, medical and dental insurance, and employer-paid retirement savings. We take work-life balance seriously through our generous paid leave and flextime policies. We have a flexible, collaborative, positive, and collegial work environment. We take pride in investing in your future and encourage internal advancement. PLF is the place for someone principled, tenacious, and determined to succeed in positively shaping the future of our country and restoring real limits on government power. Join us.

To Apply

Qualified candidates should submit the following application material:

• Your resume or C.V., including your experience in the liberty movement and relevant professional experience.
• A cover letter explaining why PLF is the place for you, why you want to fight for liberty, and what distinguishes you from typical applicants; your letter should detail your courtroom experience, including any experience in trial preparation and civil discovery.
• A recent writing sample, no longer than 10 pages, that demonstrates your analytical and advocacy skills.

More here, including a link to submit your application packet.

If you fit the bill, here's your chance to join us.

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.

What We're Reading Today, Property Rights Edition

Bismarck in January is looking pretty good.

Here's what we're reading today:

• Christian Britschgi, Court's Wild Zoning Decision Blocks 'Montana Miracle', Reason (Jan. 2, 2024) ("In an eyebrow-raising decision, a Montana judge has halted the implementation of two laws legalizing duplexes and accessory dwelling units on residential land across the state, writing that they'd likely do 'irreparable' damage to residents of single-family neighborhoods.").
• Richard Frank, The U.S. Supreme Court & Environmental Law in 2024, LegalPlanet (Jan. 3, 2024) ("First up before the Court in 2024 is this “regulatory takings” case from California.... Over the past four decades, U.S. Supreme Court decisions have developed the so-called 'unconstitutional conditions' sub-doctrine of regulatory takings law, but to date have only applied it to individually-negotiated land use permit conditions and fees. California state courts–including in the Sheetz case–have consistently refused to extend the doctrine to broadly-applicable fees and conditions imposed on landowners in exchange for their obtaining development approvals–so-called “quasi-legislative” fees and conditions.... So El Dorado County appears to be facing an uphill battle in the Sheetz case. The justices will hear oral arguments on January 8th.")
• Editorial Board, The Supreme Court's Road to El Dorado, Wall St. J. (Jan. 5, 2024) ("The Supreme Court on Tuesday will hear what could be a landmark property-rights case (Sheetz v. County of El Dorado) with major economic implications. The question is simple: Can governments use building permits to extort property owners?"). 
• James Burling, Property Rights in Jamestown: Bowling and starving in the New World, Pac. Legal. Found. (Nov. 30, 2023) ("All the crops would be the collective property of the colony, with a good portion of the proceeds returned to the financiers in England to pay off the debts incurred in setting up the colony in the first place. Now, the proprietors weren’t proto-socialists; they just figured they could maximize their profits if their charges over in America didn’t try to grab too much for themselves.").
• Greg Henderson, Texas Rancher's Property Rights Case to be Heard by U.S. Supreme Court, Drovers (Jan. 4, 2024) ("Attorney’s representing a Texas rancher are preparing to test the 'pottery barn rule' – you break it you buy it – before the U.S. Supreme Court.").
• History of Building Regulations, Researching Historic Buildings in the British Isles ("The British Isles has a long history of legal controls on building construction, which have generated records of interest for building historians. This outline aims to explain the types of building control record and where to find them.").
• Conference on the Constitution. A conference produced by the Northwest Landowners Association is open to the public "to learn more about landowner issues related to our constitutional rights." Featuring two of our Pacific Legal Foundation colleagues, Mark Miller and Kady Valois.

Cases And Links From Today's ABA State & Local Govt Law Land Use Presentation

Here are the cases that Michael Berger and I discussed in today's presentation to the ABA State and Local Government Law Section's Land Use group. It was good seeing everyone, even virtually:

• Sheetz v. County of El Dorado - are legislatively-imposed exactions subject to the nexus and proportionality requirements of Nollan/Dolan? (SCOTUS)
• Devillier v. Texas - must the government consent to be sued for just compensation? (SCOTUS)
• Watson Memorial Spiritual Temple of Christ v. Korban - the payment of a final just compensation judgment is ministerial, and may be compelled by a writ of mandamus (Louisiana Court of Appeal)
• The New York Rent Control cases - two still pending (SCOTUS)
• Gearing v. City of Half Moon Bay - abstaining from adjudicating a regulatory takings case under Pullman abstention (Ninth Circuit; cert. denied)
• Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown - RLUIPA claim is ripe; court rejected the "land use is local" trope (2d Cir.)
• Catholic Healthcare Int'l, Inc. v. Genoa Township - RLUIPA claim ripe because Township had taken a "definitive position" on what uses were allowed and not allowed on plaintiff's property, even though there remained a possibility that the Township might allow the use (6th Cir.)
• Yes in My Backyard v. City of Los Angeles - the general plan is law, and controls over zoning (Cal. Super. Ct.)
• Idaho Power Co. v. Bean - some precondemnation entries are takings (Or. Cir. Ct.)
• Town of Apex v. Rubin - after a taking is invalidated for lack of public use, what if the condemning agency just takes it anyway? (N.C. S. Ct. review granted)

Check em out.

And if you are not a member of the ABA State and Local Government Law Section, you should be. Come, join us!

Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

Starting in January, we'll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

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

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

We'll bring you the highlights here, as they happen. Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

"Groping in a Fog" - Bound by Oath Podcast, S3 E2: Regulatory Takings - Penn Coal And Penn Central ... Unplugged!

We've been eagerly waiting for the new season of the Institute for Justice's podcast series, "Bound by Oath" to drop. Not only because it's a great series - produced by John Ross, it is more like an audio documentary than a typical podcast - but also because John was kind enough to ask us to participate again (our last appearance was in Season 1, where we guested on the episode about the origins of the "incorporation" doctrine).

This season is all about property rights, and episode 2 is all about regulatory takings. Pennsylvania Coal Co. v. Mahon, and Penn Central Transp. Co. v. New York City, to be exact.

So just over a year ago, John and I headed up to anthracite coal country in Pennsylvania. We wanted to be on site on the exact 100th anniversary of the Supreme Court issuing the Mahon decision. Why? It just seemed appropriate. And as true takings nerds, we couldn't resist the chance to be in the room where it happened. Kind of a "John and Robert's Excellent (Takings) Adventure."

And as you dirt lawyers know, nothing substitutes for a site visit. 

In addition to John, me, and two Pittston lawyers who now own and used to own the former Mahon property, also weighing in is Professor William Fischel, who shares the insights about the Mahon case he learned while researching his book "Regulatory Takings" (1995)

And not content to cover the case that is seen as the first modern regulatory takings decision (the case is often wrongly assumed to be where the regulatory takings doctrine got its start), this episode also gives an in-depth treatment to the other well-known takings case with "Penn" in its name: Penn Central.

For that one, John goes to the source, Professor Gideon Kanner in what might be his final interview. Professor Kanner, of course, authored the seminal law journal article about the case, so he was a natural for this part of the episode. See Kanner, Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rts. J. 679 (2005). Don't miss out on this part of the episode, or you will miss some of the classic "Kannerisms" the good Professor issues.

Professor Kanner is also responsible for the episode's title, from his reaction to the three factors the Court seemingly created from whole cloth in Penn Central:

John: The Court said, there would be quote “no settled formula” for determining when a taking requiring just compensation had occurred. But there are three factors to consider. It didn’t say how much weight courts are supposed to give each factor or what evidence litigants could use to satisfy them.

Gideon Kanner: So it was another one of these impossible-to-meet criteria. There were three factors. There's no rule, but three factors, such as the impact on the owner, the nature of the government activity. So we all looked at each other: What the hell does that mean? All it did was confuse the law. The Court was groping in a fog.

This is a not-to-be-missed episode.

Here's the description from IJ:

In 1922, Scranton, Pennsylvania was said to be on the verge of collapsing into the vast coal mines beneath the city; residents, buildings, and streets alike were being swallowed up by “suddenly yawning chasms.” State legislators responded by unanimously passing a law meant to save the region, where about a million people lived, from total desolation. But when the law reached the Supreme Court, the justices struck it down, ruling that it would be an unconstitutional “regulatory taking” to force coal companies to leave their coal in the ground. On this episode, we go to nearby Pittston, Pennsylvania to find out what happened to the house at the center of the case. Did it—or Scranton—fall into the pits? After that, we trace the major developments in regulatory takings doctrine, which protect against regulations that go “too far.” But we wind up in a bit of a fog. Plus! This episode will have an unsolved murder—and some Supreme Court trivia: did you know a future Supreme Court justice argued the case on behalf of Scranton (at least in state court)?

Click here for transcript.

In case you are aching for some visuals to go with your listening, here you go.

The (former) Mahon home on a snowy Pittston day.
No signs of subsidence at all.

 

The view from lawyer Mahon's office.

We paid our respects to Mr. and Mrs. Mahon.
The episode also has a murder mystery,
something you don't see everyday in takings cases.

Grand Central Terminal,
preserved in aspic (for free).


That airspace.

Check the episode out here, and be sure to subscribe so you don't miss future eps.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922)

Fieri Facias: You Take, You Pay - Providing Just Compensation After A Taking Is A Ministerial Duty

You might not think that the principle of law the Louisiana Court of Appeal (Fourth Circuit) enunciated in Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (Dec. 13, 2023) is really in need of enunciating: if the government takes property, the property owner is entitled to just compensation. Entitled, as in the condemnor must pay.

But apparently, that principle isn't all that obvious. At least in Louisiana. As readers of this blog understand, you can get a final judgment for inverse condemnation from a Louisiana court, but the defendant/taker retains the discretion whether to actually pay it, and the usual judgment-enforcement procedures are not available. In short, the "requirement" to pay just compensation is more of a suggestion than an actual requirement.

That's what happened here. Property owners obtained just compensation judgments against the Sewerage and Water Board of New Orleans. The judgment withstood the SWB's appeals. You'd think that would be the end of it, and the SWB would do its duty.

But the Louisiana Constitution says that civil judgments can only be paid if the legislature or the political subdivision has appropriated the funds. And SWB didn't appropriate the funds to satisfy the owners' just compensation judgment. After waiting, the owners filed a federal action asserting the SWB had taken private property without just compensation.

When the federal courts were presented with the issue, they held that the property owners were merely trying to enforce the state court inverse condemnation judgment, and not their self-executing right to just compensation. And even though the state court judgment is an inverse condemnation judgment for just compensation, that makes no difference because federal courts are not in the business of enforcing state court judgments. Thus, the courts held, there's nothing that can be done to force a taker to, you know, actually pay compensation. You just have to rely on the good graces of the takers.  

That doesn't seem like what the constitution envisioned. So the property owners/condemnees went back to Louisiana's courts and sought a writ of mandamus and a writ of fieri facias, arguing that the duty to provide compensation for a taking is a ministerial, nondiscretionary duty, and thus a court can order a recalcitrant condemnor to pay up. 

The court of appeal framed the issue this way; "[t]his case presents a res nova issue of law: whether payment of an inverse condemnation judgment against a political subdivision is a ministerial duty." Slip op. at 8. And the court held "[w]e find that it is." Id.

Relying on a Louisiana statute that contains language mandating that compensation "shall" be paid within a certain time of the judgment, the court concluded that the duty to pay up is not discretionary (as the SWB argued), but rather a ministerial obligation. This is a "constitutional takings claim involving the mandatory duty to pay just
compensation for deprivation of property rights." Slip op. at 11.

So there you have it. The court reinstated the claims and sent the case back for the lower court to issue the writs.

Although we still continue to believe that we got it right in the federal case and that a local government's failure to pay adjudicated compensation is itself a violation of the Takings Clause and the Fourteenth Amendment, we're glad that the property owners here have met with success.

Will the SWB finally do the right thing and pay up? Or will it appeal, and continue to delay? Stay tuned.

Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (La. Ct. App. Dec. 13, 2023)

Join Us For 100 Years Of Pennsylvania Coal (Pace Land Use Conference, Dec. 8, 2023)

22nd annual Alfred B. DelBello Land Use
and Sustainable Development Conference

Come, join us (and others) on Thursday-Friday, December 7-8, 2023, at Pace Law School in White Plains, New York for the Land Use and Sustainable Development Conference (this year’s conference theme is "Balancing Economic Realities with Environmental and Social Concerns").

We're speaking about the 100th anniversary of the modern regulatory takings doctrine, which got its start nearly 101 years ago with the Supreme Court's opinion in Pennsylvania Coal Co. v. Mahon, where the Court held that property may be regulated, but if the regulation "goes too far," it will be deemed a taking.

Here's a description of the program:

The 100th Anniversary of Pennsylvania Coal vs. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal

The Takings Clause and 100 years of the Pennsylvania Coal v. Mahon doctrine have become the primary check on governmental power that the Due Process and Contracts Clause used to serve, before the Supreme Court finally and formally abandoned judicial review under those doctrines during the New Deal. Mahon transcended its primary relevance as to compensation for the taking of private property to become the fundamental means by which the Rule of Law determines of the individual’s relation with the government.

This session will survey the evolution of takings law and assess its impact on federal, state and local government authority, including not only the limits of that power over private property, but how the law as created by Mahon reconciles the essential issue of an individual’s private rights as they relate to the government’s exercise of authority in the public interest. This ambitious session will predict where these trends are taking us and what constitutional, legislative, and executive initiatives should be considered.

Carole N. Brown, Esq. Professor of Law, University of Richmond School of Law
Dwight H. Merriam, Esq., FAICP, Attorney at Law
Robert H. Thomas, Esq., Joseph T. Waldo Visiting Chair in Property Rights Law, William & Mary Law School and Director, Property Rights Litigation, Pacific Legal Foundation
Gregor I. McGregor, Esq., Founding Partner, McGregor Legere & Stevens PC
Moderator: Carolynne C. White, Esq., LEED AP, Brownstein Hyatt Farber Schreck, LLP

Should be a good (and fun) program. The other programs on the agenda are also very worthwhile (we shall be attending the entire day). Registration information and the complete agenda and speaker list here.

Please stop by and say hello if if you are there.

New Podcast: The Cedar Point Takings Case (From The Guy Who Argued Cedar Point)

Check this out, our law firm colleague Joshua Thompson talks about regulatory takings, and his big Supreme Court victory in Cedar Point Nursery.

If you are reading this blog, you already know what that means. Regulatory takings. Bundle of sticks. Penn Central (bleh), and right to exclude. Here's the description of the program:

In this thought-provoking episode, Bob Stetson and Joshua Thompson, Director of Equality and Opportunity Litigation at the Pacific Legal Foundation, discuss the landmark case of Cedar Point Nursery vs. Hassid and explore the intricate balance between private property rights and public interests. What constitutes a 'taking' and how far government regulations can go in the name of the public good?

Stream it above, or listen on Spotify here.

(Our own thoughts on the Cedar Point case here.)

Inverse Condemnation And Hawaii's Wildfires: Lawprof Shelley Saxer Joins Clint Schumacher's Eminent Domain Podcast

Another must-listen episode of Clint's Eminent Domain Podcast. He's joined by Pepperdine Law School Professor Shelley Ross Saxer:

Professor Shelley Ross Saxer joins the show to discuss the role that the damaging clauses found in more than half of state constitutions across the United States play in inverse condemnation claims related to natural disasters such as the recent Hawaii wildfires.

Definitely worth a listen (as always with EDP). Stream above, or download here.

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,...

Midnight Quick Take: NC Supreme Court To Consider Remedies For Failed Takings - What Happens When A Taking Lacks A Public Use, But They've Already Seized The Property?

Here's the latest on a kind of strange case we've been following.

Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.

Next, whaddaya know, the Town is taking the easement for the developer's sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you'd be right. The North Carolina courts sure thought so. No public use. 

You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn't be off the hook if it walked away, and although it would not be able to execute its desired permanent taking, the Town could be liable for compensation for any temporary taking while it prosecuted the (failed) condemnation.

But this situation is different, because here, the Town wants to take the property, but the court said no. Now what? You might think that the Town would have another go, this time with all the "private benefit" stuff scrubbed out. We've been down that path before, and a second court may well say 'yes there is smoke, but I don't see fire" and let the second condemnation go ahead.

But no. Not deterred, the Town decided "who needs public use or even a second (cleaned up) taking; let's just take it anyway" (we're paraphrasing of course, but you get the drift). While the court was considering the case but before it imposed any remedy for the pretextual take, the Town simply installed the sewer line using its quick take power.

Ah the old "midnight building permit" recast as "Midnight Eminent Domain."

Now what ... again?

The trial court rejected Rubin's request for a mandatory injunction ordering the Town to get the sewer line off her property. The court concluded that the remedy for the Town's trespassing with a sewer line on Rubin's land was for her to sue for inverse for compensation for compensation, which she had not done. Lacking an inverse claim, the trial court concluded that the Town's "just take it" approach was ok. 

In Town of Apex v. Rubin, the Court of Appeals affirmed the trial court's conclusion the taking lacked a public use. But it also expressed shock and dismay that the Town would try to get around that by a purported exercise of its quick take power, and make the lack of public use fait accompli. As the court held, "[t]his not the law, nor can it be consistent with our Federal and State Constitutions." Slip op. at 2. But the court of appeals didn't order the Town to remove the sewer line. Instead, it held that the proper claim is government trespass, and the proper remedy is ejectment. 

No party was satisfied with the court of appeals' ruling, and the Town sought discretionary review (and Rubin conditionally cross-petitioned).

In this Order, the North Carolina Supreme Court agreed to take up the case (and in this Order, also granted Rubin's cross-petition).

Read more on the case from the Carolina Journal, "State Supreme Court will take up legal battle over disputed Apex sewer pipe."

Stay tuned, we're going to keep following along.

Order, Town of Apex v. Rubin, No. 20-305 (N.C. Oct. 18, 2023)

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!

Supreme Court Property Rights Round-Up

Here's what we're reading about the Supreme Court's property rights docket -- some good, some disappointing -- this day.

• Niina Farah, "Supreme Court flooding case could ripple across the energy sector" (E & E News / Energywire) - About the Devillier case (which we summarized here), in which we were quoted: "The Supreme Court decision to hear the Devillier case comes after a concerted effort in recent years to convince the court to address procedural maneuvers that have made it challenging for property owners to bring their claims to court, said Robert Thomas, director of property rights litigation at the Pacific Legal Foundation. The nonprofit is among the groups that has asked the court to address takings cases and has lent its support for the property owners in Devillier in a 'friend of the court' brief. 'There’s a lot of gamesmanship going on trying to avoid getting to the actual core question — is compensation owed for the take?' Thomas told E&E News. 'You will see local governments, and often the federal government, interposing these procedural defenses to move the chess pieces around.' This case is an example of how court procedure is being used to stymie damage claims from property owners, he added.
• Bob Egelko, "U.S. Supreme Court agrees to decide legality of fees charged to California homebuilders" (San Francisco Chronicle) - About the Sheetz case (which we summarized here), "Christopher Elmendorf, a UC Davis law professor who has written extensively about housing issues, said a ruling in Sheetz’s favor could also allow challenges to 'inclusionary zoning' rules in San Francisco and other communities, which require new developments to contain a certain percentage of affordable-housing units. That might encourage more housing construction in the short run, he said, but it probably wouldn’t have a major impact on the housing shortage in California.
• Suzannah Cavanaugh & Kathrun Brenzel, "Supreme Court didn't save landlords. now what?" (TheRealDeal) - About the Court's denial of one of the three petitions challenging New York's draconian amendments to its rent control law (there are two other cert petitions, both of which were relisted; see here and here).
• Andria Cheng, "Supreme Court Denies Challenge to New York's Rent Regulation Law" (CoStar News) - More on the rent control petition denial.

Let's hope there's more good property rights news from SCOTUS to report soon.

 

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...

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

Lawprof Shelley Ross Saxer Joins Bloomberg Law Podcast On Maui Wildfires And Inverse Condemnation

Here's our colleague and friend, Pepperdine lawprof Shelley Saxer, an expert on inverse condemnation and its use in mass disaster cases, on the use of inverse condemnation as a theory of recovery for the Maui disaster. Here's the description from Bloomberg Law Podcast:

"Shelley Ross Saxer, a law professor at Pepperdine University, discusses the Lahaina fire victims using a legal shortcut to secure compensation from Hawaiian Electric. June Grasso hosts."

Worth a listen.

Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires

On this morning's drive-time program, we joined KHVH's Rick Hamada about whether Hawaii might adopt California's version of inverse condemnation liability in wildfire cases. We also tried to clear up a few misconceptions (gad, I used "disinformation," a term I try to eschew).

Here's the program description:

Inverse Condemnation and Maui Wildfires: A Conversation with Robert Thomas

Tune in to a thought-provoking episode where we engage in a conversation with legal expert Robert Thomas on the topic of inverse condemnation in relation to the recent Maui wildfires. As the community grapples with the aftermath of the devastating fires, we delve into the legal aspects of property rights, government accountability, and compensation for affected individuals. Join us as we explore the implications of inverse condemnation, a legal doctrine that holds governments accountable for taking private property without just compensation. Gain insights into the challenges faced by property owners in the wake of natural disasters and the legal avenues available to seek redress. Don't miss this informative discussion shedding light on the intersection of property rights, wildfires, and legal recourse.

Thanks to Rick for having me on.

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

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

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

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at [email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)

First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?

Well, that was quick. As reported here ("HECO Kept The Power Flowing In Lahaina Even As Poles Toppled"), we've already seen the first lawsuit filed seeking recovery for the Maui wildfire that destroyed Lahaina town -- a class action even before there's been any official word about what caused or contributed to the conflagration:

Meanwhile, a group of Honolulu- and California-based law firms filed a class action suit Saturday against HECO on behalf of victims and survivors of the Lahaina fire.

The suit alleges that HECO’s downed power lines caused the fire. Graham Lippsmith of the firm Lippsmith LLP said Saturday that the suit was also largely based on HECO’s decision not to de-energize the power Tuesday in West Maui.

A separate Honolulu attorney also said Saturday that his firm is weighing whether sue HECO on behalf of its clients, also largely based on the downed poles.

They were in such a rush, they filed on Saturday, in an Oahu court. The defendants are various electric utility companies (not the government), and claims include negligence, gross negligence, inverse condemnation under the Hawaii Constitution, and ultrahazardous activity. Relief sought included damages, just compensation, and an injunction requiring shutting off power during high winds and the burying of transmission lines.

We naturally focused on the inverse claim. Hawaii inverse condemnation law is very underdeveloped, and there isn't a whole lot there to latch onto. And Hawaii certainly has not adopted the California model of inverse condemnation liability for wildfires. So this will be a case of first impression.

To get a flavor of how that's worked out in California, we refer you to our post from a couple of years ago: "Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine." And this post: "New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnation To Ratepayers."

With this being a matter of first impression under Hawaii law, the two vacant and-now-being-filled seats on the five-Justice Hawaii Supreme Court sure do loom large.

Time to pay attention.

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

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

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

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

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

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

Slip op. at 20.

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

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

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

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

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

Here's the course description:

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

Among the things we'll be analyzing and discussing:

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

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

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

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

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)

Tyler Takings Round-Up

Here are what others are saying about Supreme Court's recent ruling in Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023), the case in which the Court unanimously held that the county's keeping the excess equity in Ms. Tyler's home over what she owed in property taxes and fees is an uncompensated taking of private property.

• As usual, lawprof Ilya Somin was first out of the gate with "Major Unanimous Supreme Court Victory for Property Rights in Tyler v. Hennepin County" ("While the Supreme Court decision left some notable issues unresolved, it nonetheless sets a significant precedent. Most obviously, the jurisdictions that currently authorize home equity theft—some twelve states and the District of Columbia—will no longer be allowed to do so. In addition, the holding that states cannot just redefine property rights at will has important implications for other property rights issues. It makes it harder for states to avoid takings liability.")
• Amanda Karras has this casenote at the International Municipal Lawyers Association's blog, "Supreme Court Rules Against County in Important Takings Case" ("States and local governments may also look to Nelson as guidance and provide a mechanism for the return of the surplus equity after the sale of the property.  That said, while Nelson remains good law, the question of overruling Nelson was not on the table, and it may be that such a scheme (which would allow a local government to keep surplus equity after the sale of the property if there is a mechanism for the return of the equity to the homeowner) may not be viewed favorably by the current Court and may also conflict with subsequent precedents from the Court.")
• Amy Howe, SCOTUSblog "Justices rule Minnesota county violated takings clause" ("The county pointed to a 1935 state law that strips an owner who falls behind on her property taxes of her interest in the property. Therefore, the county argued, there was no property for the government to take. The court disagreed, stressing that 'property rights cannot be so easily manipulated.' Indeed, Roberts observed, even Minnesota itself 'recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt.' Although the county can sell Tyler’s condo to recover the $15,000 that she owes it, Roberts wrote, it cannot 'use the toehold of the tax debt to confiscate more property than was due.' By keeping the $25,000, Roberts concluded, the county 'effected a ‘classic taking in which the government directly appropriates private property for its own use.''
• Federalist Society webinar with Tony Francois, "Courthouse Steps Decision: Tyler v. Hennepin County, Minnesota" ("Join us as Tony Francois provides a detailed analysis of the decision and discusses the potential implications from this landmark ruling.").

We'll update as merited.

This Just In - Florida Appeals Court: TDRs, Beekeeping, And Camping Are Not Economically-Beneficial Uses, So Downzoning Is A Lucas Taking

Shands Key, with the City of Marathon in the background

This just in: in Shands v. City of Marathon, No. 3D21-1987 (May 3, 2023), Florida's Third District Court of Appeals held that the city's downzoning the property (Shands Key, shown above in an exhibit from the Key West trial we participated in in June 2021) from General Use (density: one home per acre) to Conservation Offshore Island (one home per 10 acres; Shands Key is just under 8 acres) effected a Lucas taking.

We're not going to go into too much detail, because this case is one of ours. Our Pacific Legal Foundation colleague Jeremy Talcott was the lead trial and appellate counsel, backed by Kady Valois.

Trial (and appeal) team after closing arguments in Key West:
Valois, inversecondemnation.com, Talcott

But we're not going to let you go without noting a few highlights from the Court of Appeal opinion:

• "This inverse condemnation appeal presents a novel issue regarding the role that transferred development rights (“TDRs”) occupy in adjudicating a per se as-applied regulatory taking claim advanced under the landmark case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)." Slip op. at 1.
• "Finding that an award of TDRs and Building Permit Allocation System (“BPAS”) points, considered in tandem with the residual land value derived from personal recreation and beekeeping, precluded a per se as-applied claim, the trial court denied the motion. The primary issue on appeal is the propriety of that ruling." Slip op. at 1-2.
• "In the aftermath of Penn Central, Lucas, and their progeny, TDRs have emerged as a popular and effective tool for local governments to promote conservation efforts and urban growth management. Such rights typically benefit the landowner by allowing for expanded “development beyond the restricted level on [another] piece of land.” Ralph A. DeMeo, Transfer Development Rights, in II Florida Environmental and Land Use Law ch. 23 (1996)." Slip op. at 10.
• "The significance of TDRs in the regulatory takings matrix has been sharply debated. Some legal experts have opined that TDRs are irrelevant to the takings side of the equation because they do nothing to impact the nature and extent of the property interest taken by the government. Others have espoused the belief that TDRs necessarily mitigate the economic impact of regulation by infusing the property with value; therefore, they should be considered before determining whether the government has effectuated a taking." Slip op. at 10-11 (footnotes omitted).
• "Appellants established that regulation deprived them of any use of the property, other than for beekeeping or personal camping. These do not constitute economically beneficial uses, as 'a State may not evade the duty to compensate on the premise that the landowner is left with a token interest.' Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001). As Justice Scalia observed in his Suitum concurrence, any income associated with TDRs does not flow from the cultivation or development of the property in the traditional framework of ownership. Instead, the potential revenue is generated from the non-use of the property." Slip op. at 13-14.
• "Consistent with this logic, while “[p]utting TDRs on the taking rather than the just compensation side of the equation . . . is a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our Takings Clause jurisprudence,” doing so allows the government to provide some compensation without the constitutional stricture of just compensation. Suitum, 520 U.S. at 748–49 (Scalia, J., concurring in part and concurring in judgment)." Slip op. at 14.
• "To reason otherwise would render Lucas nugatory." Id.
• "In accord with the foregoing analysis, we conclude that appellants established overly burdensome government regulation deprived them of “all economically beneficial uses” of their property. Lucas, 505 U.S. at 1019. Consequently, they were entitled to an award of partial summary judgment on their per se as-applied Lucas claim. We therefore reverse and remand for the trial court to vacate the final judgment, enter partial summary judgment in favor of appellants, and conduct further proceedings consistent with this opinion." Slip op. at 17.

Here are the briefs of the parties, so you can see the arguments:

• Initial Brief On Merits (property owners)
• Appellee's Answer Brief (City)
• Appellant's Reply Brief (property owners)

Watch the court of appeal oral arguments (YouTube) here.

A hearty well done to our PLF team for this big win.

Shands v. City of Marathon, No. 3D21-1987 (Fla. Dist. Ct. App. May 3, 2023)

Tyler SCOTUS Takings Argument Round-Up

Our Pacific Legal Foundation Property Rights Litigation Tyler team,
and Counsel of Record Christina Martin (second from right)

Here are your links to the buzz about Tyler v. Hennepin County, No. 22-166, our law firm's case which argues that Hennepin County's seizure of Ms. Tyler's condo and then keeping the excess equity over what she owed in property taxes and fees, is an uncompensated taking of private property, and also violates the Excessive Fines Clause.

• Transcript and audio recording of the oral arguments.
• Kelsey Reichmann, Grandma who lost her house to debt finds high court sympathy (Courthouse News Service)
• Lawprof Ilya Somin, Unusual Cross-Ideological Agreement in Tyler v. Hennepin County (Volokh Conspiracy)
• Steve Osunsami, Laura Romero, Dr. Mark Abdelmalek, Doug Vollmayer, Supreme Court takes on what critics call predatory tax foreclosure practice (Good Morning America)
• Amy Howe, Justices appear likely to side with homeowner in foreclosure dispute (SCOTUSblog)
• Mark Sherman, Supreme Court seems to favor woman who got $0 in condo sale (Associated Press)

More on the way. Stay tuned.

Condemnation 101 (2023), Redux

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary "Condemnation 101" track?

Well, here's your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we've noted before, the Condemnation 101 program is a great "basic training" program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there's no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this blog, you can get an additional $50 off the registration -- just enter COND50 in the box during checkout. Or, alternatively, bring a friend and get the group discount an even better deal.

We missed out on most of the Condemnation 101 program back in February because we had our own Chairing duties in the room next door. So we may be in the audience along side of you on May 18 for this very popular and useful program.

See you there.

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!

April 27, 2023, 5-7pm, Honolulu: Join Us To Celebrate The Work And Career Of Professor David Callies

Come join us on Thursday, April 27, 2023, from 5-7pm, downtown Honolulu, to celebrate the retirement of Professor David L. Callies from the University of Hawaii Law School.

Join U.H. Law School Dean Camille Nelson, Professor Callies' colleagues, his students (present and former), the Hawaii legal community, and family and friends as we honor 43 years of scholarship, teaching, service, and practice.

Professor Callies is a prolific scholar and author, and has mentored generations of lawyers. Known especially for his work in property, land use, takings, administrative law, and state and local government law, he has also been presented with numerous awards including William and Mary's Brigham-Kanner Property Rights Prize, and the Owner's Counsel of America's Crystal Eagle. 

Invitation and how to RSVP (or click below). Space is limited, so please let us know you are attending as soon as you can.

Details:

Thursday, April 27, 2023
5:00-7:00 p.m.

Second Floor Gallery
Pauahi Tower
1003 Bishop Street
Honolulu, Hawaii 96813

Validated parking: Bishop Square garage (entrance on Alakea Street)

RSVP: [email protected]

See you there!

Professor David Callies - Retirement Celebration Invitation Apr. 27, 2023

Join Us At The 22d Annual Texas Eminent Domain Conference, April 13-14, Austin

If you are in the Austin area (or anywhere in Texas for that matter), please consider joining us April 13 and 14, 2023 for the 22d Annual Texas Eminent Domain Conference.

Two days of great programming and talking shop, plus a chance to connect and re-connect with friends and colleagues. And, of course, all the things Austin has to offer. Yes were were there not that long ago, but come on...Austin is a great conference venue, right?

We're speaking about "National Eminent Domain and Takings Trends," and the balance of the program is pretty darn good also (see here or below for the full agenda).

Registration ongoing, but space is filling up fast so don't miss out.

See you there.

Agenda & Program, 22d Annual Texas Eminent Domain Conference (CLE Int'l), Austin, Apr. 13-14, 2023)

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)

One Guess What The Second Circuit Did With A Takings Challenge To Rent Control

Let's say you know nothing else about an appeal except it is being decided by the U.S. Court of Appeals for the Second Circuit, and the case is a constitutional challenge to rent control. What's your best guess about the outcome (the district court dismissed for failure to state a claim)?

When the Second Circuit issued its summary order in just such a case last week -- a challenge to the "Housing Stability and Tenant Protection Act of 2019" -- we decided to undertake a little unscientific poll to see whether others out in the Twitterverse predicted as we did.

Looks like so. Yes, the sampling size was small, and the respondents were only those who voluntarily offered their thoughts. But 95% accurately predicted that the property owners would lose, as the Second Circuit indeed held in an appellate court's version of "laughing heartily" at an appellant's arguments: an unpublished summary order.

We could spend the rest of this post going through all of the reasons why the Second Circuit didn't find a scintilla of reversal in the property owners' arguments. But the Order is so short, you might as well read it yourself.

Short story: facial claim? Nope, no physical taking because you fool landlords let tenants in your properties. No facial reg take either, because "different landlords have greatly varying expectations." Order at 4. Rather than serve as an apt illustration of why the "expectations" part of the Penn Central test focuses on an irrelevant inquiry, the Second Circuit effectively concludes that reg takings claims can never be raised as facial claims. 

Same outcome for the as-applied claims: no plausible allegation of a physical taking because there's still the possibility of getting tenants out, and owners are not prohibited from exit the rent-controlled market by getting out of the rental market; the law merely "restricts a landlord's ability to profit by converting a rent stabilized unit to a market-rate unit[.]" Order at 6. And, for good measure, these claims are not ripe because the owners didn't plead that they tried to get anyone out. As for the as-applied regulatory takings claim, the claim is not ripe because the complaint does not allege that the owners tried to take advantage of any of the non-futile procedures to obtain a hardship exemption. And even if ripe, the owners lose "on the merits." (Remember this is an appeal from at 12(b)(6) dismissal, so what "the merits" has to do with anything is beyond us.)

So what might the 95% response indicate? People have very good predictive powers? Our colleagues are as cynical and jaded as we are? Constitutional challenges to rent control are so lacking in merit and plead-worthiness that courts rightly laugh them out of court? The Second Circuit is predictable but in other circuits you might get a more balanced view?

Or maybe -- just maybe -- something else is at play here, and, like a lot of other courts have done before it, the Second Circuit isn't about to upset the apple cart and do anything to undermine what started off, like a lot of these things do, as an "emergency" measure now fossilized into an untouchable entitlement (but an entitlement that is not paid for by the taxpayers, but by private property owners)? In these cases, the lower courts aren't likely to do doodly-squat, and rent control cases will be pushed up to the Supreme Court until that Court does something more than repeatedly decline to review the issue.  

Summary Order, 335-7 LLC v. City of New York, No. 21-823 (2d Cir. Mar. 1, 2023)

New Article: "Toward Principled Background Principles in Takings Law" (Strahilevitz & Hansen)

Check this out, a new article co-authored by a federal judge's law clerk and lawprof Lior Strahilevitz (Chicago). With the title, "Toward Principled Background Principles in Takings Law" are we going to read it? You bet. (Unlike a lot of new scholarship that we post here, we read this one immediately.)

Here's the Abstract:

Blunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending the Cedar Point union organizer access regulation. First, a physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. Second, only the party that owned the land at the time the physical taking cause of action accrued can prevail. Under these doctrines, Cedar Point Nursery’s lawsuit was filed decades too late. By the wrong plaintiff. California’s oversights were probably outcome determinative.

Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those long-standing limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law.

Read it at SSRN.

[Before we go on, Disclosure 1: my law firm represented the property owner in Cedar Point Nursery, so yes, I have a dog in the hunt.]

What do you think of the article's premise and conclusion that a regulation alleged to allow a physical invasion must be brought when the regulation is adopted, and not when property is actually invaded?

Government lawyers need not and should not repeat the mistake that California’s lawyers made, a goof that evidently went unnoticed by all three dissenting justices, all thirteen amici, and every scholar who has written about Cedar Point. By correcting Cedar Point’s litigation strategy blunder, governments may avoid having to compensate landlords who want to refuse to rent to members of a protected class, landlords whose ability to evict is constrained by rent control laws, employers who wish to fire workers involved in unionization efforts, and business owners who want to bill governments for the inconvenience of having to endure entry by health and safety inspectors. Most of these claims brought by property owners should fail if defended by competent government counsel who can learn from California’s error.

Id. at 5 (footnote omitted).

In other words, the allegedly unconstitutional act is the enactment of the regulation, and not also the failure to provide compensation when an invitee subsequently exercises the rights granted by the regulation to enter the plaintiff's property against the owner's wishes.

And what of the article's other premise, that regulations allowing physical invasions and occupations of property over time become "background principles of the State's law of property and nuisance" and disappear upon conveyance of the property?

Understandably, many observers were unnerved by Chief Justice Roberts’ decision to brush aside the notion that the California regulation – just seven years younger than the Fair Housing Act – was a background principle of state property law, unnerved many observers. If the 1975 California statute and regulation do not count by 2021 as background principles that inhere in title why shouldn’t the 1968 Fair Housing Act suffer the same fate? The response to Cedar Point from the least alarmed property scholars fell back on the idea that the Court would nonetheless treat the Fair Housing Act as a background principle. But no one has a good theory – other than a realist reading of the justices’ relative hostility to the goals of labor law – for why something magical happened between 1968 and 1975. After Cedar Point it is quite challenging to conclude that there are any principles at all underlying the Supreme Court’s conception of background principles. Our goals in this article include articulating coherent principles that are grounded in existing law and consistent with what the Court decided in Cedar Point.

Id. at 17 (footnotes omitted). 

Some preliminary impressions:

Are all physical invasion challenges facial claims? The article's premise seems to eviscerate the longstanding distinction in constitutional law generally -- and takings law specifically -- between a facial challenge and an as-applied challenge. The window opens on a facial challenge on behalf of everyone when a regulation is adopted, but we thought it was settled that individual property owners had to wait -- upon pain of being tossed out on ripeness grounds --  for the challenged regulation to actually be applied to their facts and circumstances. But the article does not mention the facial vs as-applied distinction.

Standing before incurring a concrete injury? The argument also seems a variation of the Federal Circuit's rationale in Campbell v. United States, 932 F.3d 1331 (Fed. Cir. 2019), where the court held "[i]n the case of a regulatory taking, however, the taking may occur before the effect of the regulatory action is felt and the actual damage to the property interest is entirely determinable." Disclosure 2: we thought the Federal Circuit's reasoning in that case was faulty (that a property owner has an obligation to sue even before she is actually injured seems very strange), and petitioned for certiorari (denied). But it does seem like a weird rule, and very much at odds with injury-in-fact and Article III standing requirements.

Whither Kirby Forest? The rule also seems at odds with Kirby Forest Indus. v. United States, 467 U.S. 1 (1984), where the Court upheld all sorts of government actions that muck around with an owner's property rights prior to an actual judgment and tender of compensation in eminent domain cases. No, the Court concluded, the "taking" takes place in straight takings when there's been an adjudication of compensation and a tender of actual payment. And all those things which happened before that interfere with the owner's use -- like instituting an eminent domain action, filing a lis pendens and clouding title, drying up the market for the property, and similar -- do not interfere sufficiently with property interests because "petitioner was free to make whatever use it pleased of its property." Id. at 15-16. The California provision seems similar: until the union organizers actually entered Cedar Point property under color of the statute, the owner could exclude whom it wanted.

Too early and too late: You just know that if property owners had challenged the California statute as a taking upon enactment, but before anyone had actually attempted to enter under the authority of the statute, that the claim would not have been that they filed too late, but rather too early. Property owners are used to these type of inconsistent arguments and being whipsawed between being accused of filing too early, or too late (or, in many cases, both too early and too late at the same time). We don't think that the line the courts are going to enforce between ripeness and staleness is as clear as the authors make it out to be.

Get ready for more takings claims, federal courts. Unless the article is arguing for abandoning the remaining takings ripeness requirement (something we're down for, but so far the courts are not), we're not sure that a rule that will force prudent property owners to sue upon adoption of new regulations is one that the courts will enthusiastically embrace (even if they should).

Zombie takings, or zombie statutes? The article describes Cedar Point as a "zombie takings claim" (p. 33) because it challenged a statute originally adopted decades ago. It argues that after about 40 years, regulation ossifies into a background principle, immune from challenge. Even though we'd use the "zombie" label to describe the California statute and others like it that are there on the books but are pretty obscure, let's go with the zombie takings label. That brings up an intriguing tradeoff: would we surrender Cedar Point and the ability to challenge 40 year old regulations in return for eliminating the ripeness hurdle and opening up courts to immediate challenges of newly-adopted regulations as we think the piece is advocating for? Hmmmmm... we gotta think about that one.

Cringe. No matter what, we think that calling the Cedar Point outcome the result of "blunders" by lawyers, judges, and scholars (p. 1), the government's strategy a "goof" (p. 5) and "bad lawyering" (p. 48), its lawyers "bone-headed" (id. at 49 & n.314), and accusing government counsel of committing "a colossal strategic blunder" (id. at 2), and saying that the government's lawyers in Cedar Point and Lucas committed "legal malpractice" (id.), is unnecessary and uncharitable in the extreme. We get that the authors don't care for the outcome in Cedar Point and wish their "Monday-morning quarterbacking" strategy (their words not ours, see p.1) would have been raised and tested. But in our view, these type of accusations should not be thrown about lightly, especially by those who didn't enter the amici arena themselves, and by those who don't appear to have been there, done that because their collective time actually practicing law and making strategic litigation decisions in real time in real cases appears to be, let's say, very limited. We hope there can be even vehement disagreement about the issues without slinging accusations of malfeasance, incompetence, and especially malpractice -- claims the practicing bar takes very, very seriously. We respectfully urge the authors and the law journal editors to reconsider these characterizations prior to print publication. 

We're going to meditate on the article and its arguments more. But whatever you may think of the authors' analysis and conclusions, this piece is well worth reading.