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Latest Ep, Eminent Domain Podcast: Podworthy Cases, ALI-CLE, And 1970s Bands

Our thanks to Bobby Debelak for having us back on as a guest on his Eminent Domain Podcast.

We're long-time fans of the pod (naturally), and it was good to get together with Bobby and talk a bit of shop.

Here's a description of our session:

Robert Thomas joins Bobby Debelak to discuss the most interesting legal developments from 2024, cases to watch next term, and previews the 2025 ALI-CLE conference to be held in San Diego at the end of January 2025. At the end, a musically themed cross-examination includes Robert's dream set list of 70s bands.

Our three set list entries: the first, a classic, timeless sound; the second might reveal our "square" proclivities; while the may be a selection The Dude may not approve.

Check it out above, on Spotify, or wherever you get your pods!

Holiday Dirt Law Movie: "Christmas at the Drive In" (aka Rudolph The Red-Nosed Redeveloper)

'Tis the season for TV holiday movies. Here's one to add to your list, as it is on-brand for us dirt lawyers. "Christmas at the Drive In" is described thusly:

"A property lawyer works to prove that her town's Drive In Theater, a local institution, is not closed down at the holidays, finding romance with the very person who is trying to sell the property."

When property, redevelopment, historic preservation, and l'amour is involved, who could resist?

Beyond The Hohfeldian Bundle: Cryptocurrencies, Blockchain, And The "Ordinary, Common" Meaning Of "Property"

We thought this was going to be about sticks.

We ain't gonna pretend we understand cryptocurrency or blockchain. I'm just a caveman. Your world frightens and confuses me!

And there's a lot there to confuse us in the U.S. Court of Appeals' recent opinion in Van Loon v. Dep't of the Treasury, No. 23-50669 (Nov. 26, 2024), where one of the questions was the meaning of the term "property" as used in the International Emergency Economic Powers Act. Under that statute, the President may "block ... any property in which any foreign country or national thereof has any interest."

The Treasury Department blocked "Tornado Cash" which, as far as we can tell, is a computery way to anonymously transfer asserts digitally, and "obfuscat[e] the origins and destinations" of the transfer. Slip op. at 2. The Department's regulations define "property" broadly, and it blacklisted Tornado Cash "for its role in laundering virtual currency for malicious cyber actors -- for example, a North Korea-linked hacking group that used Tornado Cash to launder the proceeds of cybercrimes." Id.

The plaintiffs are users of Tornado Cash who objected to the Department's blacklisting. as beyond the authority of statute. This isn't property they argued, and therefore isn't subject to blacklisting notwithstanding the Department's regulations. The statute, they argued, does not define the term "property," and the issue was whether "immutable smart contracts" (lines of privacy-enhancing software that are part of Tornado Cash) qualify. 

The court was not daunted by the lack of statutory definition, concluding that "property has a plain meaning: It is capable of being owned." Slip op. at 20. Applying an original public meaning approach, the court first held that the 1977 dictionary (the statute was adopted that year) defined property as being "everything which is or may be the subject of ownership[.]" Id. There's also a dominion aspect (One-L flashback to Pierson!). Slip op. at 21 ("Sure, '[o]wnership does not always mean absolute dominion,' but it at least requires some dominion."). 

This guy.

The opinion also touches on Blackstone and his Commentaries and the right to exclude. Applying those principles to the smart contracts, the court held they are not property:

The immutable smart contracts at issue in this appeal are not property because they are not capable of being owned. More than one thousand volunteers participated in a “trusted setup ceremony” to “irrevocably remov[e] the option for anyone to update, remove, or otherwise control those lines of code.” And as a result, no one can “exclude” anyone from using the Tornado Cash pool smart contracts. In fact, because these immutable smart contracts are unchangeable and unremovable, they remain available for anyone to use and “the targeted North Korean wrongdoers are not actually blocked from retrieving their assets,” even under the sanctions regime. Simply put, regardless of OFAC’s designation of Tornado Cash, the immutable smart contracts continue operating. And furthermore, because the software continues to operate regardless of the sanctions, and the blockchain technology “allows peer-to-peer transfers . . . without requiring the recipient to consent to transfer,” some users may become liable whenever someone transfers them digital assets via Tornado Cash, even without their knowledge or consent.

Sure, some smart contracts are capable of being owned in the sense that Tornado Cash developers can create new smart contracts and disconnect old mutable contracts. In theory, should Tornado Cash developers choose to comply with sanctions on mutable smart contracts, those developers could disconnect those mutable smart contracts to make them inaccessible and unusable by anyone on the Ethereum blockchain. But they cannot discard, change, disconnect, or control smart contracts that are immutable—like the ones currently listed on OFAC’s SDN list and at issue in this appeal. Even with the sanctions in place, “those immutable smart contracts remain accessible to anyone with an internet connection.”

Slip op. at 22-23.

In short, these things are not capable of being owned.

The court also concluded that the Department's regulatory definition of property doesn't cover the immutable smart contracts, even though the Department's definition includes "contracts of any nature." Slip op. at 27. But despite their nomenclature, "the immutable smart contracts are not contracts." Slip op. at 28. Why? Because these are not bilaterally, but are one-party only: "[i]mmutable smart contracts have only one party in play." Id.

As we said at the beginning: we're not going to pretend we understand this stuff fully.

We conclude with our sense that this looks a lot like a square-peg-in-a-round-hole situation. Blockchain and immutable smart contracts (that are not really contracts) don't easily fit into any traditional or historical conceptions of property, and although we follow the court's thinking and its conclusion, things as amorphous as these are seem an ill-fit at best for the old bundle of sticks metaphor.

Van Loon v. Dep't of the Treasury, No. 23-50669 (5th Cir. Nov. 26, 2024)

Another Semester Of Dirt Law In The Books

How it started.

Once again, our fall duties included teaching two property law courses at the William and Mary Law School: Eminent Domain & Property Rights, and Land Use Controls. We started in mid-August, and just wrapped the classroom portion of the courses earlier this week. I say "classroom portions" because although we are done with classwork, the courses are not done, and the students are presently deep into writing their final papers (we don't do an exam in either course). Then comes grading, and a welcoming of the students as full-fledged colleagues in the Dirt Law Bar.

Many law schools feature Land Use Law courses, but only a few are so bold as to include a course on Eminent Domain and Property Rights in their offerings (and a substantial three-credit course, at that). William and Mary Law School is an excellent and very appropriate place to study these topics.

I'm grateful for the opportunity to be here, at the lectern. What a great law school, and wonderful, committed, students. As I usually do, I learned way more than I conveyed. A welcoming administration, faculty and staff, too. As I have noted before: if you have a chance to return to the law classroom and teach, don't the let the opportunity pass you by. It's hugely rewarding.

                                  Big Wall - o - swag.

A big thank you to law school Dean Benjamin Spencer, Professor Emerita Lynda Butler (for entrusting me with her beloved Land Use class upon her retirement), and Professors Tom McSweeney (a better office suitemate I could not ask for), and James Stern for your guidance and support, and making me feel like I belonged. And to my students, who challenged me and kept me grounded.

And, as always, to Joe Waldo, who makes it all possible. 

The mysterious ducks. They are a "thing" here at W&M Law,
and can show up in unexpected places.
I am still not sure where they come from,
or who places them. But I am honored to have them
decorating my office name plate.

Two essentials to teaching: a logo/swag law school coffee mug,
plus a good supply of dry erase markers.


Our Land Use course. So good, we have three of 'em.
The actual reason the course is listed thrice is that
in addition to being offered on the Law School's curriculum,
students in the College's Marine Sciences and Public Policy
programs are enrolled.

Very appropriate that right outside of our Land Use classroom
is the bust of one William Blackstone.

An integral part of both courses is the annual Brigham-Kanner
Property Rights Conference, held at the law school in
September or October. Our students spend the week with the nation's
leading property scholars and practitioners, culminating
in the Conference presentations on Friday.

Our Land Use course starts off Class # 1 with Euclid (of course).
Guess what case we discuss on the
final day of that class? Euclid!
Justice Sutherland would be pleased.

Not only do we deal with the nuances of land use regulations
(zoning, variances, ZBA appeals, and the like),
we also delve into the philosophical bases for how and why
third parties have the power to control what someone
else does with their land.

Here are the light controls in one of our classrooms,
which look more like descriptions of
points on the political spectrum!

In both classes, we try and foster a principle that W&M Law emphasizes:
free and open discussion of issues and viewpoints. Both of our classes
treated difficult subjects (for example, racial discrimination in land
use, slavery and its consequences, the proper role of property rights), with
honesty and maturity. How refreshing.

One of the unique features of the Eminent Domain & Property Rights course
is that we spend a lot of time on Just Compensation: what it means,
what it covers, and how it can be calculated. Not many law school
courses include this topic. But we do.

Both courses are really just applied constitutional law, no?

In addition to dealing with these subjects as academic matters, we
include a healthy dose of "real world" stuff. That includes having our
practicing colleagues visit, and speak about how these issues play out
in practice. Jeremy Hopkins, Brett Tensfeldt, and Steve Davis visited
the Eminent Domain class.

Andrew Brigham joined our Land Use class
to explain how these concepts
play out in eminent domain cases.
He also spent a lot of time on how to
prepare for a career in property law.

We also welcomed back to the classroom a course alumni. Here,
Xijia Yuan, who is now a practicing property lawyer,
explains why she loves dirt law.

Our Toronto friend and colleague Shane Rayman paid a special visit to
discuss the differences between the US system and Canada's.

I'm grateful that my friends and colleagues are willing to spend their
valuable time to provide students with their wise counsel.
Brett Tensfeldt, Andrew Brigham, Heather
Cunningham, and Xijia Yuan: you are the best!

The Brigham-Kanner Property Rights Conference included
a session "Careers in Dirt Law." with Kady Valois, Randy Smith,
and WM Law alum Elizabeth Sockwell. Brett Tensfeldt ran the program.

Zoning practice has a lot of jargon and abbreviations.
We covered em.

In our last class in each course as a way of wrapping up
and summarizing, we played Bingo. No, not the same game you remember
from One-L. Here, the students are given a blank card,
which they filled out with words and phrases from the course.
Then, when I said that that word or phrase during the final class,
they could check that box. When they got five-in-a-row, time to yell "BINGO!"

And yes, prizes were available.

I hit up the local Williamsburg Trader Joe's for our Bingo prizes.
The most sought-after prizes were the four $25 TJ gift cards.

Naturally, for the Eminent Domain and Property Rights class,
the four TJ gift cards were the "corn" cards.
You know why, fans of Magna Carta!

Also appropriate property rights prizes: these "bundles of sticks."

I have a tradition that on the final day of each class,
I pass around my scrapbook and ask students
to add their thoughts. Yeah, kind of like high
school yearbook. I get that it's kind of goofy.
But one of my favorite things is to read
their comments, and it provides a good
way for me to remember the class.

Last one out, please turn out the lights.
That would be me.

See you next Fall.

Iowa: Statute Permitting Precondemnation Surveyor Entry Is "pre-existing limitation on ... title"

The latest state supreme court decision involving a takings challenge to a statute permitting precondemnation entries, this time from Iowa.

In Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Nov. 22, 2024), the Iowa Supreme Court concluded that, at least on its face, Iowa's entry statute for hazardous liquid pipelines, which permits entries for land surveys and requires the payment of actual damages, is not a taking of an owner's right to exclude:

Kasischke recognizes that section 479B.15 requires “[t]he pipeline company [to] pay the actual damages caused by the entry, survey, and examination” but argues that the mere entry onto his property to conduct the survey is itself a taking of his right to exclude all others, for which he is also entitled to just compensation. Kasischke’s constitutional claim fails because the statute did not take away a property right that he owned. Rather, he has no right to exclude the surveyor because section 479B.15 is a lawful pre-existing limitation on his title to the land.

Slip op. at 10.

As that indicates, the argument floundered on the threshold "private property" question, with the court concluding that Cedar Point did not "establish a new per se rule" requiring compensation whenever there is a physical invasion, but instead reaffirmed the "background principle" exception from Lucas. See slip op. at 13 ("“Second, many government-authorized physical invasions will not amount to takings because they are  consistent with longstanding background restrictions on property rights.” Indeed, “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.'") (citations omitted).

Requiring owners to submit to precondemnation entries for surveys "is a longstanding background restriction and therefore a recognized exception to the Court’s per se taking jurisprudence." Id. These statutes "are as old as the republic itself." Id. Check out pages 14 through 15 of the opinion, where the court notes the early state court cases holding such entries were not takings, and also how legislatures and courts expanded the scope of the permissible entries during the 18th and 19th Centuries. "Today, all fifty states have statutes authorizing entries to private property for the purpose of conducting preliminary land surveys in exercising eminent domain." Slip op. at 15. And Iowa is no different. 

The court distinguished the entries permissible under Iowa's statute with the California labor regulation invalidated in Cedar Point, which authorized more intense and lengthy invasions. Slip op. at 16.

On one hand, the Iowa court's decision isn't all that surprising because this was a facial challenge. Most courts which have addressed the takings question have held that -- at least facially -- these statutes are not unconstitutional. For recent examples, see South Dakota and North Dakota.

But as those cases illustrate, the entries authorized by the statutes must be minimally invasive and superficial, and relatively innocuous. See, for example, North Dakota, and South Dakota (again). To use the famous phrasing of Justice Holmes, these entries can't go "too far." Which means that although the facial challenge failed here, it seems that as-applied challenges remain viable in the right cases.

Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Iowa Nov. 22, 2024)

NYT Word Of The Day: "Eminent Domain"

Thanks to lawprof Donald Kochan for the heads-up: the "Word of the Day" in today's New York Times is ... "eminent domain."

Defined by the piece as:

"the right of the state to take private property for public use; the Fifth Amendment that was added to the Constitution of the United States requires that just compensation be made"

Ugh. The "right?" No mate, it's a sovereign power, not a right.

The piece then challenges the reader:

Can you correctly use the word eminent domain in a sentence? Based on the definition and example provided, write a sentence using today’s Word of the Day and share it as a comment on this article. It is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun.

OK, we'll have a go. How's this for our entry: "Remember when the New York Times was the private beneficiary of the City of New York's abuse of its power of eminent domain when it declared the existing property blighted, so it could give the land (and tax breaks) to the paper for its new Times Square office?"

Add yours in the comments.

(Un?)Happy Euclid Day!

98 years old, and still going (for better or worse)

On this day in 1926, the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).

You know this one (and can you call yourself a dirt lawyer if you don't?). It's the one in which the Supreme Court first upheld -- against a facial due process challenge -- the validity of this thing we call "zoning." While in the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that "zoning" -- ackshually -- refers only to the regulation and separation of uses, and restrictions on density, and height regulation. At least that's how it began.

While "Euclid" and "Euclidean zoning" have become part of the land use lexicon and landscape, the decision might have been seen at the time as somewhat surprising. After all, the Supreme Court was in the height of the so-called Lochner era, when it might have been expected to get the legal vapors over these type of restrictions on economic liberty and property. In an era when the Court was more aggressively policing the police power, for it to uphold, even generally, the validity of zoning restrictions, might not have been expected.

And perhaps even more surprisingly, the opinion was authored by none other than Justice George Sutherland, one of the notorious Four Horsemen who would later regularly vote to invalidate similar New Deal legislation.

But Sutherland and the Court went the other way on this "zoning" thing, applying what later became known as the rational basis standard of review. Fairly debatable? No sweat. Who are we, mere judges, to say otherwise?

What accounts for that? Some have noted that the "Bettman Brief," a late-filed amicus (submitted after oral argument) on behalf of the National Conference on City Planning and others, held sway. The dots are not that difficult to connect -- much of the language and imagery in the Euclid opinion such as the "parasitic" nature of (horrors!) apartments -- comes straight out of the Bettman brief. And it also isn't that hard to connect the dots between a facially-neutral tool of exclusion like zoning, and the Supreme Court's then-recent rejection of express racial discrimination in local land use regulations (we're talking Buchanan v. Warley, 245 U.S. 60 (1917)).

But despite those roots, with a few hiccups along the way -- a mere four year later, pretty much the very same Court held in Nectow v. City of Cambridge, 277 U.S. 183 (1928) that, as applied to a specific parcel, Euclidean zoning was arbitrary and capricious and violated a property owner's rights, with the very same Justice Sutherland authoring the opinion -- zoning has been widely accepted around the nation (except, most notoriously, in Houston, which has opted for a more ad hoc, less comprehensive plan-based form of use regulation), with the courts doing little to stand in the way.

These days, however, there's a renewed focus on Euclid and zoning's troublesome roots. Thus, our title's "un" headline. But even as we reckon with that history, zoning chugs along towards the century mark.

Let's see what the next two years might bring. In the meantime, we're going to recognize Euclid's birthday. Whether it is a happy one is subject to change.

Euclid is literally a landmark decision.

Brief Amici Curiae of National Conference on City Planning, Village of Euclid v. Ambler Realty Co., No. 25-...

 

 

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!

Blight Redevelopment & Eminent Domain, India Style: Private Property As A Basis For "Economic Democracy"

We're not going to pretend to fully understand the Supreme Court of India's recent decision in Property Owners Ass'n v. State of Maharashtra, No. 2012-2022 (Nov. 4, 2024) for obvious reasons (plus, the judgement and various opinions and dissents total 193 pages).

But we post it here because we think it gives some insight how other jurisdictions and cultures view expropriation, and the role of property rights in free societies.

Some background. The Constitution of India (article 39(b)) has been held by the Supreme Court to embody a concept known as "constitutional socialism." It provides:

The State shall, in particular, direct its policy towards securing--

...

(b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

Not quite the Fifth Amendment, is it?

Indeed, Justices of the Supreme Court have opined that constitutional socialism means that everything is the community's, including private property ("material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material need, not merely public possessions").

But there seems to have been a long-standing push-pull between the legislature and the courts over the nature and role of private property, with the legislature pushing the socialist view and the court responding with decisions emphasizing the role of privately-owned property, as in this earlier case we posted.

The current case is what we'd label eminent domain for blight remediation and redevelopment. By statute, the Mumbai Housing Board may take certain private property for redevelopment if 70% of the residents approve. The statute was adopted under the authority of article 39(b), and property owners objected to the expropriation, asserting that the Court's prior endorsement of constitutional socialism should not have included all private property as "material resources of the community," to be "distributed as best to sub serve the public good."

That's not socialist, that's Marxist, they argued, and private property in some form must exist.

A seven-Justice majority of the nine-member Supreme Court agreed, rejecting the view that all private property is part of the "resources of the community." Community resources do not include private property because the use of the term "community" must mean there's some distinction between the community and the individual.

The majority also rejected the notion that India's Constitution enshrines an economic theory. Instead of requiring socialism, the India Constitution does not require "particular form of social structure or economic policy for future governments ... [and] did not intend to prioritise one form of government or economic structure over the other but instead only laid down the ideal of ‘economic democracy’. Slip op. at 152.

In short, that means that the electorate remains free to choose the "economic or political school of thought" it prefers. Slip op. at 153. The end result is that the government does not have a free hand to take privately-owned property.

Here's more on the decision and the opinions of the Justices:

• Summary of the decision and judgement (Supreme Court Observer)
• Case page (Supreme Court Observer)
• Opinion: Private Property And The Question Of 'Constitutional Socialism' (NDTV)
  
• SC’s interpretation of private property curtails state’s power but enhances judicial review (The Indian Express)
  
• Justice Dhulia Stands Firm on Constitutional Socialism (Devdiscourse)

Check it out

Property Owners Ass'n v. State of Maharashtra, No. 1012-2022 (India Nov. 5, 2024)

Links From Today's ABA Land Use Session

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

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

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

New Law Review Article: John Groen, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central," 39 Touro L. Rev. 973 (2024)

Today's must-read, a (very) recent article by our Pacific Legal Foundation colleague John Groen, published in the Touro Law Review, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central."

Get the pdf here.

With a title like that, who could resist? Here's the Abstract:

Justice Clarence Thomas, dissenting in Murr v. Wisconsin, suggested the Supreme Court take a “fresh look” at its regulatory takings jurisprudence and see “whether it can be grounded in the original public meaning of the Takings Clause.” He repeated this request in Bridge Aina Le’A, LLC v. Hawaii Land Use Commission, but also sharply criticized the existing takings analysis developed in Penn Central Transportation Co. v. City of New York, stating: “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”

This article responds to Justice Thomas and contends that the original and current public meaning of the term “property” as used in the Takings Clause is a group of rights, the most essential being the right to possess, the right to exclude others, the right to alienate, and, most saliently, the right to beneficial use. Contrary to assertions by the Court and commentators that the Takings Clause was originally limited to direct appropriations or physical takings of property, many early 19th century cases found takings based on destruction of the right of beneficial use, cases that today we call regulatory takings. The development of takings jurisprudence leading to the 1922 decision by Justice Holmes in Pennsylvania Coal Company v. Mahon is based on protection of these rights. This Article focuses on the essential rights that define property and thereby exposes the flaw of Penn Central which bases a taking on diminution in value, rather than substantial interference with a property right. Drawing on the original public meaning and early takings jurisprudence, as well as recent precedent in Lingle v. Chevron USA and Cedar Point Nursery v. Hassid, this article proposes a takings framework based on formal or functional transfer of rights, rather than diminution in value.

Most definitely check it out.

NJ Supreme Court Grants Review: Is Forcing Hospitals To Operate At A Loss A Taking?

Here's the latest in a case we've been following. The New Jersey Supreme Court has agreed to review the Appellate Division's decision in Englewood Hospital & Medical Center v. New Jersey. 

That's the case where several hospitals challenged a New Jersey statute which requires hospitals to take all patients regardless of their ability to pay, but does not fully reimburse under Medicaid the hospitals for the costs of treating these patients even where it results in the hospitals losing money.

The Appellate Division held this was not a categorical (Cedar Point/Loretto) or an ad hoc (Penn Central) taking.

The hospitals asserted that the statute required them to suffer a physical invasion, because the statute prohibited hospitals from excluding nonpaying patients. The court rejected the argument, in what reminded us of the Yee rent control and PruneYard commercial benefit approach, where the essential reasoning is that "you let people onto your land and business, so you've waived your right to exclude." 

In contrast to the plaintiffs in Loretto and Nollan, plaintiffs here operate hospitals within the complex and highly regulated health care industry. Unlike the cable installation law in Loretto, N.J.S.A. 26:2H-18.64 does not limit the right to exclude individuals from their premises. Rather, it prohibits hospitals from turning away patients "on the basis of [their] ability to pay" without being subject to civil penalty, and further prohibits billing only those patients who qualify under charity care.

Slip op. at 19.

The court concluded that "the charity care statute's operation does not lead to physical invasion of the hospitals' property by the public because, unlike Cedar Point, the public's presence in a hospital is a natural element of its business, making it more analogous to Pruneyard." Slip op. at 20 ("Charity care restricts how hospitals use their property to provide medical services, not whether they do so. The property will be used as it was intended—to treat patients.").

The Penn Central argument fared no better. The economic impact must be viewed in the context of the hospital as a whole: the court viewed the property at issue as the operation of the entire hospital, not the right to treat each patient in a way that doesn't lose money on that patient: 

Although plaintiffs contend that charity care as a whole has a negative economic impact on their investment interests, there is no evidence that the prohibition on turning away patients because of inability to pay unreasonably impairs the value of the premises.

Slip op. at 20. Yes, the requirement to treat all patients and then provide only a limited reimbursement for those who could not pay has an adverse impact on the hospitals' "profitability," the premises could still be used as a hospital.

But, the hospitals argued, the statute forces us to operate as pretty lousy hospitals! The Appellate Division's response is faintly laughable, along the lines of "yeah, the lack of reimbursement forces hospitals to operate kinda crap hospitals, but they can still operate them as hospitals: "A takings claim cannot be sustained on the sole ground that plaintiffs fail to financially perform on par with industry-wide norms." Slip op. at 23. 

The court really torpedoed the notion that the hospitals have any expectation of operating free of onerous regulations. Ah yes, the old "heavily-regulated industry" trope:

Hospital investors in the highly regulated health care industry should expect that use of their property, in all its forms, is likely to be regulated by the state, and that such government regulation may diminish investment-backed expectations without resulting in an unconstitutional taking.

Slip op. at 24.

Not only did the court require hospital investors to understand the existing regulatory environment ... they also are charged with predicting the future: 

When a hospital seeks a license to operate in our state, it must consider the laws in effect at that time as well as those which may be adopted by our Legislature. Given plaintiffs' choice to do business here, it is reasonable that they should expect such license conditions to affect business profits. In turn, we conclude it is not reasonable for the hospitals to expect an at-cost reimbursement for the medical services the Legislature has required them to provide as a condition of doing business in our state

Slip op. at 25.

Finally, the Appellate Division made the common error when analyzing the "character of the government action" factor, concluding that "courts have repeatedly stated that the character of public health and healthcare regulations typically weighs against the conclusion that a law acts as a taking." Slip op. at 25.

We've said it before but we shall say it again, just as a reminder: the reasons the government does something is not part of the takings analysis, and has not what the "character" factor asks about. Read this article we wrote a while back for the inquiry this Penn Central factor should focus on is whether the government action looks like it is having the same effect as would a straight-up exercise of eminent domain. If it looks like the property owners is being forced to bear more than its proportionate share of a public benefit, then the "character" factor should weigh in favor of a taking.

What does the New Jersey Supreme Court's agreeing to review this case mean, prediction-wise. We're not going to venture a guess there, but it does seem like something is in the cards.

Here's the issue the court will be reviewing:

Does New Jersey’s charity care program -- which requires a hospital to provide services to all patients regardless of their ability to pay, prohibits the hospital from billing those patients, and does not provide at-cost reimbursement to the hospital -- amount to an unconstitutional taking of the hospital’s property?

More on the case here from our NJ colleague Joe Grather, who predicted, "I bet the hospitals are preparing their petition for certification to the New Jersey Supreme Court now."

Stay tuned.

Guest Post: P'Nut, The Fourth Amendment, And Property Rights

Mr. Otis would be a P'Nut fan.

Our Pacific Legal Foundation colleague and search-and-seizure expert Daniel Woislaw quickly responded to the cultural zeitgeist and looked into l'affaire P'nut le Squirrel with his keen legal eye.

That's the case in which an internet narc dropped dime on the owner of a pet squirrel, resulting in New York state game officials obtaining a warrant, searching his home, confiscating said squirrel and his little buddy Fred the Raccoon, and then through a series of unfortunate events, putting both P'Nut and Fred down. Sad!

Here's Daniel's thoughts.

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Government kills pet squirrel P'Nut in Fourth Amendment horror story

Daniel Woislaw

In a small corner of New York State, a family’s quiet, peaceful home was shattered by an unthinkable intrusion. Environmental police stormed in, seized a rescued orphan squirrel named P’Nut, took him away, and put him down. All because his owner allegedly didn’t have the right license. That’s right: In New York you need a license to shelter injured wildlife and provide them a home.  

The raid on P’Nut’s home has exposed the public to a government practice that has been festering unnoticed for too long. Increasingly, federal, state, and local authorities have been intruding on private property and employing unnecessary and exceptional force to regulate increasingly trivial aspects of Americans’ lives. 

The way government does this is straightforward. First, it makes it illegal to do something commonplace without a license—which means agents can obtain a warrant for your property over the “crime” of being unlicensed. That’s what happened in P’Nut’s case: The New York Department of Environmental Conservation raided the home on a warrant after receiving tips about “the illegal keeping of wildlife as pets.” 

But when the government does issue a license, it attaches strings. Sometimes the strings are large fees or time-consuming educational requirements, but increasingly, those strings include the power to enter homes, businesses, and other private properties at will, and without a warrant or probable cause. 

In other words, while P’Nut’s owners were raided because they didn’t have the right government license, many other Americans must tolerate home invasions because they did get the right license. Such intrusions have become all too commonplace in “the land of the free.” 

It’s not supposed to work like this. Our Constitution’s Fourth Amendment was specifically designed to prevent this kind of routine governmental overreach. At the time of the Founding, the American public knew firsthand the dangers of “general warrants”—vague permissions granted to authorities to search any home at any time. These general warrants were a major grievance leading up to the American Revolution, sparking outrage across the colonies. The concept of private property and freedom within one’s home was not just a matter of personal comfort, but a core element of the fight for independence. 

Yet consider how commonplace government intrusions are today. California, for example, requires falconers as a condition of owning their birds to agree in writing that armed conservation police can enter their homes at will. No warrant, cause, or notice is required. Refusal is a criminal offense. And if falconers simply chose not to get a license, they’d risk the same type of raid that occurred at P’Nut’s home. Thankfully, in a case brought by Pacific Legal Foundation, the falconers are fighting the requirement in court.  

In Billings, Montana, the local government did the same thing with massage therapists. Therapists who work from home and apply for a mandatory license must agree to submit to unannounced intrusions by government agents—ostensibly to make sure the therapists are not prostitutes. Continuing to practice without this license (in addition to the license, ethics, and education requirements that the state already imposes) is grounds for arrest.  

And in San Bernardino County, state environmental regulators are going door-to-door executing over-broad general warrants to look for pests. In one case, a judge signed off on a warrant covering over 500 square miles and thousands of homes so that conservation officers can snoop in people’s yards and patios looking for fruit flies. These general warrants aren’t a far cry from those that allowed British customs officials to search anywhere, anytime, in pre-Revolutionary America. In a famous legal argument then, one prominent Boston lawyer argued that general searches of this nature threaten the fundamental freedoms that make this land free. 

Even something as minor as keeping a ham radio in your bedroom can expose your home to unannounced government intrusions: To operate a ham radio, you’re required to obtain a federal license—and the licensure rules require you to allow federal inspections without a warrant.  

With Pacific Legal Foundation’s help, Americans whose constitutional rights were violated over California’s falconry regulations, Billings’ anti-massage-therapy law, and the general searches in San Bernardino are fighting back in court. 

The right to be secure in our homes, businesses, and other private properties against arbitrary and forceful intrusions by the government stretches back to the English common law maxim that “a man’s home is his castle.” For centuries, the Anglo-American legal tradition has recognized the home as a sanctuary, shielded against arbitrary government intrusion. The principle is simple but profound: A person’s home is an extension of their freedom, an intimate space where they can retreat from the eyes of the state. Allowing government agents to enter private homes at will, especially for minor or technical infractions, erodes this sacred boundary and undermines the liberty that our nation was founded to protect. 

In the face of these historical lessons, the actions of New York State’s environmental police feel like a grave regression. By using force to raid a home over a small, compassionate act—caring for a tiny, orphaned squirrel—the government has sent a chilling message about its priorities. This was not a defense of public safety but an abuse of authority, carried out under the guise of “regulation.” 

Ultimately, the raid on P’Nut’s family home is more than just an isolated case of overreach; it reflects a troubling trend. If we allow the government to use force to intrude into homes for minor violations, we risk losing one of our most fundamental freedoms—the right to privacy and security in our own homes. Americans must demand that this sacred boundary be respected.

By holding our government accountable and insisting on the original intent of the Fourth Amendment, PLF is working to protect Americans’ liberties. If you’re a victim of an unconstitutional government intrusion, PLF may be able to help.  

 

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

Charles McFarland, arguing.

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

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

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

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

Here are the Issues Presented by the property owner:

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

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

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

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

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

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

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

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

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

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

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

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

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

More on the case here, including all the briefing.

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

New U Chi L Rev Article (Comment): "Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule"

The latest issue of the University of Chicago Law Review has this student-authored piece that is worth your time reading. "Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule," 91 U. Chi. L. Rev. 2047 (2024). 

Here's the Abstract:

The Supreme Court’s decision in Cedar Point Nursery v. Hassid has left considerable uncertainty in the realm of takings law. In Cedar Point, the Court announced a new rule that government-authorized physical occupations of property, even temporary ones, constitute per se takings. But the Cedar Point decision left significant questions unresolved regarding the scope of its per se takings rule and its various exceptions.

To resolve these questions, this Comment looks to the example of guns-at-work laws. Enacted by about half of the states, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles, even if those private vehicles are on company property (e.g., parking lots and parking structures). In addition to having important public safety implications, guns-at-work laws serve as a fruitful example to understand takings doctrine.

Relying on this example, this Comment reaches three conclusions regarding takings doctrine and its application to guns-at-work laws. First, government-authorized physical occupations, even seemingly trivial ones, can constitute per se takings. This suggests that at least initially, guns-at-work laws constitute per se takings. Second, when applying the open-to-the-public exception, courts should look to the subsections of a business and not attempt to weigh between subsections to determine the character of the business as a whole. Consequently, courts should treat employee-only parking lots and parking lots open to the public differently for the purposes of the open-to-the-public exception: the open-to-the-public exception exempts parking lots open to the public, but not employee-only parking lots, from Cedar Point’s per se takings rule. Finally, the longstanding-restrictions-on-property-rights exception only requires a contemporary law to have a historical analogue, not an exact historical match. Thus, Founding Era militia laws are a similar historical analogue to guns-at-work laws. Consequently, guns-at-work laws are not a per se taking under Cedar Point.

We can't say we agree 100% with the piece's conclusions, but still urge you to check it out.

New Cert Petition: Does A Taking For Public Use Become A Problem If The Govt Later Abandons That Use?

Here's the latest in a case we've been following, which has now results in a cert petition from Michael Berger. This one involves some very intriguing questions about what limits the Constitution places on the government acquiring property for a public use (in this case, an "airport purpose") but then later deciding it would rather do something else with the property.

Check out the Questions Presented:

The City and County of Denver condemned 8,360 acres of land from Petitioner Monaghan Farms as part of its land acquisition for the creation of the Denver International Airport, including a large area surrounding the facility to serve as an environmental buffer and safety zone. Thirty-four years later, Denver decided to use approximately half that land (which had not been used for airport purposes) for commercial nonaeronautical developments. But the power of eminent domain may only be used to take property for public use.

The Colorado courts exacerbated the situation by assuming that conversion to private, commercial, non-aeronautical use was an “airport purpose” as a matter of law, expressly refusing to permit discovery to ascertain the truth or accuracy of that assumption, and then deciding the case as a matter of law without a trial.

Question 1: Is it an appropriate application of Kelo v. City of New London, 545 U.S. 469 (2005) to take property for public use (in the sense of actual use by the public) and then later decide to devote that property to private commercial use without reconsidering the constitutional public use requirement?

Question 2: When property has been taken by eminent domain for a specific public use (construct and operate an airport), may that property later be devoted to a wholly different, commercial, nonaeronautical development that abandons the prior public use?

Question 3: Does this Court’s recent decision in Loper Bright (2024) call for re-examining the duty of the judiciary to exercise independent judgment in deciding public use under Kelo?

Question 4: When a court decides a case based on a “legal” determination of a central “fact” while denying either discovery or trial on the merits, has it denied due process of law?

Question 5: Does it satisfy the Fifth Amendment’s requirements for exercising eminent domain (incorporated through the Fourteenth Amendment against the states) for the sovereign to seize land in fee simple absolute when (1) the condemnation petition did not explicitly seek fee simple absolute title, (2) the condemnor did not pay full fair market value for the fee simple absolute rights to the property that was taken, (3) the property was not used for its intended public purpose, and (4) the property was later devoted to private use?

Stay tuned.

Petition for a Writ of Certiorari, Monaghan Farms, Inc. v. City and County of Denver, No. __ (U.S. Oct. 31,...

Call For Papers: "Housing and Exactions: The Next Frontiers After Sheetz"

Our outfit (Pacific Legal Foundation) has put out a call for papers. on the topic of land use exactions and housing law. Honorarium included for accepted papers, and there will be a workshop to follow.

Here's the description:

This workshop seeks to build on the result of Sheetz v. County of El Dorado and chart the course of the next steps in exactions/unconstitutional-conditions law. From Nollan v. California Coastal Commission, through Dolan v. City of Tigard and Koontz v. St. John’s River Water Management District, and now including Sheetz, the Supreme Court has looked to the doctrine of exactions and unconstitutional conditions to ensure property rights are protected. In doing so, it has created a constitutional bulwark protecting the right to build housing on private property, an important stick in the property rights bundle.

The Supreme Court’s unanimous decision in Sheetz held that legislatively-imposed development-fee schedules are subject to judicial scrutiny under the doctrine of unconstitutional conditions. This ruling promises to change how local and state governments extract development impact fees from property owners in exchange for building permits; and it may very well do more. This is where you come in.

We seek papers that address the questions arising from the Sheetz ruling. We welcome proposals that look at this issue from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.

Some possible topics:

• Must a permit condition imposed by a legislative body on a category of properties be tailored with the same degree of specificity as a permit condition that targets a particular single development to be constitutional?
• An article exploring the Sheetz concurrences by Justices Neil Gorsuch and Brett Kavanaugh offering different arguments about the need for legislative exactions to be tailored.
• Beyond the analysis of Koontz, is there a basis in constitutional text, history, and/or case law for holding stand-alone impact fees (as opposed to in-lieu fees) subject to the doctrine of unconstitutional conditions?
• How does the requirement that the government “make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development” work when evaluating a generally imposed legislative exaction?
• What does “essential nexus” require to be constitutional?
• Are there economic models that prove or disprove the claim that inclusionary zoning meets the nexus requirement of the Nollan-Dolan-Koontz-Sheetz exactions test?
• Does inclusionary zoning create meaningful workforce and affordable housing?
• Alternatively, does inclusionary zoning have a negative impact on the production of affordable housing? Empirical studies of communities with inclusionary zoning policies in place could yield meaningful information if studied.
• Do all inclusionary-zoning schemes rely upon Kelo v. City of New London, and if they do, then would the right inclusionary-zoning challenge have the promise of overturning Kelo?
• How have states limited local government’s ability to legislatively impose fees on developers, and is there empirical evidence of more and cheaper housing in the states with those limits?
• True or false: The weaker the nexus, the more difficult it will (or should) be for the government to establish proportionality.
• How do impact fees affect housing supply and affordability? What is the tradeoff between property taxes and fees?
• How can YIMBYs incorporate the Sheetz decision into their work and build from it to successfully encourage communities to build more housing?
• Besides inclusionary-zoning fees, are there other government-imposed fees on builders and developers that may violate the nexus prong of the Nollan-Dolan-Koontz-Sheetz test? What are they and why is there a lack of nexus between the fee and the demand?

Fertile grounds for exploration.

Details here, including deadlines. Check it out, and then submit a proposal.

Nevada: Private-to-Private Takings By Privately-Owned Utilities Are OK, Even Though State Constitution Prohibits "transfer ... from one private party to another"

Those of you who are students of eminent domain and the public use requirement know that in Berman v. Parker, 348 U.S. 26 (1954), the Court (in)famously held, "when the legislature has spoken, the public interest has been declared in terms well nigh conclusive."

Not only was the Court in Berman signalling that it was washing its hands of the Public Use Clause, but that case also -- less overtly -- revealed a shift from examining the use the property was to be put, to the purpose for which the property was being acquired, or as the above quote highlights, where a taking furthers the public interest. (A shift that, if you missed it, the Court confirmed in Midkiff where it held the eminent domain and police powers are "coterminous," and both are reviewed under the deferential rational basis standard.)

If that wasn't clear enough, the majority in Kelo hammered the point home, expressly equating New London's use of eminent domain to take property, with zoning used to regulate property's uses in Euclid:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. As with other exercises in urban planning and development,¹² the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

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

12. Cf. Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926).

But not only was Berman a shift from use to purpose, but also, as a consequence, shifted the time frame and actions scrutinized under the Public Use Clause. As John Ross put it in "The Despotic Power" episode of Bound by Oath:

In the past, the test concerned how the property was put to use after if was taken. But now [after Berman] courts began to hold that a taking itself could be a public use. Meaning, that the clearing of a slum itself was the public use, and, if property was put to private use afterwards, that didn’t matter. According to Wendell Pritchett, a law professor at the University of Pennsylvania, this shift was a dramatic expansion of the power of eminent domain.

With that in mind, take a look at the Nevada Supreme Court's recent decision in Mass Land Acquisition, LLC v. First Judicial District, No. 2024-85983 (Oct. 17, 2024), where it held that the Nevada Constitution's provision barring takings where the property is transferred to another private owner only prohibits takings where the government transfers property it has taken to a private owner, and doesn't prohibit a private delegee of the eminent domain power from taking it for itself.

First, the backstory. In the wake of Kelo, the people of Nevada comprehensively amended their state constitution to reform eminent domain practice. These reforms included such things as requiring disclosure of appraisals, eliminating future dedications from being considered as offsetting just compensation, inclusion of costs as part of compensation, and requiring a jury to resolve public use disputes. The first part of these constitutional amendments defined "public use" -

Public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another. In all eminent domain actions, the government shall have the burden to prove public use. 

Nev. Const. art. 1, § 22(1).

Mass Land objected under this provision to the taking of an easement for a natural gas pipeline by Sierra Pacific Power, a private entity which has been delegated the power of eminent domain and operates as a public utility. Sierra Pacific sought immediate occupancy (quick take). After the trial court rejected Mass Land's objection that this isn't a public use under the constitutional definition, Mass Land asked the Nevada Supreme Court for a writ of mandamus or prohibition.

It argued that the taking of its property so that it ended up being owned by Sierra Pacific fell within the constitutional prohibition noted above: Mass Land's private private property was transferred by eminent domain "to another" private party, Sierra Pacific. Owned by A, then transferred to B by eminent domain. Game, set, match .... right?

The Nevada Supreme Court didn't see it quite as simply. It denied the writs, concluding that the Nevada Constitution only prohibits the use of eminent domain when a government condemnor takes property from A by eminent domain, and then subsequently transfers it to B, a different private owner. The "transfer" referred to isn't the transfer of ownership of the property by eminent domain, but rather the post-taking transfer of the condemned property to a private third party.

It doesn't matter that the situation here fits within the literal language of the constitution, because section 1 "prohibits taking private property for purposes of transferring the property to another private party for their use, protecting Nevadans from takings like the one that occurred in Kelo."

This section does not prohibit a regulated public utility that 'has the power of eminent domain," from taking property for a natural gas pipeline, a statutorily recognized public use.

Slip op. at 3-4 (citations omitted).

Did you catch the assumption the court made? The same as the U.S. Supreme Court made in Berman. There, as here, the court viewed the public use requirement not by asking who owned it before and who owned it afterwards and whether that transfer was accomplished by eminent domain. Rather, the court assumed the public use inquiry is one of motive and purpose, and if those are indeed public then it really doesn't matter what the ultimate use is, or even who ends up owning the property as a result of the taking -- even where the state's organic law plainly appears to prohibit it. This assumption allowed the court to validate this taking, yet it would be required to invalidate a taking where an actual government took Mass Land's property and then transferred it to Sierra Power. Same, but different.

Also, the court reaches another conclusion that isn't necessarily compelled by the text of the constitution. It held that section 1 only prohibits the condemnor from taking property and then transferring it to a third party; the provision does not prevent the condemnor from taking and then keeping it. The court focused on the term "transfer," and concluded that this language is "clear on its face," and means taking then transferring to another, and not simply transferring by eminent domain the ownership of property from its former owner to the condemnor:

Article 1, section 22(1)'s private-party transfer prohibition does not prohibit a private party to whom the power of eminent domain has been delegated from taking private property for public use. The use of the pasttense word "taken" in the same sentence as "transfer" contemplates that the exclusion refers to property that has already been taken through eminent domain and that is then subsequently transferred, directly or indirectly, to a private party. Although NV Energy's taking an easement across Mass Land's property results in the conveyance of a property interest from one private party (Mass Land) to another (NV Energy), the private-transfer exclusion is not triggered because the exclusion only applies to transfers that occur after the property has been taken by eminent domain. The exclusion in article 1, section 22(1) would be implicated if NV Energy took the property, then transferred it to another private party for their private use.2 But here, no subsequent transfer to a private party followed the taking, and NV Energy took the property for a natural gas pipeline, a statutorily recognized public use.

Slip op. at 11.

According to the court, reading the constitution any other way would torpedo the legislature's ability to delegate the power of eminent domain to private parties, and would thereby render another constitutional amendment adopted at the same time -- which defined "the government" as including private entities delegated eminent domain power -- superfluous.

We're not completely in agreement with this rationale, because the ratifiers could have been making a distinction between takings by government in which it keeps the property, and takings by a private "investor-owned" entity in which it keeps the property, intending only to nix the latter. After all, it it shouldn't be hard to see that that the bad thing that section 1 could be aimed at it the ultimate ownership, and not the mechanics of the transfer. But the court viewed the amendment solely as a reaction to Kelo, which the court saw as enraging the public only because New London took Kelo's property "for purposes of transferring it to a private developer as part of an economic redevelopment plan." Slip op. at 13-14. That may have been a part of it, but wasn't a large part of the public reaction to Kelo a rejection of the idea that Ms. Kelo's and her neighbors' properties were going to be owned by another private owner?

And even if mechanics and process is the focus, a self-dealing A-to-B transfer by eminent domain by a private actor seems at least as bad -- and likely worse -- than the government-as-middleman procedure endorsed by Kelo and Berman, and now this decision. Justice Stevens' Kelo majority and its reliance on Euclid leans heavily on procedure as the proxy for public purpose and intent. If the system seems to be functioning, then courts won't ask questions. But there's no indication in the Mass Land opinion about what procedures, if any, were present here that mirror the "carefully formulated" plan that "benefits the community" as in Kelo.

Perhaps the oddest analytical approach the Nevada court undertakes here is on page 13, where it concludes that because the delegation statute was adopted before the constitutional amendment, the statute must be protected. We thought it was the other way around.

We suppose we understand the impulses motivating the court here. Accepting the property owner's arguments would require a change in the way that eminent domain is implemented by private delegees of the power. And that could result in a lot of hassle for the way that things have always been done, and make it harder when private entities take and then keep the private property of another. 

But maybe that was the point of the constitutional change?

Mass Land Acquisition, LLC v. First Judicial District, No. 2024-85693 (Nev. Oct. 17, 2024)

New Article (Comment): "Vacancy Taxes: A Possible Taking?" (U. Chi. L. Rev.)

A new student-authored journal article worth reading, Christine Dong, "Vacancy Taxes: A Possible Taking?," 91 U. Chi. L. Rev. 1725 (2024).

Here's the Abstract:

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Cities across the country facing housing shortages have either implemented or are considering adopting vacancy taxes to encourage property owners to rent or sell their property. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability.

This Comment seeks to make sense of how this and similar potential challenges would fare, given an expanding, property-protective takings doctrine, but a high constitutional tolerance for taxes. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking under either framework, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings.

Download the pdf here.

Worth your time to check out.

Last Night, I Shook Hands With Mr. Jefferson's Ghost

Like most "paranormal caught on camera" shots,
this one is grainy. But you can just make Mr. Jefferson out.

Colonial Williamsburg is adjacent to the William & Mary Law School, so from time-to-time, we'll take a walk over just to soak up the atmosphere. The vibe picks up in the autumn season, when the leaves are turning and there's a slight chill in the air. We try to time these visits for the evenings, because the atmo is particularly intense. 

And so it was yesterday afternoon and into the evening, as we were walking about CW that we happened to run into Thomas Jefferson, Esq., an up-and-coming Williamsburg lawyer, who was kind enough to spend a bit of time chatting. At the end of an educational and enjoyable conversation, we shook hands and went about our business.

A paranormal encounter with the spirit of Mr. Jefferson, author of the Declaration of Independence and the Virginia Statute of Religious Freedom? Had your blogger perhaps indulged in too much at the nearby meadery? Who ya gonna call, Ghostbusters? 

No, not quite. But very close. We know we used a clickbaity title to get you to read this post, but we're not being entirely accurate. We did not actually meet up with the otherworldly essence of Thomas J, or the ghost of lawyers past. 

But we came about as near as you can without actually holding a seance.

Every year, the W&M Legal History Society asks the fellow who portrays Mr. Jefferson at CW to speak to law students and lawprofs, and offer his thoughts about the legal profession, the study of law, his practice, and his life.

Not only does he do so with admirable candor (and even at times humor), he has always been willing  to respond to some very difficult questions about his life, his philosophy and politics ... and his personal conduct.

TJeff recounted studying law at William and Mary in
the building behind him, now the Governor's Palace.

The Society was kind enough to allow me to join them again, and we gathered at the home of Jefferson's mentor-in-law, George Wythe. After some questions and answers there, we walked a short distance to what is now known as the Governor's Palace in the heart of CW, but back in Jefferson's day was the building in which he studied law under Mr. Wythe's tutelage.

He discussed what he considers it his crowning achievement (our words, not his; he tends to avoid "crown" puns) -- the the Declaration of Independence, the Lockean theories behind it.

Locke wrote about life, liberty, and property, so why did Mr. Jefferson replace that last part with "the pursuit of Happiness?" What were you thinking? Using pursuit of happiness, he explained, was his way of suggesting that the purpose of government isn't limited to securing the right to property, but to something larger. Of course, acquiring and possessing property is a large part of happiness, but isn't all of it. It ties back to the notion that all men are created equal, he noted, because it includes people without property.

Jefferson also spoke about other issues, such as republicanism vs democracy, public virtue, the study of law, and even about his favorite violin piece. 

Mr. Jefferson remembering final exams
at William & Mary Law School. That darn curve!

To his credit, he was candid about his own faults and responded frankly to some pointed inquires from the law students. He acknowledged that he was hardly perfect, or even good. But he did point out that he was considered a class traitor at the time by his Virginia and southern peers for even suggesting that slavery should be abolished (as proposed by his draft Virginia Constitution, authored at the same time as the Declaration but never adopted), and for including a section in the draft Declaration (also stricken from the final version) pointing the finger at His Britannic Majesty for saddling the colonies with with what he described as a "cruel war against human nature itself," that violated the "most sacred rights of life & liberty in the persons of a distant people who never offended."

Pointing out as well a case from his Williamsburg law practice ("which I argued over in that building" he noted, pointing to the actual courthouse in which the Virginia General Court, the highest court in the Colony sat), Howell v. Netherland (1770).

There, Jefferson argued for more freedom not less, in case involving the legal indentured servitude of the grandchild of a mixed-race couple. He pointed out that his mentor Wythe represented the master (small town barrister practice often means you take the case as it comes, with your friends taking the other party), and that Jefferson lost the case.

All of the above, Jefferson suggested, should count for something when history judges me. We shall see, Sir.

Note: the fellow portraying Jefferson is outstanding, and looks and acts and speaks in a manner of what we imagine Jefferson to have been like, right down to acknowledging that he was not a great orator and expressed himself better in writing.

He never once broke character, and played his part so well that at times we had to remind ourselves that he is portraying Thomas Jefferson, and was not the actual Thomas Jefferson standing before us. It is funny how your mind can break down reality, sometimes. I guess this is why we enjoy plays and movies. After the students departed, I shook his hand to thank him for devoting his time to educating William and Mary law students that laws are made my decidedly imperfect people trying to create a "more perfect" union. 

So yeah, maybe I kind of did shake hands with Mr. Jefferson last night.

 

By The Thinnest Of Margins, SCOTUS Declines Public Use Pretext "Spite Taking" Case

So close: if just one more Justice had agreed, the U.S. Supreme Court would have taken up a public use case we've been following, Brinkmann v. Town of Southhold. After all, this one had a lot of the usual markers: a divided court below, an allegation of a lower court split, beaucoup amicus support, and a long-festering issue that has remained open for almost 20 years.

But alas, in this Order, the Court denied the cert petition. Perhaps not surprising given the small number of cases the Supreme Court takes up these days (those of us who have been around for a while remember the days when the Court's docket was up to 140 argued cases each Term). But nonetheless a disappointment.

One hint for future similar cases: three Justices (Thomas, Gorsuch, and Kavanaugh) "would grant the petition." We wonder why one more Justice among at least three potential candidates (CJ Roberts, Alito, or Barrett) didn't add the fourth vote to grant. Lawprof Ilya Somin shares his insight in "Supreme Court Refuses to Hear 'Passive Park' Public Use Property Rights Case," where he writes:

I would very much like the Supreme Court to take another public use case, and overrule Kelo and Berman, or at least cut back on those badly flawed precedents. But, for reasons noted in my earlier post, I think this case would have been a bad vehicle for reviewing these issues[.]

The situation here is what we call a "spite taking" (where the apparent purpose of the taking is not so much to promote a public use or benefit, but to stop a property owner from making some publicly disfavored use of his or her land). Are these okay under the Public Use requirement because -- as the Second Circuit panel majority held -- that it is just fine to do good things for bad reasons, and who cares about motivation as long as the stated use is public and not a pretext to a private benefit. Or does it offend the Public Use Clause -- as other courts have held -- to say you're taking it for some public use, when your real motivation is something else (even if not a private benefit)?

Underlying all this is what we see as the predicate question: should the government be in the business of using eminent domain to forcibly acquire private property because the owner is making -- or as here, proposes to make -- an allowed use of the property that the government or the public doesn't like?

One argument is that the government should not be able to use the "despotic power" in such a fashion -- that it should be outright prohibited, or at least subject to more than rational basis review due to the potential for abuse. Countering that is the argument that all exercises of eminent domain are the government telling a property owner that it is forcibly acquiring property because the current use is disfavored: you want to use your property for a house, but the public thinks it should be a post office or fire station. Then there's also the distinction the Second Circuit made that pretext should be reserved for those situations where the stated public use is a pretext to a private use or benefit, and not, as here, another public use.

Unfortunately, we're not going to get any answers on these questions just yet.

So close, yet so far. Stay tuned.

 

Nobel Economics Prize To Research Confirming The Importance Of The Rule Of Law And Property Rights

This out of Sweden: the Royal Swedish Academy of Science has announced that it will be awarding the 2024 Nobel Prize in Economics to three U.S. econ professors whose research demonstrates that the rule of law and property rights foster an environment where democracy and prosperity flourish:

The laureates have shown that one explanation for differences in countries’ prosperity is the societal institutions that were introduced during colonisation. Inclusive institutions were often introduced in countries that were poor when they were colonised, over time resulting in a generally prosperous population. This is an important reason for why former colonies that were once rich are now poor, and vice versa.

Some countries become trapped in a situation with extractive institutions and low economic growth. The introduction of inclusive institutions would create long-term benefits for everyone, but extractive institutions provide short-term gains for the people in power. As long as the political system guarantees they will remain in control, no one will trust their promises of future economic reforms. According to the laureates, this is why no improvement occurs.

More here, in a press release from the Massachusetts Institute of Technology where two of the professors teach:

Overall, the scholars have found, inclusive governments experience the greatest growth in the long run. By contrast, countries with extractive governments either fail to generate broad-based growth or see their growth wither away after short bursts of economic expansion.

More specifically, because economic growth depends heavily on widespread technological innovation, such advances are only sustained when and where countries promote an array of individual rights, including property rights, giving more people the incentive to invent things. Elites may resist innovation, change, and growth to hold on to power, but without the rule of law and a stable set of rights, innovation and growth stall.

“Both political and economic inclusion matter, and they are synergistic,” Acemoglu said during the MIT press conference.

The scholarship of Acemoglu, Johnson, and Robinson has often been historically grounded, using the varying introduction of inclusive institutions, including the rule of law and property rights, to analyze their effects on growth.

Glad to see these principles being recognized (with 11 million kronor, even!).

Apparently, The "Final Frontier" Isn't Space, But The California Coastal Zone

Following up on our recent post about the California Coastal Commission denying permission for Space-X to increase the number of annual launches from Vandenberg, comes this, the other shoe.

The Commission has now been sued, with Space-X alleging that the Commission denied permission due to CEO Elon Musk's political leanings and his public statements.

“I really appreciate the work of the Space Force,” said Commission Chair Caryl Hart. “But here we’re dealing with a company, the head of which has aggressively injected himself into the presidential race and he’s managed a company in a way that was just described by Commissioner Newsom that I find to be very disturbing.”

Here's the complaint, filed in the U.S. District Court (Central District of California). 

Was the Commission's denial a product of concern for "wildlife like threatened snowy plovers," or the Commission members' dislike of Musk?

Stay tuned. The Coastal Commission isn't all that used to pushback to it exercising monarchical-level dominion over the California coastal zone except in rare circumstances. But this appears to the the first time that the Commission has done wrong to the world's richest man, who, unlike your average coastal property owner has the resources and the will to fight back. 

This is going to be fun.

Complaint for Declaratory and Injunctive Relief, Space Exploration Tech. Corp. v. Cal. Coastal Comm'n, No....

New Cert Petition: Eviction Moratorium Transferred Possession Easement To Nonpaying Tenants

Here's the latest in a case we've been following, which asks whether a local ordinance which allowed non-paying tenants to remain in the lessor's property is a physical taking, or merely the regulation of the lessor/lessee relationship under the Yee theory, which posits that once an owner voluntarily rents property to a tenant, the government then allowing that tenant to remain rent free isn't facilitating an unauthorized physical occupation, but rather is merely a regulation of the existing lessor/lessee relationship. In short, you let 'em in property owner, so suck it up.

The property owner has now filed this cert petition challenging that rationale.

As we've noted previously, some courts' reliance on Yee in this and similar situations is a misreading of that decision. Besides that, these courts essentially upend the longstanding common law of property governing the owner/tenant relationship, and the contractual nature of that relationship whereby the owner mostly surrenders the right to exclude to a tenant, but only on certain conditions usually related to time (the term of the tenancy), and the tenant paying rent. Contrary to these courts' rationale, the voluntary nature of this relationship is a two-way street. If these conditions, voluntarily agreed to by the tenant, are violated, the tenant's right to exclude ends and the lessor's reverter kicks in. Eviction moratoria and rent control regulations that permit tenants to remain despite violation of these contractual provisions upend the common law.

Here's the Question Presented:

In March 2020, the City of Los Angeles adopted one of the most onerous eviction moratoria in the country, stripping property owners like Petitioners of their right to exclude nonpaying tenants. The City pressed private property into public service, foisting the cost of its coronavirus response onto housing providers to avoid expensive and less expedient—but constitutional—means to help those in need. In doing so, the City in effect imposed and transferred to defaulting tenants an exclusive easement in the private property of others without paying for it. By August 2021, when Petitioners sued the City seeking just compensation for that physical taking, back rents owed by their unremovable tenants had ballooned to over $20 million. The moratorium concluded in 2024.

Relying on a mobile home rent control case from this Court, Yee v. City of Escondido, the Ninth Circuit affirmed dismissal of Petitioners’ complaint because they “voluntarily opened” their properties to tenants in the first instance and thus could never state a physical takings claim against the City’s law, drastic as it was. The Federal and Eighth Circuits disagree. In Darby Development Co. v. United States and Heights Apartments, LLC v. Walz, both courts held Yee inapposite and validated identical claims because moratoria like the City’s deprive owners of the right to exclude akin to Cedar Point Nursery v. Hassid.

The question presented is:

Whether an eviction moratorium depriving property owners of the fundamental right to exclude nonpaying tenants effects a physical taking.

This is a festering issue in the lower courts, as the petition points out.

Stay tuned.

Petition for a Writ of Certiorari, GHP Management Corp. v. City of Los Angeles, No. 24-___ (U.S. Oct. 16,...

You Thought We Were Joking When We Said The California Coastal Commission Would Never Allow Starfleet Headquarters To Be Built

The California Coastal Commission has now reached the parody stage.

In the "Star Trek" TV shows and movies, Starfleet Headquarters is depicted as being across the Golden Gate from San Francisco, in the Marin Headlands. It's a longstanding joke among those who know about the regulatory overreach of the California Coastal Commission that -- ha, ha -- Trek really is science fiction because the Commission would never allow a development like this in the coastal zone (especially in Marin County). Even in the 23d century. And even for an enterprise as noble as the exploration of space.

Now life is imitating humor: as the Los Angeles Times reports in "California officials reject more SpaceX rocket launches, with some citing Musk’s X posts." We know that Space X isn't quite Starfleet, but it is getting pretty close (and this is reality, not some fanciful TV show).

Yet the Coastal Commission is up to its usual shenanigans. As the LA Times notes:

SpaceX’s plans to launch more rockets from the California coast were rejected by a state commission this week, with some officials citing Elon Musk’s political posts on X and raising concerns about the billionaire’s labor record at his companies.

The plan to increase the number of rocket blasts into space up to 50 a year was rejected by the California Coastal Commission on Thursday despite assurances from Space Force and Air Force officials that they would increase efforts to monitor the effects that rocket launches have on nearby wildlife.

The military also vowed to mitigate the reach of sonic booms that often span across 100 miles of coastline, an issue that has caused controversy.

Members of the California Coastal Commission commended Space Force and Air Force representatives for reaching an agreement, but some cited their concerns about Musk, the owner of SpaceX, before rejecting the plan.

Among the issues raised were Musk’s decision to insert himself in the presidential race, his spreading of conspiracy theories, the labor record of his companies and derogatory comments he has made about the transgender community.

“We’re dealing with a company, the head of which has aggressively injected himself into the presidential race,” commission Chair Caryl Hart said.

You may ask yourself "why are Coastal Commissioners voting no based on their 'concerns' about things like elections, conspiracies, and the CEO's comments?" Indeed. That shouldn't play any part in a process that is supposed to be about use, development, and protection of coastal resources while also considering property rights (all things the California Coastal Act charges the Commission with).

But that's the state of play at what may be the nation's most out-of-control, unsupervised, unaccountable, autocratic, government-within-the-government, agency-on-steroids. It says something that several Commissioners felt it was just fine to publicly announce their "concerns" about these things. We suppose that decades of courts letting the Commission get away with things that would make your toes curl has taught them that there's likely to be little blowback or consequences for the denial and their public statements. 

Mr. Musk has said he will sue, and we'll see if that develops. In the meantime, there may be some (non-humorous) reckoning on the horizon: as we reported here, the California Supreme Court has agreed to take up a case (one of ours) which could curb the Commission's unprecedented regulatory overreach. This case highlights how and why the Commission has been one of the largest impediments to the construction of housing in California.

So stay tuned. Our colleague Jeremy Talcott (who chairs our Coastal Initiative) will be arguing the case. We'll report updates as they occur. Or follow along on your own on the court's docket.

So what do you think -- Starfleet may blast the Klingons, but could it overcome the California Coastal Commission? 

Imagining The Future Of Regulatory Takings: "Making Property Rights Cool Again"

Lawprof Ilya Somin (GMU Law), Mercatus Center's Charles Gardner,
and lawyer Emily Cruikshank Bayonne (Tubman Realty, LLC)
speaking on "How Policy Changes Can Address Incursions on
Property Rights Where Courts Have Failed to do So."
Jim Burling (PLF) moderating.

Recently, we attended a wonderful symposium co-sponsored by George Mason Law School's Journal of Law, Economics & Policy (congratulations to the student editors who ran the show that day), and our outfit Pacific Legal Foundation. Of course, with the subject being "Imagining the Future of Regulatory Takings," how could we resist attending?

If you missed it, it was not recorded unfortunately. But stay tuned for the full published symposium issue which shall include all of the articles and other pieces the speakers presented that day.

PLF's Ethan Blevins kicked off the day by
urging the speakers and the audience to
"make property rights cool again."

Brian Hodges (PLF) and Amy Boulris (Gunster)
on land use conditions, exactions, and unconstitutional conditions.

Circuit Judge (ret.) (and California Supreme Court Justice),
Hon. Janice Rogers Brown presented the keynote address
and responded to participants' questions.

Lawprof Donald Kochan (GMU), Lawprof Adam MacLeod (St. Mary's),
and Sam Spiegelman (Citizen Action Def. Fund)
started the day off with "Fixing the Text -
How We Can Better Approach Regulatory Takings."
Moderator: Judge Andrew Brasher (CA11).

The day's final program was "Takings on the Ground - Applying the
Takings Tests in Challenging Scenarios" with
lawyer William Shadbolt (Washington Bus. Properties Ass'n),
Lawprof Eric Claeys (GMU), and Michael Berger (Manatt) (aka Big Brother).
Moderator: Judge Ryan Holte (Court of Federal Claims).

Hawaii Dirt Lawyers: Don't Miss "Property Rights & Regulatory Takings" CLE At The HSBA Convention (In-Person & Webcast)

Hawaii lawyers (and those barred in the 808), take note: On October 21, 2024, the Hawaii State Bar Association will hold its annual Convention, and as always there's a full lineup of CLE programs so you can meet your MCLE requirements.

Thanks to the Real Property & Financial Services Section, there's a significant dirt law component. First, there's "Property Rights and Regulatory Takings" the program on which we are presenting along with Dwight Merriam and lawprof Shelley Saxer. Here's the official description:

This course will provide a survey of property rights and regulatory takings with an emphasis on recent decisions from the United States Supreme Court. Panelists include distinguished faculty and practitioners that will address impact fees, development rights, taking claims, rent controls, and other current issues.

Following us will be a program on "Land Use Conditions" with Cal Chipchase, Brad Saito, and a lawyer from the State of Hawaii Attorney General's office:

This course will provide a survey of the regulatory systems that govern land use in the State of Hawaii. Panelists will discuss regulatory frameworks at the state and city level together with recent legal developments from the Hawaii Supreme Court

You can attend in-person or remotely. This page has the registration information as well as more details and bios of the speakers.

As Jack Lord used to say: "Be here, Aloha."

No SWAT Takings In CA6: Police's Power To Arrest Includes Privilege To Damage Property

If there's a silver lining in the U.S. Court of Appeals for the Sixth Circuit's opinion in Slaybaugh v. Rutherford County, No. 23-5765 (Sep. 3, 2024), a case about what we call "SWAT takings" (police destroy someone's property in order to dislodge a criminal suspect), it's that the court did not adopt the usual "this was a really, really good exercise of the municipality's police power so there's no taking" approach.

But even though it applied a different analysis, the result was the same: no taking. Instead of the "police power" rationale, the court dug into the substance a bit more and determined that the police were "privileged" to physically invade and destroy the Slaybaugh property.

The court first acknowledged that owners generally have the right to exclude:

In arguing their prima facie takings claim, the Slaybaughs contend that police infringed on their property rights by invading and damaging their home to arrest Conn. Appellant Br. at 14–15. They are correct in a general sense—their home constitutes real “property,” and the Slaybaughs undoubtedly possess a “bundle of rights” with respect to that property by virtue of their obtaining title to it. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“Property rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’” (quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945))); Cedar Point Nursery, 594 U.S. at 149–50 (“According to Blackstone, the very idea of property entails ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’” (quoting 2 W. Blackstone, Commentaries on the Laws of England 2 (1766))).

Slip op. at 6.

But the owner's bundle of sticks never included the right to exclude Five-O:

But a property owner’s rights in his home are not absolute. Indeed, the Supreme Court has explained that “the range of interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments” may be limited by “‘existing rules or understandings that stem from an independent source such as state law.’” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). True, the Slaybaughs possess a right to exclude unwanted visitors from their home—“one of the most treasured” rights of property ownership. Loretto, 458 U.S. at 435. But that does not mean that they could exclude anyone from their home, in any circumstance. Rather, their right to exclude is limited by “relevant background principles” placed upon home ownership. Lucas, 505 U.S. at 1030.

The po-po can come on your property and destroy it because that is a "pre-existing limitation" on an owner's title. The court relied on the tort concept of "search-and-arrest privilege" to conclude that reasonable invasions are ok. The opinion also took a dive into the history and tradition (issues which the Supreme Court finds particularly illuminating when it comes to understanding property rights), concluding that "[t]his 21st-century understanding of the search-and-arrest privilege is consistent with its history. In early common law, a police office generally could not break into a home to carry out an arrest or conduct a search unless he had a lawful warrant. ... But with a warrant, English law permitted police to use force to enter homes, conduct searches, and carry out arrests." Slip op. at 8 (citations omitted).

The court also recited the earlier cases which held that police could use force to effect an arrest without being worried about liability for damage. Slip op. at 10 ("Most relevant here, early state and federal court decisions (like prior English decisions) held that a police officer who used force to carry out a search or arrest was not liable for any damage resulting from his lawful actions.").

The court rejected the owners' arguments to the contrary:

The Slaybaughs provide several reasons why applying the search-and-arrest privilege does not resolve this case. They first argue that Cedar Point’s discussion of privileges is not controlling because that case involved “the mere entry upon” property; while here, officers intentionally destroyed their home. Appellant Br. at 23. But the Restatement, history, and precedent demonstrate that the privilege to enter includes a privilege to use force to enter. What’s more, the Cedar Point Court explained that its discussion of “longstanding background restrictions on property rights” referred to potential takings, and not to trespasses, which the Court defined as “[i]solated physical invasions, not undertaken pursuant to a granted right of access.” 594 U.S. at 159–60. By excluding isolated entries onto property from the realm of takings, the Court recognized that common law privileges could apply only to conduct that could be considered a taking, such as repeated violations of a landowner’s property rights. Id. Thus, even if Cedar Point itself involved only the entry onto property, the Court understood that a more severe incursion could be privileged at common law.

Slip op. at 12.

Finally, the Court avoided analyzing what we think is the most interesting issue, the question of whether "necessity" is an exception to takings liability (something we wrote about in this article).

We acknowledge that some historical evidence suggests that, in certain circumstances, persons could be compensated for the taking of property out of necessity. See United States v. Russell, 80 U.S. 623, 629 (1871) (holding that property owners may receive “full restitution” for property seized during wartime); Mitchell v. Harmony, 54 U.S. 115, 134 (1851) (holding that army officer who seized plaintiff’s workmen and chattels for use during the war was “not a trespasser,” but that “the government is bound to make full compensation to the owner”). However, that evidence is not conclusive—even the Slaybaughs acknowledge that the Supreme Court has held that no compensation is owed in other contexts where the necessity privilege would apply, such as when property is destroyed as an inevitable consequence of conflict, or when the property would have benefitted an enemy in battle. Appellant Br. at 15–16. See, e.g., Nat’l Bd. of YMCAs v. United States, 395 U.S. 85, 90–92 (1969) (holding that no compensation is required for damage to property during a riot where troops “act[ed] primarily in defense of [the owners’] buildings” and rioters would have inflicted damage on the building anyway); United States v. Caltex, 344 U.S. 149, 155 (1952) (finding no takings claim where army destroyed oil facilities that were a “potential weapon of great significance to the invader”); United States v. Pacific R.R., 120 U.S. 227, 234–35 (1887) (holding that property damaged “through necessity and by mere accident,” including “damages caused by the enemy” during battle, are not compensable).

Nonetheless, we need not resolve this “necessity” defense to an actual taking. We reject the Slaybaughs’ claim not because of that defense, but because they have failed to identify any history or precedent establishing that the police have “taken” their “property” within the meaning of the Fifth Amendment when the police damaged the property while conducting a lawful arrest.

Slip op. at 13-14. 

This case does not resolve the issue and the U.S. Supreme Court has been presented with a petition asking the Court to resolve the issue, so stay tuned.

Slaybaugh v. Rutherford County, No. 23-5765 (6th Cir. Sep. 3, 2024)

21st Brigham-Kanner Property Rights Conference Report

Here's the full report from David Morrill about the 21st Brigham-Kanner Property Rights Conference earlier this month. Pictured above: Professor James Stern (responsible for the overall planning of the B-K Conference), this year's Prizewinner Professor Lee Fennell (U. Chicago Law School), and Andrew Brigham, St. Augustine, Florida - property rights lawyer extraordinaire).

Here are what Prof. Fennell had to say:

Upon accepting the Property Rights Prize, Fennell said that spending time in myriad places through the years piqued her interest in how property can work better for complex systems like large and interconnected cities and ecosystems. In the process, she tried to learn more about what sorts of interconnectedness matter most for humans and other animals, and what forms of adaptability and property forms can best serve needs going forward.

“We can’t make any headway on property as an institutional response to interdependent systems without practicing interdependence ourselves, getting together and sharing knowledge and ideas,” Fennell said. “And I can’t imagine any better place to do that than at this conference, which throws together a bunch of people who can’t get property out of their systems.”

Fennell said she was “incredibly honored, amazed, and delighted” to be receiving the Brigham-Kanner Prize. “It’s an astonishing privilege to be joining the ranks of all of the esteemed past winners and all of the esteemed future winners of this wonderful award, and I am so grateful to be celebrating with all of you in this incredibly old room.”

The week also included several student-oriented programs, including visits to our two classes (Land Use, and Eminent Domain and Property Rights) by property law practitioners from across the country, to discuss a variety of topics with students, including careers in property law, pathways to practice, and public service vs private practice.

Kady Valois (Pacific Legal Foundation, FL),
Randy Smith (Smith & Fawer, LA),
and Elizabeth Sockwell (W&M Law JD 2023)
(Miller Miller & Canby, MD) discuss "Pathways to Practice"

Jeremy Hopkins (Cranfill Sumner, NC) speaks to our Eminent Domain
class about how and why he chose property rights lawyering
as a career, and how students can enter that profession
if they have similar desires.

Steve Davis, who is now a public-interest lawyer (PLF),
but who also has a varied background in public service (AUSA),
private practice (True North Law), and as legislative counsel,
speaks about the differences between these pathways in the profession.

Xijia Yuan (Troutman Pepper, VA) (and a former student of ours)
discussed with our Land Use class the excitement of
being a transactional real estate attorney. There are multiple
paths in Dirt Law, and lawyers are not limited to courtroom advocacy.

Heather Cunningham (Owners' Counsel of America, ID), speaks about
her time in a smaller, rural private firm, and her current role
as Executive Director of a non-profit.

Andrew Brigham (Brigham Property Rights Law Firm, FL) chats with
Land Use students about ways to enter the Dirt Law Bar, and why he
loves a property law practice.

We're thankful that real, live, practicing lawyers (including two W&M Law
alums (Brett Tensfeld, JD 2016), and Xijia Yuan (JD 2022) took the time
to come our classes to talk about what its really like in the Dirt Law trenches.

Too Far: Imagining the Future of Regulatory Takings (Friday, Oct. 4, 2024)

There's still time to join us next Friday, October 4, 2024, at the Antonin Scalia Law School (George Mason University) for the symposium "Too Far: Imagining the Future of Regulatory Takings."

Co-produced by our outfit (Pacific Legal Foundation) and the Journal of Law, Economics & Policy, the symposium will feature the most cutting-edge legal academics and courtroom practitioners discussing what is on the horizon in regulatory takings. Here's the description of the program (full agenda and presenter list below):

A century ago, Supreme Court Justice Oliver Wendell Holmes cautioned government that if property regulations went “too far,” they would be “recognized as a taking.” Flash forward to today, where governments are constantly trying to push the limits while the courts struggle to define what exactly “too far” means.   

Join Pacific Legal Foundation and George Mason University’s Journal of Law, Economics, and Policy for a day-long symposium featuring presentations on property rights and the future of regulatory takings.  

Come interact with property rights scholars and enjoy a lunch featuring our keynote speaker, the Honorable Janice Rogers Brown. The symposium will conclude with a reception, where attendees will have the perfect opportunity to network with fellow lawyers working to rein in property regulations.

Registration is free. Come, join us!

Agenda, "Too Far: Imagining the Future of Regulatory Takings" (Oct. 4, 2024)

Unringing The Bell: NC Supreme Court Arguments - What Happens If A Taking Lacks A Public Use, But They Take It Anyway?

Here's the latest in a case we've been following (and in which we filed an amicus brief in favor of the property owner).

Yesterday, the North Carolina Supreme Court heard oral arguments in Town of Apex v. Rubin. Here's a link to the recording (YouTube prevents us from embedding it, sorry).

This is a somewhat unusual case. The Town of Apex sought to take an easement across Rubin's land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town's development approvals for his proposed residential subdivisions.

While Rubin's public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public use requirement. (We say "public use requirement" because Rubin's objections were both under the U.S. Constitution's Public Use Clause, as well as the North Carolina Constitution, which, as you may recall, does not contain an express takings clause. But North Carolina has long recognized that the public use and just compensation limitations on eminent domain power govern, under the N.C. Constitution's "Law of the Land" Clause.) More details in our earlier post on the case.

So here's the situation: the Town is now illegally occupying Rubin's property. Now what? The Town argued it was fait accompli -- all you can do is sue us for just compensation in an inverse action. Or maybe you can sue us in a common law tort trespass action to get us off your property by way of separately seeking a writ of ejectment, or an injunction. (Rubin hadn't done either of these.) She argued that she didn't need to do that, and the court in the eminent domain action had all it needed to order the Town to get off her land.

In Town of Apex v. Rubin, No. COA20-403 (May 4, 2021), the North Carolina Court of Appeals was horrified by the Town's actions. The three-judge panel held, "[t]his is not the law, nor can it be consistent with our Federal and State Constitutions[,]" "[t]he Town’s argument is not supported by the facts or the law[,]" and "the public purpose requirement serves as a shield to protect the landowner from government intrusion rather than as a sword to cut away private property rights," and accepting the Town's arguments would, "open the door to numerous constitutional harms[.]" 

All good, right? See ya later, Town of Apex?

Not so fast. The court also concluded that although the Town grossly exceeded its powers and violated Rubin's rights, Rubin had not sought the proper remedy, and in order to get the Town off her property, she needs to sue it in trespass (and win).

The North Carolina Supreme Court granted review.

Check out the arguments. As one Justice pointed out, this is a case of how to "unring the bell." What remedies are available, if any? The Town acknowledges that for every wrong there must be a remedy, but argues that the legislature provided a remedy (injunction) but Rubin did not avail herself of that remedy, so any negative consequences are on her. Rubin, on the other hand, argues that when there's a violation of constitutional rights, there must be a remedy.

As our amicus brief argued, we believe the court in the eminent domain action has all the power it needs to enforce constitutional rights.

Now we wait.

New Ep, Eminent Domain Podcast: Lawprof Ilya Somin

Heads up: the second episode of the rebooted Eminent Domain Podcast is live, with host Bobby Debelak and guest law professor Ilya Somin. Here's the description of this ep:

Professor Ilya Somin of George Mason University and the Cato Institute discusses his work in drafting amicus papers in the Kelo case, working with Jane Jacobs, writing a book on Kelo (The Grasping Hand) a decade after the decision, and his current work on the costs of exclusionary zoning. Throughout, Bobby and Prof. Somin discuss the common ground that otherwise-differing philosophies find in property law.

We're not going to post up every new episode (you really should subscribe and get notifications yourself), but we figured while the podcast was getting its sea legs back it couldn't hurt to remind you. Check it out.

The Real "Prime Directive" - Happy Constitution Day 2024

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk's reading of the Preamble. 

KIRK: This was not written for chiefs.Hear me! Hear this! Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since. Tall words proudly saying We the People.

That which you call "Ee'd Plebnista" was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people! Down the centuries, you have slurred the meaning of the words:

"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution."

These words and the words that follow were not written only for the Yangs, but for the Kohms as well!

He might be from Iowa, but that guy who plays him is from north of the border, so our kudos to a Canadian for the best dramatic rendition of our founding document.

So does this make Kirk an textualist, a living constitutionalist, or an original-public-meaning guy? Here's a hint, from the script:

SPOCK: Does our involvement here also constitute a violation of the Prime Directive?

KIRK: We merely showed them the... meaning of what they were fighting for. Liberty and freedom have to be more than just words. Gentlemen, the fighting is over here. I suggest we leave them to discover their history... and their liberty.

Beam me down, Scotty!

Guns N' Encloses: While Figuring Out Gun "Sensitive Places," CA9 Backhandedly Upholds The Right To Exclude

The gunfight at the OK Corral is about all we know
about bearing arms in public places.

There's a lot going on in the U.S. Court of Appeals for the Ninth Circuit's opinion in Wolford v. Lopez, No. 23-4356 (Sep. 6, 2024), and none of it is about takings, at least directly. And the case involves a Second Amendment challenge to Hawaii and California's restrictions on where a bearer of arms can bear those arms, a topic that is beyond our full understanding as mere mortals.

So why are we covering it? Well, glad you asked. This one is peripherally about property rights and because of the posture of the case avoids what we think is the biggest issue from a property rights viewpoint. The bulk of the case analyzes the state's ability to restrict carrying weapons in public places like beaches, parks, and other public venues. But one part of the case delves into whether the state may regulate private property owners' right to say "Keep Out!" or "Gun Owners Welcome!" to those who are strapped up. So count us interested!

The challenge here came only from the arms-bearers (and not property owners), and thus the only issues the court was presented with involved whether the state regulating whether arms-bearers may do so on private property violates the Second Amendment, not the Fifth Amendment rights of the owners. Property owners were not parties to the case, apparently. But depending on how the issue of carrying on private property breaks, these restrictions may also unduly limit the property owner's ability to control who may access their property and under what circumstances. Private property rights are "adjacent" to the actual issues, but that's enough for us.

Here's that part of the story. A Hawaii statute law presumptively bans third parties carrying firearms on private property unless the owner allows it, either by posting a sign or by expressly saying okay. California takes a slightly different approach by also barring non-owners from carrying guns onto private property, but allowing it only if the owner has posted a conspicuous sign consenting to third parties bringing weapons on the premises. 

The plaintiffs -- holders of concealed carry licenses -- sued and sought a preliminary injunction:

In both the Hawaii case and the California cases, the district courts held that Plaintiffs are likely to succeed on their challenges to the respective bans on the carry of firearms on private property held open to the public unless the owner or operator consents. Haw. Rev. Stat § 134-9.5(a); Cal. Penal Code § 26230(a)(26). Although the state statutes are similar, they differ in one key respect. Hawaii’s law allows a property owner to consent orally, in writing, or by posting appropriate signage on site. Haw. Rev. Stat. § 134-9.5(b). California’s law, by contrast, allows a property owner to consent only by “clearly and conspicuously post[ing] a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.” Cal. Penal Code § 26230(a)(26).

Slip op. at 61 (footnote omitted).

The bulk of the opinion analyzes the rights of the plaintiffs to keep and bear arms in public places such as those, so unless you are a Second Amendment maven, you can safely skip ahead to portion of the opinion where the court considers the Second Amendment validity of regulating the carrying of weapons on private property open to the public:

We conclude, then, that the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property.

...

Hawaii’s modern law falls well within the historical tradition. The law prohibits the carrying of firearms onto private property unless the owner has posted signs, otherwise has given written consent, or has given oral consent. We therefore conclude that Plaintiffs in the Hawaii case are unlikely to succeed on the merits.

But we conclude that California’s law falls outside the historical tradition. As noted at the outset of this section, California prohibits the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size. We find no historical support for that stringent limitation. Although two of the laws mentioned above required a person to obtain consent in writing, all of the other laws allowed a person to obtain consent in any manner. None of the laws forbade a person from obtaining permission only by convincing the owner to post signs of a specific size. Nor do modern circumstances appear to justify California’s imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today.

Slip op. at 67-68.

We view the issue more from the owner's perspective, and not as one primarily as a Second Amendment question. But also much more simply: the choice of whether to allow carrying a piece on one's property that may otherwise be open to the public should be the owner's. The no shirt, no shoes vibe. Yes, we are definitely down with the notion that Second Amendment rights are not second-class constitutional rights. Nor are Fifth Amendment rights.

We view the Ninth Circuit's decision here as (generally) consistent with that vibe, especially the notion that the owner's consent cannot be limited to only a state-defined category (signs only as in California, and not also oral or written consent as in Hawaii -- as the court put it, "Sure, you may carry your musket on my property, but only this week and only one musket."). Slip op. at 68.

The big property rights issue may arise more readily in other Circuits, where state law and policy go in the other, more pro-gun direction than blue Hawaii and California. What if, for example, a pro-gun state statute mandated that property owners allow arms-bearing on their property, even if the owner would prefer otherwise? That would definitely raise our takings hackles.

Wolford v. Lopez, No. 23-4356 (9th Cir. Sep. 6, 2024)

21st Brigham-Kanner Property Rights Conference Now Underway

The 21st Brigham-Kanner Property Rights Conference is underway at the William and Mary Law School. We have a series of student-oriented programs (co-sponsored by the Office of Careers Service),

Tomorrow, lawprof Lee Anne Fennell of the University of Chicago Law School will be presented the Brigham-Kanner Property Rights Prize for her work on "how property rights are structured and imagined, and the implications that different possibilities hold for the allocation of resources and the way societies are organized. She has cast these issues in terms like 'slices' versus 'lumps,' 'unbounded' homes, 'half-torts,' and 'streaming property.'"

On Friday, there's a series of presentations on the impact of Professor's Fennell's work and other hot topics in dirt law. Full agenda here or below.

We are fortunate enough to be the referee -- uh, "moderator" -- for the group discussing what we see as the hottest issue in the field: housing. The title of our program is "Property Rights and Housing in Crisis," and features some of the deep thinkers on this topic:

Shelter is a fundamental human need, and housing is a major component of the U.S. economy. Home ownership has been considered a cornerstone institution of civic life, closely linked with the American dream. Over the last 50 years, median house prices in the U.S. have more than doubled in real terms, significantly outpacing wage growth, and more recently, the residential rents have also substantially outpaced inflation and wages, prompting declarations of a housing crisis. This panel will examine issues connected with the present state of housing in the United States and the role property rights can and should play when it comes to housing.

Professor Fennell will be joining a pantheon of the biggest names in dirt law academia and practice.This is the Super Bowl of property law as we've said before.

If you are not joining us this year, please consider it for the future. You will not be disappointed.

2024 Schedule for Brigham-Kanner Property Rights Conference

New Article: "The Benefits of the Fourth Amendment's Property-Rights Baseline"

Regular readers know that in addition to our focus on Fifth Amendment property rights, we're also looking at the Fourth Amendment as a vehicle that protects and promotes property rights.

In that vein, here's a forthcoming article that is worth reading,"The Benefits of the Fourth Amendment's Property-Rights Baseline," by lawprof Nicholas Alden Kahn-Fogel.

Here's the Abstract:

Since 2012, Fourth Amendment claimants have had two alternative doctrinal tests available to establish that government investigative activity constitutes a Fourth Amendment search implicating their rights. First, if the government physically intrudes onto a person, house, paper, or effect to gather information, its conduct is a search, even if the claimant had no reasonable expectation of privacy against the government intrusion. The Court has referred to this directive as the "property-rights baseline." Second, even in the absence of a physical intrusion onto a constitutionally protected area, if government surveillance infringes a person's reasonable expectation of privacy, such surveillance is also a search. I have previously argued that expansive property frameworks proposed by Justice Gorsuch and by some scholars are likely to resemble the privacy rubric for Fourth Amendment interpretation, both in the results they would produce and with regard to the subjectivity and unpredictability often attributed to the privacy model. However, contrary to recent scholarly claims, the narrower physical intrusion test is a valuable supplement to the privacy framework; it will often lead to different results than the privacy standard and will frequently lead to clearer analysis, more predictable results, and broader protection against government surveillance than was the case under the exclusively privacy-based regime that preceded the Court's endorsement of the property-rights baseline.

Check it out.

CA9: No Taking For Charging School Fees, Because Idaho's "Free Common Schools" Clause Does Not Create Private Property Interest

We don't see any free public education here.

Some old-school property "sticks" analysis from the U.S. Court of Appeals for the Ninth Circuit in Zeven v. Jones, No. 23-35438 (Aug. 23, 2024), worth checking out.

The Idaho Constitution has a "free common schools" clause:

The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho to establish and maintain a general, uniform and thorough system of public, free common schools.

Idaho Const. art. IX, § 1.

According to some parents, the term "free" means that school districts cannot charge fees for "certain educational and extracurricular opportunities." In one case, the fees ranged from $4 for locker use, to a $32 optional fee to cover the cost of purchased items for a "health occupations" store. In another, the fees ranged from $15 to $300.

According to the plaintiffs, charging these fees violated their due process rights, and were a taking of private property without compensation. The district court granted the schools summary judgment, and the Ninth Circuit affirmed.

The court concluded that the "free common schools" provision in the state constitution does not create any private property rights that are protected by the Takings Clause. To qualify for takings protections, a property right must be (in the court's words) "vested" and a private right, which is determined by a somewhat circular analysis: a right is vested if it cannot be removed or modified without compensation. Slip op. at 22. 

Because that doesn't really help, you might want to pay attention to this passage, where the court relies on certain "core" notions. Dust off those Real Property treastises and your Blackstone:

A claimed property interest can rise to the level of a vested private property right if it concerns “a ‘core’ notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny.” Ward v. Ryan, 623 F.3d 807, 812 (9th Cir. 2010) (quoting Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998)). “Property’s core meaning is determined by reference to traditional background principles of property law.” Id. (internal quotation marks and citation omitted).

Tangible objects such as real and personal property fall within property’s core meaning. The Supreme Court has also extended Takings Clause protection to “the group of rights inhering in the citizen’s relation to the physical thing, [such] as the right to possess, use and dispose of it.”

Slip op. at 23-24.

Public education is not one of those things that fits "within this bundle of property rights." This is public education, and thus, "[t]he very manner in which public education is provided precludes Appellants from having a private interest in it because what constitutes public education (and therefore what constitutes free public education) can be changed by public entities as a matter of Constitutional right in Idaho." Slip op. at 24.

The opinion also contrasted "private property" as used in the Fifth Amendment with plain-old "property" as used in the Due Process Clause. The latter, the court held, protects a broader range of interests, including government-granted entitlements. Slip op. at 21-22.

There's also some "law of the case" discussion by the court, rejecting the plaintiffs' argument that one trial judge is bound by an earlier trial judge's interlocutory rulings. You know the answer to that one (our rule of thumb: until final judgment, everything is interlocutory and subject to change).

Zeyen v. Jones, No. 23-35438 (9th Cir. Aug. 23, 2024)

The Eminent Domain Podcast Is Back!

As we hinted at a couple of weeks ago, we have some good -- nay, great -- news: the Eminent Domain Podcast, retired earlier this year by its originator Clint Schumacher, is back with a new host and a slightly new title: "Come and Take It: The Eminent Domain Podcast."

Bobby Debelak has stepped into the host's chair. As you might be able to tell from the new title, Bobby is also a Texas lawyer.

Here's the first episode, where Client figuratively hands the baton to Bobby. If you haven't already subscribed to the feed, now's the time so you don't miss an episode. Available on all pod feeds, so be sure to get subscribed.

Are you as excited about this as we are?

S Dakota: Only Way To Read Precondemnation Entry Statute Constitutionally Is Allowing "minimally invasive superficial inspections" and "minor soil disturbances"

This would not be authorized.

Here's the latest in an issue that found new vitality after the U.S. Supreme Court's decision in Cedar Point affirming that government-authorized physical entry to private property is presumptively a taking.

This is the "precondemnation entry" issue in eminent domain which several courts have addressed:

• Oregon
• Iowa
• North Dakota
• California

This is where a condemnor contemplates taking property and wants to get on site to check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn't mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. But sometimes, an owner says no.

In Betty Jean Strom Trust v. SCS Carbon Transport, No. 30317 (Aug. 21, 2024), SCS is planning a CO2 pipeline though South Dakota, and several owners said no to SCS's proposed precondemnation entries. The owners challenged the constitutionality of South Dakota's entry statute, and challenged SCS's power to take, alleging that it was not a common carrier with the delegated power of eminent domain. The trial court rejected these claims.

The South Dakota Supreme Court reversed. The court allowed some precondemnation entries, but held that anything beyond "minimally invasive superficial inspections that, at most, cause minor soil disturbances," would be unconstitutional. The court also concluded that it is premature to conclude that SCS is a common carrier and the property owners should have an opportunity to undertake discovery and make a record about whether "SCS is holding itself out to the general public as transporting a commodity for hire." Slip op. at 1.

The surveys SCS wanted to do involve these activities:

[¶8.] According to SCS, three different types of surveys would be conducted along the pipeline route. The most common would be “minimally invasive, nondestructive inquiries to assess the land . . . involv[ing] the use of ‘hand tools (e.g., spades, shovels, augers)’” that could result in “small soil disturbances at discrete locations.” The second type––geotech surveys—would “assess underlying soil and rock conditions and ‘utilize[] a track mounted drilling rig to create a small diameter hole into the soil to collect samples of subsurface soils and rocks.’” The small hole would be “backfilled with drill cuttings or with a cement/bentonite grout mixture.” However, SCS claims there would be “no impact to normal land use after drilling is complete and the hole is backfilled.”

[¶9.] Finally, “deep dig” surveys would be necessary for properties located within a floodplain to search for archaeological sites of cultural significance. These “involve the use of a backhoe to dig trenches typically 7 to 10 feet in length, 2 to 3 feet in width, and 6 to 10 feet deep.” SCS committed that “[o]nce this deep testing survey work is completed, any trenches will be backfilled and the ground will be graded to near existing conditions.” For all three survey types, SCS assured landowners that resulting property damage would be repaired or reimbursed. To this end, SCS obtained a $1 million performance bond, which was later increased to $5 million

Slip op. at 4-5 (footnote omitted).

Check out pages 10-22 for the court's analysis of the factors that go into a determination whether a private entity is a common carrier which can exercise the delegated power of eminent domain, and how this is a fact issue. The court could have stopped there, because if SCS is not a common carrier it cannot exercise the power and enter anyone's land. 

But the court viewed the allowable scope of entries as a "purely legal question[]," and decided to resolve the issue "to provide clarify and avoid protracted litigation on remand if SCS is determined to be a common carrier." Slip op. at 22. Good. We wish more courts were not anal-retentive and were willing to resolve such legal issues after full briefing, even if some other intervening action might possibly render a decision unnecessary. Id. ("Thus, we conclude a resolution of these issues will promote judicial efficiency, irrespective of the ultimate resolution of the common carrier issues on remand.").

To construe the statute, the court first applied the special rule of construction for eminent domain statutes: "eminent domain statutes are strictly construed in favor of the property owner." Slip op. at 24. Eminent domain proceedings "must be conducted in strict accordance with governing statutes." Slip op. at 25.

With that in mind, the court concluded that the terms "survey" and "examination" mean some kind of measurement of land and figuring out boundaries. This does not include soil sampling, or any activities that go beyond "innocuous" and "temporary" and which result in "minimal incidental damage, and little, if any, disturbance." Id.

As one court put it, the "right to enter private property for the purpose of examination and survey confers no license to engage in the process of conducting archaelogical digs." Id. (quoting Indiana State Highway Comm’n v. Ziliak, 428 N.E.2d 275, 279 (Ind. Ct. App. 1981)). Indiana Jones, take note.

The court rejected all of SCS's arguments for a wider scope of activities. The court again relied on a canon of statutory construction, concluding that it should strive to avoid interpreting the statute in a way that would render it unconstitutional, and "SCS’s reading of the statute would authorize any number of invasive activities directly at odds with the owner’s right to possess their property." Slip op. at 26.

Here's the holding:

Instead, we conclude that “survey” and “examination,” in the context of SDCL 21-35-31, “cannot amount to other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his property[.]” Kane Cnty. v. Elmhurst Nat’l Bank, 443 N.E.2d 1149, 1154 (Ill. App. Ct. 1982). We will refer herein to such a minimally invasive inspection as a “standard survey.” Accordingly, we hold that the “geotech” and “deep dig” activities, involving heavy equipment for invasive drilling and digging, do not qualify as a “survey” or “examination.”

Slip op. at 26.

Having determined that the statute only allows relatively innocuous entries, the court asked whether this level of interference with the owners' property rights amounts to a South Dakota or a federal taking. The court held no. True, Cedar Point concludes that "many" government-authorized invasions are takings, but not those which are "consistent with longstanding background restrictions on property rights." Slip op. at 28.

The court first held that the entries are takings. Slip op. at 30. So the question is whether history and tradition demonstrates that excluding innocuous entries are or are not sticks in the owners' bundles of rights. There's a longstanding history of these things. Id. ("pre-condemnation 'standard surveys' are firmly established in the legal tradition of South Dakota in a variety of contexts."). The statute has been around for "at least a century." Id. True, enactment of the law does not automatically mean its a background principle (what we call the "no ipse dixiting rule"). But that must be tempered by a decision by the South Dakota Supreme Court a few years after the statute's adopting that held the statute wasn't a taking. That, and secondary sources such as treatises and Restatements concluded that minor intrusions are not takings.

Here's the holding:

[¶65.] We thus conclude that the right to conduct pre-condemnation surveys is a longstanding background restriction on property rights. However, the scope of such surveys is limited. Indeed, we must “pause” when the proposed survey activities contemplate “a more invasive impact on individual property rights.”

Slip op. at 32. The court also concluded that minor entries do not violate owners' rights under the South Dakota Constitution, even though state law recognizes greater property rights than the U.S. Constitution as long as owners can obtain a jury trial on any invasions that exceed the relatively innocuous entries allowed by the statute.

We expect more courts to address this issue as condemnors increasingly seem to be seeking even more intense entries and owners become even more willing to assert their rights and fight back. Stay tuned.

Betty Jean Strom Trust v. SCS Carbon Transport, LLC, No. 30317 (S.D. Aug. 21, 2024)

New Cert Petition: When State Law Bars Owner From Challenging A Taking, Can Federal Court Abstain?

Here's the latest takings cert petition. This one seeks review of the Seventh Circuit's affirming the district court's sua sponte abstaining from considering a property owner's challenge to a Wisconsin municipality's exercise of eminent domain.

The court concluded that federal courts could -- but shouldn't -- consider the owner's public use challenge because there were ongoing parallel state proceedings (this this case, an eminent domain case in a Wisconsin court). That alone doesn't seem terribly controversial.

But as the petition points out, there was not actually a "parallel" state court proceeding here, because Wisconsin law apparently doesn't permit an owner to challenge public use in the proceeding the Village filed. As the Petition puts it:

The Seventh Circuit Court of Appeals’ particularly broad approach to the Colorado River doctrine stands out among the circuits. In the case at hand, the court of appeals expanded the doctrine even further by effectively overruling the requirement of parallel proceedings. It was clear legally that the state and federal proceedings were not parallel, yet the district court still dismissed the case. In reviewing the district court’s decision, the Seventh Circuit admitted that the two cases presented different issues and that regardless of how the state case was decided, the public use claim would go unanswered, however, the Seventh Circuit still concluded that the two cases were “parallel.”

Pet. at 7.

Ah, we get it: parallel doesn't mean, you know, exactly parallel.

What happened was that the Village took one position on whether the taking was supported by a public use or purpose, and the time for challenging that position lapsed under Wisconsin procedures. You understand that often, property owners are required by condemnation procedures to immediately challenge public use or necessity, and are subject to very short statutes of repose after which you lose the claim. Well here, that apparently occurred...but later and just before the valuation trial was set to commence, the Village said or did something that revealed its hand: the real reason for the taking was not a public use or benefit.

Too late to raise the new issue in state court, the owners filed a section 1983 claim in federal court. The district court on its own abstained, and as we noted above, the Seventh Circuit affirmed, even though it expressly acknowledged that the case didn't squarely fit into the Colorado River abstention doctrine (or any other). This was just a case the federal court shouldn't decide:

That said, the federal and state litigation present different issues. In state court, Antosh and Lashley spent two years contesting the amount of compensation owed for the taking. In federal court, they urge that the taking has been illegitimate all along, because the Village seized their property for a private use under the guise of a public one. So the two suits are not perfectly symmetrical: regardless of how the dust settles in state court, their public use takings claim in federal court will go unanswered.

This lopsidedness, however, is not fatal to a finding that the actions are parallel.

Here is the Question Presented:

Whether the court of appeals erred in affirming the district court, when the Village of Mount Pleasant admitted that it had used eminent domain to take private property for a private purpose (the Foxconn Project), and the district court applied the Colorado River doctrine sua sponte even though the state proceedings were not parallel because the state proceedings were statutorily barred from addressing the Petitioners’ Fifth Amendment public-use claim as well as other constitutional issues.

Two comments.

First, after the Supreme Court decided Knick and re-opened the federal courthouse doors that Williamson County had wrongfully slammed closed for three decades, we wrote that we didn't think that was the end of the story, because government wasn't going to go quietly into that good night and, you know, just sit there and allow property owners to press their claims in federal court.

We also thought that federal courts were not going to warmly embrace their role as civil rights forums, but would maintain the hoary trope that this land usey stuff was beneath their dignity (after all, we're not super zoning boards of appeals, are we?).

This petition is the latest chapter. We filed one in a roughly similar case not too long ago. Maybe this latest one will get more traction.

Second, we take a bit of issue with the way the lower courts characterized the property owners' approach, effectively blaming the owners for not acting sooner (how, exactly could they have challenged public use when the Village said its purpose was "A," and only after the deadline to challenge lapsed said it was "B"?), and subtly and not-so-subtly chastising the owners for doing this at the last minute.

To us, this goes back to Justice Thomas and his thought that if a federal court has jurisdiction, it darn well has the obligation to exercise it. The hands-off approach the federal court took here does not easily fit into any of the existing (and limited, as we understand them) doctrines of abstention, when concerns about comity, respect, and "Our Federalism" counsel a federal court to hold off on its Article III duties for now. Also, are not property owners who are scrapping to hold on to their property against the sovereign's nearly unassailable power entitled to do anything and everything they can to make it happen? We'd think so, even thought courts and condemnors call this bad faith and being greedy. Why should an owner have to "respect" the state court, when she is fighting for her property, and is there an obligation to favor judicial efficiency over her fundamental rights? We find the federal courts' framing of the narrative here to be quite offensive.

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

Petition for a Writ of Certiorari, Antosh v. Vill. of Mount Pleasant, No. 24-186 (U.S. Aug. 21, 2024)

PA: No Funny Business - It Isn't A Public Purpose For Railroad To Take Property To Benefit Single Customer

It is worth your time to check out the Pennsylvania Supreme Court (Middle District)'s decision in Wolfe v. Reading Blue Mountain & Northern RR Co. No. J-10A-2024 (Aug. 20, 2024).

The court invalidated an exercise of eminent domain by a railroad, concluding the taking was not for a public purpose because it was intended to keep open a road used to access a single business.

The conflict arose after the property owners exercised their right to close off the railroad's two easements on which rail siding track and a road crossing had been located. The owners' predecessor-in-title had obtained the property from the railroad's precedessor, and the grant contained express reservations of those two easements. The grant also contained a termination provision. which required the railroad to remove the siding within 90 days of the owners' demand.

The railroad had stopped using the siding and the road crossing in the 1980s or 1990s, and the siding was buried or destroyed. But flash forward two decades, and in 2021 the railroad sought to re-establish rail service over the road crossing. The PUC said ok, but when the owners caught wind of it, they exercised their rights under the termination provision, and instructed the railroad to remove the siding. When the railroad said no, the owners went to court and obtained an injunction prohibiting the railroad from entering the property.

Not to be denied, the railroad started eminent domain proceedings to take the property. Here's the public use/purpose the railroad stated in the resolution of taking:

“to promote the health, safety and general welfare of the Commonwealth of Pennsylvania by serving the public need to have goods transported via rail[,]” and that the condemnation would “further that purpose by connecting sidetrack to the crossing, as approved by the [PUC], pursuant to RBMN’s project plan to provide rail services to the business located on Route 61, Pottsville Pike, Reading, Pennsylvania as permitted in 15 Pa.C.S.A. §1511, 26 Pa.C.S.A. §204(b)(2), including (b)(2)(i) and (b)(2)(ii).”

Slip op. at 3.

As the Supreme Court noted, ""[t]he 'business' [the railroad] referred to in the declaration was Russell Standard, an asphalt company which is located to the immediate south of the Property." Id. The owners objected and the trial court took evidence. The owner testified that he thought the railroad's only purpose was to keep access for the asphalt company, and that access should be through the asphalt company's land and not his. The roofing business which leased the owners' property also testified that the "rail line would run though the driveway it uses to transport its vehicles and equipment." Slip op. at 4. Because of the disruption to its business, the roofing company renewed its lease only for a year.

The railroad introduced competing testimony, that there were not alternative routes that would work for the asphalt company, or those routes would require relocation of utility lines. But in the end, the trial court sustained the owners' objections on the grounds that the taking was "effectuated solely to benefit a single private commercial enterprise, Russell Standard[.]" Slip op. at 6. Relying on a 2014 Pennsylvania Supreme Court case, it held the taking would not benefit the public "in any way" because the only goods moved on the rail line would be Russell Standard's:

According to the court, RBMN’s refusal to consider placing the spurs on Russell Standard’s property indicated RBMN was “protecting Russell Standard’s interest not to clutter its property with tracks where the rail cars could sit indefinitely until the products are needed. Instead, it intends to clutter [the] Wolfes’ property.” Id. at 13. The court concluded “[t]o condemn land owned by the Wolfes, so Russell Standard can commercially profit from the land to the Wolfes’ detriment serves a purely private, and thus, unconstitutional interest.” Id. at 12. Alternatively, the court found even assuming arguendo that a railroad can “condemn any property it wishes,” RBMN’s condemnation is excessive. Id.

Slip op. at 7 (footnote omitted).

On appeal, the Commonwealth Court reversed because public use and benefit means something that will "contribute to the public welfare" in some way, even if "some selfish interest may have inspired the plan." Slip op. at 7-8. And this qualified. The court relied on cases where takings to extend rail service and to benefit a large retailer satisfied the public use/purpose requirement.

The unanimous Supreme Court reinstated the trial court's invalidation of the taking. The court first noted that incidental public benefits are not sufficient, even where the beneficiary of the taking has a massive influence on consumers and the public (the court noted an earlier case involving a railway transporting coal, and the retailer Sears, by way of examples). Those are different cases, because times have changed: Pennsylvania's economy and transportation infrastructure are no longer rail-heavy, and Sears...well, you know. Slip op. at 19 ("Unsurprisingly, then, the legal analysis in both opinions was undergirded by the belief that construction and maintenance of railroad branches and spurs automatically served a 'public use' because of the infrastructure it created, allowing for unparalleled expansion into areas undeveloped at the time, and often presenting the only available method to transport goods to citizens of the Commonwealth."). 

These days, under the Lands of Stone decision, the public must be the "primary and paramount beneficiary" of the exercise of eminent domain. The lower appellate court "acknowledged this standard in its opinion but apparently did not apply it' (ouch). Slip op. at 21. First, the railroad didn't have to cross the owners' land in order to connect Russell Standard. Second, the evidence showed the taking was intended mostly to save Russell Standard time and money. Slip op. at 22.

The Wolfes introduced evidence that the only beneficiary of the taking would be a private business, Russell Standard. Mr. Wolfe’s unrefuted testimony also established Russell Standard already uses trucks and private haulers to transport the materials it seeks to import via rail, and thus, does not depend upon rail service to create or distribute its goods. See N.T. Preliminary Objections Hearing, 6/2/22 at 37. In addition, the Wolfes’ expert opined the RBMN expansion would likely render the existing business on the Property non-compliant with the municipality’s zoning requirements and therefore unable to continue operations. Relying on this evidence, the trial court found RBMN’s taking “was effectuated solely to benefit a single private commercial enterprise, Russell Standard[.]” Trial Court 1925(a) Opinion, 7/27/22 at 12. In response, RBMN did not introduce any evidence of any specific benefit to the public, relying instead on the inherent benefits purportedly created by railroads qua railroads, generally. Indeed, RBMN simply claimed the expansion would “serv[e] the public need to have goods transported via rail.” Amended Declaration of Taking, 4/27/22 ¶6.

Slip op. at 22-23.

So burdens of production and proof actually work!

This approach seems like the right one to us. A fact-centric, not "rational basis" deferential analysis, based on the evidence. And not simply what the condemnor says is its purpose. The question of public use or purpose isn't the condemnation stating it and then the court simply deferring (well-nigh conclusive, as Berman put it), but the court actually asking why and for whom.

Two Justices concurred separately, and we also suggest you read those as well.  

Wolfe v. Reading Blue Mountain & Northern RR Co., No. J-10A-2024 (Pa. Aug. 20, 2024)

Back To School For Dirt Law @ William & Mary, Season VII

Yes, the mysterious ducks remain -- and seem to have multiplied.

It's that time of the year again. Fall's-a-coming, and that means that starting today, we're back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:

• Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
• Land Use Controls (an especially hot topic at the moment)

The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law -- it's really interesting, and a good place to make your way in the practice, and law students recognize that.

We don't use $400 casebooks in either class.

Time to jack back into the (takings and land use) Matrix.

Lawprof Somin: "Federal Appellate Court Rules in Favor of Takings Lawsuit Against the CDC's Covid-Era Eviction Moratorium"

Be sure to read the entirety of Lawprof Ilya Somin's recent post on Volokh, "Federal Appellate Court Rules in Favor of Takings Lawsuit Against the CDC's Covid-Era Eviction Moratorium."

There, he analyzes the Federal Circuit's recent 2-1 opinion in Darby Dev. Co., Inc. v. United States, No. 22-1929 (Aug. 7, 2024) (we wrote up the case here: "Deepening A Lower Court Split, Fed Cir (2-1) Reinstates CDC Co-19 Eviction Moratorium Temporary Takings Claim").

Professor Somin does a better job that we did offering his thoughts on the "authorized" issue, concluding:

To me, the decisive factor should be that the Takings Clause nowhere says that compensation is only required for legal government actions or for those specifically authorized by statute. Rather, the Clause imposes a general rule that compensation must be paid whenever the government takes private property for "public use." That, of course, can happen even without proper legislative authorization. I can understand if takings liability is nonetheless denied when rogue low-level officials seize property without any plausible justification. But that isn't what happened here.

He also dives into the question of whether leasing property to a tenant is an "invitation" to occupy the property that pretty much wipes out any claim that the government restricting the ability to recover the property upon expiration or breach of the lease is a physical taking:

To put it a different way, any "invitation" expires at the point where the property owner has a legal right to evict the tenant. At that point, there is no voluntary landlord-tenant relationship anymore; and if the government forces the owner to keep on housing the tenant on his land, we have a mandated physical occupation of property, which counts as a per se taking.

Well worth reading. Check it out.

Register Now: 21st Brigham-Kanner Property Rights Conference, William & Mary Law School, Sep. 12-13, 2024

Come join us in Williamsburg, Virginia at the William and Mary Law School for the 21st edition of the Brigham-Kanner Property Rights Conference. The Conference is unique, because its express purpose is to bring property legal scholars and property law practitioners together to discuss, what else, property and property rights law.

Yes, there's a healthy dose of theory and academics, but also the real-world perspectives of practicing lawyers who bring the cases that put theory into practice. (New to this event and want a preview? Here's our write-up of the 2024 Conference.)

More details here. Register here.

The days prior to the Conference launch on Thursday All that week, we're putting on student-oriented programming.in conjunction with the WM Law Career Services Office. Sessions on "Careers in Dirt Law," "Land Use and Real Estate Law in Practice," and "Comparative Property Rights," for example, presented by experienced practitioners including W&M Law alums who now are lawyers in the field. Thursday is the Wren Building dinner at which lawprof Lee Fennell will join the pantheon of past winners, and will be awarded this year's Brigham-Kanner Property Rights Prize.

Friday brings us to the academic portion, where five panels of national expert legal scholars and practitioners. Here's the agenda:

• Restructuring Property: A Tribute to Lee Fennell
• Background Principles, General Law, & Constitutional Property
• Roundtable: Unfinished Business & Emerging Issues
• Property Rights and The Housing Crisis
• Government Trespass: The Open Fields Doctrine Turns 100

Register now and plan on joining us!

Deepening A Lower Court Split, Fed Cir (2-1) Reinstates CDC Co-19 Eviction Moratorium Temporary Takings Claim

This one is a must-read.

In Darby Dev. Co., Inc. v. United States, No. 22-1929 (Aug. 7, 2024), the U.S. Court of Appeals for the Federal Circuit held that the Court of Federal Claims should not have dismissed Darby's complaint for failure to state a physical invasion takings claim.

The short takeaways:

• Takings claims do not require the government action be legally authorized (here, the courts invalidated the government action, after which the plaintiff sued for a taking), only that the government action was "authorized" and thus can be "chargeable to the government."
• Prohibiting evictions is not merely a regulation of the landlord-tenant relationship. Yee v. City of Escondido is distinguishable, and does not categorically exempt all actions that implicate the landlord-tenant relationship from physical takings challenge.

We think the longer story is worth your time. Here it is.

As you may recall, the Center for Disease Control purported to impose a nationwide moratorium on residential evictions during the Co-19 lockdowns. (Sidebar: we don't know about you, but the lockdowns now seem like eons ago -- some distant fever dream, no?) When the Supreme Court got a hold of a challenge to the CDC's authority to do this, the Court concluded, "[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."

Now remember, that was one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC's enabling statute did not give it the authority to impose such a sweeping an action (or if it does, the statute is unconstitutional). The Court invalidated the moratorium. Or, more precisely, concluded the challengers in that case stood a pretty good chance of ultimately prevailing on the merits, since this went to the Court on a preliminary injunction. In any event, that was enough, and the CDC stood down.

But as we also noted, Court's opinion contained some tantalizing takings language that we thought then (and continue to think now) predicted a physical takings claim:

Despite the CDC's determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership - the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).

Not surprisingly, some property owners took up the challenge, and several takings claims against the federal government in the Court of Federal Claims followed. Some of the claims were quite ... extraordinary. Others a bit more modest. But here's the general theory most of them employed:

In their operative complaint, they claimed that the Order, by preventing them from evicting non-rent-paying tenants, constituted a physical taking of their rental properties for public use, thus requiring just compensation under the Fifth Amendment’s Takings Clause. See J.A. 37 ¶ 31, 38 ¶¶ 36–37 (describing the Order as having deprived Appellants of their “fundamental right to exclude” and having “effected a government-authorized physical invasion, occupation, or appropriation of [their] private property, for the government itself or for third parties” (cleaned up)).

Slip op. at 6-7 (footnote omitted0.

To our surprise [more like "surprised not surprised"], most of those complaints went nowhere, and floundered on familiar shoals, as in the Darby case:

The government moved under Court of Federal Claims Rule 12(b)(6) to dismiss Appellants’ complaint for failing to state a claim upon which relief could be granted. The government made two primary arguments relevant here. First, it argued that a takings claim cannot be premised on government action that was unauthorized; and, in its view, the Supreme Court in Alabama Association of Realtors essentially confirmed that the Order was unauthorized. Second, it argued that, under Yee v. City of Escondido, 503 U.S. 519 (1992), the Order could not constitute a physical taking because it merely regulated the landlord-tenant relationship.

The Court of Federal Claims granted the government’s motion and dismissed the complaint. Darby Dev. Co. v. United States, 160 Fed. Cl. 45 (2022).

Apparent Authority and "Chargeable to the Government"

The Federal Circuit first considered the government's argument that only authorized actions result in takings liability. It argued that "authorized" means legal, or done with actual legal authority. The court rejected the claim, holding that "authorized" means "chargeable to the government" Slip op. at 10. So an action that is ultimately ultra vires or illegal can result in takings liability. This reminds us of the common law "apparent authority" vibe:

An action will normally be deemed authorized if it was done by government agents “within the general scope of their duties”—i.e., if it was “a natural consequence of congressionally approved measures” or “pursuant to the good faith implementation of a congressional act.” Del-Rio, 146 F.3d at 1362 (cleaned up); see also Ramirez, 724 F.2d at 152 (“[O]n numerous occasions when the government agent was acting within the ordinary scope of responsibilities conferred on him by Congress, and took private property without express statutory authority or prohibition, the Tucker Act remedy was held to lie.”).

Slip op. at 11 & n.7 (citing Restatement (Third) of Agency § 2.02 cmt. c (Am. Law. Inst. 2006) ("In determining when an agent’s act is attributable to a principal, it is not novel to define the agent’s authority based on its reasonable (even if ultimately mistaken) understanding of the authority that the principal gave it.")).

This portion of the opinion wraps up with this summary:

To summarize: even if an action by a government agent is unlawful, it will likely be deemed authorized for takings claim purposes if it was done within the normal scope of the agent’s duties—for example, if it was done “pursuant to the good faith implementation of a congressional act.” Del- Rio, 146 F.3d at 1362 (cleaned up). If instead the action was outside the normal scope of the government agent’s duties— or, despite being within that scope, it contravened an explicit prohibition or other positively expressed congressional intent—it will likely be deemed unauthorized. See id. at 1363; Ramirez, 724 F.2d at 151. The ultimate inquiry is whether the government agent’s action is “chargeable to the government.” Del-Rio, 146 F.3d at 1362.

Slip op. at 16.

The court concluded that "because the CDC issued the Order within the normal scope of its duties, and because it did not contravene any explicit prohibition or positively expressed congressional intent in so doing (far from it, as just discussed), we concluded that the Order was 'authorized' for takings-claim purposes." Slip op. at 20.

Yee Doesn't Go That Far: Cedar Point is More On-Point

Next, the court considered whether Yee v. Escondido -- a case which has caused all sorts of mischief in the takings field -- could be employed to deem the CDC's restriction on a lessor recovering possession of rented property via eviction merely a regulation on the landlord/tenant relationship, and not the government allowing third-party occupation of property.

The court found Cedar Point more on-point: "Cedar Point's reasoning indicates that the complaint stated a physical-takings claim. And, as explained below, we consider Yee distinguishable." Slip op. at 30.

[A]t a fundamental level, we cannot reconcile how forcing property owners to occasionally let union organizers on their property infringes their right to exclude, while forcing them to house non-rent-paying tenants (by removing their ability to evict) would not.

Slip op. at 31.

The court limited Yee ("the laws at issue in Yee expressly permitted eviction for nonpayment of rent"), and noted that "Yee was fundamentally a rent-control case." Id. The court rejected each of the government's Yee-based arguments. 

First, Yee is not a get-out-of-jail-free card, and did not hold that "government actions implicating the landlord-tenant relationship can never be a physical taking." Slip op. at 31-32. Yes, there's a broad power to regulate, but "we see nothing in Yee (or any other binding precedent we are aware of) that immunizes -- as a categorical matter -- government action implicating the landlord-tenant relationship from being treated as a physical taking." Slip op. at 32.

Second, the court rejected the notion that because the owner invited the tenant to occupy the property by entering into a lease, she thereby abandons a right to recover the property upon breach of that lease. "While we agree that this point distinguishes Cedar Point, we are not persuaded that it compels a different result." Slip op. at 33.

If a previous voluntary invitation (by itself) controlled the analysis, that would essentially mean that all government actions implicating the landlord-tenant relationship are immune from being treated as physical takings. (After all, we can safely assume that just about every landlord-tenant relationship stems from a voluntary “invitation” from the landlord to the tenant.) And yet, as noted above, we see no reason why government actions implicating that relationship must be categorically immune from being treated as a physical taking. At bottom, just because tenants (or other occupiers of property) were at one point “invited” does not mean that their continued, government-compelled occupation cannot, under any circumstances, be treated as a physical taking.

Id.

The court summarized by noting that the CDC's restriction "is hardly a run-of-the-mill law implicating the landlord-tenant relationship. Instead, it is a highly-unusual -- and, so far as the parties have shown, unprecedented -- Order that outright prevent evictions for nonpayment of rent." Slip op. at 34.

The Federal Circuit joins the Eighth in limiting the scope of Yee, while other circuits (see also this) -- and some state courts -- continue to to view Yee as allowing nearly any form of regulation as long as the tenancy originally was permissive. 

One judge dissented (Judge Dyk, in case you were wondering). He focused on the "authorized" argument, and would have concluded that the CDC's actions were not within the "normal scope" of the agency's duties, and was "well-outside" what the CDC is charged with doing. In other words, the more the CDC strayed outside the lines, the less its actions could result in a taking.

This, he asserted, would result in a massive expansion of government liability:

It would effectively make even clearly unauthorized agency action authorized for purposes of takings liability unless that action was contrary to a specific prohibition of the authorizing statute or taken in bad faith. That cannot be correct. The majority’s decision would work a sea change in our takings jurisprudence and impose significant takings liability on agencies for unauthorized acts, directly discouraging adoption of legitimate government programs because of the risk of takings liability in addition to injunctive and declaratory relief. Historically, unauthorized programs were enjoined. Now, in addition there is the specter of takings liability.

Dissent at 3.

The length of Judge Dyk's dissent tells us he was trying to set up en banc review, or even a government cert petition.

So stay tuned.

Darby Dev. Co., Inc. v. United States, No. 22-1929 (Fed. Cir. Aug. 7, 2024)

Book Launch Event, Aug 13, 2024: Jim Burling, "Nowhere to Live: The Hidden Story of America's Housing Crisis"

If you are in the California Southland (or plan to be in the next week), please be sure to reserve on your calendar Tuesday, August 13, 2024, to join us in-person for the launch of our colleague Jim Burling's forthcoming book, "Nowhere to Live: The Hidden Story of America's Housing Crisis."

Here's a blurb about the book, which is available for preorder on Amazon:

A century of policy mistakes ruined America’s cities and created an unprecedented housing crisis.   
 
For many families, homelessness is no longer someone else’s problem. It is right around the corner, a real threat in their own immediate future. Our housing crisis is the result of a long history of government policies, court cases, and political manipulation. While these disparate causes make up a tangled web, they have one surprising root: the attack on private property rights. For more than a century, government policies and court decisions have attacked, undermined, and eroded private property rights. Whether it be exclusionary zoning, eminent domain abuse, rent control, or excessive environmental regulations, the cumulative impact of these assaults on private property is that it’s become increasingly difficult—or even impossible—to build adequate housing supplies to meet market demands. We are fast approaching a time when millions of typical Americans will, quite literally, have nowhere to live. 

Nowhere to Live: The Hidden Story of America’s Housing Crisis, takes readers through the history of how we got here. With stories going back to the Civil War, the early twentieth century, and the ill-fated “urban renewal” movement of the 1950s, Nowhere to Live reveals how the government layered mistake upon mistake to create the current crisis. It also provides a way out: not by government fiat, but through the restoration of private property rights.  

The event will take place at the Pacific Club in Newport Beach, California, from 6:00-8:00 p.m., on Tuesday, August 13, 2024. It will feature Pacific Legal Foundation President Steven Anderson, and national zoning expert Nolan Gray, and, of course, Jim. The event will feature an open bar and is free. Register here.

Come, join us and learn and celebrate!

New Article: "The Ends of Means-Ends Scrutiny"

Here's an article worth reading, just posted to SSRN, Procaccini, The End of Means-End Scrutiny (July 29, 2024).

For your takings and individual liberty nerds, please focus on pages 36-38 (showing how takings analysis is not accomplished by the usual means-ends scrutiny), pages 40-42 (social and economic liberties), and pages 43-44 (searches and seizure).

Why move from means-ends scrutiny to more robust judicial review? Zero in on pages 50-52 ("Transforming Rights from Mediated Interests to Uncompromising Trumps"). We're thinking the author concludes this move is a bad thing, but we're not so sure it is.

Here's the Abstract:

It is black letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, this Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law.

This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly every fundamental right and important federal power. But not in exactly the same way. Rather, the Court has selectively abandoned means-end scrutiny to benefit the same subset of authorities, rights, and groups. In particular, the end of means-end scrutiny has reoriented the landscape of constitutional law to weaken federal authority, strengthen protection for libertarian as opposed to egalitarian rights, and benefit private power and dominant political, economic, and social groups.
The upshot of this patterned end of means-end scrutiny is a foundational change not just to the prevailing methodology of constitutional adjudication but also to the very nature of constitutional rights and judicial review. By eliminating consideration of governmental means and ends from the construction of rights, the Court has crafted a new form of judicial review that is court-centric, formalist, and dominance-reinforcing. The Article tracks and critiques this doctrinal and theoretical transformation, connecting it to the most salient debates in constitutional law today and exposing the deep and troubling consequences of the seismic--and yet largely silent--collapse of means-end scrutiny.

Whether you agree or disagree with the author's premise, it is worth checking out.

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...

CA9: Unannounced Inspections As Condition Of Falconry License Are Subject To Nollan/Dolan Challenge

On the surface, the U.S. Court of Appeals for the Ninth Circuit's opinion in Stavrianoudakis v. U.S. Fish & Wildlife Svc., No. 22-16788 (July 25, 2024) is about Article III standing (a highly technical gateway issue that is very federal courts wonky).

But taking a deeper look offers an insight into ways other than the usual Fifth Amendment arguments for protecting property rights. [Before we go on, a disclosure: this is one of our cases, argued and won by PLF colleague Daniel Woislaw].

This is a case involving the sport of falconry. Can't say that we knew too much about that -- until maybe the occasional movie -- until this case. First (and this may not come as a surprise to you who have been observing what things the government finds worthy of regulations and licensing), did you know that every state government except Hawaii has adopted regulations governing falconry? Nor did we, until now. Second, there used to be "parallel federal and state permitting systems," but the feds backed out in light of every state doing it; now, once the feds certify a state's regulations satisfy federal standards, the feds are out. 

California's regulations are one of those, and require that falconers renew licenses annually:

Consistent with federal requirements, California authorizes unannounced inspections: CDFW “may conduct unannounced visits to inspect facilities, equipment, or raptors possessed by the licensee, and may enter the facilities of any licensee when the licensee is present during a reasonable time of the day and on any day of the week” and “may also inspect, audit, or copy any permit, license, book, or other record required to be kept by the licensee under these regulations at any time.” Cal. Code Regs. tit. 14, § 670(j)(3)(A).

Slip op. at 8. To get a California license, a falconer must certify that he or she agrees that the premises, equipment, or the falcons themselves "are subject to unannounced inspection." If you don't agree, you are not getting a license or a renewal.

Several falconers and the American Falconry Conservancy sued the feds, and state officials in federal court, challenging past unannounced inspections under the First, Fourth, and Fourteenth Amendments, and the Administrative Procedures Act. The district court dismissed for lack of standing, but granted leave to amend the Fourth Amendment claim.

Here's the breakdown of the operative second amended complaint's claims against the unannounced-and-warrantless-inspections scheme:

• A facial 4A claim: conditioning a license on the licensee's agreement to forego his rights is an unconstitutional condition.
• The same unconstitutional conditions claim, but as-applied to these plaintiffs.
• The scheme allowing warrantless searches facially violates 4A.
• Same claim, as-applied.
• A co-habitant of one of the falconers asserted the scheme violates her 4A rights.
• APA claim.

The district court didn't find the amendments did much of anything and dismissed all 4A claims without leave to amend. The threat of future inspections was too speculative, and the Conservancy lacked associational standing.

A 2-1 panel of the Ninth Circuit reversed, in part. The court held that the falconers have standing to challenge the California officials, but not the Fish & Wildlife Service. We're not going to explore in depth the court's analysis (you can read that yourself, and we recommend you do so - start on page 12 of the slip opinion).

The most interesting stuff in the opinion (in our opinion) is the court's description of the claims. Yes, the government can impose conditions on the conferral of some benefit, but those conditions cannot include the relinquishment of a constitutional right. Slip op. at 13. We are used to seeing this in the land-use exactions context, where the right to compensation is the right a plaintiff is compelled to surrender. But here, the constitutional rights in the warrant requirement in the Fourth Amendment:

We have recognized that the unconstitutional-conditions “doctrine is especially important in the Fourth Amendment context” because, “[u]nder modern Fourth Amendment jurisprudence, whether a search has occurred depends on whether a reasonable expectation of privacy has been violated.” United States v. Scott, 450 F.3d 863, 867 (9th Cir. 2006) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). “Pervasively imposing an intrusive search regime as the price of [a discretionary government benefit], just like imposing such a regime outright, can contribute to the downward ratchet of privacy expectations.” Id. Accordingly, the doctrine applies when the government attempts to “exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary.” Id. at 866–67.

Id.

The injury for standing purposes occurs "when the government succeeds in pressuring the plaintiff into forfeiting a constitutional right in exchange for a benefit or the government withholds the benefit based on the plaintiff's refusal to surrender a constitutional right." Slip op. at 14 (citing Koontz). It's the dirty demand that is the problem, not "whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right[.]" Id. See also slip op. at 16 ("Therefore, the Falconers’ alleged injury in fact is the forced choice: retention of their Fourth Amendment rights or receipt of a falconry license, which is required to lawfully practice falconry.").

That being so, the plaintiffs have standing to bring such a claim against the California officials:

The question presented here is whether simply agreeing to submit to those inspections, in the absence of an actual inspection—see Part II.B—amounts to the relinquishment of Fourth Amendment rights. We conclude that it does. By successfully applying for a falconry license, the Falconers certify that they will forego a claim to Fourth Amendment protections. An inspection may not occur or, if it does, it may not violate the Fourth Amendment because it is reasonable. But the idea that the Falconers surrender nothing unless and until an unlawful inspection occurs—that California extracts a blanket waiver that is, in fact, entirely superfluous—defies logic. Rather, we take the regulation to mean what it says, and agreeing to unannounced, warrantless inspections without any consideration of the reasonableness of such inspections implicates Fourth Amendment rights.

Slip op. at 15.

The court did not view the claims the same way as against the USFWS, and concluded these claims are not ripe. The feds delegated falconry licensing to California, so the plaintiffs have not suffered an injury directly traceable to the feds. And the falconers have not sought, nor have they been granted, a federal license (indeed, they could not do either of these because as noted above, the feds no longer process falconry licenses, only the states).

The court affirmed the dismissal for lack of standing the as-applied warrantless search claims, primarily "because they have not alleged that they were subject to warrantless inspection under the challenged regulations." Slip op. at 22. Unlike the unconstitutional conditions claims, the court viewed the wrong here as not merely being subject to the requirement, but on the government actually making a warrantless search.

Slip op. at 23.

One judge concurred in part and dissented in part, agreeing that the lack-of-standing dismissal was ok because there's not been any actual warrantless searches, but arguing that the "Falconers have standing to challenge the state regulations under the unconstitutional-conditions doctrine[.]" Slip op. at 29 (S.R. Thomas, J., dissenting in part). The panel majority broke new ground in focusing on the demand as the constitutional wrong: "[i]ndeed no federal court has held that the act of giving consent itself constitutes injury absent an actual or imminently impending search. The majority’s assertion that Falconers are injured 'every time they renew their licenses,' is unsupported by precedent. Id. at 33 (S.R. Thomas, J., dissenting in part).

This case is a good reminder that there's more than one way to skin the property rights cat. Yes, we focus on the Just Compensation requirement. But we should not overlook other ways to protecting private property rights.

Stavrianoudakis v. United States Fish & Wildlife Service, No. 22-16788 (9th Cir. July 25, 2024)

Blight Slight: No Taking Of Property For "The Proposed Project" When No Project Has Been Proposed

You all have likely seen 'em, those "We Buy Houses Any Condition" billboards letting the world know that no matter what condition it might be in, there's an outfit that says it is willing to buy your house.

Well, that outfit ran into the one other outfit that is willing to buy your house, except here, that outfit can force you to sell it. That's right, the government. In this case, the City of Ontario, California, exercising its power of eminent domain. (As someone once famously described the power of eminent domain: "whether you know it or not, your house is for sale.")

The city went through the usual motions to forcibly take "multiple vacant lots" next to the Ontario International(!) Airport which it claimed were blighted:

In 2021, the City held a public hearing, after which the city council adopted a resolution of necessity authorizing the City to commence eminent domain proceedings to acquire the properties. The resolution of necessity stated: “The public uses for which the real property interest is to be acquired are mitigation of airport impacts and elimination of blight in the City of Ontario, San Bernardino County, California. Sections 37350.5 and 50470 of the California Government Code authorizes [sic] the City to acquire by eminent domain real property necessary for such purposes.” The council found that “[t]he public interest and necessity require the proposed project” and “[t]he proposed project is planned or located in the manner that will be most compatible with the greatest public good and least private injury.” However, the resolution did not describe any proposed project.

The trial court agreed with the property owner, who argued that in addition to the resolution requiring a statement that the taking is for a public use, must also identify a proposed project supporting the condemnation.

In City of Ontario v. We Buy Houses Any Condition, LLC, No. D083080 (July 19, 2024), the California Court of Appeal affirmed. The court concluded that California's eminent domain statute is a "comprehensive statutory scheme to define the substantive and procedural parameters of eminent domain." Slip op. at 5. And you gotta follow the rules. One of those rules is that the condemnor may take the property, but "only if all of the following are established" --

• the "public interest and necessity" require the project
• the project is designed in such a way "that will be most compatible with the greatest public good and the least private injury:
• the property sought to be acquired is "necessary for the project"

Cal. Code Civ. P. § 1240.030.

Relying on the reasoning set out in one of our favorite California eminent domain cases, the appeal court held that the statute not only requires a statement of public use and necessity, but some reference to a project. Failing that you lose, condemnor:

Thus, a “governing entity [must] identify a ‘project’ with a public purpose before it undertakes to condemn private property.” (Marina Towers, supra, 171 Cal.App.4th at p. 107.) “[A] resolution of necessity that does not identify a project with sufficient specificity, such that persons of ordinary intelligence can discern what the ‘project’ is, cannot support the taking of private property.”

Slip op. at 5-6.

The city's resolution here did not meet that standard, and was thus a "gross abuse of discretion." Slip op. at 6.

The court rejected the city's argument that under California's Community Development Law, the condemnor doesn't need to show no stinkin' project (hat tip to Gideon Kanner), only that the properties were blighted under Cal. Health & Safety Code § 33073, which it claimed was a "safe harbor" from the usual three requirements. 

No, held the court. "As we shall explain, neither the language of Marina Towers nor what remains of the CRL authorized the City to condemn the properties without identifying a proposed project." Slip op. at 7.

We won't go into the details, but here are the salient points. Remember that back in the day, the California Supreme Court acknowledged that the legislature gutted the formerly powerful redevelopment law (the gutting wasn't because the lege was disgusted by the way that redevelopment was being accomplished, but rather so the state could grab the money the redevelopment agencies had accumulated). The court rejected the city's claim that section 33073's provision that government may "seek the acquisition of the properties by eminent domain for the elimination of blight" exempts the city from Civil Procedure section 1240.030's requirements. Nothing in the redevelopment law "suggests it creates an exception to the eminent domain law's requirement of an adequate project description." Slip op. at 10.

Finally, the court rejected the city's argument that taking properties to minimize noise and safety hazards under separate statutes means that the takings here didn't need to identify the project. Not so: "Neither of these provisions purports to excuse a local agency from following the eminent domain law’s requirement to identify a project." Slip op. at 14.

To make it worse for the city, the court affirmed the trial court's award of attorney fees to the property owner, not limited to the fees incurred in the owner's motion for summary judgment, but for all of the trial court litigation. Start at page 15 of the slip opinion for the reasons.

The opinion is not published. But should be.

City of Ontario v. We Buy Houses Any Condition, LLC, No. D083080 (Cal. Ct. App. July 19, 2024)