inversecondemnation.com

New Article: "Takings, PASH, and the Changing Coastal Environment," 43 U. Haw. L. Rev. 525 (2021)

Back in February, we were honored to be part of the University of Hawaii Law Review's symposium "25 Years of PASH," a retrospective of one of the Hawaii Supreme Court's most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH).

At the conference, we spoke on the panel about "PASH and the Changing Coastal Environment" (see video here at the 2:02:25 mark if you want to watch our panel's summations). The Law Review has now published the symposium, and here's our contribution, Takings PASH and the Changing Coastal Environment, 43 U. Haw. L. Rev. 525 (2021).

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

Here's our piece's Introduction:

The topic of this portion of the Symposium is “Takings and the Changing Coastal Environment” and in this comment I focus on the “takings” part of that title, as well as offer some thoughts on our guiding subject, the Hawai‘i Supreme Court’s decision from a quarter-century ago in PASH, which most famously noted “that the western concept of exclusivity is not universally applicable in Hawaii.” How might this statement be considered today through the lens of property law and property rights, especially if we account for the changes in the U.S. Supreme Court’s approach to takings in the time since PASH was decided? And what implications does PASH have, if any, for property rights in the coastal zone?

This comment is in three parts. Section I summarizes the PASH opinion, and concludes that the jurisdictional questions presented in the case should have resolved the case, and the court should have avoided the takings questions, and the court reached out to resolve an issue it need not have. Next, Sections II, II, and IV offer up my three main criticisms of PASH, the first on the court’s seemingly incomplete view of how Hawai‘i property law treated the right to exclude, the second on whether defining “property” for purposes of federal takings analysis is only a matter of state law, and the third on separation of powers. Finally, Section V concludes with some thoughts about how courts should consider property rights in a changing coastal environment in light of these criticisms of PASH.

Check out the symposium issue, which has similar articles from a variety of perspectives.

Takings, PASH, and the Changing Coastal Environment, 43 U Haw L Rev 525 (2021)

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

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

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

Join Us - Wed, Nov 3, 2021 (8pm ET) - Eminent Domain & Right-of-Way Club

Please plan on joining us next Wednesday, November 3, 2021, at 8pm ET for the next gathering of the Eminent Domain and Right of Way Club, a social media gathering spot "geared toward right of way professionals as well as anyone interested in the acquisition of land rights for infrastructure projects." Register for the (free) Clubhouse App here.

I must say that I'm intrigued by this newfangled "clubhouse" thing, and from what I gather it is a place for those who share interest in a topic to talk a bit of shop in a friendly and informal environment. What's nice about this group is that it isn't necessarily geared only towards condemnation lawyers (who are welcome, but not the center of gravity), but includes all of the other professionals involved in the industry. 

The topic of the day for this meeting is something near and dear to my heart, "What is This Thing We Call 'Property?'" We're going to talk about how both the law and the culture define that term, how ownership is viewed and respected (or not), and -- of course -- how eminent domain law and the right of way acquisition process values property and property rights.

So mark your calendars, download and install the app, and join the conversation. See you soon.

Links And Materials From Today's Land Use Institute Takings/Eminent Domain Session

LUI Co-Chair Prof. Frank Schnidman introducing the faculty

Here are the links to the cases and issues that we just finished speaking about at the 35th Annual Land Use Institute (more information on the LUI here). Today was day 1 of a multi-day remote program and the sessions are available ala carte, so there's still time to join in and learn.

Supreme Court

• Cedar Point Nursery: the Supreme Court affirms the "keep out" vibe in property law. Yes, there are three "exceptions" to the presumption that any physical intrusion into property is a taking (torts, entries allowed under "background principles," and legal exactions), but overall a very strong affirmation of property rights.
• Pakdel v. San Francisco: the "final decision" ripeness requirement in takings cases is "relatively modest" and turns on "de facto" readiness. Yes, it's a technical requirement, but let's not get too technical about it.
• PennEast Pipeline Co., LLC v. New Jersey: federal eminent domain -- even when delegated to a private actor under the Natural Gas Act, trumps a state's 11th Amendment immunity. Bottom line for us: the Court did not mess up eminent domain law.
• Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs.: in striking down the CDC's eviction moratorium, the Court leaves a few tantalizing takings clues.
• Eychaner v. City of Chicago: the Supreme Court comes this close to deciding whether to overrule Kelo.

Regulatory Takings/Inverse Condemnation

• Andrews v. Mentor: the Sixth Circuit distinguishes between due process property and takings clause property.
• Alliance for Responsible Planning v. Taylor: a California appeals court concludes that a requirement that a developer pay "for all necessary road capacity improvements" is too broad and violates Nollan/Dolan.
• F.P. Dev., LLC v. Twp. of Canton: the Sixth Circuit rules that a "tree preservation" ordinance imposes an exaction in violation of Dolan's proportionality requirement.
• South Grande View Dev. Co. v. City of Alabaster: the Eleventh Circuit affirms a Penn Central jury verdict for a rezoning that resulted in an 86% loss of value.
• Yawn v. Dorchester County: the Fourth Circuit rejects a trial court ruling that dismissed a takings claim because the government action was a valid exercise of its emergency police power.
• Ray v. City of Rock Hill: the South Carolina Supreme Court concludes that a city reconnecting a stormwater pipe that previously flooded (that causes more flooding" is the "affirmative, positive, aggressive act" required to trigger inverse condemnation.
• Michael M. Berger, "Whither Regulatory Takings," 51 Urb. Law. 171 (2021): a must-read.

Eminent Domain - Just Compensation

• City of West Chicago v. Pietrobon (unpublished): a taking for a public road violates the public use/necessity requirement for two reasons: (1) the question is factual and not legal, and (2) the city had not shown the taking was part of a larger comprehensive plan.
• Christus Lutheran Church of Appleton v. Wis. Dep't of Transportation: the Wisconsin Supreme Court concludes that the DOT met its obligation to base its offer of just compensation on a "full narrative appraisal" even though the appraisal relied on did not detail the amounts it offered. It is enough that an appraisal (even an appraisal that concludes no damages) is a "fundamental ingredient" of the jurisdictional offer.
• Elpa Builders, Inc. v. State of New York: if the final compensation awarded is less than the deposit and the owner has withdrawn the deposit, the owner is liable for the difference, plus interest. Withdraw at your own risk, owners.
• Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less: the Louisiana Supreme Court concludes that attorneys fees are required as part of the requirement to compensate owners for "the full extent of their loss."
• Two law journal articles on just compensation: Thomas Merrill, The Compensation Constraint and the Scope of the Takings Clause, 96 Notre Dame L. Rev. 1421 (2021), and Richard Epstein, Valuation Blunders in the Law of Eminent Domain, 96 Notre Dame L. Rev. 1441 (2021).

Thanks to all for joining us.

New Article: "Inverse Condemnation: Standards and Burden of Proof" (ALI-CLE Practical Real Estate Lawyer)

Worth reading: an article in ALI-CLE's Practical Real Estate Lawyer, authored by our friends and colleagues Steve Clarke, Justin Hodge, Jeremy P. Hopkins, and Christian Torgrimson, "Inverse Condemnation: Standards and Burden of Proof."

A subscription to PREL costs, but for this issue the good people at ALI have made it available for free. Lucky you. But you really should get a subscription -- PREL publishes useful articles like this frequently.

And since we're on the subject of ALI-CLE, we can't resist reminding you that registration for the 2022 ALI-CLE Eminent Domain & Land Valuation Litigation Conference is underway (including reservations for the limited room block at the Scottsdale Resort). Please register and make your plans to join your colleagues (including the authors of the article!) in January in Scottsdale.

Join Us (For Free!): Lawprof Ilya Somin On "Cedar Point Nursery v. Hassid and the Future of the Takings Clause: Physical Occupation, Eviction Moratoria, and More" (Tues. Sep. 28, 2021, 12:50pm ET)

Next Tuesday, September 28, starting at 12:50pm ET, we'll be moderating a talk sponsored by the William and Mary Law School chapter of the Federalist Society.

Professor Ilya Somin, a nationally-recognized expert in eminent domain, takings, and related topics, is zooming in to speak about "Cedar Point Nursery v. Hassid and the Future of the Takings Clause: Physical Occupation, Eviction Moratoria, and More."

And guess what? You can Zoom in too. It's open to the public, and it's free.

So mark your calendars and join us for Prof Somin's thoughts on the cutting-edge issues in property rights. Here's the Zoom link: https://us02web.zoom.us/j/89365248145. See you on Tuesday!

Watch: "The Future of Regulatory Takings at the Supreme Court"

In case you missed it live, here's the recording of the recent one-hour program on "The Future of Regulatory Takings at the Supreme Court," featuring our colleagues Joshua Thompson (Pacific Legal Foundation) and Paul Utrecht (Utrecht & Lenvin, LLP), with Jim Burling (PLF) moderating.

The program discussed Cedar Point Nursery v. Hassid, Knick v. Township of Scott, and Pakdel v. City and County of San Francisco and what might be on the horizon.

If you are a takings nerd, a must-listen.

2021 Brigham-Kanner Property Rights Conference (Sep. 30 - Oct. 1, 2021) - Still Time To Join Us

There's still plenty of time to register and join us for the 18th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School, Thursday and Friday, September 30 and October 1, 2021.

Yes, you may attend in-person, or remotely. The registration fees are very reasonable, ranging from $0 (yes, free!) to $200 (go here, and click "Tickets" for the details).

This year's Brigham-Kanner Property Rights Prize winner is Professor Vicki Been (NYU Law). The Conference includes presentations on:

• Remembering Toby Brigham
• The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been
• The Relationship between Eminent Domain and Social and Racial Injustice (this is the panel on which we'll be presenting)
• Just Compensation Issues, Changing Public Uses, and Other Recent Developments
• The Interdependence of Property and First Amendment Rights
• The Distributional Implications of Land Use Regulation

Details on the agenda and the stellar faculty here.

In our opinion, this is the best one-day academy/bench/practicing bar conference on this topic. Really good stuff.

Register here. We'd love to see you in Williamsburg later this month. Or if that's not possible, join us for all or part of the day remotely.

XXXX

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

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

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

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

Join us in Scottsdale in January!

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

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

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

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

Join us in Scottsdale in January!

Links From Today's ABA RPTE Session

Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section's Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court's decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

• Land use and short-term rentals: Euclid Lives! Mass SJC: "Short-Term" Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of "Residential Character"
• Environmental standing: Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers
• Environmental standing, part 2: Hawaii Supreme Court: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
• Exactions (sorry we didn't get to this one in the session, but here it is anyway because it is a good case to review): Ordinance Requiring Developer Pay For "All Necessary Road Capacity Improvements" Violates Nollan/Dolan
• Public use in eminent domain: So Close: SCOTUS Declines To Revisit Kelo (For Now) (a taking to remedy potential future blight is a "public use")
• Public use in eminent domain, part 2: Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• Just compensation in eminent domain: Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)
• Regulatory takings, emergencies, and necessity: Fourth Circuit: No Taking When Aerial Pesticide Spray Killed Bees ... But Not Why You Think

Thanks again, colleagues.

Join Us Friday, July 16, 2-3pm ET: ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know"

The ink's not quite yet dry on the U.S. Supreme Court's landmark decision in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021), but we're already ready to roll with a program about what this decision means for you and your clients, and for takings law.

Find out from the experts in a one-hour webcast, "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know" from ALI-CLE. Registration and more information here.

In Cedar Point, a 6-3 majority affirmed a bright-line rule that physical invasions of whatever duration are takings, and held that "[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place." Questions about duration of the invasion "bears only on the amount of compensation."

Our highly respected faculty will discuss the effect of this fascinating case on takings, eminent domain, and property law. With a short investment of your time, you’ll learn about this landmark ruling and why the Court's decision is important to your practice. The faculty includes Joshua Thompson (arguing counsel for the prevailing property owners); Professor Julia Mahoney (University of Virginia School of Law, and a nationally-renown property scholar); and Matthew Littleton (who authored a government-side amicus brief in the case).

This program is an adjunct (and preview) to the full, three-day ALI-CLE Eminent Domain & Land Valuation Litigation Conference, which is scheduled for January 27-29, 2022 at the McCormick Ranch Resort in Scottsdale, Arizona. Stay tuned for more information on our big reunion event, which we'll post very shortly.

In the meantime, please register for the Cedar Point program and join us. Bring your questions and comments, and come prepared to learn.

Links From Today's Oregon Eminent Domain Conference

Earlier today, I presented the "National Takings Update" at The Seminar Group's Eminent Domain in Oregon conference. It was good to see old friends and colleagues again, even though on-screen and not in-person. Hopefully next time we'll all be able to join together.

Here are the links to the cases we discussed that are not in your written materials (mostly because they were issued after I submitted my materials):

• Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• California Trial Court: No Greater Public Interest In Town Seizing Private Water Company To Operate It Itself (Generic "Vision Statements" Don't Count)
• Listen (Or Read) As SCOTUS Hears Arguments In A (Sorta) Eminent Domain Case
• What If A Court Invalidates A Taking, But They've Already Taken It?
• How "Res Judicata" Is A Failed Condemnation?
• Sixth Circuit Says No To Res Judicata As The Latest Williamson County Workaround
• New Law Review Article (Ours) - "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)

Until next time!

Mark Your Calendars: 2021 Brigham-Kanner Property Rights Conference, Williamsburg, Virginia, Sept 30-Oct 1 (in-person)

Mark your calendars for September 30 - October 1, 2021, and join us at the William and Mary Law School in Williamsburg, Virginia for the 18th Annual Brigham-Kanner Property Rights Conference. It's planned to be in-person, so when we mean "join us" we really mean join us.

This year the Conference will recognize the lifetime work of Professor Vicki Been (NYU Law) with the Brigham--Kanner Property Rights Prize. As noted in the Law School's press release:

The Brigham-Kanner Property Rights Prize is named in honor of the lifetime contributions to property rights of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles. Brigham died earlier this month in Miami. A true legend in the law, he was esteemed by colleagues for the invaluable counsel, knowledge and skills he possessed and shared so generously. The prize is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Been is the Judge Edward Weinfeld Professor of Law at NYU School of Law, an Affiliated Professor of Public Policy of the NYU Wagner Graduate School of Public Service, and Faculty Director of NYU’s Furman Center for Real Estate and Urban Policy. Her scholarship focuses on the interplay of land use, urban policy and housing. She is currently on leave from NYU, serving as Deputy Mayor for Housing and Economic Development for the City of New York. 

Among other topics, Been has examined inclusionary zoning, historic preservation, affordable housing, gentrification, mortgage foreclosure, racial and economic integration, community benefit agreements, and the effects of supportive housing developments on neighbors. She often uses the City of New York as her laboratory.

Been also writes about the Fifth Amendment prohibition against the taking of property without just compensation, environmental justice, and international protections for property owners. She is a co-author of a leading land use casebook, Land Use Controls.

Save the date, plan on joining us (Williamsburg is great in the fall), and stay tuned for the full agenda and speaker list, as well as how to register.

2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference Report, Day 1: A Key Presenter Didn't Get The Word That We're Remote This Year

We're kidding of course, but who said we can't have a bit of fun at legal CLE's? More on the Conference when the day ends.

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

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

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

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

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

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

PASH Bash: U. Hawaii Law Review Symposium - "25 Years of PASH" (Feb. 5, 2021)

Mention the term "PASH" to any dirt lawyer in the 50th State, and they'll nod in understanding. It's an 808 shibboleth -- a kind of local property password -- that signals that you've been around the block and know your stuff.

On one hand, it is simply an acronym for Public Access Shoreline Hawaii, the plaintiff/petitioner in the (in)famous case Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm'n, 903 P.2d 1246 (Haw. 1995). On the other, however, it has evolved into shorthand for a number of things: from the technically accurate - native Hawaiian customary and traditional rights and practices under the Hawaii Constitution ("I was chasing a pua'a on private property, so I cannot be convicted of trespass because I was exercising my PASH rights"); to generically and cheekily - the ability to access the beach and shoreline ("Surf's up today, let's go practice some PASH rights!"); and with irony - judicial activism ("The Supreme Court sure PASH'ed that case!").

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

Soon after PASH, the Hawaii Supreme Court held that this right only applied on less-than-developed land. Why, the court has never really told us. After all, the right as set out in the text of the Hawaii Constitution doesn't distinguish between developed and undeveloped land, and as far as we can tell, neither did Hawaiian custom and practice. Maybe the court realized that the practical implications of a strict application of PASH in the absence of such a judicially-created limitation were enormous. We're not sure.

Who'd have thought that it has been a quarter century since the decision came out? (Probably not the editors of the University of Hawaii Law Review, many of whom, we'd imagine, were keiki at the time; but we digress.) But it has. But no matter, PASH rights have been a part of the conversation for more than two decades.

In February, the Law Review is putting together a retrospective and is devoting an issue of the upcoming volume to a discussion of the PASH case and how the last 25 years have gone.

We're going to be a part of the (online) Symposium on February 5, 2021, speaking about "Takings and the Changing Coastal Environment" (11am - 1pm Hawaii Time). We'll be joined by Colin Lee (a UH student who has authored an intriguing piece on PASH), Sam Lemmo (Admistrator of the State of Hawaii Office of Conservation and Coastal Lands), and Bill Wynhoff (Supervising Deputy AG, who in our opinion, is the most knowledgeable career public-service lawyer on these issues). Our discussion is sure to be lively, and will be moderated by UH lawprof David Callies.

Register for the entire program here (no cost). Our Damon Key colleague Mark M. Murakami is presenting on "The Proper Role of the Court: Restoring Justice Through the Public Trust Doctrine." The entire program is worth attending.

We hope you sign up, whether you are an old hand at PASH or a newcomer.

U. Haw. L. Rev. Symposium: 25 Years of PASH (Feb. 5, 2021)

 

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

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

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

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

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

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

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

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

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

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

To register or to find out more, email me.

Eminent Domain Podcast's Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We're "remote" this year, but that means a different approach to our presentations (and a very modest tuition!).

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

Register now!

Join Us: Tuesday, Nov. 10, 2020 (3pm ET, 12n PT) For Free (!) Webinar: "Shutdowns, Closures, Moratoria, and Bans"

Join us next Tuesday, November 10, 2020 at 3pm ET (12 noon Pacific) for the free webinar "Shutdowns, Closures, Moratoria, and Bans," produced by Pacific Legal Foundation and Owners' Counsel of America.

Along with my colleagues Leslie Fields (Executive Director, OCA), and Jim Burling (PLF), I'll be talking about the legal foundations for objections, some of the cases that have made their way to decision, and what the future might look like. To register (did I mention it was free?) go here.

Here's the program description:

Governors and state legislatures across the country have implemented an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling with the pandemic.

Join representatives from Pacific Legal Foundation and Owners’ Counsel of America as they explore COVID-related policies and the legal challenges to them, including:

• The constitutionality of emergency eviction moratoria and lockdown orders restricting property and business owners
• The rights and legal status of property and business owners impacted by emergency orders
• Past, current, and upcoming litigation challenging these orders

We want to hear from you! Come prepared with your questions for our panelists. This is a public event. Please pass along this invitation to any colleagues that may be interested in this program.

As noted, in addition to presentations, we've reserved a lot of time for comments and questions, so bring those with you on Tuesday.

See you then, online!

Brigham-Kanner Property Rights Conference Videos Now Available

In case you missed any part of it: the recordings of the recent 2020 Brigham-Kanner Property Rights Conference are now available.

Go here for the descriptions of the panels, speakers, and links to the recorded sessions.

This year’s conference, held on October 1-2, opened with the Brigham-Kanner Property Rights Prize being awarded to Professor Henry E. Smith of Harvard Law School. The prize is named in honor of the lifetime contributions of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles, and is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Topics covered: "Where Theory Meets Practice: A Tribute to Henry E. Smith," "The Housing Crisis," "Emerging Issues in Takings and Eminent Domain Law," "The Reach of Government’s Confiscatory Powers over Exigencies and Emergencies," and "The Risk of Unjust Compensation."

Check it out.

Your 2020 Brigham-Kanner Property Rights Conference Bingo Card

There's Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

Although it is set to launch this Friday, October 2, 2020, there's still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn't limited by the classroom size (this year's registrations are at record levels), you don't need to travel to Williamsburg, and the Conference is free if you don't want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics (complete program agenda here):

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)! Register here. Did we mention the tuition is FREE?

This Thursday, Sept 10: "Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders" (Free to ABA Members)

Please join us and a panel of expert speakers including our friend and colleague Tony Della Pelle (see the flyer for the complete list), this Thursday, September 10, 2020 at 1pm Eastern Time for the ABA-produced webinar "Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders."

Free to ABA members, a modest cost for those who are not. Register here.

Here's the plan:

In the wake of the unprecedented global pandemic, every level of government has taken steps to address the public health crisis. These steps have manifested in orders which impact businesses and individuals alike including quarantine orders, travel restrictions, occupancy limitations, and restrictions on movement. This is the not the first pandemic, nor the first national crisis, faced by the United States. There have been several lawsuits filed challenging the constitutionality of the COVID-19 orders, including challenges based on the right to travel, the right to associate, the right to free exercise of religion, and other federal and state constitutional provisions. This panel of litigation practitioners will provide the constitutional and statutory context for governmental emergency powers, then will identify how those principles inform an analysis of the Covid-19 orders. The panel will discuss the lawsuits challenging the orders and the current jurisprudence.

Faculty:

• Ali Dehghan, James G. Dibbini & Associates, P.C (New York, NY)
• Anthony F. DellaPelle, McKirdy, Riskin, Olson & DellaPelle, P.C (Morris Plains, NJ)
• Robert H, Thomas, Damon Key Leong Kupchak Hastert (Honolulu, HI)
• Nicholas Shapiro, Phillips & Angley (Boston, MA) [Moderator

Sign up, join us, and add to the conversation!

Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

News just in: we've just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we're going online.

Not a big surprise, but still a bit disappointing, and it's a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we're making lemonade out of these lemons, and we'd appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we're not going to do two-and-a-half-days remotely, we're paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants. If you haven't taken the dive and joined us in the past because you could not spend the time away or the costs of attending in-person kept you away, this will be your chance to see what we're all about and get a taste of what you've been missing, so you can join us when we reconvene in-person in 2022. 

Stay tuned for more details, to be released shortly! 

What Books Do You Use For Your Remote Podium?

We're done with our first day of class for the upper-level students at William and Mary. We're teaching two courses this semester, the usual Eminent Domain and Property Rights, but also Land Use Law. We were set to begin a semester of "hybrid" instruction (some students in the classroom, with distancing in place, while others attend remotely). But late last week, due to some administrative difficulties unrelated to the law school, we had to postpone the in-person part until next week.

So we did our first two classes today via Zoom. It went as well as you might expect. We've had to make some adjustments to the usual law classroom, but so far, everyone is taking it in stride and adapting well. We expect to do the same and adjust and readjust as the semester progresses.

What you're looking at above is our set-up, a remote "podium" on which we raise our laptop camera up to eye-level so the students are not looking at the underside of our chin the entire time. What books do you use for your remote podium?  

Register Now: William and Mary Law's Brigham-Kanner Property Rights Conference - Oct 1, 2020 (Virtual)

Registration is up and online. Join us (online) for the 2020 Brigham-Kanner Property Rights Conference. Tuition: free, unless you want CLE credit (in which case it is a very modest $100). Because this conference has gone virtual, the usual Wren Building awards banquet to honor this year's B-K Prize winner, lawprof Henry Smith, obviously won't happen, but the speaking panels are a "go." 

Sign up now and hold the date on your calendar. This is, in our opinion, the best one-day Academy-Bar-Bench conference about property rights that there is. And at such a great deal this year makes this one a "can't miss."

Here are the panel topics:

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)!

PS - Extra credit to anyone who can identify the significance of the epigram photograph.

July 22, 2020: "Emergency and Police Power: Property Claims in Times of Crisis" (ABA Webinar)

Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on "Emergency and Police Power: Property Claims in Times of Crisis."

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I'll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here's the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When does the diminution of existing property rights require compensation? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do property owners/landlords/tenants have to privately respond in times of crisis.

The panel will delve into the timely and enduring question of how far the police power stretches to protect the public against dangers—asking, how far is too far? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do people have to privately respond in times of crisis?

Register here. We hope you can join us.

What If Govt Is Obligated To Pay ... But Doesn't? Podcast: "Just Compensation: A Suggestion or a Requirement?"

Here's the recording of last month's Federalist Society's Environmental Law & Property Rights Practice Group teleforum, "Just Compensation: A Suggestion or a Requirement?"

Can states unilaterally decide not to pay takings judgments? Some states think so. Louisiana and Florida have laws that say no takings judgment can be paid unless money is specially appropriated to do so—and then they never get around to appropriating the money to pay. These laws are currently being challenged in the Fifth Circuit and the Florida Supreme Court. Please join us for an interesting discussion of this litigation.

Featuring:

Robert McNamara, Senior Attorney, Institute for Justice

Daniel Woislaw, Attorney, Pacific Legal Foundation

Stream above, or download it here.

Upcoming (Free) Program: "Lockdowns, testing and tracking: Are they all really legal?" Tuesday, June 23, 2020 (12 noon Hawaii Time)

Please join us tomorrow, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We'll analyze the latest on "Lockdowns, testing and tracking: Are they all really legal?"

We'll be joining constitutional lawyer Jeff Portnoy and Dr. Keli'i Akina for the program, sponsored by the Grassroot Institute of Hawaii. Sign up now, space limited!

We'll be discussing the legal questions that have arisen from the shut-down orders, including takings, state-law limitations, and the two federal court lawsuits that are pending. supplemental orders under the automatic termination provision (among other claims) (see here and here for the complaints).

We've written up our thoughts on these issues in two articles, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link), and "Evaluating Emergency Takings: Flattening The Economic Curve."

Come with your questions and comments. See you online tomorrow.

Judiciary History Center Program Recording: "Constitutional Law Lessons from Hawaii's Judicial History for the COVID-19 Pandemic"

Here's the recording of last week's program we did for the King Kamehameha V Judiciary History Center, "Constitutional Law and States of Emergency: Lessons from Hawaii's Judicial History for the COVID-19 Pandemic."

Links to the cases and other materials we referred to in the presentation are posted here.

Tomorrow, we'll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, "Lockdowns, testing and tracking: Are they all really legal?"

Jeffrey Portnoy and Robert Thomas will talk about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas will consider whether businesses destroyed or devastated by the lockdowns have any legal recourse, and whether proposals being suggested to revive Hawaii’s devastated tourism industry, such as replacing the 14-day quarantines with various forms of testing and tracking, might violate constitutional privacy protections.

Register here.

Links And Materials From Judiciary History Center Program: Constitutional Law and States of Emergency: Lessons from Hawaii's Judicial History for the COVID-19 Pandemic

Here are the links and other materials which we spoke about in this afternoon's program for the King Kamehameha V Judiciary History Center, "Constitutional Law and States of Emergency: Lessons from Hawaii's Judicial History for the COVID-19 Pandemic."

• SPAM®: Every Hawaii resident's Plan B. 
• Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398, 425 (1934):

"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were not determined in the light of emergency and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system."

• This is not a war: United States v. Pac. R.R., 120 U.S. 227 (1887): during the Civil War, the Union Army blew up railroad bridges "to prevent the advance of the enemy." No compensation because the destruction of the bridges was a "military necessity." "The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences."
• The King v. Tong Lee, 4 Haw. 335 (Kingdom 1880) (en banco): Hawaii Supreme Court upholds restrictions on commercial laundries in Honolulu's Chinatown deferring to the government's assertion that doing so was necessary to preserve the public health. Over- or under- inclusiveness not a problem.
• Gibson v. The Steamer Madras, 5 Haw. 109 (Kingdom 1884). "Quarantine" narrowly defined, and although ship was in a de facto quarantine (held offshore for health reasons, not allowed to land for two months), it did not qualify as "quarantine" as that term was defined in a Kingdom regulation that required ship owners to pay for the costs of quarantine.
• Hawaii's emergency preparation and response statute
  (Haw. Rev. Stat. §§ 127A-1 et seq.)
• Two lawsuits have been filed in U.S. District Court challenging the governor's supplemental orders under the automatic termination provision (among other claims). See here and here for the complaints.
• Many more legal challenges to coronavirus shut-down orders have been filed nationwide. Here is a sample of the cases: here, here, here, here, here, here, here, here, here, here, here, here and here.
• Section 127A-14(d), the "automatic termination" provision, which imposes a "pull date" on all declarations of emergency:

(d) A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.

Our thoughts on this claim in this article, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

• Two lawsuits have been filed in U.S. District Court challenging the governor's supplemental orders under the automatic termination provision (among other claims). See here and here for the complaints.
• Many more legal challenges to coronavirus shut-down orders have been filed nationwide. Here is a sample of the cases: here, here, here, here, here, here, here, here, here, here, here, here and here.

The program was recorded, and we'll post that when available.

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

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

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

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

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

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

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

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

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

Register here.

Hope you can join us.

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

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

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

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

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

Tuesday, May 12th: Updates and Current Issues Explored

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

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

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

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

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

Thursday, May 14th: Hot Topics in Land Use

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

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

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

See you online! 

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

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

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

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

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

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

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

Two More Takings Complaints Challenging Shut-Down Orders

Two more complaints challenging covid shutdown orders as takings (inter alia). Add to the growing list. See here, here, here and here, for other similar complaints.

The first is from California. It asserts that ordering "nonessential" businesses to shut down is a taking. The complaint alleges that unless the shut down is for "(1) destroying a building in front of a fire so as to create a fire break, (2) destroying a diseased animal, (3) rotten fruit or (4) infected trees," it is a taking. 

The second is from New Jersey. So rather than get into the details, we're going to send you over to our NJ colleague Tony Della Pelle, who has some thoughts here ("NJ Shutdown Challenge – I Can’t Rent My Beach House!"). 

Will there be more of these? As we have said before, for sure. Fasten your seatbelts and hold on.  

We're going to be discussing the property and takings issues in an upcoming Federalist Society teleforum (open to the public, not just FedSoc members), along with lawprof Ilya Somin and Professor F.E. Guerra-Pujol: "COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?" Join us on Friday, May 15, 2020 at 2:30pm Eastern Time. More details here. 

Complaint, Gondola Adventures, Inc. v. Newsom, No. _____ (C.D. Cal. Apr. 23 2020) 

Complaint, Behar v. Murphy, No. 3:20-cv-05206 (D. N.J. Apr. 28, 2020) 

Still Time To Join Us (Tomorrow): ALI-CLE Webinar - Strategies for Litigating Regulatory Taking Cases

There's still time to join us tomorrow, Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting "Strategies for Litigating Regulatory Taking Cases" in a webinar produced by ALI-CLE. Register here (multiple attendee discounts available). 

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York's Jon Houghton and Hawaii's Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation. Jon and Dave are taking it to the next level. This isn't simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here's the description of the program:

The U.S. Constitution provides that private property may not be taken for public use without just compensation. When a government regulation substantially reduces or eliminates the value of property, a regulatory taking claim may be present. To successfully litigate one of these cases, it is essential to have a firm understanding of the different tests courts may apply to determine if a taking has occurred, how to compute fair compensation, and what evidence must be presented to support or defend both. If you are or may be involved in a regulatory taking case, set aside one hour to learn strategies from government and landowner attorneys, and benefit from the differing perspectives on litigating these types of claims from both sides of the aisle.

This webcast will present a unique look behind the curtain at how the two opposing sides approach prosecuting and defending a regulatory taking claim. Discussions will address building a case, using experts, potential motions practice, and trial strategy. Specific topics include: 

• Litigating a Lucas claim
• Loss of economically beneficial uses
• Complete elimination of value
• Litigating a Penn Central claim
• Distinct investment-backed expectations and the economic impact of the regulation
• Character of the government action
• Background principles
• Establishing the Murr factors
• Just compensation and appraisals

More details on the program, including registration information here. 

See you online tomorrow. 

Video, Materials And Links From Today's Webinar, "Safety vs. Freedom: Are There Limits to Lockdowns?"

To all who joined from Hawaii and across the nation, thank you for doing so. As I mentioned during the webinar, here is the video and links to the cases and other materials I spoke about: 

• "Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon the power granted or reserved."  Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).  
• The King v. Tong Lee: Hawaii Supreme Court upholds restrictions on commercial laundries in Honolulu's Chinatown deferring to the government's assertion that doing so was necessary to preserve the public health. 
• United States v. Pac. R.R., 120 U.S. 227 (1887): during the Civil War, the Union Army blew up railroad bridges "to prevent the advance of the enemy." No compensation because the destruction of the bridges was a "military necessity." "The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences."
• Miller v. Schoene, 276 U.S. 272 (1929): the state ordering the destruction without compensation of otherwise un-threatened cedar trees because they served as a "host plant" to a disease harmful to nearby apple trees is a valid exercise of the government's police power. Courts should not question too hard the government's assertion that the action was needed. 
• The legal fallout from past public health disasters. 
• The Steel Seizure Case (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)). The President's order to seize steel mills during the Korean War to prevent a strike is limited by the Constitution. The executive's power even during emergencies is limited by the legislature's authority. 
• Armstrong v. United States, 364 U.S. 40 (1960). The case that gave rise to the famous quote about the cost-distribution purpose of the Just Compensation Clause: "The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." The feds had rendered invalid state law materielmen's liens on boats being built for the federal government. Held: compensation required.
• Government must provide compensation for commandeering property during an emergency. 
• Same if the government takes over your business. 
• SPAM: Every Hawaii resident's Plan B. 

If you had a question that we could not get to during the session, please email me. 

Safety Dance: Are There Limits To Lockdowns? Free Webinar April 14

Join us next Tuesday, April 14, 2020, at 12 noon Hawaii Time (3pm PDT, 6pm EDT) for a free webinar sponsored by the Grassroot Institute of Hawaii, "Safety vs. Freedom: Are There Limits to Lockdowns?" Register here. 

Here's the description of the program:

Governments at every level in Hawaii have responded to the coronavirus pandemic by implementing lockdown measures never before seen in the United States during peacetime. We have been forced to give up many of our freedoms, but by what authority can our governor and mayors shutter our businesses, declare vast swaths of our communities “non-essential” and make us stay home? Are there any legal limits to these shutdowns?

Joining us for a free webinar at noon, Tuesday, April 14, to help answer these questions will be Grassroot Scholar Robert Thomas, a widely published attorney who is a director with the law firm Damon Key Leong Kupchak Hastert in Honolulu.

Moderator for the webinar will be Keli‘i Akina, Ph.D., president and CEO of the Grassroot Institute of Hawaii.

We'll cover a range of topics, including:

• Can the government be liable if a business fails after being ordered to shut down?
• Can I be ordered to "stay home?" What about going to religious services, or protesting?
• Can a property owner be forced to allow tenants to remain rent-free?
• Can private property be commandeered during an emergency?
• Are freedom of information laws suspended?

Register online here, call GRIH at 808-591-9193, or email GRIH here. 

See you then. 

Educate And Entertain Your Stay-Home Kids With Takings Law!

For those looking for ways to productively occupy your stay-home-from-school kids the next couple of weeks, We're offering online CLE's on takings. Don't let their time go to waste, have 'em learn property and condemnation law!

We volunteer for the Penn Central module. Who's with us?!

Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!

Missed out on the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference swag?

Well fear not: here's your chance to get your high-class reminder -- a kit of road warrior essentials -- to save the Conference date on your calendar. We're already underway with planning the agenda and faculty, so it's never too soon to block it off (January 28-30, 2021, at the 4-Diamond DoubleTree Resort, Scottsdale, Arizona). 

If you were not able to get your swag in Nashville, send us a note ([email protected]) and we shall gladly drop one or two in the mail to you.

While supplies last!  

Mark Your Calendars (Friday, Apr 24, 2020): ALI-CLE Webinar - Strategies for Litigating Regulatory Taking Cases

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York's Jon Houghton and Hawaii's Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation.

Well, Jon and Dave are taking (pun intended) it to the next level. On Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting "Strategies for Litigating Regulatory Taking Cases" in a webinar produced by ALI-CLE. This isn't simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here's the description of the program:

The U.S. Constitution provides that private property may not be taken for public use without just compensation. When a government regulation substantially reduces or eliminates the value of property, a regulatory taking claim may be present. To successfully litigate one of these cases, it is essential to have a firm understanding of the different tests courts may apply to determine if a taking has occurred, how to compute fair compensation, and what evidence must be presented to support or defend both. If you are or may be involved in a regulatory taking case, set aside one hour to learn strategies from government and landowner attorneys, and benefit from the differing perspectives on litigating these types of claims from both sides of the aisle. 

 

This webcast will present a unique look behind the curtain at how the two opposing sides approach prosecuting and defending a regulatory taking claim. Discussions will address building a case, using experts, potential motions practice, and trial strategy. Specific topics include: 

• Litigating a Lucas claim
• Loss of economically beneficial uses
• Complete elimination of value
• Litigating a Penn Central claim
• Distinct investment-backed expectations and the economic impact of the regulation
• Character of the government action
• Background principles
• Establishing the Murr factors
• Just compensation and appraisals

More details on the program, including registration information here. 

Are we signing up and listening in? You bet. 

Cases And Materials From Today's WM Law ACS Talk: "Pipelines at the Intersection of Environmental, Administrative, and Property Law: How Divergent Interests Joined Forces To Challenge Big Energy"

We just completed a fun hour-long talk with the students in the William and Mary Law School's American Constitution Society, the Native American Law Society, and the Society on Environmental and Animal Law about the various pipeline cases that are ongoing nationwide. (If our tech worked, we shall post the audio recording in a future post.)

The theme of our talk was that these cases are an excellent illustration of the need for lawyers to think outside their usual lanes when it comes to addressing and solving their clients' problems, because they present a smorgasbord of legal issues that range from property and eminent domain law, to administrative law, constitutional law, state and local government law, environmental law, federal courts, and civil procedure. 

The lawyers who are litigating these cases have done a good job of not being bound by convention and thinking creatively. They are thankfully analyzing the cases holistically. We used today's talk to emphasize to our young colleagues that despite taking law school courses segregated into discrete areas of law, practicing law and solving people's problems often requires you to wear multiple hats, as in these pipeline cases, and to think about cases in a more general way. 

Here are the links to the decisions we spoke about, and a couple others we could not fit in the time allotted:

• SCOTUS Transcript, U.S. Forest Svc. v. Cowpasture River Preservation Ass'n, No. 18-1584 (lawyers in an "enviro" case had to put on their Roman and English law property hats) 
• The "quick take by injunction" cases, in which the Supreme Court denied cert three times last Term.  Read about our amicus brief on the issue: "New SCOTUS Amici Brief (OCA, NJ Prop Owners, IJ, Cato): Quick-Take-By-Injunction Scheme Shows Complete Lack Of Respect For The Law"
• The Third Circuit case on the same issue, where one of the property owners (the State of New Jersey) actually won, by dusting off their Federal Courts and Con Law treatises, about the Eleventh Amendment. "What A Difference The Defendant Makes: The Federal Courts Finally Locate A Natural Gas Act Preliminary Injunction They Don't Like."
• FERC's pushback on the Eleventh Amendment issue on Chevron deference grounds (Admin Law alert!) "FERC Invokes Chevron Deference, Rules That Under NGA, Private Condemnors May Take State-Owned Land."
• Civil Procedure and Erie: "In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law)."
• "Is Land Only Partly Owned By A Tribe Immune From Eminent Domain?"
• Admin Law Purgatory: "Waiting For FERC: DC Circuit OK's Pipeline Approval, Over Salty Concurring Opinion."

Thanks to the students for asking me to speak today. I had a great time. 

William & Mary Spring Course: "No Property in Man" - Slavery And Property Rights

Update: here's a report (video included!) about our spring "field trip" to what arguably is the birthplace of a "more perfect union" (which just happens to be right down the road from William and Mary Law School).

********

This semester, we're teaching a short course at William and Mary Law School (and yes, thanks to a willing administration and student body, we will be back in the fall for the "big" Eminent Domain and Property Rights course). 

The title of the spring class is "No Property in Man: Slavery and Antislavery at the Nation's Founding," and the focus of the course is the book by Princeton historian Sean Wilentz from which we filched our title. Professor Wilentz's book is a recounting of the debates surrounding the ratification of the U.S. Constitution and the political atmosphere from the founding until the Civil War.

When we read it last year, it shed some light on the question that we've always had about the place of “property rights” arguments in current discourse. It is often suggested that property rights lack current legitimacy because—at least until the 13th Amendment—such arguments were advanced to support slavery. The book helped us look at that criticism afresh. Professor Wilentz examines the original Constitutional debates over property rights and slavery, and, ultimately, asks whether the Constitution as drafted was a pro- or anti- slavery document. The answer, it turns out, is much more complex than most modern views account for.

Our class is reading the book—and some supplemental materials, including relevant court opinions—and we're delving into the contemporary meaning of private property, and the meaning of property rights. 

We highly recommend it. It is relatively short, and a quick read. If, however, you don't have time to read the book, you can listen to Professor Wilentz speaking about it at the National Archives on the video below, or listen to an interview with him about the book on a recent podcast.  

Listen to "056 Slavery and Antislavery at the Nation's Founding with Sean Wilentz" on Spreaker.

IJ's "Bound by Oath" Podcast, Ep. 9: Excessive Fines, 14th Amendment Incorporation (And The Just Compensation Clause)

Check out the latest (and final) episode of the Institute for Justice's "Bound by Oath" podcast. IJ's John K. Ross was kind enough to ask us to be a guest on the show titled "Excessive Fines," and our friend and colleague Bob McNamara and I sat down in Nashville to record our sound bytes. 

The series (not simply a podcast, but more like an audio documentary) is about the Fourteenth Amendment, and covers (inter alia) how and why the rights in the Bill of Rights have, over time, been applied by the Supreme Court to state and local governments under the Due Process "selective incorporation" doctrine.

So why was a takings guy a guest on a show about the Excessive Fines Clause of the Eighth Amendment?  Because last year in Timbs v. Indiana, the Supreme Court held, in a civil forfeiture case, that the Excessive Fines Clause applied to state and local governments. That was one of the last rights in the Bill of Rights which had not been incorporated against the states. And, as we takings types know, the first right to be incorporated was the Fifth Amendment's Just Compensation Clause in  Chicago, Burlington & Quincy Railroad v. City of Chicago, 166 U.S. 226 (1897). With the circle nearly complete, we suppose that Bound by Oath's producers thought it would be good to track the history of incorporation, starting with one of our favorite takings cases.  

We think the entire nine-episode series is worth your time. I think I have listened to Episode 8 at least three times now. Imagine an audio-only Ken Burns. Very compelling. And you will learn stuff. 

Thank You To All Who Joined Us In Nashville For The 37th Annual ALI-CLE Eminent Domain Conference!

Each of the three big presentation rooms was full at our recent ALI-CLE Eminent Domain & Land Valuation Litigation Conference in Nashville. Nearly 300 lawyers, judges, appraisers, professors, students, relocation experts, and others eminent domain professionals coming together for 3 days of programming and fellowship. I have uploaded all of the photos that I took during the conference here. 

To celebrate another successful and enjoyable conference, we also signed the above commemorative poster from the famous Hatch Show Print shop which was just down the street.  

Can you locate your signature? (high-res pdf here) If you missed out, you'll have a chance to join us in January 2021 in Scottsdale! 

Nashville 2020 ALI-CLE Commemorative Poster (signed) 

Eminent Domain Podcast Interviews William & Mary Law Students

L to R: Benming Zhang, Andrew Parslow, Kelsey Abell,
Kacie Couch, Clint Schumacher

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleague Clint Schumacher set up his portable studio and recorded future episodes of his Eminent Domain Podcast. (Barista's note: Clint was also one of the three featured presenters for Friday's Ethics panel, and the feedback we've been receiving on that program is uniformly excellent.)

Eight of my William and Mary Law School students took several days out of their busy Spring semester schedule to travel to Nashville and participate in-person in the Conference, applying the theories and concepts we learned in the fall semester's class (Eminent Domain and Property Rights) to the real world of lawyering. (More on their Conference participation in a future post.)

Between sessions, they had a chance to sit down individually and in groups with Clint in his studio and talk about their experiences at the Conference, their progress in law school, what they got out of our class (including our SCOTUS road trip and their final papers), and other things (note: Ring of Fire, Seven Spanish Angels -- come on, it's Nashville! -- and Tiny Dancer is the answer). And except for taking the above picture, I was purposefully absent from the room so they would be candid!

Clint has just published the first episode of EDP featuring his talks with them (pictured above: Benming Zhang, Andrew Parslow, Kelsey Abell, Kacie Couch, and Clint Schumacher). Clint tells me that soon-to-be-released episodes will include his separate talks with students Delia Root and Joe Melton. 

Check it out. It's rare that law students take the time to be part of a practice-focused conference in such a meaningful way. These soon-to-be lawyers are the future of our profession and of the Property Bar. I think you will find their views insightful. I think after listening, you will agree that our future is in good hands.

You really should subscribe to the Eminent Domain Podcast
if you don't already do so.

Tuesday Feb 11, 2020: Professors' Corner - The Supreme Shift in Takings Litigation - Knick v. Township of Scott

Please mark your calendars and join us next Tuesday, February 11, 2020 at 12:30pm ET for the free (for members of the ABA's Real Property, Trust and Estate Section) webinar, the monthly "Professors' Corner."

This one will be on the aftermath of Knick v. Township of Scott, 139 S. Ct. 2162 (2019), in which the Supreme Court formally overruled the "state procedures" ripeness requirement in federal regulatory takings cases. 

We shall be speaking about the case and what's next along with Professors Stewart Sterk and Michael Pollack (moderated by Professor Shelby D. Green). Here's the summary of the webinar from the ABA website:

Last term, in Knick v. Township of Scott, the Supreme Court overruled the long-standing requirement that state takings claims first be litigated in state courts. The Court held that a property owner has an actionable takings claim when the government takes property without paying for it and a property owner may proceed directly to federal court, even if there are avenues for redress under state law. The panelists will offer insight on these and other weighty issues.

Register here (free). See you next Tuesday! 

Saw This Sign In Williamson County, Tennessee

Having just wrapped the 2020 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville (very successfully, but more on that later), we could not depart the area without paying a visit to the site of the late-and-not-so-great Williamson County case, in a nearby suburb (we'll also have more on that later, once we're back in the office). 

Driving into the infamous -- at least in takings circles -- Temple Hills subdivision, we came across this STOP sign at a key intersection, with some curious graffiti.