inverse condemnation

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In an earlier post (“CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking“), we covered the U.S. Court of Appeals for the Federal Circuit’s recent opinion in Alban v. United States, No. 23-1363 (Dec. 22, 2025), which held that the failure of the Corps of Engineers to properly operate two dams which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

In this post, we’ll cover the latter part of the opinion, which dealt with the just compensation aspects of the case (each party appealed a portion of the Court of Federal Claims’s damage award).

The first claim was that the CFC’s award of compensation for damage to structures and personal property was not compensable. The Federal Circuit clarified that had the government merely taken a flowage easement, its claim to not be liable for such damage might have had some merit.

Continue Reading CAFED: Where The Government Chooses To Not Condemn But Allows It To Happen, It “Bears The Risk” That The Property Taken Is More Than The Government Wants To Pay For

It is time to bid farewell to the Year 2025, and our mind wanders back over the last 364 days in an attempt to ascribe meaning, a theme — a vibe — to the year that was.

Scientists tell us that this is just another trip around the Sun, but we humans like to assign meaning to a measure of time, so here’s our thoughts on what will stick with us about 2025.

Barista’s note: in the interest of objectivity, we shall exclude our shop’s cases such as this one: “Fla Ct App (en banc) In Takings Case: ”failing to vindicate a right expressly stated in the Constitution is not judicial restraint but judicial abnegation. That we must not do.'”

That said, here we go with what we think were the highlights of 2025 (lowlights are posted here in Part II).

Regulatory Takings Case of the Year:…

Continue Reading Adieu To The Highs And Lows Of 2025 (Part I: The Highs)

In State ex rel. Boggs v. City of Cleveland, No. 2025-Ohio-5094 (Nov. 13, 2025), the Ohio Supreme Court held that the City of Cleveland could be liable for inversely condemning land, even though that land is not in the City of Cleveland.

The city claimed that in order to be liable for inverse condemnation, it must have the authority to take the property by eminent domain. And under Ohio law, the state has only delegated to the city the power to take by eminent domain property that is within the city’s geographic boundaries. Therefore, the city argued, if we can’t affirmatively take the plaintiff’s land, we can’t be liable for inversely condemning it.

The case involves the Cleveland airport. As part of its runway expansion, airplanes would fly over adjacent properties (obviously), including properties outside the city’s jurisdiction. The city was authorized to purchase avigation easements on some…

Continue Reading Ohio: City Can Be Liable For Inverse Condemnation Of Land Outside Its Geographic Jurisdiction

As we wrap up another year, it’s time to look ahead to the one event that always gets our eminent domain blood pumping: the annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference. Details, including faculty list, a complete agenda, and registration information is posted here.

Now in its 43rd year, this flagship gathering remains the undisputed national hub for practitioners, academics, appraisers, and anyone else who lives and breathes property rights law. Mark your calendars for January 22-24, 2026, when we’ll convene at the JW Marriott Plant Riverside District in Savannah, Georgia. Think historic charm meets Southern hospitality, with moss-draped oaks, riverfront vibes, and enough ghost tours to inspire a dozen inverse condemnation hypotheticals. (For those of you who prefer pixels to palm trees, a live webcast option is available.)

What makes this conference indispensable? For starters, it’s the place to reconnect and talk shop with the…

Continue Reading Savannah Bound: Don’t Miss The 43rd ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 22-24, 2026)

Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit’s web site: part 1 (68mb mp3), and part 2 (7mb mp3).

Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).Continue Reading ▪ Federal Circuit Arguments on the Penn Central Factors (mp3)

In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor.  The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.”  Id. at 5 n.6

(slip op. at 3865).  In Martinek…

Continue Reading ▪ What is “Inverse Condemnation?”

An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings.  (No link yet to opinion, which currently is only available via Westlaw; email me if you want a copy.  Update: Becket Fund for Religious Liberty has posted a copy of the opinion on its web site.)

Mount St. Scholastica, a “monastic community,” owns property that includes a building constructed in 1924 that has in the interim been used for classrooms, administration, and a community center.  By 1989, however, it had apparently outlived its usefulness to Mount St. Scholastica, which in 2005 sought a demolition permit from the city. 

The building itself apparently is not landmarked, but is near to historic properties, so under Kansas law, the owner needed a…

Continue Reading ▪ Land Use Trifecta: Historic Preservation, Religious Uses, and Regulatory Takings

Steven Greenhut’s opinion piece at the Orange County Register, “The powerless have always been targets of eminent domain,” makes some good points about eminent domain abuse, and the recently-argued Wilkie case (regarding the right to be free from government retailition for defending a Fifth Amendment right), and is worth reading:

“Cities use code words,” explained Supervisor Chris Norby, a longtime foe of eminent domain abuse. “In the 1950s and 1960s, governments used the term ‘urban renewal,’ but critics knew that it was widely called ‘Negro removal.’ These days, we’re looking at forced gentrification,” as cities try to redevelop poorer areas into wealthy areas.

. . . .

Today’s code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s…

Continue Reading ▪ Eminent Domain Abuse and Retaliation