2012

Check out the latest brief filed in the Federal Circuit by our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a CFC case on that subject.

In Ladd v. United States, the CFC dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion in Arizona. The court held that the claim was filed past the six-year Tucker Act statute of limitations. A Trails Act case begins when the Surface Transportation Board issues an order (a NITU) that converts an otherwise abandoned railroad easement into a new federal rail-trail easement. The new easement can be used by the public for recreation and the STB retains jurisdiction to “railbank” the corridor, potentially allowing some railroad in the future to build a new railway line across the land. …

Continue Reading Can The Statute Of Limitations In Tucker Act Start Running Before The Govt Provides Actual Notice Of The Taking?

Update: More here.

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Today, I have the great pleasure of welcoming Dwight H. Merriam, a partner with the Robinson & Cole firm, as the Connecticut member of Owners’ Counsel of America. OCA is the nationwide network of the most experienced eminent domain and property rights lawyers who, as noted in a recent brief, “seek to advance, preserve and defend the rights of private property owners and thereby further the cause of liberty, because the right to own and use property is ‘the guardian of every other right‘ and the basis of a free society.” OCA has one member per state.

Readers of this blog should know Dwight well. He frequently forwards items of interest to post, was a co-author of a recent brief in the New York rent control case, has authored chapters in the seminal eminent domain treatise Nichols on …

Continue Reading Welcome To Dwight Merriam, New Owners’ Counsel Of America Member

Update: thanks to Gideon Kanner for noting that our original read of the Georgia statute was off the mark. It did not forbid the carrying of firearms in churches, but required them to inform security guard that they were carrying, and important distinction. The post has been revised to reflect that.

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We’ve never waded into the Second Amendment debate on this blog, preferring to focus on the Fifth Amendment and related topics. Well, here’s an opinion from the U.S. Court of Appeals for the Eleventh Circuit where the two issues cross over.

The issue in Georgiacarry.org, Inc. v. Georgia, No. 11-10387 (11th Cir. July 20, 2012) was whether Georgia’s “Carry Law,” which requires those carrying firearms in certain areas including churches to inform security personnel, violated the First and Second Amendment rights of those who would prefer to carry firearms in churches and not tell anyone. The district…

Continue Reading Some Fifth Amendment Property Lessons From A Second Amendment Opinion

For those who listened in to the just-concluded “Recent Developments in Eminent Domain” teleconference, thank you. Here are the links to the cases and briefs that we discussed that were not included in your written materials. Also, click on the link above to order the audio CD of the program if you missed out.

  • Are interlocutory public use determinations immediately appealable? Some courts say no. Others say yes. 
  • More on the California Supreme Court’s opinion validating the legislature’s elimination of redevelopment agencies. Follow the issue at the California Eminent Domain Report. 

Continue Reading Links From Today’s Eminent Domain Teleconference

Mark your calendars for next Tuesday, July 17, 2012, at 1:00 p.m. Eastern (noon CT, 11:00 a.m. MT, 10:00 a.m. PT, 7:00 a.m. Hawaii Time) for “Recent Developments in Eminent Domain,” a live audio program sponsored by Lorman Education.

It’s a 1.5 hour teleconference discussing some of the more important recent court decisions about our favorite topics, eminent domain, inverse condemnation, and regulatory takings.

I’m the sole faculty member, so you get to hear me chatter for about an hour and fifteen minutes, and we’ll save 15 minutes or so for questions. I’ll be covering the latest in public use, just compensation, and related topics. Here is the registration and CLE credit information. Hope you can join us. Continue Reading Upcoming Teleconference: Recent Developments In Eminent Domain

When does a party who loses a petition for rehearing actually win it?

In Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012) an opinion we detailed here, a 2-1 panel of the Federal Circuit held that the property owner’s request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. The majority, in an opinion by Judge Dyk, remanded the case to the Court of Federal Claims for additional calculation.

Judge Plager dissented, asserting that remand was pointless because there was nothing left for the CFC to do but apply the lodestar (reasonable rate x reasonable time), and since the panel majority did not disturb any of the CFC’s findings on those two issues, the result, absent the halving, should be the same. Small…

Continue Reading Fed Circuit: En Banc Petition Denied, But Kind Of Granted

Remember the case from late last year in which the Honolulu Star-Advertiser brought a freedom of information/open records lawsuit against the Hawaii governor to force him to disclose the names of judicial nominees? Abandoning the practice of his two predecessors, the Governor refused to release the list of names of nominees transmitted to him by the Judicial Selection Commission.

The circuit court ruled that under Hawaii’s Uniform Information Practice Act the Governor should not have kept the names secret, and that disclosure is required. [Disclosure: we represent the Star-Advertiser in that case.]

Following the ruling, three things happened. First, the Governor released the names on the lists for the vacancies on the Hawaii Supreme Court (eventually filled by Justice McKenna) and on the circuit bench. Second, the Judicial Selection Commission amended its rules to allow for the release of the lists when they are transmitted to the governor. Third, UIPA…

Continue Reading State Appeals Attorneys’ Fees Award In JSC List Case

No, not another case from the Hawaii courts, but from an island further afield, Saipan in the Northern Mariana Islands.

We were going to do a write-up of Commonwealth v. Lot No. 353 New G, No. 2012-MP-06 (CNMI June 28, 2012), but Gideon Kanner beat us to it. Read the opinion, and his summary of what happens in the CNMI when the government takes property but doesn’t pay for it for 15 years.

Commonwealth v. Lot No. 353 New G, No. 2012-MP-06 (June 28, 2012) Continue Reading Eminent Domain, Island Style