2012

You can take the Justice out of the Court, but you apparently can’t take the Court out of the Justice. Retired Justice John Paul Stevens has added the “ninth vote” (his words, not ours) in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the case is which the other eight Justices all agreed that the Florida Supreme Court had not changed the law, so there had been no “judicial taking.” Four Justices, however, opined that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause.

Justice Stevens sat that one out, recusing himself because news stories had noted his wife owned a beachfront condo in Ft. Lauderdale. But the lure of adding his reaction to Justice Scalia’s opinion has proven too much to…

Continue Reading Justice Stevens, Recused In The “Stop The Beach Renourishment” Case, Weighs In On The “Stop The Beach Renourishment” Case

Here are my remarks from last week’s Brigham-Kanner Property Rights Conference at the William & Mary Law School in Williamsburg, Virginia. Our panel spoke on “Property Rights in Times of Economic Crisis,” and included lawprofs James W. Ely (Vanderbilt), William Fischel, (Dartmouth), and Eric Kades (William & Mary). See the complete faculty list and agenda here.

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Aloha, I bring you greetings from the land of Midkiff, the land of Lingle.

I practice in the jurisdiction that believed it would cure our economic ills to use eminent domain to bust up the legacy land trusts, and make sure that everyone who owns a home could also own the fee simple interest.

Which they may now do, provided they can afford our median price for a single-family residence, $637,000.

I practice in the jurisdiction that believed that it would be a good idea to try and bring…

Continue Reading Professor Ely, You Magnificent Bastard, I Read Your Book!

In July, we posted the opening brief in Ladd v. United States, the case in which the Court of Federal claims dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion. The CFC held that the claim was filed past the six-year Tucker Act statute of limitations even though the government did not provide the owners notice of the action that they assert was a taking.

The appeal, now pending in the Federal Circuit, asks whether the federal government can take an owner’s property without providing any notice to the landowner, and avoid its constitutional obligation to pay compensation because the statute of limitations began to run when the government issued the order, not when the landowner had notice of the government’s order taking their property? Our colleague Thor Hearne has sent along the recently-filed Reply Brief. which argues:

The government defends the CFC’s dismissal…

Continue Reading Reply Brief In Fed Cir Rails-to-Trails Appeal: Statute Of Limitations Doesn’t Start To Run Until Gov’t Gives Notice Of The Taking

Ever since the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, 545 U.S. 469 (2005), the focus of eminent domain scholarship and the public have been on the public use side of the condemnation equation.

However interesting those issues are (and they truly are), practitioners of eminent domain law understand that a vast majority of the issues in litigation still revolve around just compensation and valuation. The Supreme Court has even shown an interest, with the Justices asking questions about compensation in at least two oral arguments where the issue was not directly presented (here and here for example). While the ABA has recently published books about eminent domain generally (see here and here), it has not produced one devoted to just compensation.

But it soon will. The section on State and Local Government Law has decided to publish a book on current…

Continue Reading Call For Authors: American Bar Association Book On Just Compensation Issues

The Oyez Project has posted the recording in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case argued earlier this week in the U.S. Supreme Court.

Check it out here. We posted our summary of the petitioner’s arguments here, and will be posting our thoughts on the government’s arguments shortly. But in the meantime, listen along. Continue Reading Oral Argument Recording In SCOTUS Flood Takings Case

There’s still time to join us later this week at William & Mary Law School in Williamsburg, Virginia for the 2012 Brigham-Kanner Property Rights Conference, and the award of the B-K Prize to University of Michigan lawprof James Krier for his lifetime contributions to property law scholarship.

The Conference includes a day-long series of discussions on property rights, featuring leading scholars and practitioners. Topics include “The Impact of a Leading Property Scholar,” “The Judiciary’s Role in Shaping Constitutionally Protected Property,” “Property Rights in Times of Economic Crisis,” and “Property’s Moral Dimension.” The day will wrap with a roundtable discussion, “How Fundamental are Property Rights?” The complete agenda is available here.

I will be speaking on the panel about “Property Rights in Times of Economic Crisis,” discussing why property rights are even more important when times are tight.

Register on-line here. If you can’t join us, I will…

Continue Reading 2012 Brigham-Kanner Property Rights Conference

The New York Times editorial page has weighed in on Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case argued earlier this week in the U.S. Supreme Court.

And, no surprise, in When Flooding Is Not a Taking, the great beneficiary of eminent domain abuse comes out on the “no compensation” side when the government purposefully floods property because — get this — the floodwaters eventually recede: 

The takings clause of the Constitution’s Fifth Amendment ensures that private property cannot be taken for public use without fair compensation. A classic example is the government’s exercise of eminent domain power to build a highway; if the road cuts through private land, the government owes the owners payment equal to fair market value. That principle applies when the government builds a dam, and water and silt overflow land, permanently destroying or…

Continue Reading Does The NY Times Know That Most Floodwaters Eventually Recede (Or Might?)

Here’s the transcript of Wednesday’s argument in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).

BLUF (Bottom Line Up Front): we’re predicting the property owner win with a minimum six-Justice majority (perhaps more), with a narrowly drawn opinion vacating the Federal Circuit’s conclusion that temporary flooding can never be a taking. Whether the Court adopts a new test to determine whether a taking occured when the government purposefully floods land, however, is up in the air.

The petitioner was represented by James Goodhart, who led off the argument by attacking the Federal Circuit’s conclusion, arguing for a rule that a taking occurs whenever a “direct physical invasion” results in a “substantial intrusion” on a property interest, and that the duration of the invasion is not relevant. That’s a restatement of the existing per se rule that any physical invasion that…

Continue Reading Of Picnics And Floods: Oral Arguments In SCOTUS Takings Case, Part I

This just in: our Pacific Legal Foundation colleagues have informed us that the U.S. Supreme Court has agreed to review another takings case.

The questions presented are:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The case is Koontz v. St. Johns River Water…

Continue Reading SCOTUS Grants Cert: Does Nollan/Dolan Apply To Cash Exactions?