2013

Looks like the Supreme Court tackled the easier of the two remaining takings cases first. This morning, the Court issued a unanimous opinion, authored by Justice Thomas, reversing the Ninth Circuit and holding that federal courts have jurisdiction to hear a property owner’s defense in a case where the agency has imposed or seeks to impose a fine, that doing so would be a taking. Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013).

Yes, this is the California raisin case, for those of you who have been following along. The Court held that the takings defense was properly raised by the Hornes in their capacity as raisin “handlers.”

We’re reviewing the opinion now, and will have some further thoughts once we do. We predicted the Court would overturn the Ninth Circuit, but it looks like we were off the mark when we guessed that it might…

Continue Reading SCOTUS: Property Owner Can Raise(in) A Takings Defense

It’s not about eminent domain, land use, or any of the other topics we find fascinating, but it’s worth following: a law blog by a sitting federal judge.

It’s “Hercules and the Umpire,” and is written by Senior District Judge Richard Kopf, of the District of Nebraska. He explains why he’s doing this, and the name of the blog here. So far, he’s posted about wiretaps, the judicial nomination process, and a look back at the early days of his practice. We welcome the blog, and hope he keeps going.

We’ve subscribed, and recommend you do so also – how often do you get insight into a judge’s thought processess? Continue Reading New Blog By Federal Judge: “Hercules and the Umpire”

We’re going to break the “fourth wall” for a moment, since some of our readers have reported issues with the blog loading properly when accessed via the web (www.inversecondemnation.com).

Now this may seem a bit redundant for those of you who already regularly access our content via the web site, but many of our readers use other methods such as subscribing to our RSS feed, email, and Feedburner, so may not be seeing a problem if one exists.

So here’s our request: please visit the site here, and report whether you are getting any load or script errors. Some readers have reported that they are, yet when we load up our various browsers, we can’t replicate the problem. If it is a problem, we’d like to resolve it. 

If you are experiencing a problem, please let us know.

Continue Reading Admin Request: Inversecondemnation.com Loading OK?

Here’s the Reply Brief, filed by the petitioner/property owner in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. 

The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims awarded $4.2 million in just compensation for the taking of Hage’s water rights. But the Federal Circuit reversed because the case was not ripe.

Here is the cert petition, here’s the federal government’s BIO, and here are the amicus briefs…

Continue Reading Final Brief In Western Water Rights Takings Case

As we mentioned yesterday when we posted the Brief in Opposition, here’s the Reply Brief of Petitioner (the City of Los Angeles) in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

The Reply Brief focuss on the circuit-wide impact of the Ninth Circuit’s ruling:

The problem is that while the district court’s preliminary injunction may have been limited in scope to the Skid Row area and may have been responsive to such a confined set of facts, the rule of law set forth in the published Lavan opinion is not. The opinion is…

Continue Reading LA’s Reply Brief In SCOTUS Homeless Property Case

Here’s the Brief in Opposition filed recently in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

Hawaii connection: The petiton pointed out a federal lawsuit filed in December 2012 alleging that the City and County of Honolulu violated the due process rights of “De-Occupy Honolulu” members (those folks who are still camping on the sidewalk next to Thomas Square across Beretania from the Honolulu Museum of Art). As noted here, we didn’t think that Lavan would have a direct impact on Honolulu’s “stored property” ordinance, or the more recently-adopted ordinance to deal with…

Continue Reading Brief In Opposition In SCOTUS Homeless Property Case

The Washington Post reports that “Bob Fletcher, who saved farms of interned Japanese Americans, dies at 101,” and tells one small and little-known part of America’s internent of Japanese Americans during the Second World War. 

Once the evacuation was ordered and the internments began, Fletcher “quit his job [as a state agricultural inspector] and went to work saving farms” owned by three Sacramento-area families. He worked the land, and paid the mortgages and taxes. Unlike many of their neighbors, these families’ farms were there when they were released. Many Japanese American families (including ours, on mom’s side of the family, who lost their Sacramento-area farm) lost everything when they were transported to the camps, because unlike the farms that Fletcher saved, theirs were gone when they returned, lost to squatters, the banks, or the tax man.

For more on the legal aspects of the internment, see “Unfinished …

Continue Reading Losing One Of The Good Guys

Congratulations: if you understood that headline (much less are eager to read this post), you are officially a takings geek.

As we noted earlier, after the Supreme Court issued its decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), the Court of Federal Claimsin Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of that case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion.

The property owner in Big Oak Farms is seeking compensation for the 2011 flooding of its  land after the U.S. Army Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff’s words, “sacrifice Plaintiffs’ land to superimposed water, sand, and gravel in order to benefit the public diverting high…

Continue Reading One Free Flood: CFC Declines To Reconsider Dismissal Of Takings Case After Arkansas Game

According to this story (“Eminent Domain and a Horse Slaugherhouse at Wounded Knee?“) the Oglala Lakota Nation has decided to condemn land on the reservation at Wounded Knee, South Dakota to prevent its sale by its current (non-Indian) owner to third parties. The Wounded Knee site is significant for at least two reasons, the infamous massacre by the U.S. 7th Cavalry in the 1800’s, and the 1970’s takeover and months-long armed standoff by AIM.

The case raises unsettled issues. Can the Nation to condemn land owned by non-members? According to an unnamed Indian law expert quoted in the story, it would be “very hard for me to see the tribe pull this off.” What’s the value of the land if it can be taken by eminent domain? The owner claimes to have offers from potential purchasers in the millions, while others claim that the land is worth…

Continue Reading Eminent Domain In Indian Country: Oglala Sioux To Condemn Land At Wounded Knee?

Hat tip to ABA State and Local Government Law colleague (and fellow U.H. Law School alum) Julie Tappendorf for the lead on a newly-published article: John M. Baker and Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, in the latest issue of the Zoning and Planning Law Report. Julie writes:

In the May 13, 2013 issue of West’s Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January…

Continue Reading Predicting The Koontz Case: Six Possible Outcomes