June 2017

You heard that right. After the Michigan Court of Appeals’ recent ruling in Lanzi v. Township of St. Clair, No. 329795 (May 23, 2017), you should consider skipping the usual Williamson County step of filing your federal takings claims in state court.

In that case, property owners sued the township after the township’s sewage system broke down and backed up grey water into the plaintiffs’ basement. They brought a complaint in Michigan state court alleging both negligence and a physical invasion taking. The township alleged it was immune by statute from such suits. The trial court rejected the argument and the township appealed. 

The court of appeals reversed on the negligence claim, agreeing with the township that it was immune because it had taken reasonable steps to repair any defects in the sewer system. We’ll let you read that part of the opinion if you’re interested.

What got us…

Continue Reading Michiganders: Go Ahead, File Your Federal Regulatory Taking And Inverse Condemnation Claims In Federal Court

As we noted recently, we don’t usually post trial court decisions. But there are exceptions. The Northern District of Florida’s recent order in Sabal Trail Transmission, LLC v. Real Estate, No. 16-cv-00063-MW-GRJ (June 5, 2017), is one of those exceptions. 

First of all, our New York City colleague Michael Rikon beat us to the punch, and posted a summary of the case on his blog yesterday. Read it.

The issue, as Michael notes, is whether federal or state law applies in a federal Natural Gas Act taking by a private pipeline in federal court. In Sabal Trail, the big difference why choice of law matters is that under the Fifth Amendment, just compensation does not include attorneys’ and other fees, while under Florida’s “full compensation” provision (which we noted here), a property owner may recover fees and costs. 

The District Court rejected the pipeline’s…

Continue Reading Florida’s “Full Compensation” Rule (Attorneys’ Fees!) Governs In Federal Natural Gas Act Taking By Private Pipeline

Here’s one we’ve been waiting for (we filed a brief in support of the property owner), one in which we were hoping (although not expecting) a more favorable result.

In Brott v. United States, No. 16-1466 (May 31, 2017), the Sixth Circuit held that federal inverse condemnation plaintiffs who sue for more than $10k are not entitled to bring their claims before an Article III tribunal in the first instance, and can be forced by Congress to pursue claims in the Court of Federal Claims. The court also concluded that it wasn’t a problem constitutionally for the property owners to not be able to have their claims determined by a jury. 

The opinion noted the oft-quoted Supreme Court cases which concluded that the Just Compensation requirement in the Fifth Amendment is “self-executing,” that this means that a waiver of sovereign immunity isn’t necessary, that once a taking occurs…

Continue Reading 6th Cir: Takings Clause Isn’t Really Self-Executing, So Federal Takings Plaintiffs Must Go To The CFC; And No, They Don’t Get A Jury Either

Here’s the unanimous Supreme Court opinion, issued this morning in a case we’ve been following, Town of Chester v. Laroe Estates, No. 16-605 (June 5, 2017), a takings case, although the issue resolved by the Court is one of civil procedure. 

The Court’s holding is remarkably unremarkable: a plaintiff — including a plaintiff who intervenes in a lawsuit as of right under Fed. R. Civ. P. 24(a)(2) — must have Article III standing. We say “unremarkable” because we never could quite figure out why that proposition was apparently so controversial that it ended up with a lower court split: doesn’t every federal court plaintiff need to show that there’s a live case and controversy on every claim and form of relief that is alleged? Yes, the parties didn’t dispute it, and the Court, in the opinion authored by Justice Alito, reached that conclusion in the second sentence:…

Continue Reading SCOTUS: To Intervene As A Plaintiff (In A Takings Case), You Need Article III Standing (Duh)

A fascinating case from the U.S. Court of Appeals for the Tenth Circuit involving an attempt by a private utility company to take property which is now tribal land. 

In Public Service Co. of New Mexico v. Barboan, No. 16-2050 (May 26, 2017), there wasn’t a question that a federal statute prohibited a utility company from taking “tribal land.” The big issue was what land fell within that definition.

The Navajo Nation owned undivided fractional interests in two parcels which the utility claimed it needed for a electric transmission line. The problem wasn’t that the land was currently owned by the Navajos, and thus was tribal land, but that it originally had been allotted to individual Navajos during the time in which the federal government was making such individual allotments. Eventually, the Nation obtained fractional interests in the two parcels via a “buy back” consolidation program (14% for one…

Continue Reading 10th Circuit Not Bothered By Holdouts: No Condemnation Of Tribal Land, Even If Formerly Allotted To Individuals

Update 6/6/2017: LA denizen Professor Gideon Kanner wrote about this case a couple of years ago on his blog.

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For those of you in the Los Angeles area, you may want to check out an upcoming lecture at the Central Library.

On Thursday, June 8, 2017 at the Mark Taper Auditorium, the library is presenting “Siege at Fort Anthony,” about a 1964 eminent domain battle stemming from the “ill fated” Hollywood Museum, a vanity project of “motion picture industry heavyweights headed by Sol Lesser, Gregory Peck, Mary Pickford and Walt Disney, decided to create a museum showcasing the history of movies, radio and television to be located across the street from the Hollywood Bowl.”  

Everyone but Mr. Anthony left on their own:

The place: The Cahuenga Pass, opposite the Hollywood Bowl.

The conflict: An eminent domain showdown between, on…

Continue Reading Upcoming Lecture: LA Eminent Domain Showdown – To Condemn A Mockingbird

A small but critical mention in the cinema’s greatest closing argument (Dennis Denuto, Esq., above, in The Castle) for the Australia High Court’s decision in Mabo v. Queensland (No. 2), (1992) 175 CLR 1 (1992):

Denuto: It’s the vibe of it.

Judge: Allright, taken. Do you have a precedent which supports this … “vibe?”

Denuto: Yes, yes I do. Just one moment. [confers with client] … Mabo.

Judge: What about it?

Denuto: That’s your classic case of big business trying to take land … and they couldn’t.

Judge: Mr. Denuto, the Mabo decision pertains to the specific issue of native land title and terra nullius.

Denuto: Yeah!

Judge: So what part of the judgment is relevant to this case?

Denuto: Again … it’s just the vibe of it.

Which prompts us to note that it is the 25th anniversary of the date on which the Mabo decision was handed down…

Continue Reading “It’s the Constitution. It’s Mabo. It’s Justice…” 25 Years On For Australia’s Mabo Decision