2017

The Pennsylvania DOT wanted to take a part of the Szabos’ property. Fine. But when it filed the declaration of taking, the DOT wasn’t as careful as it should have been, and the plans which it submitted with the declaration noted “[s]ome property lines were labeled as ‘probable [sic] correct.'”

Good enough for DOT, but not good enough for the Szabos, who hired a surveyor. The survey confirmed that indeed, DOT “misidentified” a part of the Szabo property as belonging to someone else. Thus, DOT’s plans “understated the amount of property owned by the Szabos taken as part of the condemnation. Therefore, the Department condemned more of the Szabos’ property than the Declaration indicated.”  

They told the DOT, but it didn’t listen. So they sought an evidentiary hearing to determine the nature and extent of the property taken. The trial court said no, and the Szabos appealed.

DOT argued…

Continue Reading “And The Survey Says…” Condemnor Sloppiness Will Not Be Tolerated

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Here’s what we’re reading today:

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Continue Reading Monday Reading: Pirates (Twice), Monet Land Use Pilgrimage

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don’t really commemorate today as the crucifixion date, and it is just coincidence that the official State “spring holiday” occurs on the same day.

It’s plausible, isn’t it, that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?” 

Or so says the Ninth Circuit.

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Continue Reading Go Shopping, Hawaii, Today’s The Secular Good Friday State Holiday (According To The Ninth Circuit)!

The Indiana Court of Appeals’ recent opinion in Town of Clear Lake v. Hoagland Family Ltd. P’ship, No. 76A05-1606-PL-1241 (Apr. 6, 2017), doesn’t really involve inverse condemnation, except in the background. But we found it interesting nonetheless, because of the way the opinion finishes up, with a plethora of potty puns.

The case involved the town’s attempt to convince a local property owner to abandon his septic system, and connect to the town’s sewer system. At first the town tried cajoling, bargaining, and trying to entice hook up. It laid down pipes beneath the land, it passed ordinances requiring connection. But the owner, for whatever reason, said no. Indeed (and here’s the inverse condemnation connection), he sued the town for inverse condemnation when it put the pipes beneath his property (they eventually settled). Finally, the town sued those who had not connected to the sewer system, including Hoagland, and…

Continue Reading Indiana App: Hook Up To City’s Sewer System…Or Else! (Warning, Toilet Puns)

Here’s the recording of the March 20, 2017 oral arguments in Murr v. Wisconsin, the e “larger parcel” or “denominator” case.

The printed transcript is posted here, and our summary of the arguments is posted here. Our preview of the arguments, which includes link to the briefs, is here.

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Continue Reading Murr Oral Argument Recording

Under Nebraska law, Natural Resource Districts possess the power of eminent domain, delegated to them by the state legislature. The question in Estermann v. Bose, No. S-15-1022 (Apr. 7, 2017) was whether four of those NRD’s could, in turn, re-delegate that power to a new agency which they jointly formed under the Interlocal Cooperation Act, a Nebraska statute which allows such things.

This new agency — the only-could-be-named-by-government “N-CORPE” (Nebraska Cooperative Republican Platte Enhancement) — was formed to regulate and manage water to comply with the Republican River Compact. Part of its duties included a “stream flow augmentation project” to manage ground and surface water, a portion of which required it to institute condemnation proceedings to take a portion of Estermann’s land for a flowage easement.

In a separate lawsuit, Estermann sued, seeking an injunction prohibiting the taking because N-CORPE did not possess the power of eminent domain.

Continue Reading Nebraska: OK To Delegate Eminent Domain Power From Natural Resource Districts To Join Agency

Here’s the third amicus brief filed in support of our cert petition in Bay Point Properties, Inc. v. Mississippi Transportation Commission, a case asking whether the Just Compensation Clause prohibits a court from instructing an inverse condemnation jury that it must value taken property as if it was burdened by a highway easement which the jury found as a matter of fact had been abandoned. 

This brief was submitted by a stellar group of public interest organizations and legal scholars: Cato Institute, the NFIB Small Business Legal Center, Reason Foundation, Southwest Legal Foundation, NARPO (the National Association of Reversionary Property Owners), the Property Rights Foundation of America, and Professor James Ely (property and easement expert), Shelley Ross Saxer (land use and takings), and Ilya Somin (eminent domain, among other subjects).

The brief, authored by Thor Hearne and his Federal Takings team, Cato’s Ilya Shapiro, and…

Continue Reading SCOTUS Amicus Brief: Forcing The Jury To Pretend A Terminated Easement Still Encumbered Land Violated Just Comp Clause

Here’s another amici brief (on behalf of the Virginia Institute for Public Policy, and Owners’ Counsel of America, authored by takings/SCOTUS superstar Michael Berger) supporting the cert petition we filed last month which asks the U.S. Supreme Court to review a decision of the Mississippi Supreme Court. Here’s the amicus brief which Pacific Legal Foundation filed earlier. 

This post has the background on the case and issues.

The VIPP/OCA brief argues:

1. It is important for the Court to reassert the primacy of federal law as determining the baseline protection provided to private property owners by the 5th and 14th Amendments. Although the issue should not be at large, a number of courts — as exemplified by the Mississippi Supreme Court — are seeking to secure for themselves the right and the power to redefine property in such a way as to confiscate private property for the use of…

Continue Reading Another Amici Brief Supporting SCOTUS Cert Petition: “Ordering The Jury to Return A Verdict For Peanuts Instead Of Millions” Violates Just Comp Clause

Here’s the amicus brief, filed yesterday by Pacific Legal Foundation is support of the cert petition we filed last month which asks the U.S. Supreme Court to review a decision of the Mississippi Supreme Court.

First, some background. In 2005, Hurricane Katrina destroyed “Toll Project No. 1,” the U.S. Highway 90 crossing of Bay St. Louis, Mississippi. The bridge had been partially built on Petitioner Bay Point’s property pursuant to a highway-purpose easement granted to the State in 1952 by Bay Point’s predecessor-in-title. After the hurricane, the Mississippi Transportation Commission removed what was left of the bridge. The destruction of the bridge and the removal of the remnants discontinued the specific use authorized by the easement, and Bay Point should have immediately recovered unencumbered possession. Instead, MTC built an entirely new bridge in a different location, and converted the majority of the former highway easement into a public recreational park.…

Continue Reading New SCOTUS Amicus Brief: Just Compensation Is Determined By Courts, Not Legislatures

There’s a lot of backstory in Reoforce, Inc. v. United States, No. 15-5084 (Mar. 17, 2017), involving mining claims, federal patents, and public lands. An interesting read, we won’t go into the details.

But suffice it to say that Reoforce thought it had a pretty decent chance of obtaining a patent for federal land because there was a market for what Reoforce thought was a valuable mineral, pumicite. In the end, Reoforce didn’t get the patent because there wasn’t as much of a market for the pumicite as it believed, but under federal law, Reoforce still had a limited property right to mine the stuff in remote Kern County, California. 

Eventually, the BLM entered into an agreement with the California Parks Department to turn that land into Red Rock Canyon State Park. Certain mining claims were allowed to continue, but others were temporarily prohibited. Reoforce’s were among the…

Continue Reading Fed Cir: BLM’s Temporary Prohibition On Mining Not A Penn Central Taking