2017

Topdowloads

We received a nice (although automatic) email note this morning from SSRN, letting us know that our draft article on Murr v. Wisconsin, Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?, “was recently listed on SSRN’s Top Ten download list for: Property, Land Use & Real Estate Law eJournal.”

Before we got too excited, we remembered that this means only that the article has been downloaded a grand total of 58 times. Which tells us that the “Property, Land Use & Real Estate Law eJournal” is a pretty niche market. But hey, we’ll take accolades where we can get them. We’re at the bottom end of the list, but are just happy to be in such stellar company.  Check it out: there are other things on the list that takings mavens will like reading. Like this article. And this one.  Continue Reading We’re Number 10! We’re Number … 10?

We’ve been offline lately, hanging out at the ABA Annual Meeting in New York, so haven’t had time to post, even though there is a lot to post about.

Thankfully, our colleague Brad Kuhn at the California Eminent Domain Report is on the ball, and has written up his thoughts about the California Court of Appeal’s decision in the case involving a Silicon Valley billionaire, surfers, beach access, and … California. 

We will have some thoughts once we find the time to sit down and write them up, but in the meantime, please read Brad’s thoughts on the case at “Court Holds Temporary Injunction on Martins Beach Access Dispute Does Not Constitute a Taking.”

More shortly. Continue Reading Cal Eminent Domain Report On The Strange “Martins Beach” Decision

IMG_20170811_095148
Regulato Takings!

A modest but very knowledgeable crowd joined us today at the ABA Annual Meeting in New York for a panel discussion and analysis of Murr v. Wisconsin. Here is the recording of our portion of the presenation (10mb mp3).

Here are links to some of the materials which we and the others discussed: 

Continue Reading Murr v. Wisconsin Sound Bytes From The ABA Annual Meeting Program

Here’s the Brief in Opposition in Nies v. Town of Emerald Isle, No. 16-1305 (Aug. 11, 2017), the case in which North Carolina property owners are asking the U.S. Supreme Court (cert petition here) to review a N.C. Court of Appeals decision which involves wet and dry sand beaches, the location of the public trust boundary, and other favorite topics.

The case arose because the N.C. Legislature by statute moved the public trust” shoreline landward, and allowed the public to use what had formerly been private beach.  We filed an amicus brief in the case, supporting the property owners. 

We’ll also post the reply brief when it is filed. Stay tuned. 

Brief in Opposition, Nies v. Town of Emerald Isle, No. 16-1305 (Aug. 11, 2017) 

Continue Reading Brief In Opposition In Public Trust Takings Case

ABA State and Local 2017-2017 conferences image

Later this week, if all goes as planned, I will become the Chair of the American Bar Association’s Section of State and Local Government Law. Several of my colleagues have asked why I participate in that organization since they don’t see the value in doing so. At the risk of repeating myself, I’m going to repost something I wrote a couple of years ago when asked the same question. 

* * * *

This is the ABA we’re talking about — an organization with a mixed reputation among members of our profession — and some of you have asked me why it is I am involved in the Association when many of our peers don’t see the value of joining or participating. So I’m going to take this opportunity to tell you about my reasons, and encourage those of you who are not currently with us to overcome…

Continue Reading ABA – Why?

Chair Reception SLG 8-11-2017 invitation

If you are scheduled to be in or near New York City on Friday, August 11, 2017, please consider attending one or both of the following events:

  • 10-11:30am, Midtown Hilton, Concourse E, Concourse level: “Murr and Beyond: Implications for Regulatory Takings.” Yes, Murr is the case that keeps on giving, and has already given CLE providers numerous opportunities to add to their coffers. The ABA is sponsoring this program, which includes the lawyers for the two main parties, and two (me included) lawyers who do this kind of thing. Come,  join your colleagues for a roundtable discussion of the case, and more importantly, what comes next. With John M. Groen, Principal Attorney, Pacific Legal Foundation, Sacramento,CA; Robert Thomas, Damon Key Leong Kupchak Hastert, Honolulu, HI; Hon. Misha Tseytlin, Solictor General , WI Dept. of Justice, Madison,WI; and Nancy Stroud, Land Use Attorney, Lewis Stroud & Deutsch, Boca Raton, FL. Our

…
Continue Reading ABA CLE, NYC: “Murr and Beyond: Implications for Regulatory Takings” – Aug 11, 2017

FERC

Here’s one that is taking a slightly different approach to challenging the taking of private property for privately-owned pipelines. Definitely a hot-button topic these days. 

In this federal court complaint, the plaintiff landowners challenge the approval by the Federal Energy Regulatory Commission of a private pipeline company’s exercise of eminent domain. The complaint seeks, among other things, a declaratory ruling that delegation of eminent domain power by Congress to FERC under the Natural Gas Act, and FERC’s further delegation of the power to pipeline companies, is unconstitutional.

You should read the whole thing, just to get a flavor. More on the filing here, from the Washington Post, and here from the local paper. 

Will this approach succeed? Your guess is as good as ours. 

Verified Complaint, Berkley v. Mountain Valley Pipeline, LLC, No. ____ (W.D. Val. filed July 26, 2017) 

Related articles
Eminent Domain Abuse,

…
Continue Reading Challenge To Natural Gas Pipeline Takings In Virginia – Delegation To And By FERC Is Unconstitutional

Check this out, the latest cert petition from the Institute for Justice (Kelo), in a case we’ve been following.

This one asks a question that has been kicking around in the lower courts for a long time, and has long bothered we who represent property owners who have to eat the often-massive losses to a business which come about as a direct result of eminent domain (and which condemning agencies and the courts almost invariably determine are “consequential” losses, not compensable.

The U.S. Supreme Court, in Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), held that “an exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable ‘taking’ of property,” and you would think that would take care of the question of whether such losses are part of just…

Continue Reading New Cert Petition: Does The Fifth Amendment Require Compensation For Destroying Business In A Taking?

IMG_20170726_170437

Here are links to the cases and other materials which I mentioned today in our session at the Transportation Research Board‘s 56th Annual Workshop on Transportation Law in Salt Lake City:

…
Continue Reading Links And Materials From Today’s TRB Eminent Domain Session