2018

With registration for the 2019 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs well underway, we thought it would be a good time to post up some of the materials from this year’s Charleston conference. 

In “Alternative Dispute Resolution in Condemnation Cases: An Eminently Agreeable Solution,” an article in The Practical Real Estate Lawyer adopted from their conference materials, our colleagues Peter Buchsbaum (a retired New Jersey judge), and Cortney Young and Steve Silva (both from Nevada), discuss strategies which can be used to resolve eminent domain cases in ways other than trial. Well worth your time.

There’s a lot more like this on the Palm Springs program. This program and others like it are just a few of the reasons why attending the Conference is also well worth your time.

Register now.

Buchsbaum, Young, & Silva, Alternate Dispute Resolution in Condemnation Cases: Continue Reading New Article: ADR In Eminent Domain – “An Eminently Agreeable Solution”

And belong to the owners of the mineral estate, at least according to two of three judges on a Ninth Circuit panel, applying Montana property law.

Dr. Ian Malcom, dissenting.  

Update: our New York colleague Mike Rikon has posted a much better summary of the case and the court’s rationale here. You have to read any post that includes the sentence, “The case reminded me of a New York case dealing with a Mastodon.” Oh yeah.

Murray v. BEJ Minerals, LLC, No. 16-35505 (9th Cir. Nov. 6, 2018)16-35506 

Continue Reading CA9: No Bones About It – Dinosaur Fossils Are “Minerals”

Reading the fact section of the Federal Circuit’s recent opinion in Katzin v. United States, No. 16-2636 (Nov. 19, 2018), will make your eyes glaze over. It’s all about some property on an island near Puerto Rico, and is full of maps, diagrams, history, and even a photo of some “Keep Out” signs the feds erected. Important, but for someone who isn’t involved in the case, somewhat of a slog to get through.

Give it a read and see if you don’t agree.

But here’s the short story: both the plaintiffs and the feds think they own the land, a ten-acre parcel whose most prominent feature is an old gun emplacement. The Court of Federal Claims after a trial concluded that the plaintiffs owned the property, and that it had been physically taken when a federal official sent a fax to a prospective purchaser claiming that the feds, not…

Continue Reading Fed Cir: Feds Claiming Ownership Of Property And Killing The Market Isn’t A Physical Taking, The Statute Of Quia Emptores Notwithstanding

Get ready. In this and upcoming posts, we’re going to be featuring the items on our agenda for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 24-26, 2019, in sunny Palm Springs, California. 

ALI-CLE has released the brochure, which those of you on the mailing list should have received — or will be receiving — in your brick-and-mortar inboxes. If not, download it here. Looking it over, you will see that we have assembled a great faculty with expertise in the range of issues that are driving our branch of the law, locally and nationally.

And, as always, one of the best aspects of this conference is the collegiality. Our attendees and faculty find that one of the most beneficial parts of the conference is to meet your colleagues from across the country, and talk shop about the issues we love.  

Of course we …

Continue Reading ALI-CLE Eminent Domain And Land Valuation Litigation Palm Springs Brochure Is Out

In the middle of the terrible news from the latest wildfires to hit California comes this order from the California Court of Appeal, Fourth District, declining to issue a writ to review the California Public Utilities Commission’s rejection of SDG&E’s request for a rate increase to cover the costs of settling inverse condemnation claims stemming from the Witch Fire. 

The order is really short and you can read it yourself in its entirety, so we will only say that the court concluded that the PUC didn’t stray outside of its delegated authority and discretion when it turned down SDG&E’s rate request. The court also made it a point to note that the utility settled the inverse cases and not litigate and “continue to advance its position that it could not be held strictly liable as a nongovernmental entity.” Order at 2.

Recall that the ability (or not) to recoup…

Continue Reading Cal Appeals Court Rejects Utility’s Petition To Review PUC’s Denial Of Wildfire Inverse Condemnation Rate Increase – Hard Questions Remain

Here’s the amicus motion and proposed brief we filed yesterday in a Third Circuit case we’ve been following, and which we wrote about recently.

In the few short days since that post, the owners are now also represented by the Institute for Justice, and have filed a petition for rehearing and rehearing en banc. We thought that was a good opportunity to chime in to point out the panel’s fundamental misunderstanding of eminent domain. 

The issue presented by the petition is whether a private condemnor exercising the delegated eminent domain power under the Natural Gas Act may obtain prejudgment possession of the property to be condemned by way of a preliminary injunction, when Congress has not delegated the ability to obtain prejudgment possession. This is an issue of pressing national importance, on which the panel decision conflicts not only with established Supreme Court doctrine, but the ruling of…

Continue Reading Amicus Brief: In Straight Takings, No Possession By Injunction Until Title Transfers

Retroactive continuity — or “retconning” — is, according to that authoritative source Wikipedia, a “literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity.”

For example, compare the real-world explanation for why the 1960’s Star Trek show’s Klingons didn’t have butt heads, but the later-produced shows and movies did. The real-world reason was that the TV show had a bare-bones budget, so couldn’t afford the required intricate make-up. The later-produced stuff, having larger budgets, could. But to those concerned with an in-universe explanation that had to line up with the production realities, it turned out to be a big source of contention. Fandom as well as the later shows’ writers struggled to come up with a narrative that accounted for both Klingons with butt heads, and those without. 

Sorry for the impossibly nerdy…

Continue Reading Knick And Klingon Foreheads: Retconning Williamson County

Here’s the motion for leave and proposed brief amici curiae we filed yesterday in an appeal pending in the U.S. Court of Appeals for the Eleventh Circuit. 

This is a pipeline case (another one!) involving land in Florida. The district court got it right, concluding that the property owner/condemnee was entitled to recover attorneys’ fees since state condemnation law governs the case, even though it was in federal court. The court also allowed the owner to testify about the fair market value of her property. The pipeline company appealed, arguing that the fact that Florida law allows recovery of attorneys’ fees in eminent domain cases is irrelevant in a federal eminent domain action because attorneys’ fees are not part of Fifth Amendment compensation. It also argues that the owner should not have been allowed to testify.

We filed the amicus motion and brief on behalf of Owners’ Counsel …

Continue Reading “A Property Right It Shall Be” – Fifth Amendment Requires Compensation For Whatever Interests A State Recognizes As Property

An observation: courts seem to believe that in eminent domain, a taking, once it is instituted, is inevitable. Thus, the landowner should simply go with the flow, because this is going to happen. We get where that comes from. After all, most takings are completed and the property is acquired. But it isn’t necessarily so. As a general rule, a condemnor is free to walk away after finding out how much the taking might actually cost them. Only when title actually transfers from the property owner to the condemnor does the taking actually become final. 

With that background, check out the latest decision about an issue we’ve covered before, and which isn’t going away. 

Try as you might, you can read through the entirety of the Natural Gas Act and you will not find anywhere in the statute where Congress delegates to private pipeline companies the quick-take power — those…

Continue Reading Third Circuit: If It Quacks Like A Quick Take, It’s Just A Preliminary Injunction