2018

An interesting and thought-provoking new article from Professor Donald Kochan that is definitely worth your time: The [Takings] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights, 45 Fla. State U. L. Rev. ___ (forthcoming 2018). 

As the title suggests, Professor Kochan doesn’t quite care for the phrase the “Takings Clause” when it comes to that part of the Fifth Amendment we like so much. Instead, he prefers “Keepings Clause” because that term better embodies the right protected, and does not focus on the governmental power being exercised. 

Best tidbit: the phrase “takings clause” isn’t of ancient origin. Indeed, it is pretty modern. (Count us among those who didn’t know that.) From the article’s Introduction:

It will probably surprise most people that the label “takings clause” is a moniker of modern invention. In fact, the provisions in the U.S. Constitution’s Fifth Amendment that identify the rights and obligations…

Continue Reading New Article: The [Takings] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights

MRGO

Here’s the cert petition we’ve been waiting to drop in a case we’ve been following closely. 

Last we checked in, the Federal Circuit (any guess on which judge?) held that the catastropic Katrina flooding — caused mostly by the federal government’s construction and maintenance of a navigation project, the Mississippi River Gulf-Outlet canal (known as MR-GO) — could only result in tort liability, for which the federal government has already been determined to be immune. MR-GO was an attempt to improve navigation, and it obviously wasn’t the sole cause of the flooding, but by all accounts (and the proof in the Court of Federal Claims) it ended up worsening dramatically and magnifying the effect of Katrina. The CFC concluded this was a taking, and awarded just compensation.

Now, St Bernard Parish has asked the Supreme Court to step in. Here are the Questions Presented:

In…

Continue Reading New Cert Petition (MR-GO Katrina Case): Can Government *Inaction* Lead To A Taking?

Ah, the speed of the interwebs: we were all set to write something up about the California Court of Appeal’s recent opinion in Black v. City of Rancho Palos Verdes, No. B285135 (Sep. 6, 2018), when our friend and colleague Bryan Wenter beat us to it.

His post, “Court Rejects Residents’ Takings Lawsuits for Failure to Exhaust Administrative Remedies” pretty much tells the story. This same court a decade earlier concluded the City’s earlier version of a development moratorium was a Lucas taking. As Bryan writes,

Based on their interpretation of Monks II [that 2008 decision noted above], none of the landowners even filed an application for an exclusion from the moratorium. Instead, the landowners argued that Monks II absolved them of the need to exhaust administrative remedies or, alternatively, that exhausting administrative remedies would be futile.

Because the City might allow development if the owners…

Continue Reading Cal App: No Taking For Development Moratorium Because Owners Had Not Asked For Development Permits

After a short hiatus to allow Clint to set up at his new firm, the Eminent Domain Podcast is back. 

Clint was kind enough to ask me to be his first second-time guest, and we had a wide-ranging discussion: everything from this semester’s teaching assignment at the William & Mary Law School, the will-they-or-won’t-they-overturn-Williamson-County case to be argued in early October Knick v. Township of Scott, to the upcoming Brigham-Kanner Conference, the ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs, Elvis, and … Kevin Bacon (again).  

Adhering to the same format, including the fun “lightning round” style Cross-Examination, the podcast is a great (and easy) way to keep up on the issues. And at just under an hour, its the perfect length for your commute, also.

We look forward to Clint’s lineup of interesting and insightful guests and topicsContinue Reading Clint Schumacher’s Eminent Domain Podcast Is Back – Six Degrees Of Williamson County Ripeness … And Elvis

Here’s the video of the oral arguments held earlier today in the Iowa Supreme Court in a high-profile pipeline case. In Puntenney v. Iowa Utilities Board, the court is considering a case at the intersection of the law of public utilities, and condemnation law. The basic question the court is trying to solve is whether a finding by the IUB that the pipeline serves a “public convenience and necessity” makes a determination of the public use supporting the resulting condemnations unnecessary? 

Here’s a description of the issues from the court’s web site:

The district court denied petitions for judicial review of the Iowa Utilities Board’s (IUB) decision to grant a permit to Dakota Access, LLC, for the construction of a hazardous liquid pipeline pursuant to Iowa Code ch. 479B. On appeal, the petitioners argue the district court erred in affording the IUB the authority to define the term “public…

Continue Reading Iowa Supreme Court Oral Argument Video: Does A Finding Of Public Necessity And Convenience For A Pipeline Also Solve The Question Of Public Use In Eminent Domain?

Here’s the cert petition, filed yesterday, in a case we’ve been following closely. Here’s our short summary of the case, written up when it was ready for argument in the Hawaii Supreme Court. That court’s ruling against the property owner added to the the lower court split on the issue of whether the Takings Clause protects an owner’s use of property, or the value of property. 

Here’s the Question Presented:

In 2000, Douglas Leone and Patricia Perkins-Leone bought beachfront property in Hawaii on which they planned to build a home for their family. The land was zoned for single-family residences, but the County of Maui decided it should be used as a public park. Instead of buying the land, however, the County wielded its regulatory authority to prevent the Leones from developing their property in any way.

The Leones challenged the County’s refusal to allow them to…

Continue Reading New Cert Petition: Is Holding Land With No Present Use In The Hope The Government Allows Some Use In The Future An “Economically Beneficial Use” Of Property?

The result in Roberts v. Bondi, No. 8:18-cv-1062 (Aug. 21, 2018) should not be terribly surprising, we suppose. After all, the plaintiff was asking the U.S. District Court to — among other things — conclude that a Florida statute banning a device which makes a semi-automatic rifle “somewhat mimic” fully-automatic fire, violated the plaintiff’s constitutional rights. [Note: you can do this with just about any semi-auto rifle even without the special stock, although it can be somewhat awkward.] 

In these type of cases, courts are hard-pressed to do much but uphold the ban, even if the thing being banned was, as they say, “perfectly legal” prior to the prohibition. That the courts do so may or may not sit well with you (mostly depending upon your view of the Second Amendment) but it is, nevertheless. As Holmes famously remarked, “The life of the law has not been…

Continue Reading Federal Court: Florida Statute Outlawing “Bump Stocks” Is Not A Taking

Before last week’s Judiciary Committee hearings on the nomination of Brent Kavanaugh to be an Associate Justice of the Supreme Court, we wrote that the issue of property rights and eminent domain may come up during the hearing, even though Judge Kavanaugh’s actual judicial record on that topic is pretty thin. 

We were busy during most of the hearings, and the portions we viewed did not focus on Kelo, but rather on a host of important other topics. But thanks to the efforts of our colleague Elaine Mittleman (the lawyer who argued and won the sole opinion in Judge Kavanaugh’s Public Use and Eminent Domain repertoire, Rumber v. District of Columbia, 487 F.2d 941 (D.C. Cir. 2007)), who sent us the video from the key portion of the hearings, we now have Judge Kavanaugh talking a bit about Kelo and property rights, and related (sort of) topics.  

Senator…

Continue Reading Your Kelo Moments From The Kavanaugh Hearings

A hot — but most often neglected — topic, getting hotter: relocation benefits. 

In Osher v. City of St. Louis, No. 17-2402 (Sep. 6, 2018), the U.S. Court of Appeals joined the Fourth Circuit in its conclusion that the Uniform Relocation Act provisions are mere guidelines (insert our oft-repeated Pirate’s Code reference here), and not privately enforceable in court by the property owner the Act was designed to protect. 

The facts are pretty straightforward. The National Geospatial Intelligence Agency, headquartered in St. Louis, was going to move. To sweeten the pot for the agency to remain, the City said “hey, we’ll get you a better site right here,” and the City’s redevelopment agency started a condemnation action in state court against Osher and others, for that better site. 

Here’s the key phrase from the opinion: “While the state court action was pending, Osher brought suit in the district…

Continue Reading Eighth Circuit: Congress Didn’t Intend For The Uniform Relocation Act To Be Judicially Enforceable