August 2019

You remember Samuel Beckett’s classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the audience all wait for something that we know will never happen. 

The U.S. Court of Appeals’ recent decision in Allegheny Defense Project v FERC, No. 17-1098 (Aug. 2, 2019), might instead be called Waiting for FERC, because when you read through it (especially the concurring opinion by Judge Millett, which contains some very tart language (to what some have speculated is her own per curiam opinion)), you get the sense that the challengers to the pipeline are a lot like Vladimir and…

Continue Reading Waiting For FERC: DC Circuit OK’s Pipeline Approval, Over Salty Concurring Opinion

Synchronicity (Jung, not The Police). Serendipity. Lattice of coincidence. Whatever you call it, sometimes things seem to come in waves. 

So it seems with the statue of limitations for inverse and regulatory takings claims this week. We had not dealt with the issue for a while. Radio silence. Then boom! The issue crops up repeatedly and we can’t seem to avoid it. First, in a brief we’re drafting in a pending case in the Hawaii Supreme Court. Then in a Federal Circuit opinion yesterday. And also yesterday in an opinion from the Maryland Court of Special Appeals, Harford County v. Maryland Reclamation Associates, Inc., No. 12-C-13-000509 (Aug. 1, 2019). 

MRA bought land way back in 1990 (statute of limitations cases often have a long history, no?) to operate a rubble landfill. But after the purchase, the County changed its regs to prohibit…

Continue Reading Lattice Of Coincidence: Regulatory Takings Claim Accrues When Regulator Makes Final Decision (Williamson County Lives!), Not When Appeals Are Exhausted

Here’s one we’re posting without comment, because the Complaint was filed today by my Damon Key colleagues. But here’s a summary of the issues, from the press release:

On August 1, 2019, the Hawaii Vacation Rental Owners Association and Honolulu land use attorney Greg Kugle of the Damon Key law firm, filed a lawsuit in Federal Court against the City and County over Bill 89. Bill 89 takes effect on August 1, 2019 as Ordinance 19-18. Although the stated purpose of the law is to regulate illegal short-term rentals, it is being interpreted by the Department of Planning and Permitting in a way that will unfairly target the owners of legal residential rentals of 30 days or more, and will have a devastating impact on Oahu’s economy.

Greg Kugle said “Ordinance 19-18 is unconstitutional because it violates the Search and Seizure, Due Process, Property, Privacy and Free Speech guarantees of…

Continue Reading Honolulu’s New Short-Term Rental Ordinance Challenged In Federal Court

Recently, we requested crowdsourcing of this year’s “come to the ALI-CLE Eminent Domain Conference video.” Instead of doing the video ourselves, we asked folks to “please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required.”

Our friend and colleague, St. Louis’ Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” Which he gave in a Starfleet captain’s uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don’t agree that Paul has now raised the video bar. …

Continue Reading Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

Leave it to Federal Circuit Judge Timothy Dyk — who, as far as we can tell, has never once ruled against the government in a takings case — to conclude that the U.S. Supreme Court’s recent opinion in Knick v. Township of Scott, 139 S. Ct. 2162 (2019) actually works to the detriment of property owners when it comes to the statute of limitations applicable to regulatory takings claims. 

In Campbell v. United States, No. 18-2014 (Aug. 1, 2019), the plaintiffs alleged that it was a taking when their product liability tort claims against General Motors were extinguished by GM’s bankruptcy. The CFC held that the claims were barred by the six-year statute of limitations, and the Federal Circuit agreed. 

Here’s the specifics of the plaintiffs’ claim:

Relying on A & D [Auto Sales, Inc. v. United States, 748 F.3d 1142 (Fed. Cir. 2014)], on July…

Continue Reading Fed Cir: File Your Regulatory Takings Claims Early (And Often?). The Statute Of Limitations Starts Running Before The Impacts Of The Regulation Are Felt