November 2019

Here’s decision we’ve been anticipating in a case and issue we’ve been following for a while, the question of whether private utilities can be held liable under an inverse condemnation theory for much of the damages caused by the recent California wildfires. 

Short story from the Northern District of California Bankruptcy Court: yes, private utilities can be liable in inverse condemnation:

What Debtors advocate here is to set aside a well-seasoned principle of strict liability. Failing that, they are seeking a solution, fire cost reimbursement, in search of a problem, CPUC’s refusal or unwillingness to allow recovery by a blameless (prudent) investor-owned utility. As noted, they cite no instance when the CPUC denied inverse condemnation cost reimbursement to a prudent operator. And it is the role of the legislative branch, not the judicial branch, to fix problems in advance. As recently as this past July, the California legislature refused…

Continue Reading California’s “Well-Seasoned” Inverse Condemnation Strict Liability Principle Not Set Aside By PG&E’s Bankruptcy Court

Following up on the petition, filed last Friday, asking the Virginia Supreme Court to review a trial court’s demurrer which failed to recognize that the owners of a state lease to harvest oysters in the Nansemond River have a property interest . The court concluded that the city and santitation district possess a superior right to pollute the river with sewage.

The case arose when the city and sanitation district declared the oysterbeds “condemned” during certain times of the year because they put sewage into the river. They denied compensation, and the trial court held that Darling v. City of Newport News, 249 U.S. 540 (1919) subjected the lease owners to the city’s superior right to pollute.

We paid a visit to the site a couple of weeks ago to see the pollution source, and how the oysters are harvested in the river. The above video is from that…

Continue Reading Videos: Oyster Takings On The Nansemond River

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Just filed: this Petition for Appeal in a case which our William and Mary Law class has a special interest in.

The above photo was taken a couple of weeks ago, when we paid a visit to the property owner/plaintiffs, the owners of a long-standing oyster business operating out of the City of Suffolk, Virginia. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City’s dumping of wastewater in the river — and prohibiting the harvesting of oysters during those times — was a taking under both the U.S. Constitution, and Virginia’s taking or damaging clause.

The trial court sustained the City’s demurrer, accepting the City’s argument that it has the right …

Continue Reading City: We Have The Right To Pollute – Virginia Oystermen’s Petition Asserting A Taking

Coke-home is castle quote

Anyone who has followed this blog for any length of time knows that our favorite movie is Australia’s The Castle (yes, eminent domain abuse can be funny!) 

But did you know where the idea that your home is your castle comes from? Like a lot of things, the source is our old friend, Lord Edward Coke (pronounced “cook” or “kook” depending on who you ask). In Semaynes Case, 5 Coke R. 91 (K.B. 1604) he wrote for the court the famous passage above, “[t]hat the House of every one is to him his (a) Castle and Fortress, as well for his Defence against Injury and Violence, as for his Repose …”

You often hear of the “Castle doctrine” being used to describe the right of self-defense without the need to retreat in one’s home. But it is also supports the idea that government agents cannot simply bust down …

Continue Reading Lord Coke, And The Whole “Your Home Is Your Castle” Thing

We’re not 100% certain of what the issues are in Landowners United Advocacy v. Cordova, No. 19-1126, a case argued in the U.S. Court of Appeals for the Tenth Circuit yesterday. 

But from what we can gather from listening between the lines to the OA recording (and reviewing some of the District Court documents here), the case is a federal court takings challenge to something the State of Colorado did, and whether the U.S. Supreme Court’s decision in Knick v. Township of Scott, 139 S. Ct. 2162 (2019) limited the impact of the federal Tax Anti-Injunction Act, and whether that statute means the plaintiffs here cannot challenge Colorado in federal court, but must proceed in state court. A similar issue was addressed by the Fifth Circuit recently, in the context of the Eleventh Amendment.

Was the majority in Knick telling us that the self-executing nature…

Continue Reading CA10 Oral Argument: “I am a takings law nerd, and I’m going to do my best today to not geek out as I did when the Knick decision came down.”

We were not as creative as our colleague Paul Henry (see below), but our Planning Co-Chair Joe Waldo and I wanted to personally invite you to join the “big guns” in our area of law at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, in Nashville, Tennessee.

We’ve assembled an excellent faculty, and an agenda that covers the hot topics of the day. Go here to view the complete faculty list and agenda. Water rights, Knick, appraisal, ethics, civil rights, and a whole lot more in three days of the longest (and we think best) conference in our area of law. Also, for those new to the field, Andy Brigham and Jack Sperber are again leading their “Eminent Domain 101” program. A great way to learn the topic, or for experienced lawyers to get a quick refresher on the basics. Your registration…

Continue Reading Don’t Miss Out: Join The “Big Guns” And Secure Your Space At ALI-CLE’s Upcoming Eminent Domain & Land Valuation Litigation Conference (Jan 23-25, 2020, Nashville)

Here’s the video of (most, but not all of) the recent session featuring four lawprofs discussing “Originalism and Constitutional Property Rights” at the Federalist Society lawyers’ meeting. 

Interesting debate, all about the text of the Fifth and Fourteenth Amendments, the “original public meaning of the Takings and Due Process clauses, and all that heady stuff. Here were our major takeaways:

  • Professor Somin argued that decisions like Kelo and Berman are not consistent with the original public meaning of the terms of the Takings Clause. 
  • Professor Merrill asserted there’s a good textualist argument that the Public Use Clause is not a limitation on the government’s power to take. If there’s a private benefit taking, that is best handled by other parts of the Constitution (such as due process).
  • Also, from Prof. Merrill: between Kelo and the backlash, the backlash was the “true constitutional moment.”
  • Professor Lazarus thought the regulatory

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Continue Reading What Is The Original Public Meaning Of The Fifth (And Fourteenth) Amendments?

We contributed to Marketplace‘s Morning Report (stream above, or visit this link), and its brief discussion of the California wildfire and inverse condemnation situation, “PG&E tries to get out of its financial responsibility to those affected by west coast fires.” That portion of the broadcast begins at the 1:57 mark. 

Today’s the day that a U.S. Bankruptcy judge will hear arguments about whether holding PG&E and other private utilities which possess the power of eminent domain potentially liable under California’s version of inverse condemnation, itself is a taking under the Fifth Amendment because the utilities do not have the ability to spread the costs of any such judgments to their ratepayers automatically. More on the argument (including the brief) here. The claim is made that the purpose of condemnation is to make sure that the costs of public projects are not borne by individual property (correct…

Continue Reading Marketplace Morning Report On Today’s Bankruptcy Court Arguments: Is California’s Inverse Condemnation Rule Itself An Inverse Condemnation Of PG&E’s Property?

We’re not quite sure what to make of the New York Supreme Court, Appellate Division’s short opinion in 82 Willis, LLC v. City of New York, No. 10303 (Nov. 12, 2019).

There, the court held that flooding on an adjacent vacant lot alleged to have been caused by the city’s project to redo the Willis Avenue Bridge (between Manhattan and The Bronx) was “not sufficiently permanent” to support a claim for inverse condemnation. The city condemned easements on an adjacent lot, but did not exercise eminent domain to take any part of the plaintiff’s property.  Although the plaintiff asserted a claim for compensation shortly after the neighboring lot was condemned (2008), it did not assert any claim for flooding until seven years later (2015), when it asserted that a year earlier (2014) its lot was flooded after a rainfall due to a drainage pipe that became blocked by cement. …

Continue Reading New York Appellate Division: Flooding Was “Not Sufficiently Permanent,” So No Inverse Condemnation

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Here’s the latest in a case we’ve been following for a while, Smyth v. Conservation Comm’n of Falmouth, No. 19-223 (cert. petition filed Aug. 16, 2019). 

The petition seeks review of a Massachusetts decision which held that a judge, not a jury, determines Penn Central takings questions, and also that the owner lost anyhow because, you know, Penn Central. The petition asks the Supreme Court to review these Questions Presented:

  1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.
  2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?
  3. Whether the Court should excise the “character” factor from Penn Central regulatory

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Continue Reading Latest In SCOTUS Penn Central Cert Petition