2019

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As we’ve noted before, the growing homeless and “urban camping” situation seems to be getting worse, and in our perception is reaching the point of being intractable. A trip down the sidewalk of any major city  — if you dare, particularly in the west — will confirm. And there are no easy answers, except maybe “get used to living with it.” Nor is there a consensus whether the law can do anything to remedy the problem.  

The Ninth Circuit’s latest foray into this area, this order denying rehearing and rehearing en banc of a panel opinion in a case out of Idaho, confirms. The case is a challenge to Boise’s ordinance under the Eighth Amendment’s prohibition on cruel and unusual punishments. The panel concluded that the city could not prosecute people for sleeping outside on public property because they have nowhere else to go. Until the…

Continue Reading Ninth Circuit: Local Governments Cannot Enforce 24/7 Ban On Sleeping Or Camping On The Sidewalk If Nowhere Else To Go

Pretty simple facts in the North Dakota Supreme Court’s opinion in Lincoln Land Development, LLC v. City of Lincoln, No. 20180117 (Mar. 15, 2019): back in the day (the 1980’s) the City had a dirt road over private property, used to access its sewage treatment plant. Lincoln Land Development bought the property in 2005. Recently, the City graded and paved the road, raised the road bed, and added things like culverts.  

Inverse condemnation? 

The City denied liability, arguing that Lincoln Development didn’t have the right to exclude the City because the City owned an easement — either by express grant, or by implication or estoppel — and thus Lincoln Development didn’t possess property that the City had taken. 

The most interesting part of the North Dakota Supreme Court’s opinion, in our opinion, starts on page 5, where the court discusses the easement by prescription claim (after having agreed with…

Continue Reading ND Supreme Court Rejects City’s Claim That “We Already Own The Property By Prescriptive Easement So Are Not Liable For A Taking”

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Great crowd today in Austin for CLE International’s Eminent Domain seminar, co-chaired by our colleagues Chris Clough, Sejin Brooks, and Christopher Oddo. We spoke about “National Trends and Developing Issues in Eminent Domain.” 

Here are the cases I referred to which are not included in your written materials:

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Continue Reading Materials And Links From Today’s Austin Eminent Domain CLE

Here’s the cert petition filed recently in yet another case (seeking review of the Eleventh Circuit’s opinion) which challenges a federal court issuing an injunction in a Natural Gas Act taking allowing a private condemnor to obtain immediate possession of the land being condemned, even though the NGA does not delegate to pipeline condemnors the quick-take power. 

You know where we are on this issue. If not, check out our amicus brief which we filed in the Third Circuit which has the details of why we think this is wrong. 

There’s another cert petition on the same issue pending, and another likely coming.

Here’s the Question Presented:

The Court has long emphasized the strict construction of condemnation statutes, especially as against corporate delegates of this sovereign power. By the plain, undisputed terms of the Natural Gas Act, 15 U.S.C. § 717f(h), a pipeline company obtains title and…

Continue Reading Another Cert Petition Challenging Quick-Take-By-Injunction In Gas Pipeline Takings

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After-class graffiti. My students know me too well.

As anyone who follows this blog consistently must understand by now, perhaps our favorite courtroom scene in a law-related movie is The Castle‘s closing argument by Dennis Denuto, Esq.

In summing up, it’s … the [Australian] constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … ah …  no, that’s it, it’s the vibe.

I rest my case.

The “Mabo” case he refers to is the famous decision by the High Court of Australia, Mabo v. Queensland (No. 2), (1992) 175 CLR 1 (1992), in which the court held that Australia was not terra nullius (land owned by no one) when westerners arrived, but that the aboriginal people recognized the concept of property ownership and therefore possessed certain property rights.  

As part of learning about Eminent Domain and Property Rights in William and Mary Law School’s Law…

Continue Reading It’s The Vibe Of It: High Court Of Australia Confirms Compensation Due For Loss Of Native Land Title

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Pop quiz: Quick! Name the races in the Triple Crown of horse racing… There’s the Kentucky Derby (check) … the Belmont Stakes (check) … and … oh yeah, the Preakness Stakes. We always almost forget that last one. 

But the City of Baltimore sure hasn’t. Because the home city of Pimlico racetrack and the aforementioned Preakness Stakes has sued the owner of the race and track in eminent domain, to take the race so it doesn’t leave town like the Colts did when they bolted for Indianapolis literally in the middle of the night. Fool me twice, says Baltimore … shame on me!

Read that again. Baltimore is trying to condemn a horse race. A freaking horse race. (Before we posted this, we checked our calendar to make sure it wasn’t April 1. Suspected we were getting pranked. Nope. Then we checked with news sources. Found a bunch.

Continue Reading All Your Race Are Belong To Us: Baltimore Is Condemning The Preakness Stakes (We’re Serious)

We’ve been meaning to post the U.S. Court of Appeals for the Eleventh Circuit’s opinion in Hillcrest Property, LLP v. Pasco County, No. 16-14789 (Feb. 13, 2019), mostly because of the provocative way it starts off: 

The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The answer to that question is a resounding “no”—an answer that this Court delivered in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and has reaffirmed ever since. We held in McKinney that executive action never gives rise to a substantive-due-process claim unless it infringes on a fundamental right. A land-use decision is classic executive, rather than legislative, action—action that, at least here, does not implicate a fundamental right under…

Continue Reading 11th Cir: The Use Of Land Isn’t A Fundamental Right, Even If “What happened to [the owner] here was pretty doggone s[tink]y.”

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Last week, author Howard Mansfield joined us at the William and Mary Law School for two sessions about his recently-published book, “The Habit of Turning the World Upside Down – Our Belief in Property and the Cost of That Belief.”  His book is about property, property rights, and what he has discovered about how these ideas are processed by the American psyche.

The first session was open to the entire student body, faculty, and public, and the highlight was Mr. Mansfield reading some of his favorite passages from his book. The second session was a student-only chat about some of the themes that he emphasizes. 

If you were not able to join us in-person, listening will be able to give you a sense of why we think this book is a timely rumination on what “property” means, both good and not-so-good. 

If you can’t stream the audio above, Continue Reading Audio: Readings From “The Habit of Turning The World Upside Down”

Here’s the amici brief we signed onto for Owners’ Counsel of America, filed last week in a regulatory takings case we’ve been following.

This brief, one of several filed which urge the Court to review the Federal Circuit’s conclusion there was no taking (despite a Court of Federal Claims verdict that there was), argues that categorical rules are not useful in regulatory takings cases for the most part, and economic realities often mean that a property owner can suffer a taking even if it has not yet realized a positive cash flow from its investment in the property:

But the Federal Circuit has now pronounced a categorical rule—one that arbitrarily insulates government from takings liability no matter how strongly the Penn Central factors might otherwise militate in favor of a takings claimant. Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1344 (Fed. Cir. 2018). What…

Continue Reading New Amici Brief: Investment, Not Profit, Is What The Takings Clause Recognizes