2020

Here’s the cert petition that we’ve been waiting to drop in a case we’ve been following. Last we checked in, the Ninth Circuit (with concurral) had denied en banc review, over a dissental.

In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal.  At issue was a regulation adopted by California’s Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to “access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”

The panel majority viewed the complaint as alleging a Loretto physical invasion taking, and held the…

Continue Reading New Cert Petition: Does A Physical Invasion Taking Require 24/7 Occupation?

This is a case about trees. The County highway maintenance department entered the plaintiffs’ rural undeveloped land (with permission) to cut and remove certain trees, but then went to the wrong place and cut the wrong trees.

The plaintiffs wanted compensation for the trees, measured as the cost to replace the trees. The County offered compensation only for the loss of use or damage to the land, $200. But you really didn’t take or damage the land (other than to remove the trees), you took or damaged the trees argued the owners. The trial court agreed with the County, as did the court of appeals.

In this post (“Apparently, Trees Are Not Property In Nebraska“) we expressed our dissatisfaction with the court of appeals’ ruling and rationale. The court held this wasn’t a permanent taking, so no recovery. In our view, the court also wrongly focused on …

Continue Reading Apparently, Trees Still Aren’t Quite “Property” In Nebraska

Here’s a cert petition that we’ve been waiting to drop in a case we’ve been following. This one asks whether a state legislature’s virtual elimination of a cause of action is a taking.

The harsh reality is that farms and ranches can stink. But in Right to Farm Acts, many state legislatures, Indiana’s included, have concluded that farming and ranching are so important that the consequences (“negative externalities“) that naturally occur have to be accepted. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, “so long as the human race consumes pork, someone must tolerate the smell.” Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). Let’s call it a “stink easement.”

Indiana’s version stands somewhat apart from others, however. Like many other states, it bars lawsuits which assert that a long-standing agricultural operation is a…

Continue Reading New Stinky Cert Petition: By Wiping Out Nuisance Claims, Right-To-Farm Act Is A Taking

We don’t often post trial court orders, but this one, Chiquita Canyon, LLC v. Cnty of Los Angeles, No. BS 171262 (Cal. Super. July 2, 2020), from the California Superior Court, is worth reading for you land use and exactions mavens.

It’s a long order, so we won’t go into great detail, but the short story is that the petitioner (a landfill) administratively challenged 22 of the 130 conditions and fees the County imposed on a Conditional Use Permit. Some of the conditions violated the trash law (California’s Integrated Waste Management Act) because they discriminated against out-of-area trash.And the condition requiring the landfill to support the state’s waste management goals? Compelled speech (no trash talk required!).

But you Nollan/Dolan mavens will really like the part about California’s Mitigation Fee Act, which essentially is a codification of the same exaction standards which the U.S. Supreme Court adopted in…

Continue Reading Trash Talking: Permit Condition Not Backed By Proof Of Nexus And Proportionality Is Illegal Exaction

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by David Lee Callies

Coming soon (August), a new book from lawprof David Callies on what might be our favorite subject, regulatory takings.

We had a chance to review the proofs, and we highly recommend this one for your bookshelf. We’ll bring you more once published. But for now, you can reserve your copy here.

Here’s the description:

Regulatory Takings after Knick summarizes the Supreme Court’s recent decision in Knick v. Township of Scott which does away with the state action prong of the Court’s former ripeness test and what it means for the law of regulatory taking of property. It emphasizes total takings after Lucas v. South Carolina Coastal Commission and the exceptions which permit government to so strictly regulate property as to permit no economically beneficial use of it.

The Supreme Court’s recent decision in Knick v. Township of Scott has been aptly described by some commentators

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Continue Reading New Book Coming In August: Regulatory Takings After Knick by David Callies

A pipeline needed private property. Did it wait until it had actually taken the property before it started to build the pipeline? No. 

In Bayou Bridge Pipeline, LLC v. 38.00 Acres, No. CA 19-0565 (July 2020), the Louisiana Court of Appeal addressed a host of challenges:

  • A broad facial challenge to Louisiana’s expropriation system. The landowners asserted that allowing private entities to exercise the sovereign power violated due process, primarily because the delegation lacks concrete standards. The court rejected the argument, concluding that the state delegating the power to a common carrier pipeline and including a process that includes a predeprivation hearing to determine public use and necessity, is not a problem. Louisiana’s law “sets out appropriate standards to guide expropriating authorities and the courts, as well as providing for judicial review. Those standards are clearly set out in La.Const. art. 1, § 4, which requires that any taking

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Continue Reading Louisiana Court Slaps Down Pipeline for Just Going Ahead And Building Before Actually Taking Property

Our Louisiana friends have a great word — lagniappe — that we’re not sure we understand precisely, but to us has always meant that little something extra. As Mark Twain wrote, “[i]t is the equivalent of the thirteenth roll in a ‘baker’s dozen.’ It is something thrown in, gratis, for good measure.” As far as we can tell, however, it’s meant to be something you give to others, not a little something extra you keep for yourself.

Maybe that message didn’t make its way up to Michigan, because until the Michigan Supreme Court’s ruling in Rafaelli, LLC v. Oakland, County, No. 156849 (July 17, 2020), local governments apparently were free to treat themselves to a little something extra when they foreclosed on property for the owner’s failure to keep up with their property tax payments. They would sell the property, pay themselves the taxes owed, and then pocket anything…

Continue Reading Michigan: Gov’t Keeping The Change From Tax Delinquency Sale Is A Taking

Like a lot of other jurisdictions, Hawaii’s emergency response statutes contain an “automatic termination” limitation on the governor’s or a mayor’s declaration of emergency:

A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.

Haw. Rev. Stat. § 127A-14(d).

Hawaii’s Governor David Ige issued a declaration of emergency way back in March, and as the coronavirus thing dragged on, later issued multiple “supplemental” declarations, some of which purported to adopt countermeasures or suspend laws past the original sixty-day window. The two-week quarantine for inbound travelers is one of those restrictions.

Here’s the Complaint filed yesterday in a Hawaii state court (Third Circuit, Kona), which challenges the Governor’s authority under section 127A-14. Check it out. …

Continue Reading New Challenge: Hawaii Governor’s COVID Orders Are Pau Already

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Here’s the latest in a case we’ve been following for what seems like forever. This is also a fact situation that has resulted in litigation in a variety of different fora, and at times has seemed like the final exam question in a Federal Courts law school class. We wrote about this latest phase — the issues raised by the Ninth Circuit’s opinion — in this article, even.

We won’t go into the background of the case, but if you are interested, you can find out more at this post (“What Constitutes a Loss“). The property owner has also summarized the situation thusly:

The State of Hawaii zoned for agricultural use land that it knew was not viable or appropriate for such use. At the property owner’s request, it rezoned it for urban use but, after Plaintiff Bridge Aina Le‘a began developing it, the State…

Continue Reading New (Mike Berger) Cert Petition: “This case is the proverbial ‘Exhibit A’ of much that is wrong [with takings law].”

This one is California process-specific, but we think the California Supreme Court’s opinion in Weiss v. People ex rel Dep’t of Transportation, No. S248141 (July 16, 2020), is still worth a read for you non-Golden Staters.

Why, you ask? Well, we all have been in the situation where, just before you are about to empanel your valuation jury, the court entertains motions in limine that look a lot like summary judgment motions. You know, things like “their theory of valuation is no good,” or “my theory is the only theory,” etc., etc. You can prepare a case for months, only to have it blown up on the literal eve of trial. It’s wasteful, based on unfair surprise. 

So California has a procedure — only applicable to eminent domain cases — that front-loads these type of questions. Any party may file what is called a “1260.040” motion (we’ll let…

Continue Reading Stay In Your Lane, Eminent Domain: California’s Eminent Domain Procedures Aren’t “Imported” Into Inverse Cases