2020

Congratulations – if you understood this post’s headline, you are officially a rails-to-trails nerd. A super-nerd.

But even if not, you shouldn’t need a rails-to-trails nerd’s level of knowledge to understand and appreciate the Federal Circuit’s ruling in Caquelin v. United States, No. 19-1385 (May 29, 2020). It’s a case worth reading for all of us — nonnerds included — because it nicely gets into the weeds of takings doctrine. 

One observation before we begin. There are takings of a fee simple interest. Takings of less-than-a-fee interest, such as the taking of an easement. Partial takings where less than all of the owner’s property is taken, and there’s a remainder property. Temporal takings where the seizure is not forever (temporary takings vs permanent takings). Regulatory takings, inverse condemnations, per se (categorical) takings, physical takings and ad hoc (Penn Central) takings. And myriad combinations fo the…

Continue Reading Federal Circuit: Arkansas Game Did Not Overrule Ladd (NITUs Are Categorical Takings)

Here’s the latest complaint that alleges a taking arising out of the coronavirus situation. It joins a long list of similar lawsuits (See here, here, here, here, here, here, here, here, here, here and here, for example.

This one challenges the State of New York’s executive order that bars property owners from pursuing residential evictions for nonpayment of rent and requires the owners to apply security deposits towards rent.

Some interesting elements in the case:

  • The complaint was filed in federal court against the Governor.
  • It avoids the Eleventh Amendment issue by not seeking compensation, only declaratory and injunctive relief.
  • Does that raise the issue of whether such relief is available for a taking?

Stay tuned, this isn’t going to be the last of these things. We wrote up how we think these type of claims should be handled…

Continue Reading Latest Coronavirus Complaint: NY State’s Order Suspending Evictions Is A Taking

Here’s the latest in a case we’ve been following (briefs here, and oral argument recording here).

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

The big question in these cases is who gets to decide: the judge or the jury? And many courts for whatever reason (fear of jury compensation verdicts, perhaps?) cut off the inquiry with bright line no-compensation rules that seem designed more to reserve for judges the critical questions than to facilitate a searching inquiry to whether the property owner has truly suffered a loss…

Continue Reading In Virginia, Where The Baffled Courts Now Compose “Major” vs. “Minor” Streets

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

We thought the 2012 post-Kelo amendment to the Virginia Constitution was designed to address that. Article I, section 11 notes:

… No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The…

Continue Reading In Virginia, Where The Courts Choose The Streets’ Names: Major Or Minor

In Natural Gas Pipeline Co. of America LLC v. Foster OK Resources LP, No. 118,185 (May 5, 2020), the Oklahoma Supreme Court upheld the necessity of a taking of an easement across private property by a private pipeline company that possessed a FERC certificate of public convenience. Nothing too surprising there. The bar for whether a taking is necessary to fulfill the stated public use is set about as low as a bar can be set in the law. Nearly total judicial deference (some might say “abdication,” but that’s a debate for another day). No different here.

But what really grabbed our attention was the court’s blithe conclusion that the private natural gas pipeline company could not contract away the federally-delegated power of eminent domain. You know this thread of argument: the government always retains its governmental power, and even where it expressly agrees to not exercise its …

Continue Reading OK: Private Pipeline Company Is Like A Government: It Cannot Contract Away Its Right Of Eminent Domain

Screenshot_2020-05-23 CT CMECF NextGen

Things moving quickly: remember way back when — in April, was it? — when a Connecticut lounge owner sued a mayor and the governor, asserting that a shut-down order was a taking? 

Well, the court recently denied the plaintiffs’ request for a temporary restraining order.

There’s nothing in the Ruling about the takings claims as far as we can tell, but we suggest you read it nonetheless because it relies heavily on a U.S. Supreme Court case that has once again become prominent: Jacobson v. Massachusetts, 197 U.S. 11 (1905). That’s the one where the Court held that it was not an unconstitutional deprivation of liberty to require Jacobson to get a vaccine. We think that case and the general sense that courts give a lot of leeway to the other branches when evaluating their responses to emergencies (especially during the emergency) is going to get a …

Continue Reading Court Denies Plaintiffs’ TRO In Coronavirus Challenge

Another complaint asserting that a business that had to shut down is entitled to compensation for a taking (among other claims). The business in this case is a law firm, and the complaint is a class action. This joins a long (and growing) list of similar complaints. See here, here, here, here, here, here, here, here, here and here, for example. 

This complaint alleges both a Lucas total wipeout taking, as well as an ad hoc Penn Central type taking.

Read more analysis from Allan Zhang (“Law Firm Cites Founding Fathers in Suit Against Governor Cuomo and Attorney General“) from McKirdy Riskin Olson DellaPelle, our friends and colleagues in New Jersey.

Complaint, Hoganwillig, PLLC v. James, No. 1:20-cv-00577 (W.D.N.Y. May 13, 2020)

Continue Reading New Coronavirus Complaint: Shut Down Order Took Our Law Firm (NY)

Programming note: On the weekend we’ve set aside to remember our nation’s war dead, we thought we’d repost this one, about how Arlington National Cemetery came to be, and how yes, there’s a takings story there.

———————————————————

LastbattlebookYou know how we’re always saying that the provisions in the Takings Clause are “self-executing,” that even in the absence of a waiver of sovereign immunity, the Tucker Act, and section 1983, property owners would still be able to maintain a claim for compensation? Well here’s an article that explains that how that rule was first articulated, and not in a dry academic way, but with a fascinating historical story.

It’s the tale of United States v. Lee, 106 U.S. 196 (1882). We knew the land that is now Arlington National Cemetery was once owned by Robert E. Lee, but we can’t say that we gave much thought to how it became

…
Continue Reading Memorial Day 2020: Arlington National Cemetery And Takings

BLOG-article-RHThomas-2020-05_450x600-225x300

Here’s what we’re reading today as we enter a long weekend (who can tell?):

…
Continue Reading Saturday Readings: Commandeerings, Business Reopenings, #coronalaw Property Rights