2025

There’s not a lot of new territory forged in the U.S. Court of Appeals for the Ninth Circuit’s opinion in Pena v. City of Los Angeles, No. 24-2422 (Nov. 4, 2025), holding that the city could not be liable for a taking after SWAT officers severely damaged a home in the course of apprehending a suspect who had taken refuge there.

After all, the other federal courts which have addressed the issue of whether a local government’s damaging or destroying a home in the course of apprehending a criminal suspect is a taking have all concluded no, although for a variety of reasons. Some say there’s no absolute right to exclude, with the issue turning on whether the police are acting pursuant to a valid warrant, incorporating by reference Fourth Amendment property law. Some say the owner has no expectations of exclusion of the government as a…

Continue Reading CA9: No Claim For A SWAT Taking Because There’s A Public Safety Exception To The Fifth Amendment

As we wrap up another year, it’s time to look ahead to the one event that always gets our eminent domain blood pumping: the annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference. Details, including faculty list, a complete agenda, and registration information is posted here.

Now in its 43rd year, this flagship gathering remains the undisputed national hub for practitioners, academics, appraisers, and anyone else who lives and breathes property rights law. Mark your calendars for January 22-24, 2026, when we’ll convene at the JW Marriott Plant Riverside District in Savannah, Georgia. Think historic charm meets Southern hospitality, with moss-draped oaks, riverfront vibes, and enough ghost tours to inspire a dozen inverse condemnation hypotheticals. (For those of you who prefer pixels to palm trees, a live webcast option is available.)

What makes this conference indispensable? For starters, it’s the place to reconnect and talk shop with the…

Continue Reading Savannah Bound: Don’t Miss The 43rd ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 22-24, 2026)

This is going to be a short post, mostly because the U.S. Court of Appeals for the Ninth Circuit’s opinion in KOGAP Ent., Inc. v. City of Medford, No 24-5268 (Nov. 13, 2025) is itself short.

Before we go further, this disclosure: this is one of ours, and our Pacific Legal Foundation colleague Brian Hodges argued the case.

It’s a three-page memorandum opinion so there’s not a lot there to sink our teeth into, and it would be faster for you to just read it yourself, rather than us explaining what it said. Short story is that the city imposed an exaction requiring KOGAP to extend a city street. The court affirmed the exaction has an “essential nexus” to KOGAP’s proposed development project, holding that the street extension was justified because the development would likely result in “more auto-oriented uses.”

But the court held that there’s no evidence that…

Continue Reading CA9: No Evidence That Exaction Was Proportional

Remember back when we reported on our 100th Anniversary visit to the property in Pittston, Pennsylvania at the center of the seminal regulatory takings case Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)?

What we didn’t note was that the visit motivated us to seek approval for the placement of a roadside marker recognizing the significance of the property and the Supreme Court’s decision from the Pennsylvania Historical & Museum Commission.

We recently received word from the Commission that it has approved of a marker, which means that, at a future date to be set, the Commission will be placing one of those metal roadside marker. The Mahon marker, is one of the 45 markers approved by the Commission. These markers “commemorate significant people, places, events, and innovations … that tell the story of Pennsylvania’s rich and diverse history.”

We all know of the significance of the…

Continue Reading Landmarking A Landmark: Pennsylvania Coal v. Mahon Getting A Roadside Marker

Check this out: a podcast from Free to Choose Media, entitled “Eminent Domain,” published a couple of months ago.

But the description reveals a time capsule:

Recorded in 2003, Dennis McCuistion, former Clinical Professor of Corporate Governance and Executive Director of the Institute for Excellence in Corporate Governance at the University of Texas at Dallas speaks with professors Richard Epstein (University of Chicago), Gideon Kanner (Loyola Law School), Julie Forester (Southern Methodist University), and attorney Kenneth Wright about eminent domain.

Pre-Kelo. That alone makes it worth a listen. Highly recommended.

Continue Reading Free to Choose Podcast: “Eminent Domain”

The caption of the U.S. Court of Appeals for the Tenth Circuit’s opinion in Purgatory Recreation I, LLC v. United States, No. 24-1241 (Oct. 21, 2025), and the fact that the plaintiff raised a takings claim, should give you some idea where this is heading.

After all, when the defendant in a takings claim is the United States, your Tucker Act/Court of Federal Claims alarm bells should be going off.

That’s certainly accurate where the remedy sought is just compensation, and the amount of compensation sought is substantial. Those claims have been assigned to the CFC, not to district courts and the regional courts of appeals. But what if the plaintiff says it doesn’t want just compensation, but instead asks for a declaratory judgment that “to do X would result in a taking?”

In Purgatory, the plaintiff objected to the federal government’s denial of access across federal land…

Continue Reading CA10: Can’t Use Declaratory Judgment Before Seeking Tucker Act Compensation

When an opinion starts off with “[t]his zoning/inverse condemnation case revolves around the availability of parking…” you kinda know, whatever the issues might be, that the court isn’t likely headed in a good direction for the claimant.

That’s exactly how the Supreme Court of South Carolina began The Gulfstream Cafe, Inc. v. Georgetown County, No. 28303 (Oct. 29, 2025).

The bottom line is what you might expect, given that opening. The court rejected the takings and due process claims by a restaurant located in a special development district that the County’s permitting another restaurant to set up nearby violated the first restaurant’s rights.

The essence of the takings claim is that Gulfstream Cafe (the first restaurant) has been there for quite a while, and has an easement to allow its diners to use certain parking spaces. For many years, things worked out: the adjacent building housed a marina business…

Continue Reading South Carolina: Restaurant Was Not Taken When County Permitted Another Adjacent Restaurant

Is “personal” property (as contrasted with real estate), or property that is used in commercial dealings, not “private property” is protected from uncompensated takings by the Fifth Amendment?

That’s what the U.S. Court of Appeals for the Tenth Circuit appeared to conclude in Green Room LLC v. State of Wyoming, No. 24-853 (Oct. 27, 2025).

There, the court was faced with (inter alia) a takings claim which asserted that when the Wyoming legislature amended a statute, the effect of which was to make what had been a legal market in hemp products illegal. “In addition to the claims brought in their complaint, Plaintiffs’ brief in support of their motion argued that SEA 24 constituted an unconstitutional regulatory taking of their personal property.” Slip op. at 9.

We won’t go into detail about how the Tenth Circuit analyzed the federal preemption and dormant commerce clause claims, except to…

Continue Reading No Taking When Legislature Revised Statute And Made Hemp That Was Legal … Illegal: No Property Right In Personal, Commercial Property

This past week we were busy with the 22d Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Here’s the text of the remarks which I prepared for the session on “Public Safety, Private Property, and Just Compensation.” Note: because of time, I truncated what I planned on saying and kept it shorter.

* * * *

Public Safety, Private Property, and Just Compensation

Before I begin, a prelude. As you learned earlier, yesterday the student Real Estate Law Society produced a reargument of Kelo.

Ms. Kelo won this time. Six-to-zero, adopting the rationale of Justice Thomas’s dissent in the original case, with one concurring opinion. (More about this event in a separate post.)

And for those of you in the audience who didn’t know, Ms. Kelo’s famous little pink house was saved, even though her property was not. The house was taken apart board-by-board…

Continue Reading Salus Populi Est Suprema Lex: 2025 Brigham-Kanner Property Rights Conference Report

You’ve all heard the phrase “cut out the middleman” in advertising or crafty dealmaking. Deal directly and realize a savings, or somehow get a better bargain.

To our eyes, it looks like that’s what the New York legislature might have had in mind when it amended its Medicaid statutes to cut out “a vast network of private organizations, referred to as ‘fiscal intermediaries'” who had handles the administrative, financial and compliance responsibilities when beneficiaries who need help with daily living hire their own personal assistants at public expense. In 2024, the legislature altered this scheme, and “replac[ed] the existing network of fiscal intermediaries with a single, statewide fiscal intermediary.”

We don’t know why the legislature took this route, but it doesn’t so much look like the state eliminated all of the middlemen from a piece of the action, but selected a single beneficiary to get the entire vig.

Continue Reading CA2: No Taking When Legislature Consolidated NY Medicaid Middlemen