42 U.S.C. § 1983 | Civil Rights

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In the usual circumstance, we wouldn’t be terribly interested in an unpublished — and therefore not precedental — opinion. But the U.S. Court of Appeals’ opinion in Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (Feb. 4, 2019) caught our attention because it involves “forced pooling,” which this site describes this way:

At its most basic, pooling is the joining together or combination of small tracts or portions of tracts to create sufficient acreage to receive a drilling permit under applicable state spacing rules and regulations, and for the purpose of sharing the production from the pooled unit among the pooled interest owners.

Often, pooling is done voluntarily. That is, interest owners agree to the benefits of the combined acreage. Most oil and gas leases contain provisions allowing the lessee to pool the acreage covered by the lease; sometimes this right is virtually unlimited.

At times, however, there are unleased…

Continue Reading 6th Cir (unpub): “Forced Pooling” – Requiring Holdouts To Participate In Fracking – Isn’t A Taking

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on. We’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Knick Is Going To Be About Federalism, Not Takings

Psweather

If you didn’t register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we’ll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we’ll be in a new city (by…

Continue Reading ALI-CLE Palm Springs (72º, Sunny) Here We Come

There’s been a lot written after the Supreme Court heard (re)arguments earlier this week in Knick v. Township of Scott, No. 17-647, most of it helpful in understanding what issues the Justices are considering, and how each of them might break on the ultimate question: should Williamson County be overruled, and should property owners who allege that a local government has taken their property be able to press their claim for just compensation in a federal court? 

Here’s what we’re reading on the subject:

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Continue Reading Knick Post-Argument Round Up

Don’t Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn’t record this in a jazz club; although I wish we had.)

There’s still time to register, and come and join us in Palm Springs. Continue Reading Hot (Eminent Domain) Topics, Cool Jazz

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As Professor Gideon Kanner likes to remind us, eminent domain has been characterized as “the dark corner of the law.” We thought back to that phrase when we joined the queue outside of the Supreme Court this very dark (and very cold) morning, for the rehearing in the Knick v. Township of Scott case, this time with a full Court (Justice RBG was not present in the courtroom today, but will take part in the case).  

We soon got in the building, got warm, and got seated along with fellow takings geeks and the general public. 

We’ll have a detailed write-up once the written transcript is released, but for now, here are our initial thoughts. 

  • It was pretty clear right from the outset that the months intervening between October’s argument and now — and the various supplemental briefs and replies that have been filed — have not cleared things

…
Continue Reading Knick Argument Redux: Dark Corners, And A Lack Of Clear Consensus (Chief Justice Remains The Lynchpin)

It wasn’t going to be too hard to figure out what the U.S. Court of Appeals for the Sixth Circuit was going to do in Lumbard v. City of Ann Arbor, No. 18-1258 (Jan. 10, 2018). After all, the case involved a federal takings claim in federal court, which the district court dismissed because the plaintiff had already litigated her state takings claims in state court.

Yes, the plaintiff tried to make an England reservation in the earlier state court litigation to inform everyone that she was expressly not also litigating her federal takings claim. But ever since San Remo, you know what that means: diddly squat. Later, when the plaintiff came to federal court and asserted her federal takings claim, that court concluded full faith and credit, blah blah blah. 

The Sixth Circuit in just a few more words, affirmed. A short opinion (7 pages) with nothing…

Continue Reading SCOTUS Shortlister Judge Kethledge Has Read The Knick Briefs: “[T]he Takings Clause does not say that private property shall not ‘be taken for public use, without just compensation, and without a remedy in state court.’”

Our final 2018 post focused on what we thought was the biggest case of that year, and which, we’re predicting, will be the biggest case of 2019: Knick v. Township of Scott, No. 17-647, that’s the one in which the Supreme Court is considering whether federal takings claims can be brought in federal court, and whether to revisit the 30-year old Williamson County “state procedures” requirement. 

So we’re kicking off 2019 with our thoughts on that case, coming up for reargument next week. 

Before we get to our prognostication (yes, we’re going to go there, however futile doing so might be), we wanted to lay out our thinking on the issues so you can see how we got there. The wildly divergent positions taken by the three main players — Ms. Knick, the Township, and the United States — illustrate well how mucked up and opaque regulatory takings…

Continue Reading Stop Making Sense: Knick, Williamson County, And Lessons For Takings From The Dusky Gopher Frog Decision – Are “Takings” Federally Justiciable?

We’re going to end 2018 with the latest in what we think was the most important issue of the past year (and which, we predict, will be the most important case in takings law for at least a decade when it likely gets decided in 2019), Knick v. Township of Scott, No. 17-647.

That case, as you well know, asks whether a property owner who alleges that a local government action has taken property but hasn’t paid the required just compensation is entitled to bring a lawsuit seeking just compensation under the Fifth and Fourteenth Amendments in a federal court.

Thirty years ago, in Williamson County, the Supreme Court said no. Or at least not until the owner has first pursued compensation via a state’s available procedures to recover compensation, assuming such procedures exist. Add to the mix the rules of preclusion and full faith and credit —…

Continue Reading Wrapping Up 2018, And Previewing 2019’s Most Important Case: Final Briefs In Knick v. Township Of Scott