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In addition to the initial media coverage of and commentary about the Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014) rendered earlier this week, there has been more, mostly focused on the final lines of Justice Sotomayor’s solo dissent:

By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.

Dissent at 8 (emphasis added).

What she was getting at, of course, was the fact — not stated anywhere in the majority opinion but made clear by the amicus briefs — that by holding that the interest granted was only an easement and did not revert to the United States…

Continue Reading Brandt: No Free Ride For Rails-To-Trails

Here are some reports and commentary on the Supreme Court’s opinion in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014).

Continue Reading Brandt Round-Up

As we predicted it would after oral argument, today the U.S. Supreme Court ruled in the property owner’s favor in Marvin M. Brandt Revocable Trust v. United States, No.12-1173 (Mar. 10, 2014). Chief Justice Roberts wrote for the entire Court less Justice Sotomayor, who filed a solo dissent. SCOUTSblog posts a summary of the opinon here (“Victory – and money – for landowners“). 

As you might recall, the issue in the case was whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the right of way, and that it did not revert to the property…

Continue Reading SCOTUS Benchslap: Railroad Right Of Way Is An Easement, Just Like We Said A Long Time Ago

We were all set to write up the latest case from the Federal Circuit, Banks v. United States, No. 12-5067 (Jan. 24, 2014), when our colleagues at Pacific Legal Foundation beat us to it with this post, “Federal Circuit revives Lake Michigan takings case.”

The Federal Circuit agreed, holding that the property owners’ awareness of that some erosion was occurring before 1952 was not sufficient for their takings claims to accrue. Indeed, the Court held that it was “unreasonable” for the trial court to “assume that a property owner should have been able to discern the difference between the naturally occurring erosion and that caused by the jetties.” The Court sent the Banks case back for a determination on its merits.

Read it if statutes of limitations are your thing. 

Banks v. United States, No. 12-5067 (Fed. Cir. Jan. 24, 2014)

Continue Reading Fed Cir: Takings Claim Did Not Accrue Until Property Owner Had Reason To Notice Permanent Damage

Next week, we’ll be in New Orleans for the 2014 edition of the ALI-CLE Eminent Domain program, now in its 31st year. 

As usual, my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs) have put together a fantastic 2.5 day of programming, taught by expert faculty.  At 11:00 a.m. on the first day of the program, I will be joining Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” 

Should be fun. If you are not joining us in-person, ALI-CLE is producing it as a live webcast, and will make the coursebook and video and audio available for later listening or viewing. 

More details here, or download the brochure here, or below. 

31st Annual Eminent Domain and Land Valuation Litigation, ALI-CLE Program (CV023) (Jan. 23-25, 2014) New Or…

Continue Reading 31st Annual ALI-CLE Eminent Domain And Land Valuation Litigation (New Orleans)

Update: More thoughts here, after having heard the argument recording, available here:

12-1173

Here’s the transcript from today’s oral arguments in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173. That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute. 

We were going to review the transcript and then post some thoughts, but the speedsters at SCOTUSblog beat us to it with “Argument recap: Oh give me land, lots of land…,” wherein they report that the arguments were a “seminar-like hour,” where Justice Breyer repeatedly disclaimed knowledge of his law school Property class basics. One thing we noted right off the bat in our quick skim of the transcript was that Justice Scalia must’ve been chapped about something, because no sooner did petitioner’s counsel begin, than the Justice interrupted…

Continue Reading Transcript In Brandt: Pay Attention In Property I

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).

Here’s the Introduction to the article:

THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the…

Continue Reading New Article: Recent Developments in Regulatory Takings

In Stueve Bros. Farms, LLC v. United States, No. 21013-5012 (Dec. 11, 2013), the Federal Circuit concluded that the government is not liable for a physical invasion taking when a dam enlargement project raised the maximum flood line on the plaintiff’s land by 10 feet, because there has yet to be an actual physical invasion of the property.

The landowner limited its claim to a physical taking, and did not make any claim for a regulatory taking (see slip op. at 5 n.1), and the court rejected each of its arguments that the totality of the circumstances added up to a physical take, because the government has not caused any flooding outside the scope of its previously-acquired flowage easement. The court acknowledged that the Corps of Engineers’ dam improvement project has been ongoing for 20 years, and that the Corps intended at one point to acquire a flowage…

Continue Reading Fed Circuit: There Must Be Actual Flooding For A Physical Taking

Just in: the Federal Circuit today issued an opinion in Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Dec. 3, 2013), concluding that the government must pay just compensation for a taking, because it caused the Commission’s land to be flooded.

This is the case that was up before the U.S. Supreme Court last year (and in which we filed an amicus brief).  The unanimous Court held that government-induced flooding could be a taking (rejecting the Federal Circuit’s per se rule that temporary flooding was never a taking, only a tort). The Supreme Court remanded the case to the Federal Circuit, and in today’s opinion, that court affirmed the Court of Federal Claims’ conclusion that the flooding was a temporary taking.

We’ll have more after a chance to review the opinion in depth. 

Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Fed. Cir. Continue Reading Fed Cir: On Remand From SCOTUS, Arkansas Game Flood Is A Taking

Here’s the government’s Brief in Opposition in Mehaffy v. United States, No. 12-1416 (cert. petition filed June 3, 2013. 

In that case, the Federal Circuit, in an unpublished opinion, held that Mehaffy failed the Penn Central ad hoc takings test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act. As a matter of law, he could not have any “reasonable investment-backed expectations” because his land was subject to regulations that, as applied to his land, are alleged to take property.

That reasoning seems somewhat circular, and would seem to run smack-dab into the Supreme Court’s determination in Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001), rejecting a per se rule that “postenactment purchasers cannot challenge a regulation under the Takings Clause.”

But for some reason, the lower courts have applied (or, in some cases, have not…

Continue Reading Govt’s BIO In Mehaffy: Preexisting Regulations Wipe Out Penn Central’s Reasonable Expectations