Court of Federal Claims | Federal Circuit

Subscribe to Court of Federal Claims | Federal Circuit via RSS

A quick one from the Federal Circuit, in a rails-to-trails takings case.

The holding of the court in Anderson v. United States, No. 21-1445 (Jan. 20, 2022) (when a deed says it conveys “land,” under [Texas law, that is a grant of fee simple), isn’t all that groundbreaking. But the opinion contains a concise summary of rails-to-trails takings cases, and for that alone is worth a couple minutes of your time. See slip op. at 2-3.

The first step in a takings case, of course, is to identify the private property allegedly being taken. If the original right-of-way conveyance to the railroad by the plaintiffs’ predecessor was limited (such as an easement), and the plaintiffs possess the “reversionary” right when the right-of-way ceases to be used for a railroad purpose, then pow!, the designation of the property as a recreational trail is a taking of that interest. If…

Continue Reading CAFED: There’s Right Way And A Wrong Way To Convey A Right Of Way (Under Texas Law)

If you ever get the opportunity to teach in a law school — either as a full-time legal scholar, or part-time as an expert adjunct practitioner — take it if you can. You might think you know a lot about a particular subject, but there’s nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you “professor” can evoke a smile.

Sensei

But if there’s one downside to the law school experience from the teacher’s side of the lectern, it’s grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use — where we’re dealing with some very high-level stuff and the quality of the…

Continue Reading The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law’s Eminent Domain & Property Rights, And Land Use Courses

IMG_20191108_121950_1

We like oysters. When we think “oysters,” that means going to a restaurant or oyster bar, sitting down, and ordering up a dozen or more. Easy stuff.

But the real work of oyster farming is “arduous, backbreaking work requiring a special dedication.” Avenal v. State, 886 So. 2d 1085, 1110 (La. 2004). It “takes a lot of labor effort,” is “pretty difficult work,” and oyster farmers “have to put in blood, sweat and toil to sometimes turn muddy water bottoms into an area that could be used for oyster cultivation.” Planting and harvesting the oysters means even more work. Knowing the effort that goes into delivering up oysters to consumers just makes us appreciate them all the more.

But the last time we reported on a takings case involving oysters, we had to conclude that the court did not like oysters that much. As property, that is. Yes…

Continue Reading Citing Locke’s Labor Theory, CFC Finds “Property” In Oysters

Screenshot 2021-11-17 at 13-11-12 The Realities of Takings Litigation

Another law review article worth reading. This one from lawprof Dave Owen, is about “The Realities of Takings Litigation” (forthcoming BYU Law Review). That title certainly got our attention – any time a law journal article is about ‘reality’ and takings, and includes empirical research, we’re going to read it.

Here’s the abstract:

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field.

That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an…

Continue Reading New(ish) Article: “The Realities of Takings Litigation” (Dave Owen)

As we’ve said before, you don’t need to know much about takings doctrine to understand that a challenge wherein the property alleged to have been taken are “bump stocks” — devices that allow rapid activation of a semi-automatic rifle such that it roughly imitates a fully-automatic weapon — to understand that courts may be inherently reluctant to limit the government’s authority to regulate their use and ownership even to the point of outlawing it. There’s a long judicial history of courts not getting in the way when it comes to the other branches’ response to the problem du jour. The judicial reluctance many not be rational, it may not be doctrinally consistent. But, in our view, it just is, and that’s something that owners of such property and those of us who seek doctrinal clarity have to take into account.  

Here’s the latest in a…

Continue Reading Fed Cir Tries To Avoid “Police Power” Takings Exception In Bump Stock Case By (Unsuccessfully) Finessing The Property Interest

There’s a lot going on in this cert petition, recently filed. More fallout from the big auto bailouts. Regulatory vs physical takings. And more.

But what really grabs our attention starts on page 35. There, the petition asserts the property owner’s loss in this case is just part of a bigger picture in which the Federal Circuit employs “result-oriented reasoning” in takings cases. Ouch.

The panel’s use of result-oriented reasoning, clearly “a Machiavellian, ends-justifies-the-means process[,]” is unconstitutional because it is beyond debate that “the Constitution … is concerned with means as well as ends.

The exercise of this Court’s Rule 10(a) supervisory power is the only obstacle to the Federal Circuit’s determined dismantling of the guarantees of the Takings Clause.

The most interesting Question Presented asks the Court to review the Federal Circuit’s “but for” requirement — which imposes a causation test that asks whether the damage to the …

Continue Reading Cert Petition: Please Stop The Federal Circuit’s “determined dismantling of the guarantees of the Takings Clause”

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Keynote: Do Animals Have Property Rights?
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Federal Court and the Daubert Challenge: How to Prepare
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t Continue Reading Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

Screenshot 2021-08-11 at 14-56-53 Constitutional Litigator Property Rights (two openings) Pacific Legal Foundation

You’ve got big dreams, you want fame…

If so, here’s your chance: two (2!) Takings Maven Dream Jobs® are now available.

Pacific Legal Foundation requesting applications for positions as a Property Rights Constitutional Litigator. Job description includes “You will find and win the next important Supreme Court property rights case.”

Oh, have we got your attention now?

You: An entrepreneurial freedom fighter with a passion for, and significant experience in, property rights litigation. You find and win cutting-edge property rights cases across the country. You are a national spokesperson for property rights—you speak at conferences, engage the media, and publish scholarship on property rights. You are a leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation. You have demonstrated a dedication to public interest law and property rights throughout your career.

…

You will be a leader in PLF’s…

Continue Reading Takings Maven Dream Job® (x2): Property Rights Constitutional Litigator at Pacific Legal Foundation

Programming note: as we noted here, we’ve recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming…

20151205_150106

Check out this Complaint, filed last week which asks the U.S. Court of Federal Claims to award property owners an unspecified amount (noted as $26 billion in the cover sheet) in just compensation for the taking of the plaintiffs’ property by the Center for Disease Control’s order temporarily halting residential evictions.

The Complaint alleges a physical invasion taking because it precludes “property owners from excluding [tenants] and leasing …

Continue Reading New Takings Complaint: $26 Billion For CDC’s Eviction Moratorium

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Just Relocation: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Federal Court and the Daubert Challenge: How to Prepare
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t miss out. Room block now taking reservations. Continue Reading Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)