Eminent Domain | Condemnation

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Merriamscorner

Land users and dirt lawyers know Dwight Merriam. (And if you don’t, you are not really a land user, are you?)

He’s won landmark cases (has even beaten Yours Truly in one of those cases way back in the day). Written tons of articles and books. Edits Rathkopf. Contributes to Nichols. Mentored multiple generations of land use lawyers (me included). All while serving his country in the U.S. Navy. 

Here’s your chance to tap directly into the source. Dwight has (finally) started a blog, Merriam’s Corner, about the topics we all love. 

So sign up and follow. Listen in as Dwight thinks out loud for our benefit.

Welcome to the blog world, Mr. Merriam.  Continue Reading New Land Use Law Blog To Follow: Merriam’s Corner (“Life, Liberty, and the Pursuit of Land Use”)

Recently, we requested crowdsourcing of this year’s “come to the ALI-CLE Eminent Domain Conference video.” Instead of doing the video ourselves, we asked folks to “please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required.”

Our friend and colleague, St. Louis’ Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” Which he gave in a Starfleet captain’s uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don’t agree that Paul has now raised the video bar. …

Continue Reading Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

There’s a bit of Inception-level dream-within-a-dream stuff in the U.S. Court of Appeals for the Third Circuit’s opinion in Tennessee Gas Pipeline Co. LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (July 23, 2019), because the court held in takings by a private condemnor exercising the delegated power of eminent domain under the federal Natural Gas Act, the governing rules about just compensation are provided by federal common law. But “[b]ecause federal law does not supply a rule of decision on this precise issue, we must fill the void with a common law remedy. In doing so, we opt to incorporate state law as the federal standard.” Slip op. at 3.  

So the applicable federal common law of just compensation incorporates state law. Got it. 

Here, the fight was over “consequential damages” which the property owner incurred as a result of the pipeline taking, such as professional fees…

Continue Reading In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law)

The Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:

Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right?

Friday, July 26 | 2 – 2:30pm ET

Here’s hoping you can join us for a half hour on the 5-4 SCOTUS decision in Knick v. Township of Scott (June 21, 2019). Knick overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.

Presenters Dwight Merriam and Robert Thomas will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater?

Continue Reading Upcoming Webinar – Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? (free for State and Local Govt Law Land Use Committee members)

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I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

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Continue Reading Cases And Links From Today’s Eminent Domain And Pipelines Conference (Houston)

Here’s what we’re reading this Friday:

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Continue Reading Friday Round-Up: California Inverse Condemnation, Lawprof Epstein Litigates Public Trust, Property In Ecology, And More

We were all set to offer our deep analysis of the California Court of Appeal’s recent (published) opinion in Three Aguila, Inc. v. Century Law Group, LLP, No. B289452 (July 2, 2019), when our colleagues at the California Eminent Domain Report blog beat us to it. 

In “Court Decision Serves as Important Reminder on Crafting Lease Condemnation Provisions,” Brad Kuhn writes about a case in which the condemnation clause in a lease provided that the landlord would be entitled to “[a]ll awards for the taking” (subject to the usual/common limitations). 

In California eminent domain cases, businesses may recover goodwill by statute. When the premises were condemned, the landlord invoked the condemnation clause and asserted that it, not the tenant, was entitled to recover the goodwill. Brad writes:

On appeal, the Court held that the property owner was not entitled to compensation for the business’ goodwill. While parties…

Continue Reading Cal App: Business Goodwill “is compensable separate and apart from the parties’ interests in the property taken.”

If you are going to be attending the ABA Annual Meeting in San Francisco next month, here are some of the CLE and other programs of interest to property, land use, and eminent domain types, sponsored by our Section, the State and Local Govt Law Section: 

Thursday, Aug. 8

  • Knick Overrules Williamson County: What Does it Mean for Eminent Domain (in person, or webinar)

    In June 2019, the Supreme Court overruled its Williamson County precedent, which required that property owners, as a practical matter, must bring their Fifth Amendment takings claims against state or local governments in state courts. The Court’s new decision, in Knick v. Township of Scott, allows them to bring their inverse condemnation claims directly in federal court. Their insights into this important decision and its ramifications will be discussed by panelists who pled both sides of this case. Moderator: Steven J. Eagle, Professor Emeritus,

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Continue Reading Dirt Lawyer CLE At ABA Annual Meeting (San Francisco)

Back to Knick for a bit. Our colleague Dwight Merriam has penned a response to a recent op-ed by U.S. Senator Sheldon Whitehouse (D – RI).

The good senator, if you weren’t aware, was also the guy who argued and lost the Palazzolo case all the way back in 2001. Apparently, he’s still sore about that, because in response to Knick, he wrote, “‘Knick’-Picking: Why a Recent Supreme Court Ruling Signals a New Day,” in which he argued that the decision “is a gift for big-money developers and regulated industries.” (Neither Ms. Knick nor Mr. Palazzolo is or were a big-money developer or a regulated industry, in case you were wondering.)

Merriam doesn’t see it the same way as the august senator. In “Senator is Wrong About ‘Knick’ Ruling,” he sets the record straight (originally published at law.com). 

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Senator Whitehouse…

Continue Reading Guest Post: Senator Is Wrong About Knick Ruling