Eminent Domain | Condemnation

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Here’s the amicus brief, filed yesterday by Pacific Legal Foundation is support of the cert petition we filed last month which asks the U.S. Supreme Court to review a decision of the Mississippi Supreme Court.

First, some background. In 2005, Hurricane Katrina destroyed “Toll Project No. 1,” the U.S. Highway 90 crossing of Bay St. Louis, Mississippi. The bridge had been partially built on Petitioner Bay Point’s property pursuant to a highway-purpose easement granted to the State in 1952 by Bay Point’s predecessor-in-title. After the hurricane, the Mississippi Transportation Commission removed what was left of the bridge. The destruction of the bridge and the removal of the remnants discontinued the specific use authorized by the easement, and Bay Point should have immediately recovered unencumbered possession. Instead, MTC built an entirely new bridge in a different location, and converted the majority of the former highway easement into a public recreational park.…

Continue Reading New SCOTUS Amicus Brief: Just Compensation Is Determined By Courts, Not Legislatures

When most jurisdictions reacted to the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S 469 (2005), they — naturally being aghast at the result — adopted legislation that either purported to make it easier on landowners, or harder on condemnors. Understandable, as the public uproar which Kelo caused has yet to settle down completely even a decade later.

But not Louisiana. Oh no, that state’s legislature apparently decided that Kelo was a good opportunity to make it harder for a property owner to recover compensation. We’re not even going to pretend to understand all that is going on in South Lafourche Levee District v. Jarreau, No. 2016-C-0788 (Mar. 31, 2017),  with its differences between “expropriation” and “appropriation,” compensation measured by “full extent of the loss” versus merely “just compensation,” and the like. Louisiana, after all, can be a whole ‘nother brand of law, sometimes.…

Continue Reading La: “Something is wrong” – Post-Kelo Amendments Reduced Compensation For Levee Servitudes From “Full Extent Of The Loss” To Fair Market Value

It’s flashback to Property I class today, folks.

Yesterday’s opinion from the U.S. Court of Appeals for the Eighth Circuit in Barfield v. Sho-Me Power Elec. Coop., No. 15-2964 (Mar. 29, 2017) was about easements, and there wasn’t really a takings issue presented, but we thought we would post it anyway since it is a good reminder of your traditional “Blackacre” property law principles, and because we have had easements on the brain lately, due to that topic being at the center of a cert petition we recently filed. 

As the caption of the case might inform you, this was a case about Missouri law, in federal court presumably under diversity jurisdiction. The plaintiffs had granted Sho-Me, a rural electric cooperative, easements which gave it “the right to construct and operate an electric transmission line. Some grant the right to construct appurtenances or do things ‘necessary and useful to…

Continue Reading 8th Circuit: Not Using Easement For Granted Purpose = Trespass And Inverse Condemnation, But Not Unjust Enrichment

Honolulu Civil Beat has an interesting editorial today about the Honolulu rail project, the 20-station, 21-mile elevated steel-on-steel project now being built at a cost that was first projected at about $3.8 billion, and at last count is somewhere in the $8 – $11 billion range.

The editorial, “Honolulu Rail: City Needs To Get It Together Or Give It Up,” posits that the “perpetually beleaguered rail project is still at least $2 billion short,” and “the absence of any decisive leadership … leav[es] taxpayers on ‘a never ending hook.'” The City, the piece argues, needs to get its act together, because the people, “are by no means past the point of no return,” and substantially modifying, or even killing the project and rebooting should not be ruled out.  

In our opinion, none of that will happen. Now that we are past the recent election — yet another…

Continue Reading Rickrolling Rail

Another one (short) from the Kansas Supreme Court, this time a straight takings case, and not inverse condemnation. 

In Pener v. King, No. 114850 (Mar. 24, 2017), the court tackled several issues in a case involving KDOT’s taking of land for highway project. Part of the taking required KDOT to take down the owner’s fences. The owner argued that he should be separately compensated for the cost to replace the fencing. The Supreme Court held that the just comp award included the fencing, and that it wasn’t a separately value taking. The “unit rule” means that property is valued as a whole, not piece by piece. 

The court also rejected the owner’s argument that the just compensation verdict wasn’t supported by the evidence (we will let you read that on your own, if interested), and then concluded by affirming the trial court’s denial of an award of attorneys’…

Continue Reading Kansas: Cost Of Replacing Fence On Condemned Property Isn’t Separate, But Part Of Just Comp Award

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We were in the neighborhood recently, so our Canadian colleague Shane Rayman suggested we pay a visit to the site of the largest expropriation (taking) of land in that country’s history, and what has been described as “the largest population displacement … since the 18th-century expulsion of the Acadians from the Maritimes.” 

We’re talking about Montreal’s Mirabel International Airport, located about an hour north of the city.

You’ve flown into Montreal and don’t know this airport, you say? Well, here’s the (short) story and some pictures. For the longer tale, start with the wikipedia entry, the hit up these news reports:

In the 1960’s, Montreal was booming. It was Canada’s…

Continue Reading “A Total Disaster From Start To Finish” – Expropriation And Economic Development, Canadian Style

We think we can find a takings angle in nearly anything. See here (net neutrality) here (the Supreme Court’s Obamacare decision), and here (a visit to Los Alamos, NM) for past examples. 

So when reviewing last week’s U.S. District Court (D. Hawaii) order granting a nationwide TRO prohibiting enforcement of President Trump’s executive order on immigration (something, we admit, has nothing to do with our usual topics — we were armoring up for the inevitable cocktail party questions), we came across the court’s reliance on several cases which allowed it to “go behind” the purported purpose of the EO, to get to the “real” reason it was adopted: religious animus. See Order at 32 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977)).

We knew we had …

Continue Reading The Eminent Domain Angle In The Hawaii Federal Court’s Immigration EO Ruling

As takings mavens are no doubt already aware, next Monday, the 8-Justice Supreme Court will hear arguments in Murr v. Wisconsin, the regulatory takings case which asks whether the county can avoid application of the Lucas wipeout standard on one parcel by taking advantage of the fact that the plaintiffs also own the adjacent parcel. Thus, the county argues, both parcels should be combined to determine how the regulation has impacted the property. 

Others have done a better job at previewing the issues than we could hope to (see SCOTUSblog, the National Constitution Center, and the Federalist Society), so we won’t do a big summary here, but will limit ourselves to pointing out what we think will be the key areas of contention. Go read the voluminous briefing as well. And with the Court one-Justice-down for this case, we’re certainly not going to even venture…

Continue Reading SCOTUS Argument Preview: Does Fee Simple Absolute Mean Anything? The “Larger Parcel” Issue In Regulatory Takings

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Here’s a case you should be following which involves both public use and just comp issues, now before the Louisiana Supreme Court.

The case is an appeal in an expropriation case from a quick-take of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” private operator.

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC, No. 2016-CA-0096 (La. Ct. App. Dec. 14, 2016), the Louisiana Court of Appeals, over a strong dissent, rejected the owner’s arguments that the Port could not take the property for economic development, the taking was for private benefit, and the argument that the Port was really taking the property in order to obtain VDP’s contracts with the Navy. The court also…

Continue Reading Eminent Domain Case To Watch: Violet Dock Port (Louisiana S Ct)