Inverse condemnation

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Here are some thoughts about the Federal Circuit’s recent opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013). It’s a long opinion, and we haven’t had a chance to digest it in detail, so these thoughts are not ours but are informative nonetheless. We offer this link to “The US wins the latest round in the Casitas saga” form environmental lawprof Holly Doremus at Legal Planet. She writes:

The Court of Claims ruled for the government, dismissing Casitas’s claim as not ripe on the grounds that the District had not shown any such interference [with Casitas’ water rights], at least not yet.

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In one sense this latest decision leaves the dispute hanging. The case was dismissed without prejudice, meaning that Casitas is free to file again if and when it can prove that the fish ladder has actually prevented it…

Continue Reading More On Casitas Water Rights Takings Case: “[T]he touchstone for takings cases is whether the property owner is being treated unfairly”

In Midwest Materials, Inc. v. Wilson, No. 84A04-1205-MI-258 (Feb. 27, 2013), the Indiana Court of Appeals held that Midwest did not suffer a taking for the loss of its property during the time a requirement that it provide water service to neighboring residences as a condition of a “special exception” needed to build a “molecular methane gas processing unit” on its own property was in force. The trial court eventually struck down the condition, and Midwest then alleged it suffered a temporary taking under Indiana law (only) for the time in which the permit condition was in effect.

On the inverse condemnation claim, the trial court held that Midwest had not been deprived of use of its property, and the Court of Appeals affirmed under Indiana’s version of the multi-factor Penn Central test. “The trial court did not err when it concluded that the seventeen-month period from the time…

Continue Reading Indiana App: No Temporary Taking In Seventeen-Month Loss Of Use

This just in. The Federal Circuit has issued an opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013), a case we’ve been following for a while.

The court affirmed the CFC’s dismissal of the case on ripeness grounds:

Casitas Municipal Water District (“Casitas”) operates the Ventura River Project (the “Project”). The Project, which is owned by the U.S. Bureau of Reclamation (“BOR”), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims…

Continue Reading Fed Cir: Water Rights Takings Claim Not Ripe

Here the first briefs filed in which the parties attempt tofigure out what the Supreme Court meant inArkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012)

Once the Supreme Court rejected that per se rule of no liability, the Court of Federal Claims in Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of the case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion on the case.

Recall that the Supreme Court’s unanimous opinion held that courts must “weigh carefully the relevant factors and circumstances” presented in a flooding case: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking”
  • Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the

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Continue Reading First Briefs On Impact Of SCOTUS’ Arkansas Game Opinion

Here are the links to the materials and briefs from the Supreme Court’s three taking cases which we are discussing at today’s teleconference sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his “what’s next” talk about Arkansas Game. Update: here are the Big Oak briefs.Continue Reading Links And Materials From Today’s ABA Takings Teleconference

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon – 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.
Continue Reading Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

Update January 20, 2015: here are links to the most recent reports and the cert-stage briefs in the second go-round for the case: Horne II “The World’s Most Outdated Law” Crahses Headlong Into Takings. 

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It’s not really the “Sun-Maid Girl,” but rather the organization the trademark now represents, Sun-Maid Growers of California., who filed this amicus brief supporting the U.S.D.A. in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012).

The brief makes one main point: the Hornes, as raisin “handlers” cannot assert a takings defense because they didn’t have title to the raisins they claimed were taken, and thus lack standing:

Petitioners indisputably have no standing to assert a Takings defense to avoid civil liability, as handlers, for failing to set aside as reserve tonnage the raisins produced by other producers, because as handlers petitioners never took title…

Continue Reading “Sun Maid Girl” Files Amicus Brief In California Raisin Takings Case

Here’s a case that illustrates the weird results that can occur in takings cases where a property owner can be deemed to be too late (the statute of limitations) or too early (ripeness), take your pick.

In 1996, Mr. Smith got disbarred by the Tenth Circuit and a few other federal courts, and in 1999 by the Colorado Supreme Court as a reciprocal matter. In 2007, he was reinstated in all but the Colorado courts. Because the Colorado court did not reinstate him, however, the U.S. District Court for the District of Colorado reversed itself and denied reinstatement, and in 2010, the Tenth Circuit affirmed. Smith then sued in the Court of Federal Claims under the Tucker Act, seeking  damages for due process, equal protection, and — you guessed it — a taking. A judicial taking. Smith claimed that his law license was property taken by the federal court.

Now…

Continue Reading Federal Circuit Discusses Judicial Takings … In A Disbarment Case?

Update: Gideon Kanner’s thoughts on the case here.

As we mentioned in this post about earlier proceedings in the case, when the plaintiff/property owner’s name is “Jerry McGuire” and he is asserting a claim for compensation, it’s inevitable that we all make reference to the “show me the money” catchphrase from Jerry Maguire, the 1996 Cameron Crowe film. So we have.

With that out of the way, let’s get to the Federal Circuit’s opinion in Maguire v. United States, No. 2012-5073 (Feb. 20, 2013), in which the court held that McGuire’s takings claim was not ripe and he had no “property” that was taken.

First, the facts. McGuire leased farmland from an Arizona indian tribe, administered by the Bureau of Indian Affairs. The BIA removed a bridge that connected two of the parcels over a canal, which effectively landlocked one of the parcels. The bridge…

Continue Reading Fed Cir Doesn’t Show Jerry McGuire The Money: Property Owner Required To Pursue “Ambiguous and Informal” Permit Procedure

Bulldozersatyourdoorstep

Our Owners’ Counsel of America colleague Michael Rikon and his law firm have launched a new blog, “Bulldozers at Your Doorstep – A National Blog on Eminent Domain.”

The blog will give us Michael’s and his colleagues’ view of eminent domain and condemnation issues from their unique New York perspective, from lawyers who specialize in eminent domain defense.

Recent posts include a discussion of corridor valuation, the introduction of a bill in North Carolina to limit Kelo‘s impact, and how the U.S.’s energy independence may result in an upswing in the exercise of eminent domain.

Definitely worth following. Continue Reading New Eminent Domain Blog – “Bulldozers at Your Doorstep”