Inverse condemnation

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Here’s the amicus brief filed today on behalf of the International Municipal Lawyers Association in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012). The brief argues:

Petitioners have needlessly complicated the vindication of their asserted rights under the Takings Clause of the Fifth Amendment by failing to file a straightforward claim for just compensation in the U.S. Court of Federal Claims. Petitioners have long participated in the raisin industry marketing program which they now believe results in a taking. Thus, they could easily have filed a claim for just compensation in the U.S. Court of Federal Claims based on this asserted taking. Instead, petitioners decided to disregard federal law requiring that they participate in the program and now seek to invoke the Takings Clause to defend against the sanctions imposed as a result of their illegal action.

This effort should fail for three…

Continue Reading IMLA Amicus Brief In California Raisin Takings Case: Tucker Act Is Exclusive Method Of Raising Takings Arguments

Here’s what we’re reading on this Tuesday-after-a-long-weekend:

  • “Economic Impact in Regulatory Takings Law,” a forthcoming article by lawprof Steven J. Eagle about one of the prongs of the Penn Central takings test. Professor Eagle “concludes that unresolved issues and complexities in adjudicating the ‘economic impact of the regulation on the claimant’ test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.”
  • “NY Fed report sees cracks in eminent domain proposals” – “… a new blog from researchers at the Federal Reserve Bank of New York suggests such a plan would have proved to be ineffective anyway. Their reasoning for this conclusion is that many of the targeted borrowers have already benefited from either falling interest

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Continue Reading Tuesday Tidbits

Mark your calendars: on Thursday, February 21, 2013, James Burling, director of the Pacific LegalFoundation and principal attorney at PLF’s Property Rights practice group and U. Hawaii lawprof Maxine Burkett willdiscuss “Do Property Rights Matter When The Environment IsGoing To Hell In A Handbasket?“

The forum — presented by the EnvironmentalLaw Program and the Federalist Society — will beginat 12:15 p.m. in CR1. Light refreshments will be served. Please RSVP to elp@hawaii.edu.

More below.

Do Property Rights Matter When the Environment is Going to Hell in a Handbasket?


Continue Reading PLF’s Jim Burling To Discuss Property Rights And The Environment At U.H. Law School

Here’s the SG’s merits brief in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012),

In Horne, the question is whether farmers who assert that an agricultural regulations known as “marketing orders,” by which they are forced to surrender large percentages of their raisin crops to the USDA without payment or else face massive fines, can raise the argument that to do so would be a taking when defending against the fine, or if their only option is to pay the fine and file a lawsuit in the Court of Federal Claims to recover just compensation. The Ninth Circuit held the District Court had no jurisdiction to hear the takings defense, and the only option was new litigation instituted by the Hornes in the CFC to get the fine back.

The SG’s brief argues the Hornes do not have standing to assert a…

Continue Reading Government Brief In California Raisin Takings Case

If you are a member of the ABA, mark your calendars for Tuesday, February 26, 2013, noon to 1:00 p.m. Eastern Time, for a free 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.

Here’s the description:

For the first time since 2005, the U.S. Supreme Court hasthree property rights cases on its docket. One of them, Arkansas Game &Fish, regarding compensation for flooding, was decided in December.  Another,Koontz, concerning the applicability of the Nollan and Dolan nexustests, has been argued. The final case, Horne, a most unusual case about whatmight be described as raisin sequestration, is still on the sidelines.

An expert panel — two practitioners, a federal researcher,and a law professor…

Continue Reading ABA Takings Roundtable – The U.S. Supreme Court Property Rights Cases – Feb. 26, 2013

Worth listening: a 17-minute podcast by Professor Richard Epstein, with his thoughts — apparently without a script and seemingly in a single breath — on the oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). 

Download the mp3 here. If that doesn’t work, go here.

Continue Reading Epstein’s Podcast On Koontz: “The Vexed Doctrine Of Unconstitutional Conditions”

What we’re reading today:

  • Grand Central Station and The Takings Clause – from the Constitutional Law Prof Blog, a link to a WNYC/NPR podcast about Grand Central Terminal and the Penn Central takings case. Worth listening, if only to hear the money quote near the end: “you see New Yorkers all the time staking claim in this building, pointing up at cerulean blue sky saying ‘hey, this belongs to us.'” Yes, we guess it does. And you know what? You didn’t pay for it.
  • Another one about the 100th anniversary of Grand Central: Gideon Kanner writes Calling All Grand Central Junkies!, linking to the NY Times‘s republication of its 1913 special celebrating the opening of the terminal.
  • In that vein, a snarky commentary about the wonders of Pennsylvania Station. Who needs a cerulean blue sky?
  • In what reads more like a redeveloper’s press release, the Washington Post

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Continue Reading Wednesday Round-Up: Grand Central, Oysters No More, And Originalist Takings

Most federal takings claims against state and local government do not get heard in federal court (except to dismiss them on res judicata grounds), under the one-two punch of Williamson County and San Remo Hotel.  

Williamson County forces property owners into state court because a claim under the Fifth Amendment is not ripe until the state has denied compensation, which includes pursuit of a state law takings claim in state court, while San Remo Hotel penalizes a property owner for pursuing a state law claim in state court by concluding that she will unwillingly litigate her federal takings claim in the course of litigating her state law takings claim, thus, when her federal claim has been ripened by the visit to state court, the preclusion doctrines kick in to prevent her from raising it in federal court.

All of this presumes that the state law of whatever jurisdiction…

Continue Reading Alabama Guys: Gear Up For Federal Court. Your Supreme Court Concluded That Alabama Law Does Not Recognize Regulatory Takings

Did you know that as a Hawaii landowner you own all unmarked or unbranded cattle, horses, mules, donkeys, sheep, goats, and swine, over twelve monthsof age, which may be running wild on your land? Yeah, we knew that.

We also knew that you are going to love any opinion that starts out with “[t]he dispute between the parties arises from [the Department of Hawaiian Home Lands]’s roundup and sale of roughly 115 head of Nobriga’s cattle.” Our mind immediately hears the twang of Frankie Laine’s rendition of the Rawhide theme as we dive into the case. So you’ve really got to check out the opinion of the Hawaii Intermediate Court of Appeals in Freddy Nobriga Ent. Inc. v. State of Hawaii Dep’t of Hawaiian Home Lands, No. 28805 (Jan. 30, 2013), a fact pattern straight out of the Old West (and your Property 101 casebook).

Nobriga grazed his herd…

Continue Reading Some Days You Get The Bull, Some Days The Bull Gets You

Here’s the Federal Circuit’s Order for additional briefing in the Arkansas Game & Fish Comm’n v. United States case. As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking because it was not “permanent, ” and remanded the case to the Federal Circuit for more.

Now that the Supreme Court has rejected that per se rule of no liability, the Federal Circuit must “weigh carefully the relevant factors and circumstances” in the case (to quote the Supreme Court describing the task) and determine whether the flood damage that occurred was a taking under the new, multi-factor test set out in the Court’s opinion:

  • “[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 invasion is intended or

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Continue Reading Fed Cir: More Briefing On Arkansas Game & Fish