Inverse condemnation

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I’ve finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court’s decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), “Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins.” 

The essay explores the incentives createdby Wilkie v. Robbins for intentional circumvention of the Takings andJust Compensation Clauses by federal agents and addresses the dangersthereby created for any meaningful protection of private propertysought by the Federal Government, as well as the dangers created forthe meaningful protection of other constitutional rights againstdeliberate erosion by federal agents.

I posted a summary of the case here, and published an op–ed in the Honolulu Advertiser about the decision.Continue Reading Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

The US Supreme Court today denied review to three cases we’ve been following:

  • Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) – Justice Alito would have granted the petition.  Justice Alito had not been appointed to the Court at the time of Kelo, so this may signal another vote for property owners if this issue ever makes it back up.

Here’s the Order. Continue Reading Cert Denied in Three Cases

The speed of information on the internet sure is fast.  I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States,No. 91-1470L (May 6, 2008), which awarded Nevadaproperty owners several million dollars in just compensation for the taking of theirvested water rights by the federal government, but Professor Gideon Kanner and the Real Estate and Construction Law Blog both beat me to the punch.

Kanner’s commentary on the case, “Posthumous Victory for Hage” is posted here. “Federal Claims Court Awards $4.2M to Ranchers’ Estate for Taking of Water Rights” is posted here.

Read the CFC’s opinion here.Continue Reading Court of Federal Claims Awards Compensation for Taking of Vested Water Rights

The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States,No. 07-1521 (Fed. Cir. May 1, 2008). 

In that case, the Federal Circuit held that when an innocent party’sproperty is seized for use in a criminal prosecution but never used as evidence, no FifthAmendment taking has occurred even though the property was rendered valueless during the time the government possessed it.  The government seized a largequantity of legal prescription drugs in its investigationof a pharmacy but never used the drugs as evidence.  Although the drugs were eventually returned to the owner, they had expired in the interim.

The Federal Circuit agreed with the government’s argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated.  Yes, paying for property seized as evidence may force the government to think…

Continue Reading Federal Circuit En Banc Petition in AmeriSource

Keep an eye out on June 19, 2008: that’s the date the US Supreme Court will consider whether to grant review of the Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision I blogged about here.  The issue in that case, as posed by the petitioner is:

Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the fight to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

Clark County, Nevada imposes a height restriction on structures near McCarran Airport in Las Vegas, While the Ninth Circuit held there was no regulatory…

Continue Reading Cert Petition Asks: Is There A Federal Avigational Servitude?

Attorneys forHilaria and Baldomero Muniz and another landowner have asked a panel ofjudges at the 5th U.S. Circuit Court of Appeals in New Orleans to voida federal judge’s order that they open their land to surveyors for theborder fence.

They argue that the district judge erred when he allowedgovernment officials to attempt to negotiate property access aftersuing. They say the law requires the government to try to strike a dealbefore &mdash…

Continue Reading Takings Round Up

The property owner has filed a Petition for Rehearing asking the California Court of Appeal (2d District)to reconsider its decision in Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm’n,No. B190122 (May 8, 2008).  In that case, the court held the property owner’s right to develop was not vested, and that atakings claim was not ripe since the owner could submit other plans fordevelopment.  The Land Use Law Blog details the case and provides commentary in “The Development Blues: Property Lies Undeveloped for 30 Years and Counting.”

The opinion’s opening paragraphs took a literary approach to the issue, citing “September Song,” Einstein, and Heraclitus.  The Petition responds with flourishes of its own, quoting Stephen Hawking’s “A Brief History of Time,” and Jim Croce’s “Time in a Bottle,” arguing that the opinion overlooked or misstated the facts of the case…

Continue Reading Petition for Rehearing in Pratt Construction v. Cal. Coastal Comm’n

In Richard A. Forsgren Revocable Living Family Preservation Trust v. United States, No. 07-14L (May 12, 2008), the Court of Federal Claims (the court which has exclusive jurisdiction over inverse condemnation claims against the federal government in excess of $10,000) held that a property owner who alleged the government caused its land to flood by not maintaining a subsurface drain stated a claim under the Fifth Amendment, and that the claim was not barred by the six year statute of limitations.  On the statute of limitations issue, the court discussed the US Supreme Court’s recent decision in John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008) which held that the six year statute is jurisdictional.  Read the complete opinion here. Continue Reading CFC: Takings Claim For Flooding Not Barred By Statute of Limitations

In Huntleigh USA Corp. v. United States, No 2007-5118 (May 15, 2008), the US Court of Appeals for the Federal Circuit held that a company which provides passenger and baggage screening services at airports did not have a protectable Fifth Amendment property interest in contracts to provide those services to airlines.  Huntleigh sought just compensation for a taking after the federal government assumed security screening in the wake of the 2001 terror attacks, and rendered its existing screening service contracts worthless.

In 1974, Congress required the airlines to screen passengers and luggage, and most airlines hired private contractors to perform the screenings.  In 2001, Huntleigh had contracts with 75 airlines, and was responsible for screening at 35 airports nationwide.  After the 2001 terrorist attacks, Congress created the Transportation Security Administration and determined that the new agency could provide better security.  Congress enacted the Air Transportation Security Act which provides that the TSA could accomplish the screening itself, or could “assume the rights and responsibilities” of the airlines by assuming private security contracts.  If TSA chose the latter option, ATSA required it to provide “adequate compensation to parties to the contract.”

The law effectively terminated Huntleigh’s security contracts, and it filed suit in the Court of Federal Claims seeking just compensation for a taking of its property, and compensation under ATSA.  The CFC held that Congress had merely frustrated Huntleigh’s business expectations, and that TSA had not actually assumed any of its contracts but had instead taken over its screening duties.

The Federal Circuit affirmed, holding that the contracts were not property.  Huntleigh argued that the government did not merely frustrate its business expectations, but had, in effect, made its contracts illegal.  Relying upon Omnia Commercial Co. v. United States, 261 U.S. 502 (1923), the court disagreed.

In this case, the purpose of ATSA was not to take action with respect to any security screening contract to which Huntleigh was a party. Rather, its purpose was to transfer security screening responsibilities from the airlines to the federal government. This action, directed at the airlines, frustrated Huntleigh’s business interests.

Slip op. at 17.  The court also affirmed the CFC’s determination that ATSA compensation was not required because TSA did not actually assume Huntleigh’s contracts, but took over its duties.  A fine distinction, but one that was enough for the Federal Circuit.  Slip op. at 22.
Continue Reading Federal Circuit: No Property in Contract for Airport Screening Service

In Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm’n, No. B190122 (May 8, 2008), the California Court of Appeal (2d District) held the property owner’s right to develop was not vested, and that a takings claim was not ripe since the owner could submit other plans for development.

In that case, the California Coastal Commission denied a coastal development permit, and the property owner sought an order compelling the permit to issue, as well as damages for the taking of its property.  The owner’s first claim was that its right to develop was vested in 1990 pursuant to Cal. Govt. Code § 66498.1 et seq. when it filed the vesting tentative map.  The court rejected the argument, holding that vesting only applies to “requirements created and imposed by local ordinances,” and coastal policies are matters of statewide concern.  Slip op. at 4-5. The court also rejected…

Continue Reading Cal. Court of Appeals: Taking Claim For Denial of Coastal Development Permit Not Ripe