Inverse condemnation

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In Palmyra Pacific Seafoods, L.L.C. v. United States, No 07-35L (Jan. 22, 2008), the U.S. Court of Federal Claims (the article I court that hears inverse condemnation claims against the federal government) held that federal regulations which prohibited commercial fishing in waters around Palmyra Atoll and Kingman Reef did not take the plaintiffs’ licenses for  commercial fish processing facilities on the atoll.

The plaintiffs were exclusively licensed by the owners of Palmyra Atoll (located approximately 1,000 miles south of Hawaii) to commercially fish the nearby waters, and to use the atoll’s airstrip, dock, harbor, and base came for their commercial fishing enterprise.  In reliance on the licenses, the plaintiffs invested several millions of dollars in on-island infrastructure, and actually began commercial fishing operations.  Slip op. at 2 & n.1.   

In 2001, however, the Secretary of the Interior designated the waters surrounding Palmyra and Kingman Reef as National Wildlife…

Continue Reading Court of Federal Claims: Commercial Fishing License Not “Property”

Mark your calendars for February 29, 2008.  That’s the day the US Supreme Court will decide whether to review a petition for certiorari which calls for the overruling of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the case that brought us the “ripeness” rule in regulatory takings.  A summary of the Williamson County rule is in this post and the comments.

The case is Peters v. Village of Clifton, No. 07-635.  The Seventh Circuit’s opinion is here.  SCOTUSblog calls the case a “petition to watch,” and has posted the cert petition, the opposition, and the supporting amici briefs here.

The Questions Presented by the cert petition are:

1.  Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City to the extent it requires property owners
to seek compensation in state courts to ripen a federal takings…

Continue Reading Williamson County Cert Petition and Supporting Briefs

Thanks to Professor Patty Salkin for calling attention to a recent case from a Missouri federal court that provides a good (if that word can be used) illustration of the weird shell game that is played by the federal courts when it comes to regulatory takings claims, Reagan v. City of St. Louis, No. 4:07CV1487 (Jan. 31, 2008).

Reagan brought regulatory takings claims against the city for downzoning her land from industrial to residential, making her land unsuitable for her business.  Reagan filed suit against the city in state court, alleging that the city’s actions violated the federal takings and due process clauses, and the Missouri takings clause.  Prior to trial, Reagan dismissed the federal takings claim, presumably because she was trying to keep open the possibility of federal court review of the issue at some point in the future. 

In other words, the property owner did expressly did…

Continue Reading Williamson County Illustrated: You’re Either Too Early, or You’re Too Late

The Garden Island reports that the Kauai County Council is considering a ban on “gated communities” —

A stalled plan to ban gated communitiesshould return to County Council’s agenda by the end of February, MayorBryan Baptiste said yesterday. 
   
“It’s not a public safety issue to me,” he said. “It’s so we don’t isolate ourselves from each other.”

All I can say about the issue is, what about the right to excludeothers?  This may be the most fundamental “stick” in the bundle of rightsknown as property, and can’t be taken away by regulation, no matter how well-intentioned the regulation may be. 

After all, if you can’t keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987):

We have repeatedly…

Continue Reading The Right to Exclude Others From Gated Communities

Thanks to Patty Salkin’s Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin’s summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.…

Continue Reading Nevada SCT: Upon Further Review, It’s a Per Se Regulatory Taking

In John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008), the U.S. Supreme Court held that the six year statute of limitations in the Tucker Act is “jurisdictional,” and must be ruled upon by a court when raised by an amicus on appeal, even when the government had waived it.  The property owner brought an inverse condemnation action in the Court of Federal Claims, asserting the federal government took its property without compensation when it placed fences on its leased property.  Inverse condemnation claims seeking compensation from the federal government in excess of $10,000 must be brought in the CFC.  The Federal Circuit opinion is posted here (500kb pdf).

The short majority opinion by Justice Breyer held that the Court had reached the same result in earlier decisions, and those decisions should not be overruled.  Invoking the principle of stare decisis, the Court held…

Continue Reading Supreme Court: Getting It Right Doesn’t Matter – Statute of Limitations in Inverse Condemnation Claims Against the Federal Government is Jurisdictional

A federal regulatory takings claim being litigated in the first instance in federal court?  Why, that’s as rare as hen’s teeth.

Here’s the deal: under Williamson County Regional Planning Comm’n v. Hamilton Bank,473 U.S. 172 (1985), a federal regulatory takings claim is not ripe until the property owners has first pursued compensation through available state procedures.  In other words, property owner, go first to state court.  But under City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997), the same rules don’t apply to the government, since it can choose to remove a state court takings claim to federal court, and have the property owner’s federal claims heard initially in federal court.  So in those rare circumstances when a local government wants to buck conventional wisdom and litigate a takings claim in federal court, it has the choice of forum.

For one recent example of this…

Continue Reading Regulatory Takings Claims in Federal Court?

Thanks to Professor Patty Salkin for forwarding a recent $17 million inverse condemnation judgment from the Texas Court of Appeals.  Trail Enterprises, Inc. v. City of Houston, No. 10-05-00382-CV (Nov. 21, 2007).  It’s a short opinion without much background, so we don’t know what actions by the city resulted in Trail bringing suit, but it’s Houston, so it’s a safe bet that the case involves oil.  Apparently, the city passed an ordinance that prohibited or restricted Trail’s ability to drill.  The trial court held there was a taking, a jury determined compensation, but the court granted the city’s post-trial motion to dismiss for ripeness.

The issue on appeal was whether Trail’s claims were ripe since it challenged the regulation without first applying — and being denied — a drilling permit or a variance from the prohibition.  “Ripeness” in this context usually requires that a property owner file, and be…

Continue Reading Takings Claim Ripe Upon Enactment of Regulation, No Permit Application Necessary

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff’s land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008). Continue Reading Podcast on $37m Federal Inverse Condemnation Judgment

As reported here and here, the City of Half Moon Bay, California is going to appeal the $37 million federal inverse condemnation judgment to the Ninth Circuit.  In the first story, the San Francisco Chronicle reports:

The Half Moon Bay CityCouncil on Tuesday night voted to hire a team of appellate lawyers andannounced it would fight a potentially ruinous federal court decisionthat orders the city to pay $36.8 million to a developer in a propertydispute.

“The City Council has decided to go forward with an appeal,” MayorBonnie McClung told a crowd of more than 70 people gathered for thecouncil’s first regular meeting since the ruling came down. “We areunited in our position at this point that this is the best course ofaction for us.”

The council voted unanimously to hire Orrick, Herrington &Sutcliffe, a San Francisco law firm that specializes in public financeand corporate law. In the same

…
Continue Reading City Will Appeal $37 Million Inverse Condemnation Judgment to Ninth Circuit