Inverse condemnation

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Back in May 2007, the US Supreme Court granted review in John R. Sand & Gravel Co. v. United States, No. 06-1164.  Docket listing here.  The issue, as I mentioned here is:

The statute of limitations codified in 28 U.S.C. § 2501 provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.  The question presented is:

Whether the statute of limitations in 28 U.S.C. § 2501 limits the subject matter jurisdiction of the Court of Federal Claims.

The petitioner’s brief has been posted here (500kb pdf).  The issue of whether a time limit is merely “procedural” or “jurisdictional” goes to whether it may be waived by the defendant.  Procedural time limitations are lost if the defendant fails to assert them.  Issues of subject matter jurisdiction, however, cannot…

Continue Reading ▪ Is The Statute of Limitations in Federal Inverse Condemnation Claims Jurisdictional?

Dean Patricia Salkin of the Albany Law School posts Ripeness and Williamson County – 1st, 6th and 7th Circuit Rulings on her land use law blog Law of the Land.  The post details three recent cases from the federal circuits about when a regulatory takings or inverse condemnation case is ripe for federal review under the Williamson County doctrine (almost never):

  • Association de Subscripcion Conjuncta del Seguro de Responsibilidad Obligatorio v. Galarza, 484 F.3d 1 (1st Cir. 2007)
  • McNamara v City of Rittman, 473 F.3d 633 (6th Cir. 2007)
  • Rockstead v City of Crystal Lake, 486 F.3d 963 (7th Cir. 2007)

Gideon Kanner has already deconstructed the reasoning in the last case in a post on his blog entitled “Franz Kafka Weds Alice in Wonderland.”  One guess what Professor Kanner thinks of the decision.

Professor Salkin’s blog is a welcome perspective; I’ve already subscribed, Continue Reading ▪ Recent Williamson County Ripeness Decisions Summarized

The Advertiser has published my commentary on Wilkie, the decision from the Supreme Court denying a comprehensive remedy for violation of property rights by federal officials. 

Little-Noticed Decision Erodes Property Rights

Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don’t offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, “No, thanks.” It’s your land, and the U.S. Constitution’s Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.

The Fifth Amendment provides that “nor shall private property be taken for public use, without just compensation,” which means if the government wants an easement, it needs to pay for it. But an official tells you, “The federal government does not negotiate.” So instead of backing off, or purchasing the land, the…

Continue Reading ▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins

West Hawaii Today has posted a story on an ongoing eminent domain case:

Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip of land for the highway.

Meheula saidOceanside was not opposing the Coupe’s claims regarding public purposeand would address those during the trial, but said it was notappropriate to argue inverse condemnation at the same time.

However,Robert Thomas, counsel for the defendants, who counter sued the countyto block the eminent domain proceedings, said there are no HawaiiSupreme Court cases that can be used to support Meheula’s claims.

Ifthey do not prevail, the Coupe’s attorneys are also arguing “blight ofsummons damages,” which compensates a landowner in a condemnationaction for the damages resulting from the government’s delay in…

Continue Reading ▪ Inverse Condemnation, Eminent Domain, and Development Agreements

Does a landowner challenging the public use of a taking of property need to utilize state compensation procedures before seeking relief in federal court?  In Rumber v. District of Columbia (No. 06-7004, D.C. Cir. May 25, 2007), the U.S. Court of Appeals for the District of Columbia joined the majority of federal circuits and held “no.”

Landowners challenged the District of Columbia’s power to condemn their property, alleging, among other things, that the taking was beyond the District’s authority because it was not “for public use” as required by the Fifth Amendment’s Takings Clause.  The D.C. Council had enacted a series of laws which authorized the National Capital Revitalization Corporation, a redeveloper, to take a shopping center by eminent domain. 

The landowners objected, and filed suit in federal court alleging that a taking of their property would not serve a public purpose.  The federal district court dismissed the…

Continue Reading ▪ Public Use Challenges Not Subject to Williamson County Ripeness

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States,is whether the Tucker Act’s six-year statute of limitations is ajurisdictional bar to an inverse condemnation claim.  Apparently, thegovernment on appeal did not assert that the claims were barred by thestatute of limitations.  But the court of appeals did, and dismissedbecause the statute of limitations goes to jurisdiction, and cannot bewaived. 

Whether the statute of limitations is a “jurisdictional” bar, orwhether it is waiveable is an issue for us legal wonk types, andprobably will not rile up the public one way or the other like Kelo,for example.  However, the Court’s decision should clarify an area ofprocedural law that lawyers often presume they understand the basisfor, but nearly as often do not.  (The canon being that statutes oflimitations are jurisdictional, especially in…

Continue Reading ▪ Cert Grant in Inverse Condemnation Case – Are Statutes of Limitations Jurisdictional?

Waves

Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from…

Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose