Inverse condemnation

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We’re hoping that someone can explain the Florida District Court of Appeal’s recent opinion in Bondar v. Town of Jupiter Inlet Colony, No. 4D19-2118 (May 5, 2021) in a way that makes sense other than the old apocryphal tale of “I don’t know why we do things this way, except that we’ve always done things this way.”

Before we get to the details, a slight detour. This is another one of those cases about substantive due process. Now don’t get us started on that one — we get that it might seem odd to suggest that the Fourteenth Amendment’s Due Process Clause limits the government’s power beyond requiring fair procedures. After all, the words are right there in the text: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” But work with us here: we’ve always viewed the phrase much…

Continue Reading Fla App Doubles Down On That Weird Property Isn’t “Property” Thing

R.S. Radford’s most-recent article, Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights? in the latest issue of the Texas A&M Journal of Property Law, should be next on your to-read list. 

Here’s the summary of the article:

Throughout the thirty-four-year history of Williamson County, one fact was taken for granted. Never directly mentioned but always looming in the background of two rounds of oral argument before the Supreme Court in Knick was the premise that relegating takings claims to state court made it less likely that property owners would prevail on those claims than if they could be filed in federal court in the first instance. This Article examines that premise and finds little support for it in the historical record.

Part I of this Article discusses Williamson County and highlights the logical, doctrinal, and procedural confusion associated with the opinion, both in its …

Continue Reading New L Rev Article: Knick Won’t Mean Much Until Federal Courts Get Over “Strong Distate, If Not Outright Contempt” For Land Use Matters

20180805_155746_HDRThat rail crossing in Chicago

We’ve noted before that gun cases have life of their own, often divorced from strict legal logic. Throw in takings, and you’ve got a recipe for a difficult challenge.

But add to the mix a Supreme Court überlawyer, and maybe your chances go up. Who knows for sure. Only the nine at 1 First Street, NE do. 

So it is with this cert petition, filed yesterday, raising both Second Amendment keep-and-bear-arms and Fifth Amendment takings questions. The issue is New Jersey’s decision to make large capacity magazines illegal (well, technically to lower the already-limited capacity of rifle and pistol magazines from 15 to 10). The problem, the petition argues, is that the ban didn’t just apply prospectively, but covered legally-possessed magazines also, and requires owners to give them to the government, transfer them to third parties who may legally possess them, or …

Continue Reading New Cert Petition (Clement): Making It Illegal To Keep High-Capacity Magazines Declared Contraband Is A Taking

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Here’s one we’ve been waiting to drop. In San Jacinto River Authority v. Medina, Nos. 19-0400, 19-0402 (Apr. 16, 2021), the Texas Supreme Court held that “statutory takings” under the Texas Government Code include both physical invasion takings as well as regulatory takings.

This case stems from flooding allegedly caused in part by the San Jacinto River Authority’s release of water in response to Hurricane Harvey. The property owners whose land was flooded sued, asserting takings and inverse claims under both the Texas Constitution, and the “Private Real Property Rights Preservation Act.” The Authority sought dismissal of the statutory claim arguing that it covers only regulatory takings, not physical takings like the takings here.

In case you are not familiar with the statute, it is a waiver of governmental immunity for lawsuits “to determine whether the government action of a political subdivision results in a taking under this chapter.

Continue Reading Texas’ Takings Statute Allows Claims For Both Physical And Regulatory Takings

If you’re wondering what to do if, during the course of an eminent domain lawsuit or project, a condemnor (or anyone else with the power of eminent domain) invades, occupies, or affects more property than it acknowledges, check out the Indiana Court of Appeals’ opinion in Lake County v. House, No. 20A-PL-1675 (Apr. 14, 2021).

Short story: a part of a larger project, the county brought an eminent domain action seeking a partial take of the owners’ property, and offered to pay compensation and relocate a septic system that would be affected to somewhere else on the property. The owners claimed that because they could not relocate the septic system anywhere on property, the court should treat this as a total take of entire property. The trial court agreed.

So the county made new plans, which (it argued) avoided taking any of the owners’ property, and would therefore not…

Continue Reading Indiana: Owner’s Remedy For Condemnor’s Trespass After Dismissal Of Eminent Domain Lawsuit Is Inverse Claim, Not Reopening The Condemnation

We’ve been meaning to post this one for a while, and it appears our procrastination has paid off: the Court has asked for a response.

Normally, we’d summarize the case and the issues, but in this instance, the cert petition‘s Question Presented lays it all out:

Petitioner, Next Energy, LLC, commenced acquiring blocks of five-year oil leases in 2011 to drill high volume horizontal hydraulic fracturing (horizontal hydraulic fracturing) wells to recover oil from shale formations. Shale oil leasehold interests, like all mineral interests, are separate, distinct leasehold interests from the surface of the land. Horizontal hydraulic fracturing is the only economically viable method to recover shale oil from Next’s leases. The value of the shale oil constitutes the entire value of Next’s leases. At the time the leases were acquired, Illinois law allowed the horizontal hydraulic fracturing process. In mid-2012, after the lease blocks were acquired but…

Continue Reading New(ish) Cert Petition: Is Fracking Moratorium A Loretto Or Lucas Categorical Taking?

You listened live. Or you missed that, and listened to the recording. Or, you preferred to review what others thought of the arguments. Now you can read it yourself.

Here’s the transcript of Monday’s oral arguments in Cedar Point Nursery v. Hassid, No. 20-107, the case in which the Supreme Court is considering whether California’s forbidding of agricultural property owners from keeping union organizers off their land is a taking.

Some highlights, in our opinion:

  • Several of the Justices wanted to know whether it was important that the property owners called the access required by the regulation an “easement,” even though it is not formally an easement (you know, the thing where the dominant and servient estate owners agree that one can use the land of another, that is recorded, that runs with the land, and the like. Lawprof Josh Blackman writes about that here (“

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Continue Reading Read And Listen To The Oral Arguments In SCOTUS’ Latest Takings Case

In which we join the Pendulum Land Podcast (again, thank you hosts!) to talk about the Virginia Supreme Court’s recent opinion in Johnson v. City of Suffolk, the case we label the “oyster takings” case in which Hampton Roads oystermen claimed that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a “condemnation zone” (i.e., no oyster harvesting).

Short story: the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest. Or at least not a property interest worthy of constitutional protection. Thus, no takings claim when Suffolk and the Sanitation District dumped sewage into the river and pretty plainly interfered with some kind of right the plaintiffs owned in the lease. Just not enough of a right to require compensation.  

Our thoughts on the court’s decision…

Continue Reading We Join Pendulum Podcast To Debate Oysters, Property Rights, Takings

Here are links to the summaries and analysis of yesterday’s oral arguments in Cedar Point Nursery v. Hassid, No. 20-107, the case asking whether California’s forbidding of agricultural property owners from keeping out union organizers is a taking:

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Continue Reading Cedar Point Oral Arguments Round-Up

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Here’s the recorded arguments.

  1. California will try and push the Court to seeing this as an “anti-union” lawsuit: this is not that big of an intrusion, we’ve been doing it for 50 years under both Cal and federal law, and a ruling for the property owners will upset this apple cart and prevent unions from organizing.
  1. The property owners will try and push the Court to seeing the case as one upholding the “keep out” nature of private property. There are other means of contacting the workers, so why need to do it on this private property? Convenience? [Disclosure: my law firm, Pacific Legal Foundation, represents the property owners.]
  1. Is this case different from Kaiser and Nollan in that California’s invitation to access the nursery property is not to the general public and only to union organizers?
  1. Is this case different from PruneYard in that the owner did not

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Continue Reading In California, Can A Landowner Really Say “Keep Out?” Things To Look For In Today’s SCOTUS Cedar Point Nursery Arguments