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Way back when (you know, less than 2 months ago, a lifetime in coronavirus time) when the plaintiffs filed the complaint, we noted that, win or lose, it laid out the takings argument in a comprehensive and understandable way.

It still may be that the arguments are worthwhile pursuing. Our more comprehensive thoughts on that subject here (“Evaluating Emergency Takings: Flattening The Economic Curve“). We don’t know yet, because the district court dismissed the suit because the defendants (Michigan’s governor) enjoys 11th Amendment immunity. Yes, even against claims for just compensation. Opinion and Order Granting Defendant’s Motion to Dismiss, Martinko v. Whitmer, No. 2:20-cv-10931 (E.D. Mich. June 5, 2020).

A suit against the Governor in her official capacity is a suit against the State, and there’s no takings exception to 11th Amendment immunity (according to the court). As is often the case, the harder stuff is …

Continue Reading Federal Court: Not Going To Deal With Takings Argument Because 11th Amendment

EX A

Here’s the city’s Brief in Opposition in a case we’ve been following (so closely, in fact, that we filed an amicus brief in support of the property owner – see “Amicus Brief: Invocation Of “Police Power” Is Not Dispositive In Takings“). A case in which the issues have taken on new and heightened importance.

This is the case where the municipal police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. The homeowner sought compensation for a taking. The Tenth Circuit, however, concluded “no taking” because the police were exercising the police power. And you can’t have a taking where the government is exercising the police power, right?

The homeowner filed a cert petition, arguing that “[t]he question presented is whether there is a categorical exception to the Just Compensation Clause when the …

Continue Reading BIO In “Police Power” Takings Case: Can A Municipality Be Liable For A Taking If The Police Destroy Private Property In The Course Of Apprehending A Suspect?


Here’s the recording of the Federalist Society’s Environmental Law & Property Rights Practice Group teleforum we did a couple of weeks ago, “COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?” Stream above, or download it here.

The issue: how should courts evaluate the claims for compensation arising out of emergency measures? This question is on the front burner at the moment (and will continue to be because the courts will likely be confronted from these type of claims as the fallout continues). For example, here are some of the complaints that have been filed in courts around the nation: see here, here, here, here and here.  

The two featured speakers (Professor Ilya Somin and Professor F.E. Guerra-Pujol), not only debated and answered questions for an hour…

Continue Reading Podcast: COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?”

There’s a lot of opinion in the U.S. Court’s of Appeals’ opinion in Stratta v. Roe, No. 18-50994 (May 29, 2020). Yes, the court reversed the district court’s dismissal of a takings claim. But most of the opinion is devoted to the question of whether a Texas water conservation board — an agency whose mission is to regulate surface water uses — may take advantage of the State of Texas’s 11th Amendment immunity (no, held the court). We recommend that part of the opinion to you, federal courts junkies.

But there’s a couple of takings gems in there also. The case involved a challenge by a property owner who was (allegedly) treated by the water conservation board less generously than an (allegedly) similarly-situated municipality, resulting in the owner’s inability to make use of its groundwater rights. (In short, a Pennsylvania Coal claim, where instead of coal being required to…

Continue Reading Fifth Circuit: Texas Groundwater Rights Are Takings Clause “Property”

Did you know that the North Carolina Constitution does not formally contain a “takings” or “just compensation” clause? Instead of an outright prohibition on uncompensated takings for public use, the N.C. Constitution has a “law of the land” clause:

Sec. 19.  Law of the land; equal protection of the laws.

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.  No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

N.C. Const. art. I § 19.

The lack of an express takings clause, of course doesn’t t mean that the government can just take property and has no obligation to provide compensation.

Continue Reading NC Considering Constitutional Amendment: Compensation For Emergency Shut-Downs

Congratulations – if you understood this post’s headline, you are officially a rails-to-trails nerd. A super-nerd.

But even if not, you shouldn’t need a rails-to-trails nerd’s level of knowledge to understand and appreciate the Federal Circuit’s ruling in Caquelin v. United States, No. 19-1385 (May 29, 2020). It’s a case worth reading for all of us — nonnerds included — because it nicely gets into the weeds of takings doctrine. 

One observation before we begin. There are takings of a fee simple interest. Takings of less-than-a-fee interest, such as the taking of an easement. Partial takings where less than all of the owner’s property is taken, and there’s a remainder property. Temporal takings where the seizure is not forever (temporary takings vs permanent takings). Regulatory takings, inverse condemnations, per se (categorical) takings, physical takings and ad hoc (Penn Central) takings. And myriad combinations fo the…

Continue Reading Federal Circuit: Arkansas Game Did Not Overrule Ladd (NITUs Are Categorical Takings)

Here’s the latest complaint that alleges a taking arising out of the coronavirus situation. It joins a long list of similar lawsuits (See here, here, here, here, here, here, here, here, here, here and here, for example.

This one challenges the State of New York’s executive order that bars property owners from pursuing residential evictions for nonpayment of rent and requires the owners to apply security deposits towards rent.

Some interesting elements in the case:

  • The complaint was filed in federal court against the Governor.
  • It avoids the Eleventh Amendment issue by not seeking compensation, only declaratory and injunctive relief.
  • Does that raise the issue of whether such relief is available for a taking?

Stay tuned, this isn’t going to be the last of these things. We wrote up how we think these type of claims should be handled…

Continue Reading Latest Coronavirus Complaint: NY State’s Order Suspending Evictions Is A Taking

Here’s the latest in a case we’ve been following (briefs here, and oral argument recording here).

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

The big question in these cases is who gets to decide: the judge or the jury? And many courts for whatever reason (fear of jury compensation verdicts, perhaps?) cut off the inquiry with bright line no-compensation rules that seem designed more to reserve for judges the critical questions than to facilitate a searching inquiry to whether the property owner has truly suffered a loss…

Continue Reading In Virginia, Where The Baffled Courts Now Compose “Major” vs. “Minor” Streets

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

We thought the 2012 post-Kelo amendment to the Virginia Constitution was designed to address that. Article I, section 11 notes:

… No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The…

Continue Reading In Virginia, Where The Courts Choose The Streets’ Names: Major Or Minor

Screenshot_2020-05-23 CT CMECF NextGen

Things moving quickly: remember way back when — in April, was it? — when a Connecticut lounge owner sued a mayor and the governor, asserting that a shut-down order was a taking? 

Well, the court recently denied the plaintiffs’ request for a temporary restraining order.

There’s nothing in the Ruling about the takings claims as far as we can tell, but we suggest you read it nonetheless because it relies heavily on a U.S. Supreme Court case that has once again become prominent: Jacobson v. Massachusetts, 197 U.S. 11 (1905). That’s the one where the Court held that it was not an unconstitutional deprivation of liberty to require Jacobson to get a vaccine. We think that case and the general sense that courts give a lot of leeway to the other branches when evaluating their responses to emergencies (especially during the emergency) is going to get a …

Continue Reading Court Denies Plaintiffs’ TRO In Coronavirus Challenge