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Two more complaints challenging covid shutdown orders as takings (inter alia). Add to the growing list. See here, here, here and here, for other similar complaints.

The first is from California. It asserts that ordering “nonessential” businesses to shut down is a taking. The complaint alleges that unless the shut down is for “(1) destroying a building in front of a fire so as to create a fire break, (2) destroying a diseased animal, (3) rotten fruit or (4) infected trees,” it is a taking. 

The second is from New Jersey. So rather than get into the details, we’re going to send you over to our NJ colleague Tony Della Pelle, who has some thoughts here (“NJ Shutdown Challenge – I Can’t Rent My Beach House!“). 

Will there be more of these? As we have said before, for sure. Fasten your…

Continue Reading Two More Takings Complaints Challenging Shut-Down Orders

What do you think of when you think of south Florida? Beaches? Jai Alai? Cuba Libre? Crockett and Tubbs and a career in southern law enforcement? 

Well, it better not be dog racing. Because by an amendment to the Florida Constitution (Amendment 13), the people of Florida banned it. Well, wagering on dog racing, technically. You can, apparently, still race dogs just for dog s**t and giggles.

Well, after the ban, the inevitable takings claim arrived, like the tail wagging the dog. In this Order, the U.S. District Court for the Northern District of Florida, dismissed the complaint for failure to state a claim. The court held the plaintiffs had standing, and the case was ripe and wasn’t barred by the 11th Amendment for some of the defendants. 

But naturally, we focused on the takings analysis. First, the court agreed with the …

Continue Reading A Little Preview Of How Courts Are Going To Misapply Takings Analysis In Shutdown Cases – Federal Court: No Taking For Outlawing Dog Racing

If you were thinking of teeing up a case “just so” for Supreme Court review, what does your fevered quill-pen dream checklist look like? Well, here’s some of the usual things that are good indicators:

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Continue Reading Your Takings Cert Petition Checklist: Ninth Circuit, En Banc Denial, Concurral, Dissental, Circuit Split, PLF

If you missed the three-and-a-half hours (!) of this morning’s teleconferenced oral argument of the en banc U.S. Court of Appeals for the D.C. Circuit in a case we’ve been following (along with a related case), well, you are in luck. There are multiple ways to listen in. You can stream it from YouTube above. you can stream it below, or you can download the mp3 from the court’s website. Whatever way you choose, you should do so. 

This is the case that reminded us of Samuel Beckett’s classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the…

Continue Reading DC Cir (En Banc) Hears 3.5 Hours Of Oral Argument In Pipeline Public Use Challenge To FERC’s “Waiting for Godot” Process

On one hand, there’s a lot going on in the Maryland Court of Appeal’s opinion in Maryland Reclamation Assoc, Inc. v. Harford County, No. 52 (Apr. 24, 2020), a case we’ve been following. The opinion is a whopping 81 pages, and details facts that go back decades. On the other hand, the opinion doesn’t actually say a lot. 

But what it does say is a doozy.

Here’s your BLUF (Bottom Line(s) Up Front):

  • Maryland agencies have jurisdiction to consider and rule on state constitutional issues including takings. Apparently, this is not something the court adopted in this case, but is a long-standing practice in Maryland. Count us as very surprised that agencies have the power to adjudicate constitutional rights. Very, very surprised.  
  • A property owner must raise their Maryland Constitution takings claim and present it for adjudication to very agency accused of taking property without compensation. 
  • The property

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Continue Reading Maryland Resurrects California’s Agins Rule: Owner Must Seek Agency Variance, Which If Granted, Means “owner no longer has a takings claim and the right to alternative relief in the form of just compensation”

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CHALLENGE: find the “damage” on the Loretto building

Here’s the amicus brief filed today by Pacific Legal Foundation that urges the Supreme Court to grant our cert petition in a case that asks:

To constitute a taking under the Fifth and Fourteenth Amendments, must a physical invasion also destroy or substantially impair an owner’s economically beneficial uses of property?

Yes, takings mavens, we’re talking Loretto and related. (If you want to see the truly “de minimis” invasion — and no damage — that resulted in Justice Marshall in that case concluding that the Takings Clause imposes a “categorical duty” to provide compensation for physical invasions, check out some recent photos of the Loretto building on Manhattan’s Upper West Side.)

Here’s the amicus brief’s Summary of Argument:

The Fritzes’ petition for a writ of certiorari raises an important question concerning the protections provided by the Takings Clause of the Fifth Amendment…

Continue Reading New SCOTUS Amicus Brief Highlights Govt’s “Categorical Duty” To Compensate, Even Without Substantial Damage To Remainder

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There’s still time to join us tomorrow, Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting “Strategies for Litigating Regulatory Taking Cases” in a webinar produced by ALI-CLE. Register here (multiple attendee discounts available). 

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York’s Jon Houghton and Hawaii’s Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation. Jon and Dave are taking it to the next level. This isn’t simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here’s the description of the program:

The U.S. Constitution provides that…

Continue Reading Still Time To Join Us (Tomorrow): ALI-CLE Webinar – Strategies for Litigating Regulatory Taking Cases

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Lacking things to read during your shut-down? Well, we have the solution: the Fordham Urban Law Journal has devoted an entire issue to Knick and takings ripeness (“Taking Account: Procedure, Substance, and Stare Decisis in the Post-Knick World“). 

Our article “Sublimating Municipal Home Rule and Separation of Powers in Knick v. Township of Scott,” 47 Fordham Urb. L.J. 509  (2020), leads the way (thank you, editors).

Other articles:

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Continue Reading Takings Nerd Christmas: Fordham Urban Law Journal’s Knick Symposium (feat. “Sublimating Municipal Home Rules and Separation of Power in Knick v. Township of Scott”)

In a case that uses terms that might reasonably lead you to think it was lifted from the script for the next stoner comedy, the U.S. Court of Appeals for the Federal Circuit, in Gadsden Indus. Park, LLC v. United States, No. 18-2132 (Apr. 22, 2020), held that an owner of land on which the byproduct of milling steel was dumped possessed a property interest in some of the “slag,” but not as much of it as the owner claimed. The court also held that the property owner did not introduce evidence of its loss of use of the “kish” or the “scrap.” 

Before we go any further, here’s your daily dose of learning:

Slag, a byproduct of steel manufacturing, is “a non-ferrous material that separates during smelting.” Gadsden Indus. Park, LLC v. United States, 138 Fed. Cl. 79, 92 (2018) (Decision). Kish is “a ferrous byproduct…

Continue Reading Fed Cir Bummer: Govt Bogarted None Of Your Kish, Slag, Or Scrap

Here’s the latest complaint challenging a governmental business shut-down order. In this case, it is an order by the Michigan governor. We’ve seen similar lawsuits recently (see here, here and here, for example). So far, these complaints have have not met with receptive audiences. This one was tossed aside quickly. This one resulted in an opinion, but also lost.  

But unlike the other complaints, this latest one puts the takings argument front and center and lays out, in great detail, the theory behind the argument. It reads more like a brief (or maybe a press release) than the typical “short and plain statement” complaint. 

Does that mean we think it has any better chance than other efforts? No, for the same reasons that so far, we haven’t seen a takings claim that jumps out to us as one highly likely to get traction. Doesn’t mean the…

Continue Reading A Clean Well-Pleaded Complaint: Latest Takings Challenge To Shut-Down Order