Inverse condemnation

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Update 5/23/2018: the court’s written order here.

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Here’s the latest in those inverse condemnation cases against Pacific Gas & Electric for taking the homes and businesses which were lost as the result of last fall’s northern California wildfires. Multiple complaints have been filed, and they’ve been consolidated in the San Francisco Superior Court, and assigned to a single judge as complex litigation.

Last Friday, the court (as reported here, here, and here), denied PG&E’s demurrer (that’s pretty much a motion to dismiss for failure to state a claim for you non-Californians), which asked the court to determine that the inverse condemnation cause of action is not applicable when a private utility cannot “automatically” pass on the costs of a judgment to ratepayers. In short, toss the cases because even if everything alleged is true, the utility could not be held liable for inverse condemnation.

Continue Reading Case To Watch: Utilities, Wildfires, And Inverse Condemnation

In Hunter Landing, LLC v. City of Council Bluffs, No. 16-2138 (May 16, 2018), the Iowa Court of Appeals held that the jury was entitled to be instructed about all takings theories, and not just limited to a Lucas and physical invasion instruction. 

After several of Hunter’s nonconforming buildings were damaged in a flood and the City concluded all but one of them were more than 50% damaged, the City demolished them. Hunter sued, asserting the City “inversely condemned its property by limiting the right of direct access to the property, restricting the highest and best use of the property, removing buildings, removing electrical power to operate a water well system, removing drainage tubes, and removing septic systems.”

The court gave the jury this instruction:

Land-use regulation does not constitute inverse condemnation requiring compensation if it substantially advances a legitimate state interest. There are two exceptions. When the regulation…

Continue Reading Iowa App: Regulatory Takings Jury Should Be Instructed About Per Se Takings, And Penn Central Test

If you understand this post’s headline, congratulations: you are the nerdiest of law nerds, checking no less than two boxes in the obscure law category, takings and patent law.

But if you have been paying attention here, you know that recently, the Supreme Court, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-713 (Apr. 24, 2018) (which we wrote about in “Property Lawyers, Read The Supreme Court’s Latest Patent Case“), held that “inter partes” review of previously-issued patents (a form of property), does not run afoul of the Constitution. 

Yes, these patents could be reconsidered in inter partes review. But the Court expressly left open the question of whether revoking a previously-recognized patent would be a taking:

Finally, our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. See, …

Continue Reading The (First?) Post-Oil States Shoe Drops In Patent Takings By Inter Partes Review

A water district, with regulatory approvals and permits from the California Department of Health Services, added chemicals — “secondary disinfectants” — to the tap water system to make the water safe to drink. The water complied with all federal and California drinking standards. 

Sounds good. No one wants undrinkable drinking water. Problem was these additives caused copper pipes in private homes to corrode.

The owners brought class actions under both nuisance (tort) and inverse condemnation theories. The Superior Court concluded the claims were preempted by both federal and state law. 

In Williams v. Moulton Niguel Water District, No. G053002 (May 3, 2018), the California Court of Appeal affirmed, although for different reasons. 

The nuisance claim was out because the District is immune from nuisance liability. Under California Civil Code section 3482, “[n]othing which is done or maintained under the express authority of a statue can be deemed a nuisance.” The…

Continue Reading More Tort vs Taking: No Inverse Condemnation When Water District Added Chemicals Which Damaged Copper Pipes

IHtakings

Another week, another Federal Circuit panel opinion on takings authored by Judge Timothy Dyk (following the recent MR-GO opinion). And you know what that means: property owners lose.

The Court of Federal Claims concluded that the feds had taken the plaintiff’s lease of of a part of Dallas’ Love Field — under both a Lucas and Penn Central regulatory and physical taking theory — and rendered a verdict of $135 million in just compensation.  In Love Terminal Partners, L.P. v. United States, No. 16-2276 (May 7, 2018), the Federal Circuit, in the Judge Dyk-authored opinion, reversed. 

The facts of the case are not terribly complex. Back in the day, Braniff Airways (those of you of a certain age will remember Braniff) leased land at Love Field. Decades later, in order to spur the growth and use of Love Field’s competition Dallas-Fort Worth airport (DFW), Congress adopted the…

Continue Reading Judge Dyk Strikes Again: No Love For Taking Of Leasehold Of Love Field

Here’s what we’re reading today:

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Continue Reading Monday Readings: South Africa Takings, Redevelopment, Metes and Bounds, And More

Thanks to colleague Chris Kramer, we’ll be speaking later this week (Friday, May 4, 2018) in Phoenix at the 22nd Condemnation Summit at the Arizona Biltmore.

Our session will cover “Condemnation Trends: Nationwide & Arizona.” The rest of the day’s agenda looks mighty good too, with session on valuation of easements, paying for transportation infrastructure, airport takings, and a presentation by Justice Lopez of the Arizona Supreme Court. Well worth the very affordable $129 registration cost.

Sign up here.

See you there!Continue Reading Arizona Takings: Condemnation Summit XXII

The Minnesota Attorney General settled a civil claim with tobacco companies that the companies had violated state consumer protection laws. Later, several Minnesota consumers brought a claim in state court alleging the State’s failure to pay these plaintiffs a portion of the proceeds from the earlier settlement was an inverse condemnation of their property, raising both state and federal takings claims. 

The Minnesota Court of Appeals concluded these claims were time barred, and held there was no taking, and the Minnesota Supreme Court denied discretionary review.  Next, some of the same consumers filed a federal § 1983 claim in U.S. District Court, asserting a federal takings claim. The District Court dismissed, concluding this was the same claim which the plaintiff had raised, and lost, in Minnesota courts.

In Foster v. Minnesota, No. 17-1177 (Apr. 20, 2018), the Eighth Circuit affirmed. Applying the Full Faith and Credit statute (28 U.S.C. §…

Continue Reading 8th Cir: Federal Takings Claim That State Failed To Share Tobacco Settlement Proceeds Was Already Litigated In State Court

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Here’s the not unexpected decision from the U.S. Court of Appeals for the Ninth Circuit in a case we’ve been following (sort of). It should never have gotten this far, even as the “plaintiffs” raise the specter of a cert petition.

We say again: the federal courts seem to have time for this brand of nonsense, but when it comes to land use and takings cases, they won’t be “super zoning boards of appeals,” and almost always refuse to give them the time of day. At least PETA didn’t make a takings claim and further hose up the law. 

Once again, Dr. Zaius could not be reached for comment.

Rock on, Naruto.

Naruto v. Slater, No. 16-15469 (9th Cir. Apr. 23, 2018)

Continue Reading 9th Cir: “Ape Shall Not Sue Ape!” Court Has Time For Silly Monkey Selfie Case, But Not For Takings

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Some of the Land Use Institute faculty, including (front row left), Planning Chair Frank Schnidman and Planning Co-Chair Patty Salkin

Last Friday at the 32nd Annual Land Use Institute in Detroit, I was honored to moderate a freewheeling discussion by a panel of takings experts, Professor Steven Eagle, Minnesota lawyer Howard Roston, and Michigan’s own Alan Ackerman on “Takings, Eminent Domain, and Vested Rights.”

Here are the cases and other materials we discussed, as well as a few others which we did not have time to cover (but wish we could have):

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Continue Reading Cases And Materials From The Takings And Eminent Domain Session At The Land Use Institute