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Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

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Here’s the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

  • Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

  • Private Utility Takeovers – Lessons From a 67 Day Trial

  • Valuation Issues When Billboards and Signs are Condemned

  • Setting Client Expectations and Identifying Red Flags

  • Developing Property Right Issues in Texas – Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

  • Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

  • Ethics:

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Continue Reading Here’s The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Well, that was quick. As we noted here, we recently argued a case in the Ninth Circuit (October 20, 2022) about whether a regulatory takings claim is ripe. 

Not long after we posted the argument recording, the Ninth Circuit panel issued a short memorandum opinion rejecting our arguments wholesale (November 1, 2022).

So earlier this week, we asked the entire Ninth Circuit to take a look. Here’s our en banc petition.

We’ll leave it to you to read it and see why we think this one is ripe.

Appellants’ Petition for Rehearing En Banc, Ralston v. San Mateo Cnty., No 21-16489 (9th Cir. Nov. 15, 2022…

Continue Reading Let’s Take A Deeper Look At Takings Ripeness, Ninth Circuit

Check it out: our Pacific Legal Foundation colleagues Jim Burling, Jon Houghton, and Jeff McCoy, along with Jeremy Hopkins (Cranfill & Sumner, North Carolina), share with us the latest on property rights, Sackett, takings, the future of Penn Central, and the upcoming SCOTUS arguments in Wilkins v. United States (is the Federal Quiet Title’s statute of limitations jurisdictional?).

Don’t miss it.Continue Reading Video: “The Future of Private Property Regulation in America”

Just missed

Yes, the granddaddy of all SCOTUS regulatory takings cases, from which we got such phrases as these was argued 100 years ago this day.

  • “The general rule, at least, is that, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.”
  • “Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.“
  • “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”
  • “As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and

…
Continue Reading It Was A Hundred Years Ago Today … Happy Argument Birthday, Pennsylvania Coal v. Mahon

Takingspanel

For the last week, the blog has been a bit idle. That hasn’t been because we’re slowing down, but was mostly the result of our blog platform being worked on behind-the-scenes, which knocked a lot of the hosted blogs offline, this one included. But things look good now, so here we are.

We were also on the road, traveling to New York for the Seventeenth Meeting of the American College of Business Court Judges, where we were able to join an august panel of takings mavens (pictured above, L-to-R: Judge Paul Wallace, Professor Julia Mahoney, some guy, Nancie Marzulla, and Professor Richard Epstein) to talk about the state of takings law.

The title of our program was “The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid,” and we spent our time discussing and debating…

Continue Reading What’s “The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid”? Incoherent (But Getting Better)

Been meaning to post this one for a while.

The plaintiff in Northwest Landowners Ass’n v. North Dakota, No. 20210148 (Aug. 4, 2022), challenged North Dakota’s adoption of a statute about “pore space,” which is “a cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum.” Whoa.

The problematic part of the statute “allows an oil and gas operator to use subsurface port space and denies the surface owner the right to exclude others or to demand compensation for this subsurface use.” Slip op. at 2. The statute also amended the definition of “land” to exclude pore space, and barred tort claims for injection or migration of substances into pore space. Frack!

The Association sued, asserting that the statute effected a facial taking because “it strips landowner of their right to possess and use the pore space within their lands and allows the State…

Continue Reading Shades Of Mahon From North Dakota: Fracking Statute “constitutes a per se taking”

That’s right: Clint Schumacher’s Eminent Domain Podcast has reached its 100th episode. Very impressive, Clint!

And for this “very special episode,” Clint was kind enough to ask us to return to celebrate. In a wide-ranging hour-plus chat, Clint and I talked property rights and takings of course, but also hit on several more philosophical subjects. If you could have coffee with any historical figure who would you choose? Pharaoh Khufu? Jack the Ripper? Winston Churchill? What person has influenced your life the most? What’s on tap for the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Austin? If you had to choose a last meal, what would it be (for me, an easy question)? Clint is a generous host (and person), so I really had a good time.

One note: Clint makes it seem seamless, but I know that the behind-the-scenes process…

Continue Reading Congratulations On Reaching The “Century” Milestone, Eminent Domain Podcast!

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We spoke on the second panel of the day at the 2022 Brigham-Kanner Property Rights Conference at the William and Mary Law School. The subject of our panel — which included Professors David Callies, Tim Mulvaney, and Dave Owen — was “Reshaping the Framework Protecting Property Under the Roberts Court.“

Here’s a rough transcript of my remarks.

————————————–

President Reveley, Professor Butler, distinguished Brigham-Kanner Prizewinners (present and future), mentors, colleagues, family and friends: thank you for the opportunity to speak today.

The story goes that when asked what it was like to be a part of the “Rat Pack,*” that Dean Martin responded “It’s Frank’s world, we just live in it.”

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When I first heard the title of this portion of the program and the discussion of how and if the Roberts Court is reshaping property, my first reaction was a paraphrase of Dean…

Continue Reading Brigham-Kanner Property Rights Conference 2022 Report: It’s Chief Justice Roberts’ Property World, We Just Live In It

The facts of the Connecticut Appellate Court’s opinion in Schaghticoke Tribal Nation v. Connecticut, No. AC 43811 (Sep. 27, 2022), really stand out.

Back in the day — and we mean waaaaay back in the day — as in 1801! — the State of Connecticut sold some land which in 1752 (!) the Colony of Connecticut had allowed members of the Schaghticoke tribe to use,.

Flash forward to present day when the Nation sued, alleging the 1801 sale was a breach of the State’s trust duties, and a taking of the Nation’s private property. The short story is that the trial court dismissed and the appellate court affirmed. But the real interesting story is the longer one, and we hope you find the time to read the opinion’s factual recitation.

That longer story starts in 1736 when the tribe settled in an area along the Housatonic River. In response…

Continue Reading Connecticut’s 1801 Sale Of Tribal Land Was Not A Taking

Clint Schumacher’s Eminent Domain podcast is one of those things that we almost shouldn’t post about. After all, every episode is worth your time. But this one is especially good. After all, it features our law firm colleague and friend Jon Houghton, discussing what you all know is one of our fave topics, regulatory takings.

As Clint describes it:

Jon Houghton of Pacific Legal Foundation joins the podcast today to talk about regulatory takings. This is a complex area of the law, but Jon is a true expert and breaks it down into understandable pieces. He discusses how practitioners can assess when a regulation has risen to the level of a taking. He also discusses regulatory taking issues and cases that are current.

So even though we always say “check out the Eminent Domain Podcast,” we’re saying it again. Check it out.Continue Reading Jon Houghton On Regulatory Takings – Eminent Domain Podcast