Here’s the Brief for the United States in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (filed Dec. 17, 2013).
That’s the case, set for argument on January 14, 2014, in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.
The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).
Here’s the Introduction to the article:
THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the
Continue Reading New Article: Recent Developments in Regulatory Takings
In Stueve Bros. Farms, LLC v. United States, No. 21013-5012 (Dec. 11, 2013), the Federal Circuit concluded that the government is not liable for a physical invasion taking when a dam enlargement project raised the maximum flood line on the plaintiff’s land by 10 feet, because there has yet to be an actual physical invasion of the property.
The landowner limited its claim to a physical taking, and did not make any claim for a regulatory taking (see slip op. at 5 n.1), and the court rejected each of its arguments that the totality of the circumstances added up to a physical take, because the government has not caused any flooding outside the scope of its previously-acquired flowage easement. The court acknowledged that the Corps of Engineers’ dam improvement project has been ongoing for 20 years, and that the Corps intended at one point to acquire a flowage
Continue Reading Fed Circuit: There Must Be Actual Flooding For A Physical Taking
Last we checked in, the California Supreme Court had agreed to review the Court of Appeal’s decision in California Building Industry Ass’n v. City of San Jose (6th District June 6, 2013), which held that under rational basis review (and not heightend scrutiny) the city of San Jose’s “inclusionary housing” ordinance might survive challenge because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing.
Yesterday, the CBIA filed its Opening Brief in the appeal, which presents a single Question Presented:
Must inclusionary housing ordinances which exact property interests or in-lieu development fees as a condition of development permit approval be reasonably related to the deleterious impact of the development on which they are imposed, as set forth in San Remo Hotel L.P. v. City & County of San Francisco, 27 Cal. 4th 643, 670 (2002)?
The brief answers
Continue Reading Opening Brief In Cal Supreme Court “Inclusionary Housing” Exactions Case
Just in: the Federal Circuit today issued an opinion in Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Dec. 3, 2013), concluding that the government must pay just compensation for a taking, because it caused the Commission’s land to be flooded.
This is the case that was up before the U.S. Supreme Court last year (and in which we filed an amicus brief). The unanimous Court held that government-induced flooding could be a taking (rejecting the Federal Circuit’s per se rule that temporary flooding was never a taking, only a tort). The Supreme Court remanded the case to the Federal Circuit, and in today’s opinion, that court affirmed the Court of Federal Claims’ conclusion that the flooding was a temporary taking.
We’ll have more after a chance to review the opinion in depth.
Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Fed. Cir. Continue Reading Fed Cir: On Remand From SCOTUS, Arkansas Game Flood Is A Taking
Here’s the government’s Brief in Opposition in Mehaffy v. United States, No. 12-1416 (cert. petition filed June 3, 2013.
In that case, the Federal Circuit, in an unpublished opinion, held that Mehaffy failed the Penn Central ad hoc takings test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act. As a matter of law, he could not have any “reasonable investment-backed expectations” because his land was subject to regulations that, as applied to his land, are alleged to take property.
That reasoning seems somewhat circular, and would seem to run smack-dab into the Supreme Court’s determination in Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001), rejecting a per se rule that “postenactment purchasers cannot challenge a regulation under the Takings Clause.”
But for some reason, the lower courts have applied (or, in some cases, have not
Here are the final two amicus briefs supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute. As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.
Next up, the government’s merits brief.
Continue Reading Last Two Amicus Briefs In SCOTUS Rails-To-Trails Case
Here are two more amici briefs supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
The Cato, et al brief argues:
We doubt there is serious dispute that protecting individuals’ right to their property is a foundational purpose for which our national and state governments were established. But we begin from this point because the right landowners have to be secure in their property is undermined
Continue Reading More Amici Briefs In SCOTUS Rails-To-Trails Case
Here’s the amici brief of Pacific Legal Foundation and the Center for Constitutional Jurisprudence in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As we’ve explained, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot.
The Tenth Circuit, in contrast to other courts, held that the right of way is subject to an implied reversionary interest in favor of the United States, meaning that the property owner doesn’t have “property” that was taken when the railroad was abandoned and was turned into a recreational trail. The merits brief of the petitioners is posted here.
We filed an amicus brief in the case, available here.
The PLF/CCJ brief argues:
This case raises important questions regarding the common law system of property ownership and the certainty of titles in property.
…
In the decision below, however, the Tenth Circuit repudiated the common law rules of property ownership in favor of a per se rule, holding that the United States—the original grantor of the railroad easement and the Brandts’ fee estate—will retain an “implied reversionary interest” in an 1875 Act right-of-way, even after the government patents the underlying land and conveys it to a private party without any express reservation of reversionary rights. … The decision below extended the Tenth Circuit’s rule, holding that all private landowners whose titles are traceable to a federal land patent will be subject to the government’s unexpressed reservation of a reversionary interest in a railroad right-of-way, regardless of the rights and expectations established by their titles.
…
If not reversed, the Tenth Circuit’s rule will unsettle the rights and expectations of tens of thousands of landowners across the nation. … Amici urge this Court to reverse the Tenth Circuit’s opinion in this case and to reaffirm the fundamental common law principle that ownership of land will be determined by title, not implication.
More background on the case in a piece in Jurist by PLF’s Brian T. Hodges, “Brandt v. US: Should the Common Law of Propert be Scrapped?”
Here’s the amici brief we are filing (along with our firm colleagues Mark Murakami and Bethany Ace) in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As we explained here, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot.
In this case, the railway abandoned its use, after which
Continue Reading New Amici Brief: Attempting To Derail Rails-To-Trails Takings Cases
