Judicial Takings

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Yes, it starts tomorrow, Thursday, January 28, 2021, but we’re “remote” this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the “big one” where the nation’s best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE’s page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher’s Eminent Domain Podcast, where we preview the Conference). Here’s your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We’re seeing a lot of first-time registrations, and this is a great opportunity…

Continue Reading Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

25 Years of PASH_Schedule

Mention the term “PASH” to any dirt lawyer in the 50th State, and they’ll nod in understanding. It’s an 808 shibboleth — a kind of local property password — that signals that you’ve been around the block and know your stuff.

On one hand, it is simply an acronym for Public Access Shoreline Hawaii, the plaintiff/petitioner in the (in)famous case Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm’n, 903 P.2d 1246 (Haw. 1995). On the other, however, it has evolved into shorthand for a number of things: from the technically accurate – native Hawaiian customary and traditional rights and practices under the Hawaii Constitution (“I was chasing a pua’a on private property, so I cannot be convicted of trespass because I was exercising my PASH rights”); to generically and cheekily – the ability to access the beach and shoreline (“Surf’s up today, let’s go practice some PASH rights!”)…

Continue Reading PASH Bash: U. Hawaii Law Review Symposium – “25 Years of PASH” (Feb. 5, 2021)

ALI-CLE 2021 Bingo card

If you “get” this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the “big one” where the nation’s best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We’re having programs with intriguing subjects such as “Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case,” “How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases,” “Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview,” “No Show and All Tell: Breaking News in Property Rights and Takings,” “More Than the Fifth Amendment: Other Tools for Upholding …

Continue Reading Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you are lacking good things to read, fear not: thanks to amici curiae, you now have boocoo merits-stage friend-of-the-court briefs (16!) on your plate.

This is the case in which the U.S. Supreme Court is considering the nature of physical invasion takings, and how permanent a permanent intrusion must be in order to qualify for Loretto and Kaiser Aetna-ish per se treatment. In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California’s Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to “access by union organizers to the premises of an agricultural…

Continue Reading No Shortage Of Amicus Briefs In SCOTUS Physical Invasion Takings Case

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We’re “remote” this year, but that means a different approach to our presentations (and a very modest tuition!).

We’re having programs with intriguing subjects such as “Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case,” “How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases,” “Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview,” “No Show and All Tell: Breaking News in Property Rights and Takings,” “More Than the Fifth Amendment: Other Tools for Upholding Property Rights,” “Evaluating Lockdown, Moratorium, and Emergency Claims,” and more (including Ethics for those of you in MCLE jurisdictions). We’ll have a post with more details. 

Register now!Continue Reading Eminent Domain Podcast’s Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

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In between talking about eminent domain-y songs, the goofy cult film “Snakes on a Plane” (yes, we really do have a cast-signed poster of that film in our office), and other fun stuff, we returned to the Pendulum Land Podcast for part II of our guest spot, where we also discussed Virginia Uranium, Inc. v. Commonwealth, No. CL15-623 (July 30, 2020), a recent decision from a Virginia trial court about regulatory takings and “damagings.” 

[Stream the podcast above, or better yet, subscribe and become a regular listener. The podcast is both entertaining and informative.]

The Virginia Uranium case involves a long-standing — but “temporary” — moratorium on uranium mining, and the court’s order analyzes Palazollo, the Salt-peter case (Lord Coke alert!), Penn Central, and Lucas.

The court concluded that the inability to mine uranium was a damaging under the Virginia Constitution because it “directly…

Continue Reading In Which We Return To The Pendulum Land Podcast To Talk “Snakes on a Plane,” Eminent Domain Songs, And What Might Be Virginia’s First True Regulatory Takings Case

We were honored to be a guest on an episode of the Pendulum Land Podcast. Here’s the description from the show notes:

Hawaii inverse condemnation lawyer and William and Mary Law School adjunct professor Rob Thomas joins your hosts to discuss recording his classic single “Smooth” with Carlos Santana, whether the COVID moratoriums on evictions constitute a taking, and his favorite flavor of SPAM! (Don’t act like you don’t love SPAM.) This is the first of two episodes with the publisher of the popular eminent domain blog inversecondemnation.com.

We had to bring our “A game” because the hosts were full of rapid-fire questions, wit, and nerd trivia. It was hard to keep up at times. But we did our best (and yes, we did talk about our favorite flavors of SPAM). We also chatted about the coronavirus related takings claims, and an interesting takings case working its way up…

Continue Reading In Which We Go Over To The Dark Side: Our Guest Appearance On The Pendulum Land Podcast (SPAM, Takings, Star Trek/Wars, and More!)

Here’s the Virginia Supreme Court’s order (over vociferous dissents) extending a ban on state courts issuing writs of eviction and processing unlawful detainer (eviction) proceedings:

“Effective August 10,2020, and through September 7,2020, pursuant to Va. Code § 17.1-330, the issuance of writs of eviction pursuant to unlawful detainer actions is suspended and continued. However, this suspension and continuation shall not apply to writs of eviction in unlawful detainer actions that are unrelated to the failure to pay rent.”

Order at 2.

Remind us again why there’s no such thing as a “judicial taking?”

As if the dissenters are reading our minds, you should jump forward to page 12 of the dissent by Justice Kelsey (joined by Chief Justice Lemons and Justice Chafin), who focus on the takings issues:

Next, prohibiting the issuance of a writ of eviction to a landlord with an unlawful detainer judgment arguably sanctions a continuing trespass…

Continue Reading Dissenting Virginia Supreme Court Justices: By Suspending Evictions, Courts May Be Liable For Judicial Takings

Here’s a cert petition that we’ve been waiting to drop in a case we’ve been following. This one asks whether a state legislature’s virtual elimination of a cause of action is a taking.

The harsh reality is that farms and ranches can stink. But in Right to Farm Acts, many state legislatures, Indiana’s included, have concluded that farming and ranching are so important that the consequences (“negative externalities“) that naturally occur have to be accepted. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, “so long as the human race consumes pork, someone must tolerate the smell.” Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). Let’s call it a “stink easement.”

Indiana’s version stands somewhat apart from others, however. Like many other states, it bars lawsuits which assert that a long-standing agricultural operation is a…

Continue Reading New Stinky Cert Petition: By Wiping Out Nuisance Claims, Right-To-Farm Act Is A Taking