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As Professor Gideon Kanner likes to remind us, eminent domain has been characterized as “the dark corner of the law.” We thought back to that phrase when we joined the queue outside of the Supreme Court this very dark (and very cold) morning, for the rehearing in the Knick v. Township of Scott case, this time with a full Court (Justice RBG was not present in the courtroom today, but will take part in the case).  

We soon got in the building, got warm, and got seated along with fellow takings geeks and the general public. 

We’ll have a detailed write-up once the written transcript is released, but for now, here are our initial thoughts. 

  • It was pretty clear right from the outset that the months intervening between October’s argument and now — and the various supplemental briefs and replies that have been filed — have not cleared things

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Continue Reading Knick Argument Redux: Dark Corners, And A Lack Of Clear Consensus (Chief Justice Remains The Lynchpin)

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We’re almost there, but we still have room remaining. At the 2018 Conference in Charleston, we both sold out the registrations and the conference hotel, so we planned ahead for the upcoming 2019 Conference in Palm Springs at the Renaissance Palm Springs Resort. 

Register here. You will also be able to download the print brochure (above), or find out more details about the agenda and faculty on line. As always, we have assembled a great faculty — many of them new speakers — on the hottest topics in eminent domain and takings law: pipelines, jury presentations, challenging the take, an update on the most important decisions of 2018, pre-condemnation planning (from both the condemnor and property owner perspective), the border wall, and relocation. 

And of course, ethics and the “101” track for those new to the field, or experienced lawyers who would like a refresher on the…

Continue Reading Space Remaining Is Limited – Register Now For ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Palm Springs, Jan. 24-26, 2019)

Pitt lawprof Gerald S. Dickinson has written an interesting op-ed in the Washington Post, “The biggest problem for Trump’s border wall isn’t money. It’s getting the land.” The sublede poses an interesting thought: “Eminent domain fights could take years.”

Which raises the question, could it? 

Yes, it might, as Professor Dickinson notes. There’s the preliminaries, things like environmental and regulatory review. Negotiating with the property owners (if the feds either are required, or want, to go that route). There’s the special issue of the feds condemning lands occupied by tribes. 

But what about the biggest issue: are the feds going to use straight taking, or quick take (Declaration of Taking Act)? If the latter, any fights about compensation could get kicked down the road, and seizure of property — and construction — would not have to wait. 

We posted on this a while back (“…

Continue Reading Op-Ed: Border Wall “Eminent Domain Fight Could Take Years.” Or Could It?

As we just detailed, the Eleventh Circuit joined the Third and Fourth (contra the Seventh) Circuits in concluding that a lack of Congressional delegation of quick take power to private pipeline condemnors in the Natural Gas Act does not stand in the way of a federal district court issuing an injunction to affect immediate pre-title transfer of property.

Read our amicus brief in the Third Circuit en banc process for why this is wrong.

Here is where the Sixth Circuit reveals its fundamental misunderstanding of eminent domain:

On appeal, Landowners do not dispute that Nexus holds a FERC certificate, that the 1.4-acre tract of land is necessary to build and maintain the pipeline, and that the parties have been unable to negotiate a voluntary easement by contract. This case appears to present a question not of whether Nexus has the statutory right to condemn Landowners’ property, but only of…

Continue Reading CA6 Joins The Growing Circuit Split On Natural Gas Act Immediate Possession Injunctions

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A very good and active crowd for today’s Eminent Domain Conference (CLE International) in Scottsdale, Arizona. It was good to visit with some old friends, and also to get to meet some new colleagues.

Our talk focused on national trends, and this year’s most interesting condemnation and takings cases. Here’s the links to the cases I mentioned that are not in the written materials:

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Continue Reading Link’s From Today’s Eminent Domain Conference (Scottsdale)

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With the first snow of the season beginning to fall in Williamsburg, today was the final day of classes at the William and Mary Law School. Which means that my time serving as the inaugural Joseph T. Waldo Visiting Chair in Property Rights Law is beginning to wrap up. There’s still the reading period, exams, and grading, but today was the last day we met as a class.

What a great law school, and wonderful students. I learned way more than I conveyed. A welcoming administration, faculty and staff, too. This was the best experience of my professional life.

A huge thank you to law school dean Davison Douglas, and Professors Lynda Butler and James Stern, for guiding and supporting me, and making me feel like I belonged. And to my students, who challenged me. And, of course to Joe Waldo, who made it all possible.Continue Reading End Of The Term For Law 608: Eminent Domain And Property Rights

The U.S. Court of Appeals for the Third Circuit recently heard oral arguments (stream above, or download the mp3 here), in a case involving an issue we briefed recently in another circuit: whether state or federal law governs the determination of Just Compensation in federal court Natural Gas Act takings.

Now, you might automatically assume that because the case is in federal court under federal law, that federal standards for Just Compensation (and not the law of the state in which the property is located) provides the rule of decision. But it is not that simple. 

Short answer to the question posed by our title: no, the state’s law of just compensation does not govern. But the state’s law of property does govern.

Thus, we think that which law governs compensation in federal condemnations is determined by the law of the state. After all, the particular “sticks” in…

Continue Reading In Federal Pipeline Takings, Does The State’s Law Of Just Compensation Govern?

With registration for the 2019 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs well underway, we thought it would be a good time to post up some of the materials from this year’s Charleston conference. 

In “Alternative Dispute Resolution in Condemnation Cases: An Eminently Agreeable Solution,” an article in The Practical Real Estate Lawyer adopted from their conference materials, our colleagues Peter Buchsbaum (a retired New Jersey judge), and Cortney Young and Steve Silva (both from Nevada), discuss strategies which can be used to resolve eminent domain cases in ways other than trial. Well worth your time.

There’s a lot more like this on the Palm Springs program. This program and others like it are just a few of the reasons why attending the Conference is also well worth your time.

Register now.

Buchsbaum, Young, & Silva, Alternate Dispute Resolution in Condemnation Cases: Continue Reading New Article: ADR In Eminent Domain – “An Eminently Agreeable Solution”

Get ready. In this and upcoming posts, we’re going to be featuring the items on our agenda for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 24-26, 2019, in sunny Palm Springs, California. 

ALI-CLE has released the brochure, which those of you on the mailing list should have received — or will be receiving — in your brick-and-mortar inboxes. If not, download it here. Looking it over, you will see that we have assembled a great faculty with expertise in the range of issues that are driving our branch of the law, locally and nationally.

And, as always, one of the best aspects of this conference is the collegiality. Our attendees and faculty find that one of the most beneficial parts of the conference is to meet your colleagues from across the country, and talk shop about the issues we love.  

Of course we …

Continue Reading ALI-CLE Eminent Domain And Land Valuation Litigation Palm Springs Brochure Is Out

Here’s the motion for leave and proposed brief amici curiae we filed yesterday in an appeal pending in the U.S. Court of Appeals for the Eleventh Circuit. 

This is a pipeline case (another one!) involving land in Florida. The district court got it right, concluding that the property owner/condemnee was entitled to recover attorneys’ fees since state condemnation law governs the case, even though it was in federal court. The court also allowed the owner to testify about the fair market value of her property. The pipeline company appealed, arguing that the fact that Florida law allows recovery of attorneys’ fees in eminent domain cases is irrelevant in a federal eminent domain action because attorneys’ fees are not part of Fifth Amendment compensation. It also argues that the owner should not have been allowed to testify.

We filed the amicus motion and brief on behalf of Owners’ Counsel …

Continue Reading “A Property Right It Shall Be” – Fifth Amendment Requires Compensation For Whatever Interests A State Recognizes As Property