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ALI-CLE brochure cover page

Here’s the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte – Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew…

Continue Reading Here’s The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

NCSCT

Here’s the latest on a kind of strange case we’ve been following.

Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.

Next, whaddaya know, the Town is taking the easement for the developer’s sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you’d be right. The North Carolina courts sure thought so. No public use. 

You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn’t be off the hook if it walked away, and although it would…

Continue Reading Midnight Quick Take: NC Supreme Court To Consider Remedies For Failed Takings – What Happens When A Taking Lacks A Public Use, But They’ve Already Seized The Property?

We don’t regularly cover unpublished opinions, but the U.S. Court of Appeals for the Fourth Circuit’s Columbia Gas Transmission, LLC v. 0.12 Acres of Land, No. 23-1069 (Oct. 11, 2023) got our attention because it involves a slight twist on the the Supreme Court’s ruling a couple of years ago in PennEast Pipeline Co. v. New Jersey, 131 S.Ct. 2244 (2021).

There, the Court held that a private actor exercising the delegated federal power of eminent domain may take property from a state in a federal court action, notwithstanding the state’s usual Eleventh Amendment immunity. Employing a historical analysis, the Court held that when the states entered the Union they consented to the federal government’s eminent domain power. And the later-adopted Eleventh Amendment didn’t change that.

The caption of the latest case should tell you a couple of things. First, this is also a federal taking (plaintiff vs.

Continue Reading CA4 (unpub): We’re Not Going To Adopt Justice Gorsuch’s Dissent In PennEast And Prohibit A State From Having Its Property Taken In Federal Court

IRWA 6-2023 summary jpg

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This

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Continue Reading Just Published – IRWA’s “Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 – June 30, 2023”

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes…

Continue Reading ALI-CLE’s Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here’s Why.

Screenshot 2023-08-26 at 10-33-05 Brigham-Kanner Property Rights Conference

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don’t miss out.

2022 BK plaque
The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here’s the 2023 Program:

  • Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S.

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Continue Reading Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

The latest in a case we’ve been following doesn’t get to the substantive issue: is a local park district authorized to take private property for a bike path when the statute authorizes takings for “conservation of natural resources?”

Instead, the Ohio Supreme Court dismissed the appeal for a familiar reason: lack of a final judgment. In Mill Creek Metro. Park District v. Less, No. 2022-0628 (July 11, 2023), the court did not consider the issue, but instead concluded the trial court proceedings were not yet final.

Here’s how the case set up procedurally. The district instituted state court eminent domain actions to take Less’s land for the bike path. Less objected, asserting that the district lacked the power to take land for a bike path. Less sought summary judgment on that issue, which the trial court denied. Normally, in the absence of some kind of interlocutory appeal, denials of…

Continue Reading Ohio S Ct In Power-To-Take Case: Too Soon!

Not saying Kelo

A big thanks to friend and colleague Paul Henry for bringing to our attention this article by Andrew Stuttaford, UFOs and Eminent Domain.

No, it (unfortunately) is not the latest tenure-making scholarly law journal article (but we can dream, can’t we?), but a piece in National Review.

It details a proposal to release federal documents relating to UFOs. Nice. But buried in the measure is this (according to Reuters):

Under the measure, records must be publicly disclosed in full no later than 25 years after they were created unless the U.S. president certifies that continued postponement is necessary because of a direct harm to national security.

It also establishes that the federal government would have “eminent domain” over any recovered technologies of unknown origin and any biological evidence of “non-human intelligence” that may be controlled by private individuals or entities.

Who among us is going to be…

Continue Reading New Article: “UFOs and Eminent Domain”

Update: someone blinked – between the time we drafted this post and the time is actually posted, we understand that this case settled. But the “spite takings” issue remains of interest, so we’re leaving this post up.

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You already know about the prior public use issue, often arising in government-to-government takings. The Fifth Amendment requires a public use and compensation for the taking of “private property,” so does it apply where the condemnor is seeking to take property owned not by a private owner, but by the public or by the government?

The Kentucky Supreme Court has agreed to review a case with an interesting twist on that scenario. In City of Cold Spring v. Campbell County Bd. of Education, No. 2021-CA-001470 (Dec. 16, 2022), a county board of education sought to exercise eminent domain to take property owned by a city. The…

Continue Reading Kentucky SCT To Review Prior Public Use Case Where City Purchased Property To Thwart School Board’s Acquisition

As we’ve noted before, we think courts generally don’t like it when they are asked to revisit a dispute that was settled by agreement. Yes, settlement agreements are contracts, and just like every other contract they are subject to enforcement, breach actions, and the like.

But our experience is that courts are not keen on revisiting, because when you settle, you settle. Write up that settlement agreement well, counsel, because if everyone isn’t going in with eyes wide open about what they are agreeing to, what they aren’t agreeing to, and what are the potential risks down the road, you probably won’t get a second judicial bite to complain. 

The Colorado Court of Appeals’ opinion in Denver v. Monaghan Farms, No. 22CA0956-PD (June 29, 2023) just might reflect that sense (or maybe the party arguing that the settlement agreement didn’t do what the other party said just didn’t…

Continue Reading Courts Don’t Like Trying To Unwind Settlement Agreements (Esp. Condemnation Settlements)