Rails-to-Trails

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Remember the Roca Solida case? That’s the follow up to the Supreme Court’s recent decision in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), highlighting the jurisdictional problem in takings cases which that case left open. We labeled it a “jurisdictional ambush” that awaits any property owner who has a takings claim against the federal government.   

The question presented by the cert petition in Roca Solida is whether 28 U.S.C. § 1500, the statute which deprives the Court of Federal Claims of jurisdiction over a case if a related case is pending in another court at the time the CFC complaint is filed, applies to takings claims. In Tohono O’odham, which was not a takings case, the Court held that the statute prohibited the CFC from taking jurisdiction over the Nation’s monetary claim against the United States, when its related claims against the federal…

Continue Reading Amici Brief In § 1500 Case: Congress Cannot Limit Property Owners’ Rights To Just Compensation By Narrowing CFC Jurisdiction, Especially With An Absurd Statute

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Here’s a case in which the court ruled there wasn’t a taking, but it could be argued that the property owners won. How so? Because this case pitted the property rights of railroads against the property rights of the owners over whose land the rail lines run.

The U.S. Court of Appeals asked the Louisiana Supreme Court to answer this certified question:

Whether the application of LA. REV. STAT. § 48:394 to any of the properties in this case amounts to an unconstitutional taking of private property without a public purpose, in violation of Article I, Section 4 of the Louisiana Constitution.

In Faulk v. Union Pacific Railroad Co., No. 2014-CQ-1598 (June 30, 2015), the Supreme Court answered no.  

The case arose in 2007 after the railroad planned to close 100-year old private crossings over its tracks, which the property owners asserted disrupted their farming operations and their…

Continue Reading Takings Claim Rejected, But Property Owners Win In Louisiana: Statute Limiting Closing Of Private Railroad Crossing Isn’t A Taking Under State Constitution

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            “It’s Frank’s world, we just live in it.”

                      – attributed to Dean Martin, about Frank Sinatra

A narrowly drawn opinion from the Supreme Court in Horne v. Dep’t of Agriculture, No. 14-275, argued in April and to be decided by the Court sometime before the Term ends this month, could attract more than the needed five Justices to form a bare majority, and the initial reports from the arguments agree that the Hornes’ takings argument appeared to gain traction with at least a couple of Justices from the Court’s left bloc. Combined with the property-friendly Justices and Justice Kennedy (who appeared to view the government’s arguments with great skepticism), they could put the Hornes well over the top. 

There may be much more at stake, however, if any part of the government’s…

Continue Reading Leviathan Shrugged: Oral Arguments In Horne Reveals The Taking, But Remedy Still Open

The State of New York wants to build the Bronx River Greenway, a “23-mile-long ribbon of green with a multi-use path that will extend along the full length of the river in Westchester County and the Bronx.” Who could argue with that?

Amtrak, that’s who. After failing to acquire 6 parcels along the river owned by the “private corporation created by the Rail Passenger Service Act of 1970, 49 U.S.C. § 24101,” in 2008, the state filed notices of appropriation and maps with the county clerk, and title to the land vested in the state. They kept trying to work things out, apparently, but to no avail and in 2012, Amtrak sued in federal court, arguing that the takings were invalid under the Supremacy Clause because they were expressly or impliedly preempted by federal law.

In National Railroad Passenger Corp. v. McDonald, No. 13-4161-cv (Feb. 24, 2015), the Second Circuit…

Continue Reading 2d Cir: Amtrak SOL On Claim Its Property Immune From NY’s Eminent Domain Power

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Here are the cases which I spoke about this morning at the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation conference:

Here is our annual “proof of life” photo, the view from the dais. Proof…

Continue Reading ALI-CLE 2015 Eminent Domain Conference: Links From Today’s Presentation

It’s been accepted for such a long time that it’s become one of those things that “everyone knows we’ve always done it that way,” but most probably don’t quite know why that is so: if you have to sue the United States for a regulatory taking or inverse condemnation, you go to the Court of Federal Claims.

In the CFC, just compensation determined isn’t determined by a jury, nor is your case presided over by an Article III judge. In other words, your case is wholly decided by a judge with a 10-year appointment who technically is an employee of the Executive branch, instead of your peers and a guy or gal with life tenure, who is independent and in the Judicial branch. 

Comes now a complaint, filed in the United States District Court for the Western District of Michigan earlier this week, that one would normally expect…

Continue Reading Right To Compensation Self-Executing: Property Owners Entitled To Jury & Article III Judge In Federal Inverse Cases

Here’s one to definitely add to your blogroll: Federal Takings, by the rails-to-trails litigation practice at Arent Fox, including our frequent guest blogger, Thor Hearne. 

The focus is on rails-to-trails cases, but also by necessity covers takings cases in the Court of Federal Claims and the Federal Circuit. Recent posts include, “Arent Fox Files ‘Rails to Trails’ Cert Petition with US Supreme Court for High Line Park Landowners,” and  a summary of an ongoing R-T-T case from Michigan. 

Highly recommended. 

Related articles
Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims
New Cert Petition: In Rails-To-Trails Case, Fed Circuit Should Have Punted State Law Contracts Question To State Court
Guest Post: Two More Rails-To-Trails Property Owner Victories

Continue Reading New Blog Worth Following: Federal Takings

Here’s a new cert petition, filed yesterday, that poses two interesting issues, the first of federalism, the other of exactions.

This is a rails-to-trails case in which the federal government asserts that the easements imposed on private property for a public park in New York City after the railway was abandoned did not result in a taking because the owners signed agreements with the city giving up their rights in exchange for development rights on other parcels. Included within this agreement — to which the federal government was not a party — was a covenant not to sue the city or the federal government. When the owners sought compensation in the Court of Federal Claims, the CFC dismissed because the federal government was the third-party beneficiary of the city-owner agreement. 

This is a question of New York law, and according to the petition, no New York court has ever…

Continue Reading New Cert Petition: In Rails-To-Trails Case, Fed Circuit Should Have Punted State Law Contracts Question To State Court

We finally got around to reading “What Lies Beneath,” an opinion piece from the New York Times that we’ve been saving in our to-read list since the spring, Linda Greenhouse’s musings on the U.S. Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States.

In that piece, Ms. Greenhouse notes that Brandt was one of those cases she pretty much didn’t care about (“I hadn’t read the briefs or the argument transcript, let alone attended the argument itself.”). In other words, it wasn’t about Citizens United, abortion, or religion, the usual things the reporters who cover the Supreme Court beat consider hot topics. No, this was one that — even after she read the opinion — “I had only a vague sense of what the case was about and none whatsoever of its significance, if any,” that it it concerned what happens when…

Continue Reading New York Times SCOTUS Reporter: Wow, Brandt Was About Rails-To-Trails And Property Rights!

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ALI-CLE, the good folks who put on the annual programs on Eminent Domain and Land Valuation, and Condemnation 101: How to Prepare and Present an Eminent Domain Case, have announced the dates and venue for the 2015 conferences:

Thursday – Saturday, February 5-7, 2015 

Hotel Nikko, in San Francisco.

Those of you who have attended or taught at these conferences in the past know they are the premier programs on this topic, and feature exciting presentations and excellent faculty.

I’ve been honored to be asked to serve as the Planning Co-chair of the 32d annual Eminent Domain and Land Valuation Litigation program, stepping into the able shoes of Leslie Fields, who retired last year. Joe Waldo is continuing as Planning Co-Chair. Joe and I are currently putting together the agenda and faculty for the program, and we will have more on that soon. Andrew…

Continue Reading Mark Your Calendars: 2015 ALI-CLE Eminent Domain and Land Valuation, and Condemnation 101 – February 5-7, 2015, San Francisco