Regulatory takings

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Earlier, we posted the initial briefs in Big Oak Farms, Inc. v. United States, a case now pending in the Court of Federal Claims. Or, more correctly, perhaps being revived in the CFC because it was dismissed earlier.

The property owner in Big Oak Farms is seeking compensation for the flooding of its land in 2011 after the Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff’s words, “sacrifice Plaintiffs’ land to superimposed water, sand, and gravel in order to benefit the public diverting high water away from other personal and real properties in and around Cairo, Illinois.” Video here.

The Big Oak Farms briefs were the first briefs filed in which the parties attempted to apply the Supreme Court’s ruling in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012). These were filed even…

Continue Reading Response Briefs On Impact Of SCOTUS Flood Takings Opinion

Here’s one more amicus brief (Public Lands Council, National Cattlemen’s Beef Association, Oregon Cattlemen’s Association, Washington Cattlemen’s Association, and Nevada Cattlemen’s Association) supporting the cert petition in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

Estate of Hage is the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water.

Earlier, we posted two other amicus briefs supporting the granting of cert:

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Continue Reading One More Amicus Brief In Western Water Rights Takings Case

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From North Carolina colleague Matthew Bryant comes a heads-up to this report from WFDD, the NPR affiliate, “Possible Twist in Winston Northern Beltway.”

It’s about an ongoing inverse condemnation fight in the Winston-Salem area over the N.C. Department of Transportation’s designation in the mid-to-late 1990’s of certain properties for acquisition for a bypass highway. But despite these designations — which, under the state’s Transportation Corridor Official Map Act meant that the property owners’ development options were limited — DOT acquired some, but not all of the properties. The DOT didn’t buy them all because “[w]e simply do not have enough funding.” For a scope of the acquisitions, see this map which shows the DOT-acquired parcels in red, the unacquired parcels in green, and the plaintiffs in the inverse condemnation case in yellow.

After more than a decade of waiting, the owners of some of the unacquired brought inverse…

Continue Reading “Lines On A Map” Or Inverse Condemnation: How Long Can A Taking Be Only “Planned” But Not Executed?

Here are two amicus briefs supporting the cert petition in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013). That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water.

First up is the brief of Pacific Legal Foundation and the U.S. Cattlemen’s Association which argues that the property owner “has a protected property interest in the right to access and perform ordinary maintenance on ditches that carry his water on vested rights-of-way over federal lands.” The…

Continue Reading Amicus Briefs In Western Water Rights Takings Case

Here are some thoughts about the Federal Circuit’s recent opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013). It’s a long opinion, and we haven’t had a chance to digest it in detail, so these thoughts are not ours but are informative nonetheless. We offer this link to “The US wins the latest round in the Casitas saga” form environmental lawprof Holly Doremus at Legal Planet. She writes:

The Court of Claims ruled for the government, dismissing Casitas’s claim as not ripe on the grounds that the District had not shown any such interference [with Casitas’ water rights], at least not yet.

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In one sense this latest decision leaves the dispute hanging. The case was dismissed without prejudice, meaning that Casitas is free to file again if and when it can prove that the fish ladder has actually prevented it…

Continue Reading More On Casitas Water Rights Takings Case: “[T]he touchstone for takings cases is whether the property owner is being treated unfairly”

This just in. The Federal Circuit has issued an opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013), a case we’ve been following for a while.

The court affirmed the CFC’s dismissal of the case on ripeness grounds:

Casitas Municipal Water District (“Casitas”) operates the Ventura River Project (the “Project”). The Project, which is owned by the U.S. Bureau of Reclamation (“BOR”), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims…

Continue Reading Fed Cir: Water Rights Takings Claim Not Ripe

Here the first briefs filed in which the parties attempt tofigure out what the Supreme Court meant inArkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012)

Once the Supreme Court rejected that per se rule of no liability, the Court of Federal Claims in Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of the case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion on the case.

Recall that the Supreme Court’s unanimous opinion held that courts must “weigh carefully the relevant factors and circumstances” presented in a flooding case: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking”
  • Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the

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Continue Reading First Briefs On Impact Of SCOTUS’ Arkansas Game Opinion

Here are the links to the materials and briefs from the Supreme Court’s three taking cases which we are discussing at today’s teleconference sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his “what’s next” talk about Arkansas Game. Update: here are the Big Oak briefs.Continue Reading Links And Materials From Today’s ABA Takings Teleconference

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon – 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.
Continue Reading Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

Update January 20, 2015: here are links to the most recent reports and the cert-stage briefs in the second go-round for the case: Horne II “The World’s Most Outdated Law” Crahses Headlong Into Takings. 

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It’s not really the “Sun-Maid Girl,” but rather the organization the trademark now represents, Sun-Maid Growers of California., who filed this amicus brief supporting the U.S.D.A. in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012).

The brief makes one main point: the Hornes, as raisin “handlers” cannot assert a takings defense because they didn’t have title to the raisins they claimed were taken, and thus lack standing:

Petitioners indisputably have no standing to assert a Takings defense to avoid civil liability, as handlers, for failing to set aside as reserve tonnage the raisins produced by other producers, because as handlers petitioners never took title…

Continue Reading “Sun Maid Girl” Files Amicus Brief In California Raisin Takings Case