Regulatory takings

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Most federal takings claims against state and local government do not get heard in federal court (except to dismiss them on res judicata grounds), under the one-two punch of Williamson County and San Remo Hotel.  

Williamson County forces property owners into state court because a claim under the Fifth Amendment is not ripe until the state has denied compensation, which includes pursuit of a state law takings claim in state court, while San Remo Hotel penalizes a property owner for pursuing a state law claim in state court by concluding that she will unwillingly litigate her federal takings claim in the course of litigating her state law takings claim, thus, when her federal claim has been ripened by the visit to state court, the preclusion doctrines kick in to prevent her from raising it in federal court.

All of this presumes that the state law of whatever jurisdiction…

Continue Reading Alabama Guys: Gear Up For Federal Court. Your Supreme Court Concluded That Alabama Law Does Not Recognize Regulatory Takings

Did you know that as a Hawaii landowner you own all unmarked or unbranded cattle, horses, mules, donkeys, sheep, goats, and swine, over twelve monthsof age, which may be running wild on your land? Yeah, we knew that.

We also knew that you are going to love any opinion that starts out with “[t]he dispute between the parties arises from [the Department of Hawaiian Home Lands]’s roundup and sale of roughly 115 head of Nobriga’s cattle.” Our mind immediately hears the twang of Frankie Laine’s rendition of the Rawhide theme as we dive into the case. So you’ve really got to check out the opinion of the Hawaii Intermediate Court of Appeals in Freddy Nobriga Ent. Inc. v. State of Hawaii Dep’t of Hawaiian Home Lands, No. 28805 (Jan. 30, 2013), a fact pattern straight out of the Old West (and your Property 101 casebook).

Nobriga grazed his herd…

Continue Reading Some Days You Get The Bull, Some Days The Bull Gets You

Here’s the Federal Circuit’s Order for additional briefing in the Arkansas Game & Fish Comm’n v. United States case. As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking because it was not “permanent, ” and remanded the case to the Federal Circuit for more.

Now that the Supreme Court has rejected that per se rule of no liability, the Federal Circuit must “weigh carefully the relevant factors and circumstances” in the case (to quote the Supreme Court describing the task) and determine whether the flood damage that occurred was a taking under the new, multi-factor test set out in the Court’s opinion:

  • “[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 invasion is intended or

…
Continue Reading Fed Cir: More Briefing On Arkansas Game & Fish

The speed of the internet: we were all set to summarize our thoughts on the South Carolina Supreme Court’s opinion in Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (Jan. 9, 2013), a case involving equal protection, substantive due process, and takings claims, when Dean Patty Salkin at the Law of the Land blog beat us to it. See “SC Supreme Court Finds No Takings After Council Denies Rezoning for Golf Club Property” for the details.

This one thing caught our eye in the opinion. The court held that the “substantially advance a legitimate state interest” test, which the U.S. Supreme Court in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005) held was a test of substantive due process and not one of takings law, was the same thing as the “rational/conceivable basis” test. In other words, the term “substantially advance” is…

Continue Reading S. Carolina: “Substantially Advance” Means “Not Arbitrary And Capricious”

We’re sensing a trend here: takings cases where the property owners/plaintiffs are dead by the time their cases get considered by the Supreme Court. The week before last, the Court heard arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), a case where the original landowner has passed on to his final reward after arguing for decades that his property was taken. Yet the District argues a taking hasn’t even occured yet.

Now comes a cert petition, recently filed, seeking review of a similiar situation, the Federal Circuit’s decision in Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012). In that case, the court 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…

Continue Reading New Cert Petition: Is Interference With Use Of Vested Water Right A Per Se Or Penn Central Taking?

43_ELR_10189_Page_01Thanks to the folks at the Environmental Law Institute, who have allowed us to reprint an article from a recent Environmental Law Reporter which brings some clarity to the subject of the “denominator” issue in regulatory takings.

In Temporary Takings, Tahoe Sierra, and the Denominator Problem, William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee), writes:

Hundreds of briefs, decisions, and journal articles debating “how much loss is enough” should be sufficient proof that the Keystone Bituminous “taking fraction” provides poor guidance to decisionmaking in partial regulatory takings. The Penn Central court intended to measure the severity of economic impact by interference with distinct investment-backed expectations. Where lost income from use of the property is at stake, standard economics requires the denominator in the “taking fraction” to be the owner’s investment in the property. Instead, too many judicial decisions have…

Continue Reading Temporary Takings, Tahoe Sierra, and the Denominator Problem

Regulatory_takings-5th_edition

I just received my copy of the latest edition of of Professor Steven J. Eagle‘s definitive treatise Regulatory Takings (Lexis/Nexis 5th ed. 2012). It switched formats and is now a looseleaf and not a bound hardcover, which hopefully means it will be easier to update.

Like the earlier editions, this is a must-have for every land use and property law attorney’s back bookshelf. Chapters include “Property Rights and Their Sources,” “The Ascendancyof Land Use Regulation,” “Analytical Issues in Regulatory TakingsLitigation,” and “Regulatory Takings Remedies.” Get your copy here (oddly, the Lexis-Nexis web site only has the 4th edition for purchase, but I expect that to be remedied shortly).

I have the honor of counting Professor Eagle as a colleague, as he is my immediate past predecessor as the Chair of the Condemnation Committee of the ABA’s Section of State and Local Government Law.

Get this book. 

Continue Reading The Eagle Has Landed – Latest Edition Of “Regulatory Takings” Treatise

Here‘s what we think is the final top-side amicus brief in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012), supporting the petitioner/property owner. Filed by the Chamber of Commerce of the United States, the brief argues that where “the government requires a direct transfer of funds, and where a party seeks equitable relief in resisting application of that statute in an enforcement action, that party need not seek ‘compensation’ in a duplicative second lawsuit under the Tucker Act.” Br. at 5.

In Horne, the question is whether farmers who assert that an agricultural regulations known as “marketing orders,” by which they are forced to surrender large percentages of their raisin crops to the USDA without payment or else face massive fines, can raise the argument that to do so would be a taking when defending against the fine, or if their…

Continue Reading Final Amicus Brief In Cal Raisin Takings Case: Property Owner Can Raise Equitable Takings Defense

Here’s the brief amici curiae submitted by five law professors who teach constitutional law, in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012), supporting the petitioner/property owner. In that case, the Ninth Circuit held the District Court had no jurisdiction to hear a takings defense to the USDA’s imposition of a fine, and the only way to raise a takings claim was for the Hornes to institute separate litigation in the Court of Federal Claims for compensation.

Their brief makes two points. First, that Williamson County is “mistaken,” and there’s nothing standing in the way of the Hornes asserting a takings defense. Second, the Tucker Act does not require the Hornes to raise their takings claims only in the context of a suit for just compensation. 

Simply put, Williamson County’s second “ripeness” requirement is a mistake.

Williamson County’s constitutional ripeness rule…

Continue Reading Lawprofs’ Amici Brief In California Raisin Takings Case: Williamson County “has prevented scores of litigants from raising perfectly valid Fifth Amendment claims in federal court”

We’re used to knee-jerk reactions by state and local governments to takings claims: whatever the circumstances, the property owner is wrong, and loses. So it’s nice to see a brief where a state government stakes out a more objective position.

Texas has filed an amicus brief in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012), in support of the petitioner/property owner. In Horne, the question is whether farmers who assert that an agricultural regulations known as “marketing orders,” by which they are forced to surrender large percentages of their raisin crops to the USDA without payment or else face massive fines, can raise the argument that to do so would be a taking when defending against the fine, or if their only option is to pay the fine and file a lawsuit in the Court of Federal Claims to recover just compensation.

Continue Reading Texas’ Amicus Brief In California Raisin Takings Case: Y’all Don’t Need To Make This So Complicated