Regulatory takings

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Here’s the property owner/petitioner’s Reply Brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.

The Federal Circuit held that flooding caused by the Corps was only temporary that destroyed G&F’s trees did not result in a compensable taking merely because the flooding it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

The Reply Brief responds to the federal government’s brief, and argues: 

The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and…

Continue Reading Property Owner’s Reply Brief In Arkansas Game & Fish Comm’n: Flooding Causing Destruction Is Physical, Not Regulatory Taking

We sure wish we could have attended the Cato Institute’s recent Constitution Day program in Washington, D.C., but here’s the next best thing, a video of the presentations on Property Rights, with a review of the recent Sackett and PPL Montana decisions by the Supreme Court, and an update about the state of property rights.

Speakers include our PLF colleague Damien Schiff, lawprof Jonathan Adler, and lawprof Ilya Somin.

We can’t embed the video, but you can watch it here on CSPAN’s site. Continue Reading From Cato Institute’s Constitution Day: Property Rights And The Supreme Court (Video)

The Legal Information Institute at Cornell Law School has published its preview of Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case set to be argued on October 3, 2012.

Petitioner, the Arkansas Game and Fish Commission (the “Commission”) sued Respondent, the United States, for a violation of the Takings Clause of the Fifth Amendment, which compels the government to compensate parties when the government physically seizes property. Specifically, the Commission argues that the United States Army Corps of Engineers (the “Corps”) permanently destroyed trees in a bottomland hardwood forest in Arkansas by intermittently flooding the forest for six years. The United States asserts that the actions of the Corps did not constitute a taking because the Corps did not oust the Commission of possession of the forest, and only a continuous invasion qualifies as a physical taking. The Supreme…

Continue Reading A Concise Preview Of The Arguments In Arkansas Game: Flooding & Takings

In Moore v. City of Middletown, No 2012-1363 (Aug. 30, 2012), the Ohio Supreme Court held that a property owner did not have standing to bring a regulatory takings claim when a “foreign municipality” (the neighboring city) rezoned an adjacent parcel, because the municipality did not have jurisdiction to exercise eminent domain over his property. However, the court held the property owner could seek a declaratory judgment “to challenge the constitutionality of the ordinances.”

Under Ohio law, a “regulatory takings” action gives the plaintiff a right to bring a mandamus action to compel a municipality to institute condemnation proceedings, and the court held that since Middletown could not have exercised eminent domain authority outside of its jurisdiction, it could not be compelled to do so by the property owner. Our Ohio colleague Matt Fellerhoff discussed this aspect of Ohio law in his analysis of Clifton v. Blanchester, 964…

Continue Reading Ohio: No Such Thing As Extraterritorial Inverse Condemnation

Those of you who attended the recent CLE session at the ABA Annual Meeting about Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) may recall that Professor John Echeverria, the well-known environmental lawprof, said he was writing a brief in the case supporting the government’s arguments, but was looking for a “client.” Well, it looks like he found one: today, the International Municipal Lawyers Association filed this amicus brief in support of the respondent.

In Arkansas Game, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of …

Continue Reading IMLA Amicus Brief In SCOTUS Flood Takings Case: This Is Not An “Environmental” Case

Check this out. A report from the Maui News that “Environmental court would be perfect fit here – judge.” Apparently, there is an effort to get the Judiciary or the Legislature to form another court with specialized jurisdiction, either formally like the Family Courts, or more likely on a less formalized basis like the “Drug Courts” that the circuit courts convene.

And who is recommending the formation of such a court? Why a judge from just such a court in Memphis, Tennessee:

“I’ve learned over the years that if you get them by the wallet, their hearts and minds follow,” Potter said to about 100 people at the Maui Arts & Cultural Center.

Potter said that an environmental court here is a perfect fit – and long overdue. There’s just so much to protect and balance in this delicate paradise, he said.

“The environment is everything here. It’s…

Continue Reading Does Hawaii Need An “Environmental Court?” – Doesn’t It Already Have One?

Here’s the federal government’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

As you might expect, the brief phrases the Question Presented somewhat differently than the property owner/petitioner’s brief:

The Court of Federal Claims found that during several years in the 1990s, temporary and irregular changes in water releases from a flood-control dam operated by the United States Army Corps of Engineers marginally…

Continue Reading Fed Govt’s Brief: “Temporary And Irregular Inundation Of Wetlands” (Read: Flooding) Is Not A Taking

Florida land use and environmental law attorney Jake Cremer has posted the Brief in Opposition in Koontz v. St. Johs River Water Management Dist., No. 11-1447 (cert. petition filed May 30, 2012), the case asking whether the Nollan/Dolan nexus and proportionality tests  apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property. We posted the cert petition here.

Jake writes:

The U.S. Supreme Court has not yet given much more guidance on exactions, and confusion has been the result. The Florida Supreme Court forged its own path, holding that the Nollan-Dolan test only applies to (1) exactions of real property (2) where a permit was actually issued and imposed an exaction. Consequently, in Florida, there are now relatively few restrictions on what a local government can ask …

Continue Reading BIO In SCOTUS Florida Exactions Case: Fla Supremes Ruled Only Under Fla Law

For those of you sticking around Chicago after the ABA Annual Meeting, there’s the opportunity for even more land use, zoning, takings, and condemnation programming. ALI-CLE (fka ALI-ABA) is putting on it’s annual Land Use Institute later this week. It looks like Planning Co-Chairs Gideon Kanner and Frank Schnidman have put together a wide-ranging agenda, and stellar faculty, as usual. 

Details, including registration information, here.Continue Reading Chicago Part II: Land Use Institute

This past week was the ABA Annual Meeting in Chicago. These things can often be endurance contests where you’re rushing from one meeting to another (is this the Executive Committee meeting or the Council meeting?), and it’s often hard to tell the players without a scorecard.

Sprinkled among these unexciting-but-productive sessions are the real meat of the Annual Meeting, the CLE sessions. Some are interesting and fun (but pretty useless as CLE). Others are timely. Some are just plain weird. But never let it be said that the State and Local Government Law Section (the one that we are active in) doesn’t put on relevant programming: two of the featured CLE’s this past week were of particular interest to our readers, one about eminent domain, and the other about the takings case currently pending before the U.S. Supreme Court (which will be argued on October 3, 2012).…

Continue Reading Summary Of Flood Takings CLE – Lawprofs And Lawyers Discuss Pending SCOTUS Case