Regulatory takings

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While there was much more attention devoted to today’s argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right? 

Whether “BONG HITS 4 JESUS” is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005’s infamous Kelo decision.  The transcript of the oral arguments is posted here.  The Solicitor General’s office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.

In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she…

Continue Reading ▪ Property Rights in the Supreme Court: Today’s Argument in Wilkie

That’s one of the three questions the US Supreme Court will consider on Monday, March 19 2007, when it hears arguments in Wilkie v. Robbins. 

The case involves a Wyoming rancher who sued officials of the federal Bureau of Land Management, claiming they began “a campaign of harassment and coercion designed to force [him] to give the Government a property interest in his landwithout just compensation.” 

The property owner sued the BLM officials under federal Racketeer Influenced and Corrupt Organizations (RICO) laws, asserting their attempts to coerce him to surrender an easement over his land was “extortion.”  Those efforts included filing false criminal and administrative charges against the property owner, harassing ranch guests, and cancelling the owner’s right-of-way across neighboring BLM land.  The BLM officials claimed they were immune from suit, arguing their behavior did not violate “clearly established” law.  Northwestern U’s School of Journalism has posted a summary…

Continue Reading ▪ Supreme Court Preview: Is There a Right to be Free From Government Retaliation For Defending Your Property Rights?

Nollan/Dolan meet Don Corleone.  The Maui News reports on a homegrown version of the Wilkie v. Robbins issue, the case set for argument in the US Supreme Court on March 19, 2007.  The issue is whether government officials can be sued under federal “RICO” anti-racketeering laws.  Wlkie involves the federal Bureau of Land Management’s attempts to wrest an easement from a Wyoming rancher in return for land use permissions, and a report of the Maui case is here. Continue Reading ▪ RICO, Nollan/Dolan, and “Extortion”

Is the game over in the ninth inning, or is being ahead in the sixth good enough?

Federal civil rights law, 42 USC  § 1988, provides that the “prevailing party” in a lawsuit to vindicate federal civil rights is entitled to collect attorneys fees from the loser.  The right to own and make economically beneficial use of property is one of those federal civil rights, and land use and property issues are often litigated under 42 USC  § 1983, so attorneys fees may be available to the winning party. 

But what does it mean to be a “prevailing” party?  On April 17, 2007, the US Supreme Court will hear arguments in Struhs v. Wyner (No. 06-531) (docket listing here), a case that presents the issue of whether a party who wins a preliminary injunction — but ultimately loses the case — has “prevailed” within the meaning…

Continue Reading ▪ Attorneys Fees in Land Use Litigation

After a jury found that an Oregon state agency violated the plaintiff’scontitutional rights when it laid her off, it required Oregon to pay her compensatoryand punitive damages.  After the judgment, Oregon got 40% back.  The Oregon “split recovery” statute provides that for certain punitivedamage awards, the state is entitled to 40% of the award, to be deposited into a victim’s compensation fund, even when the state is the defendant.  The plaintiff claimed, among other things, that the statute effected a taking of her property without just compensation. 

The Ninth Circuit held in Engquist v. Oregon Dep’t of Agriculture (No. 35170, Feb. 8, 2007) that the plaintiff’s interest in a punitive damage award was not “property” protected by the Fifth Amendment’s Takings Clause.  The court’s takings analysis begins on page 1527 of the slip opinion. 

    
Continue Reading ▪ Ninth Circuit: No Fifth Amendment “Property” in Punitive Damage Award