Regulatory takings

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In Skatemore, Inc. v. Whitmer, No. 21-2985 (July 19, 2022), the U.S. Court of Appeals for the Sixth Circuit held that neither the Just Compensation Clause, nor the Fourteenth Amendment abrogated the states’ immunity from being sued in federal court for compensation for takings.

This is another one of those cases where — due to Co-19 — businesses forced to close or limit operations by the state (here, Michigan) brought regulatory takings claims in federal court. The claims included takings, and the relief sought was just compensation (no prospective injunction or declaratory judgment). The complaint named state officials (in their official capacities) and state agencies as the defendants. The district court dismissed for lack of jurisdiction and for failure to state a claim. 

The Sixth Circuit affirmed. The court rejected the argument that a state’s Eleventh Amendment immunity from being haled into a federal court without consent does not…

Continue Reading CA6: State Officials Enjoy 11th Amendment Immunity From Just Compensation Claims In Federal Court

We were all set to detail the Iowa Supreme Court’s recent opinion in Garrison v. New Fashion Pork LLP, No. 21-0652 (June 20, 2022), when we discovered that Iowa State University’s Center for Agricultural Law and Taxation beat us to it with “Iowa Supreme Court Overrules Key Ag Nuisance Case.”

On June 30, 2022, the Iowa Supreme Court, in a 4-3 decision, overruled 18-year-old precedent to find that Iowa’s right to farm statute, Iowa Code § 657.11, does not violate the inalienable rights clause of the Iowa Constitution. This decision generally restores statutory immunity from nuisance lawsuits seeking special damages for many animal feeding operations.

The “18-year old precedent” mentioned made Iowa an “outlier” the majority concluded, because every other state that has considered RTF statutes has upheld them. Welcome back, Iowa.

We couldn’t do a better job at summarizing the case and the arguments, so we’ll…

Continue Reading Iowa Rejoins The Fold: Right-To-Farm Statute Does Not Violate State Constitution

In Witman v. City of Billings, No. DA 20-0609 (July 5, 2022), the Montana Supreme Court rejected an inverse condemnation damaging claim after a grease clog in city sewers resulted in 1000 gallons of raw sewage flooding the Witman home. Ugh.

Despite rules that limit what is supposed to go into sewage systems, people put all kinds of stuff, including grease, into toilets and drains. The city cleans the pipes out every year, but “experiences ten to fifteen [Sanitary Sewer Overflow events] annually.”

The trial court denied the owner summary judgment on liability, and instead held that the city was not liable as a matter of law because it had not undertaken “deliberative affirmative action.”

The Supreme Court rejected the owner’s argument that purposeful action may be necessary in eminent domain takings, but not in inverse, and an invitation to adopt the California approach to inverse. The owner…

Continue Reading Montana: Owners Are You-Know-What-Out-Of-Luck For Sewage-Backup Damaging Claim, Unless They Show Torty Evidence

Here’s the latest in a case we’ve been following from when the takings case was rejected by the Court of Federal Claims, and the dismissal affirmed by the Federal Circuit.

Yes, this is the “bump stock” takings case, and the Federal Circuit decision has now triggered a cert petition.

You remember that one. Petitioners owned “bump stocks” that apparently were legal at the time they acquired them. But later, the feds declared them illegal to own or possess, and the bump stock owners either turned theirs over to the government or destroyed them. Next up, a takings case: if getting bump stocks off the market is a good thing, the Armstrong principle compels compensation (the cost of public benefits should be distributed among the benefited public).

The CFC dismissed. We criticized the CFC’s rationale that the reason the bump stock ban was not a taking was …

Continue Reading New Cert Petition: Does Possibility Of Agency Regulation Restrict Property?

Screenshot 2022-07-07 at 13-44-38 The Brigham-Kanner Property Rights Conference

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here – space is limited – fee ranges from free to $195 – a bargain!). And you know that our colleague Jim Burling is this year’s B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here’s the full agenda. The list of speakers is too long to list here but check out these topics:

  • Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
  • Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that’s the panel we’re speaking on)
  • Roundtable: Emerging Issues in Takings and Property Rights Litigation
  • Panel 3: Choosing A Property Regime
  • Panel 4: Property Rights in Times of Scarcity and Crisis

Who can …

Continue Reading Here’s The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

IMG_2405
No smoking in Hatu

A short one from the U.S. District Court in Utah, but worth reading because it highlights one of those unresolved issues: the remedy for a “takings” claim.

Now, you’ve heard the Supreme Court describe just compensation as the “default” remedy for regulatory takings and inverse claims. But it isn’t the only remedy, is it? 

Well, in this Order, the U.S. District Court for the District of Utah seems to think so. At least it is in federal court.

Utah adopted a statute that prohibits tobacco businesses from operating within 1000 feet of a school. Smoke shops sued in federal court for a taking under section 1983 and other things (due process, First Amendment, &c.). The defendant was not the State of Utah because, you know, you can’t sue a state for money in federal court unless it consents. So as in other cases, …

Continue Reading You Can Sue Utah For Compensation In State Court, So No Injunction In Federal Court

Screenshot 2022-07-02 at 09-16-05 Taking One for the Team COVID-19 Eviction Moratoria as Regulatory Takings

Check it out: a new article from the San Diego Law Review that’s worth reading. Here’s the Abstract:

This Comment explores potential Fifth Amendment challenges to COVID-19 eviction restrictions. Part II introduces California and federal COVID-19 eviction laws and lays out an organizational framework for analysis. Part III provides background on relevant regulatory takings jurisprudence. Part IV analyzes COVID-19 residential eviction laws under relevant regulatory takings tests. Part V considers judges’ potential impact on eviction moratorium challenges. Finally, Part VI proposes the solution that the Federal Government should pass legislation to provide direct rent relief for COVID-19-affected tenants.

Get the pdf here: “Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings,” 59 San Diego L. Rev. 345 (2022).

Our take on Co-19 takings (not just eviction moratoria) here. And our thoughts on emergency response laws, generally.Continue Reading New Article: “Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings”

A long-ish opinion from the Alabama Supreme Court in Douglas v. Roper, No. 1200503 (June 24, 2022). But a short post because the good stuff is relatively brief.

Bottom line: property owners have a vested interest in excess money generated from a tax sale of their property, and the Alabama legislature cannot prohibit the owners from claiming that excess equity.

Quick background: the legislature enacted a statute that required property owners who had their properties sold to satisfy tax debts first have redeemed the property before they could claim the excess funds, if any, from the sale. This had the effect of permitting the government in many cases to keep that excess (i.e., the property’s equity), as a little something extra — what our New Orleans friends might call lagniappe. Property owners objected, arguing that retroactively applying the statute would be a taking.

There’s a lot to…

Continue Reading Alabama: Government Can’t Keep The Change After A Tax Sale

Here’s the latest – a cert petition in a case (and an issue) we’ve been following that asks can a government action that is a violation of copyright also be a taking?

Bynum wrote, researched, and edited a book, a biography of Texas A & M’s famed “12th Man” of the football squad. During his research, he met with officials from the university’s athletic department and later emailed them a “PDF of the full book,” noting that it was not final and only for the recipient’s review. 

Next up, trouble: the official (allegedly) “directed his secretary to re-type the Biography and to remove any reference to Bynum of to Epic Sports’ copyright information. [The official] rewrote the PDF’s byline to [indicate that another author had written the book] and changed the title. And “[o]ver the next 72 hours, the Department disseminated the full Biography to hundreds of thousands…

Continue Reading New Cert Petition: Copyright Or Takings? (And State 11th Amendment Immunity)

Here’s what we’re reading today:

Continue Reading Monday Round Up: Aina Lea Out With A Whimper, 30 Years Of Mabo, Seneca Village