Regulatory takings

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There’s a lot to digest in the Ninth Circuit’s opinion in Fowler v. Guerin, No. 16-35052 (Aug. 16, 2018). (We’ve been following the case, but the court’s issuance of the opinion slipped by — our thanks to a colleague for pointing it out).

The plaintiffs filed a class action alleging that state officials failed “to return interest that was allegedly skimmed from their state-managed retirement accounts.” The District Court denied class action status and granted the State summary judgment, concluding the case was “potentially unripe” because the State had not finished the process of administrative rulemaking, which might, in the court’s view, address the plaintiffs’ claims for interest. 

The Ninth Circuit reversed. The opinion is a worthy read, especially because it is coming out the Ninth Circuit, a court not known for being particularly property friendly. 

Here’s the rundown of the various issues the opinion analyzed:

  • Ripeness. The District

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Continue Reading Some Takings Musings From The Ninth Circuit: “Prudential” Williamson County Ripeness, Interest As Property, And Rooker-Feldman…Oh My!

Back in April, we posted the Florida District Court of Appeal’s opinion in a case where landowners sued the state fish and wildlife commission because “deer dog hunters and their dogs” who had hunting licenses trespassed on the plaintiffs’ lands. The court, over a single judge dissent, affirmed the dismissal of the takings claims, because the physical invasions by the hunters and their dogs were not caused by the commission. 

The property owners sought rehearing, and although the majority revisited and revised the opinion, it didn’t change the outcome, which stayed the same. In Florida Fish and Wildlife Conservation Comm’n v. Daws, No. 1D16-4839 (Aug. 16, 2018), the court amended the majority opinion to clarify its takings analysis. 

We won’t go into a page-by-page redline (for a direct comparison of the two opinions, go here), but the opinion’s biggest change was a section in which the majority…

Continue Reading Fla App: Takings Dog Still Doesn’t Hunt

Appeals from motions to dismiss can be very unsatisfying, even for the winner. Granted, from a doctrinal standpoint, they’re pretty good at clarifying the law. And from a practice standpoint, the courts’ opinions often help future lawyers and litigants figure out how to plead cases, and frame issues. And the party who wins the appeal can justifiably take back a trophy, often in the form of a published opinion. 

But for both the winning and losing litigant, an appeal from a dismissal without prejudice can get them nowhere fast (and in most cases, not for free). Because all that gets the parties in many cases is a do-over.   

The Federal Circuit’s opinion in Crow Creek Sioux Tribe v. United States, No. 17-2340 (Aug. 17, 2018) doesn’t contradict that sense. There, the court affirmed the dismissal by the Court of Federal Claims of the Crow Creek Sioux Tribe’s claim…

Continue Reading Fed Circuit: Tribe’s Claim For Taking Its Water Rights Didn’t Allege Injury

Challenging an ordinance that the court characterizes as an “even-handed” zoning regulation, even if it outlaws an existing conditional use, is going to be a tough one for a plaintiff. In theory, it need not be, given the right conditions. But any zoning lawyer will tell you that it is tough to overcome most courts’ presumption that these things are ok. That’s just the way it is. 

The Minnesota Court of Appeals’ opinion in Minnesota Sands, LLC v. County of Winona, No. A18-0090 (July 30, 3018), confirms that vibe. There, the county adopted an ordinance that banned all “industrial-mineral mining, including silica-sand mining.” Slip op. at 1. If that sounds oddly specific, the backstory is that this is the stuff used in fracking. 

Mr. Frick (and here you might think we’d try to work in both “Frick” and “frack” into this post’s title) owned leases to mine silica-sand on…

Continue Reading Ordinance Banning Industrial Mineral Mining Not A Regulatory Taking – But What About Palazzolo?

No surprises in the U.S. Court of Appeals for the Eleventh Circuit’s opinion in Checker Cab Operators, Inc. v. Miami-Dade County, No. 17-11955 (Aug. 6, 2018). As the caption suggests, this is another one of those takings claims brought by “traditional” taxicab operators against a local government for its refusal to keep ridesharing services from the market. 

As in other cases (see our article summarizing several of them here), the court came down on the side of “no taking.” The rationale was that owning a government-issued taxicab medallion, while “property,” does not give the holder a property right to exclude others because the point of the medallion system was to protect consumers, not to give the taxis a monopoly:

Moreover, the main purpose behind the County’s medallion policy was not to enrich medallion holders, but rather to enhance consumer welfare. The County sought to “license and regulate…

Continue Reading 11th Cir: No Uber Taking – Taxi Medallion Does Not Give Right To Exclude Others From Transportation Marketplace

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We already knew from its amicus brief brief that the federal government supported the property owner in Knick v. Township of Scott, No. 17-647, the case in which the US. Supreme Court agreed to review the continuing validity of the “state procedures” rule of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). The SG’s brief called for the Court to vacate and remand the dismissal of Knick’s case. We also filed an amicus brief in support of Ms. Knick. 

But recently, the feds have doubled down by filing a motion to participate in oral argument and to split time with the Petitioner, which notes:

The United States has filed a brief as amicus curiae supporting vacatur and remand. The brief argues that Williamson County correctly recognized that the Fifth Amendment does not “require that just compensation be paid in advance of, or…

Continue Reading Federal Govt: Reject Williamson County! Property Owners Whose Property Is Taken By Local Governments Should Be Able To Enforce Fifth Amendment Rights In A Federal Forum

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Here’s the latest in a case we’ve been following, a regulatory takings dispute from the Big Island of Hawaii. 

Last we reported, the jury (after deliberating for a grand total of 15 minutes) held the State of Hawaii Land Use Commission liable for a regulatory taking. But unbeknownst to the jurors, the court had already entered summary judgment for the State that the most the owner could recover as just compensation was nominal damages of $1.

The State then renewed its (denied) motion for summary judgment on liability, or alternatively sought a new trial. In this order, however, the District Court denied the motion, concluding that Aina Lea’s property right was not a “limited” right even though by the time of the case it had sold some of its rights to another entity:

Even taking the State’s characterizations of the record at face value, they support, at…

Continue Reading No New Trial In Hawaii Regulatory Takings Case; Next Stop, Ninth Circuit

Clare Trapasso has a Realtor.com piece on what a Justice Kavanaugh could mean for real estate, property, and land use issues, “What Supreme Court Nominee Brett Kavanaugh Could Mean for Real Estate,” where she correctly notes that “while commentators have been scrutinizing Kavanaugh’s record on hot-button topics like abortion and immigration, there’s been little discussion of what a more conservative court could mean for home buyers, sellers, and owners.”

She asked us for input, and here’s what we said:

“The Supreme Court has done some very interesting things on land use law that affect homeowners,” says Robert Thomas, a real estate attorney specializing in land use and eminent domain at the Honolulu-based law firm of Damon Key Leong Kupchak Hastert.

Thomas expects more property-related cases will make their way to the Supreme Court, brought by people hoping that the new bench will increase their odds of a…

Continue Reading What Might A Justice Kavanaugh Mean For Takings, Land Use, And Other Issues?

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Here are the cases and other items I either spoke about or mentioned at today’s Transportation Research Board‘s 57th Annual Workshop on Transportation Law in Cambridge, Massachusetts:

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Continue Reading Links And Materials From Today’s Transportation Research Board Session

The plaintiffs owned mining and homestead claims on land in the Santa Fe National Forest. They claimed they own easements to access these lands, recognized by federal statutes. The government said no, these are just access rights, not easements. 

Then a fire, followed by flooding which severely damaged the Forest Service roads which the plaintiffs used for access. The Forest Service declined to repair the roads, but the plaintiffs said they’d intended to do so. But you have to do so by our rules, the Forest Service responded. Meaning the landowners would need to get a permit first. Apparently, they didn’t.

Instead, they brought suit in the Court of Federal Claims, asserting the loss of their easements was a physical taking. The CFC dismissed because the case was not ripe under Williamson County‘s “final decision” rule — the plaintiffs had not sought permission to repair the roads. 

In Martin …

Continue Reading Fed Cir: Takings Claim For Loss Of Access To National Forest Land Not Ripe