Complete information, including registration, faculty, and agenda, here. Continue Reading (Video) There’s Still Room At The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan. 26-28, 2017
Court Of Federal Claims Pop Quiz: Taking Or No Taking?
There have been a lot of takings and takings-related decisions coming out of the Court of Federal Claims lately, and we’ve held off on posting them individually. So to start off your New Year, here is a pop quiz.
Your task: guess whether the CFC held there was a taking, or no taking (answers below):
Case 1: Sheikh Djibouti
- Global Freight was a subcontractor providing services to a Navy base in Djibouti. The Navy ordered it to move its vehicles from the Navy base into Djiboutian territory, after which the Djiboutians seized the vehicles. Taking or no taking?
- Taking. Or at least not “no taking.” In Global Freight Systems, Co. v. United States, No. 15-378C (Fed. Cl. Dec. 29, 2016), the CFC denied the government’s motion to dismiss for failure to state a claim (which argued that it was the Djiboutians and not the U.S. which took the
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More Briefs In En Banc “Hail Mary” Asking Fed Cir To Abandon Decades Of Rails-To-Trails Rulings
Following up on our post earlier this week with our amicus brief, here are the remainder of the briefs filed in the Federal Circuit in a case in which the government is asking the court to bypass panel hearing and go straight to en banc review of a Court of Federal Claims opinion which held that the owners of a railroad easement which was converted to a recreational path are owed $900 in just compensation, plus EAJA fees.
Why all this sturm und drang (as the Federal Circuit once characterized rails-to-trails cases) over 900 bucks?
As we wrote in our earlier post, this is the government’s attempt to wipe out established regulatory takings doctrine and get the Federal Circuit to effectively overrule its prior decisions holding the government liable for physical takings when it prevents reversion of the railroad easement to private owners when those easements are no longer
Fed Cir Amicus Brief: Regulatory v. Physical Takes In Rails-To-Trails – No En Banc Review To Overturn Settled Precedent
You rails-to-trails and takings mavens all know the drill in those cases: rail easement stops being used for rail, bikers and runners want a recreational path, the federal Surface Transportation Board issues a Notice of Interim Trail Use (they say “interim” because of the fiction that they are just “railbanking” and someday when we want the iron horse to rule again, the bike path may be converted back into a rail line), which under the U.S. Supreme Court’s ruling in Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990), triggers the obligation of the federal government to pay just compensation for the taking of the property owner’s “reversionary” interest.
In other words, the owners across whose land the railroad easements are located were supposed to get that land back if those easements stopped being used for railroads. When they get converted instead into public recreational trails, there’s a taking. Now
HAWSCT Considering Wipeout Regulatory Takings: What Is An Economically Beneficial Use?
Heads up for a case to watch being argued next week in the Hawaii Supreme Court.
This is a regulatory takings case that’s been up to the Hawaii appellate courts before (see here). In that opinion, the court of appeals correctly held that a property owner raising a regulatory takings case has no obligation to change the law to ripen her claims. [Note: we filed an amicus brief in that appeal in support of the property owner.] The court vacated the trial court’s dismissal, and remanded the case for trial.
The backstory to that case is long and complex.It involves beachfront property, the relationship between planning and zoning, and what exactly “economically beneficial use” means under the U.S. Supreme Court’s Lucas test for wipeout takings, especially in the context of what instructions that juries are given. [Another note: we represented a neighboring property owner in a similar case that
Monday Reading: Raisin Redux, Beach Appeal Dismissal, Zoning, And More
Here’s what we’re reading today:
- From the Los Angeles Times, via Professor Kanner: “Those California raisins may be gone from the airwaves, but they’re still making waves in court” – after Horne, what’s next for the California raisin industry?
- Remember that case about who owns parts of North Carolina’s beaches, set for argument shortly (we filed an amicus brief in the case, by the way)? Well, in this terse order, the N.C. Supreme Court sua sponte (or “ex mero motu” as they call it there) dismissed the appeal, no reason given. Read “NC Supreme Court drops case over beachfront property” for some of the guesses why.
- From Forbes: “Gallup, Zoning Is Reducing American Productivity And Making The Poor Poorer” (Many people are choosing to live in more expensive and smaller spaces, and “the Gallup report lays the real blame squarely on
Continue Reading Monday Reading: Raisin Redux, Beach Appeal Dismissal, Zoning, And More
Federal Circuit: Owner Should Have Brought Takings Claim In 1959
When an opinion starts off like this, you just want to read the rest, even if the substance of the decision is about statutes of limitations:
This case arises from Mr. Abbas’s complaint against the United States (“U.S.” or “the Government”) in the Court of Federal Claims for an alleged taking of his property rights in certain pre-World War II German bonds. Mr. Abbas alleges that a series of post-World War II treaties between the U.S. and Germany pertaining to the handling of these bonds effected a regulatory taking without compensation of his right to enforce the bonds against Germany in U.S. courts, in violation of the United States Constitutional requirement that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V.
Abbas v, United States, No.16-1342, slip op. at 2 (Dec. 6, 2016). Read the opinion for the fascinating story behind how
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2017 Hawaii Land Use Law Conference, January 19-20, 2017
Registration is now open for the 2017 Hawaii Land Use Conference, presented by the Hawaii State Bar Association and the University of Hawaii Law School, at the downtown Honolulu YWCA’s Fuller Hall on January 19-20, 2017. “This 2 day conference is a must attend for any attorney or professional whose practice involves land use and development,” as the registration web site says (we agree).
Topics include the latest in Transit-Oriented Development, the Thirty Meter Telescope, GMO (including the recent rulings from the Ninth Circuit), and the topic we’ll be presenting, “Takings: Regulatory and Physical.”
The final agenda has not yet been released, but if experience is any guide, Planning Chair Professor David Callies will put together two days of timely topics, presented by distinguished faculty.
And the cost can’t be beat: $200 for members of the Real Property and Financial Services Section and government lawyers, $300
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Nebraska: Inverse Condemnation Claims A Bridge Too Far
We’ve had bridges on our minds lately. Plus, we’ve been meaning to post the Nebraska Supreme Court’s opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn’t.
But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court’s ruling.
The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City’s zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their
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4th Circuit (Unpublished): Federal Court Facial Takings Claim Ripe After Removal By Govt To Fed Court
We don’t usually post unpublished opinions, but the Fourth Circuit’s recent decision in Clayland Farm Enterprises, LLC v. Talbot County, No. 15-1755 (Dec. 2, 2016), raised some issues worth your time.
The property owner brought its claim in Maryland state court claiming, among other things, that the County’s two indefinite moratoria on development and sewer availability — which prohibited owners from seeking or obtaining County subdivision — was a facial taking. The lawsuit asserted “the moratorium is facially unconstitutional,” although it’s not clear from the majority opinion what remedy the complaint sought.
The County removed the case to federal court and moved to dismiss. The district court granted the motion, because “[i]t is beyond the province and competence of this court to make zoning decisions[.]”
The Fourth Circuit reversed. “Count I is a facial challenge to the moratoriums and is thus clearly ripe.” Slip op. at 7. Because a