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Here’s one for all you civil procedure mavens.

The Florida District Court of Appeal concluded that the Board of Trustees, sued for inverse condemnation for beach renourishment (this case is somewhat related to our old friend the Stop the Beach Renourishment case, decided by the Supreme Court in 2010), waived their objections to improper venue. The court held that when the plaintiffs amended their complaint, they did not change the nature of their inverse condemnation claim, which thus “related back,” and since the Board hadn’t objected to venue originally, it could not do so now.

The court also concluded that the Board could be sued in the county where its headquarters are located, even though the taking occured in another county, and that it was a waivable issue, and not one of subject matter jurisdiction. Yes, condemnation actions are in rem and are to be litigated where the property is…

Continue Reading Fla App: Inverse Condemnation Venue Proper Where Taker’s Headquarters Located

In a 2-1 decision (en banc next?) in a case we’ve been following with some interest in which a Marin County oyster farming operation in the National Seashore sued the Interior Department for its decision to not renew the farm’s permit, in this opinion, a Ninth Circuit panel held that courts have jurisdiction only to review the limited question of whether the Department understood its authority to renew or not renew the permit. The majority held that the statute pretty much gives the Department total discretion whether or not to do so, and thus the courts could not review its decision that wilderness legislation prohibited any extension of the permit.

In the majority’s words, “[t]he choice was the Secretary’s to make.” Slip op. at 27 (footnote omitted). 

The panel held that the farm was unlikely to prevail on the merits, and thus affirmed the District Court’s refusal to…

Continue Reading 9th Cir: Courts Have No Jurisdiction To Review Discretionary Decision To Not Issue Permit

Just over a month ago, the U.S Court of Appeals for the Fourth Circuit held that a federal takings case could actually proceed in federal court. Well yesterday, the same court issued a similar opinion in a related case, Town of Nags Head v. Toloczko, No. 12-1537 (Aug. 27, 2013).

We won’t go into detail because this post, by J. David Breemer at Pacific Legal Foundation (who also is counsel for the prevailing property owners) sets it all out very well.  But the decision involves abstention (Federal Courts law school flashback), Williamson County, and  beaches and public trust, so it’s well worth a read on its own.

If that doesn’t grab you, then nothing will!

Town of Nags Head v. Toloczko, No. 12-1537 (4th Cir. Aug. 27, 2013)


Continue Reading 4th Cir (Again): Federal Takings Claim Should Be Heard In Federal Court

Here’s what we’re reading today:

  • Our Owners’ Counsel colleague from New Jersey, Anthony Della Pelle, has posted some thoughts on the New Jersey Supreme Court’s recent decision in Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013). That’s the case about valuation issues when there’s a partial taking of littoral property in order to erect protective dunes. Tony’s thoughts are well worth reading. 
  • In that vein, on Wednesday, August 14, 2013, starting at noon ET, we’ll be joining Tony and other experts to speak at the New Jersey Institute for Continuing Legal Education’s teleseminar on “Eminent Domain and Regulatory Takings:

…
Continue Reading Wednesday Round-Up: Koontz Recording, Jersey Shore Dunes, Plastic Bag Bans

What’s this, a federal court actually allowing a federal Fifth Amendment claim to be litigated in federal court? Why that’s as rare as hen’s teeth, although it shouldn’t be. 

That’s the ruling of the Fourth Circuit in Sansotta v. Town of Nags Head, No. 12-1538 (July 25, 2013), which reversed the district court’s dismissal of a takings claim under Williamson County. The court of appeals held that the Town’s removal of the case to federal court waived the state litigation Williamson County defense. Other courts have rejected the same tactic (property owner does what Williamson County requires and files its takings claim in state court, only to have the government remove the case to federal court under College of Surgeons, and then argue that the federal court should dismiss the case under Williamson County), but it’s nice to see a U.S. Court of Appeals…

Continue Reading 4th Cir: Town Waived Williamson County State Court Defense By Removing Case To Federal Court

This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

This is a long one from the California Court of Appeal, Fourth District (58 pages, with an 11-page dissent), so we’re not going to go into detail. But if a local government’s conflict with an all-powerful state agency, shoreline and coastal law, or how the concept of governmental “pretext” is treated in areas outside of eminent domain law is your cup of tea, then be sure to check out City of Dana Point v. California Coastal Comm’n, No. D060260 (June 17, 2013).

Property owner created 125 lots on an oceanfront slope. On the inland side of the development is a public park built by the developer, and a public beach is on the seaside, donated by the developer. (That’s “mauka” and “makai” respectively for you Hawaii people.) Public access trails run through the development, linking the park and the beach. The city adopted an ordinance requiring the installation of…

Continue Reading Cal App Tackles Pretext … But Not Eminent Domain Pretext

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

Here’s the video of today’s Ninth Circuit oral arguments in Drake’s Bay Oyster Co. v. Jewell, the case about an oyster farm in Marin County’s Point Reyes National Seashore, and Interior Secretary Ken Salazar’s decision to not renew its license. The Ninth Circuit has posted the briefs of the parties and amici here.

Here’s our initial post on the case, and here’s our follow up (about one of the amicus briefs).

Here’s a plain language preview of the issues and the arguments. 

Predictions? It seems to us that two of the judges are skeptical of the farm’s arguments, and one may be inclined to agree, but there was nothing we saw on the video that would lead us to think the outcome is obvious. Continue Reading Oral Argument Video In Ninth Circuit Oyster Beef