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Come at me!(Bolick, J., dissenting) We have a Wexis alert for “Kelo,” because that’s one of the ways we keep up on the latest developments in this area. That alert doesn’t ping all that often, so we were all excited when yesterday, we received an alert notifying us of the Arizona Supreme Court’s opinion in State of Arizona v. City of Tucson, No. CV-20-0244-SA (Apr. 14, 2021)? Was it a case of government-to-government takings?…
If you’re wondering what to do if, during the course of an eminent domain lawsuit or project, a condemnor (or anyone else with the power of eminent domain) invades, occupies, or affects more property than it acknowledges, check out the Indiana Court of Appeals’ opinion in Lake County v. House, No. 20A-PL-1675 (Apr. 14, 2021). Short story: a part of a larger project, the county brought an eminent domain action seeking a partial take…
We’ve been meaning to post this one for a while, and it appears our procrastination has paid off: the Court has asked for a response. Normally, we’d summarize the case and the issues, but in this instance, the cert petition‘s Question Presented lays it all out: Petitioner, Next Energy, LLC, commenced acquiring blocks of five-year oil leases in 2011 to drill high volume horizontal hydraulic fracturing (horizontal hydraulic fracturing) wells to recover oil…
Toby Prince BrighamNovember 24, 1934 – March 19, 2021 We haven’t posted in a few days, because we’ve been busy with a sad but important task – traveling to Miami to pay our respects to a true giant in the field of property rights and eminent domain, Toby Prince Brigham. After a long and legendary life and career, Toby left us last month. The accolades you know: constitutional lawyer, founder of Owners’ Counsel of America,…
Takings! Armstrong! Emergencies! Mahon! Jacobson! Add lawprof Shelley Ross Saxer’s latest article (forthcoming in the University of Hawaii Law Review), “Necessity Exceptions to Takings” to your reading list. Get it at SSRN here. Rather than summarize it for you, we’ll just post the abstract: The doctrine of necessity has strong roots in the common law of tort and property going back hundreds of years. In the United States the doctrine has been applied in…
Here’s the Wisconsin Supreme Court’s 4-3 opinion in a case we’ve been following, Christus Lutheran Church of Appleton v. Wis. Dep’t of Trans., No. 2018AP 1114 (Apr. 1, 2021). Even though it was close, after oral arguments, we were hoping for a more positive result. This is the case in which the Court of Appeals concluded that DOT’s jurisdictional offer was not based on the “full narrative appraisal” required by the statute. The…
Go read the Federal Circuit’s opinion in Sandwich Isles Communications, Inc. v. United States, No. 20-1446 (Apr. 1, 2021), especially the very-dense fact section. There’s a lot there: acronyms, bureaucracy-speak, family-inside politician dealings, tax fraud convictions, and the like. So what’s a case like this doing in the Court of Federal Claims and the Federal Circuit, which (for our purposes) deals with takings claims against the United States? Skip forward to page 7, where…
This is either a petroglyph of an alien astronaut who visited Earth and gaveancient peoples wonderful space technology like how to build the Pyramids, or it’s a guy playing a flute. (I’ll go with ancient astronaut.)* When an opinion starts off by characterizing your complaint as asserting “a bevy of claims,” you know you are probably not going to be happy with the outcome. So it is with the U.S. Court of Appeals’ opinion in …
Check out the North Dakota Supreme Court’s opinion in Cass County Joint Water Resource District v. Aaland, No. 20200171 (Mar. 24, 2021). It’s a quick read, and worth your time. North Dakota has one of those “precondemnation entry” statutes allowing a (potential) condemnor to enter private property to check it out to see if this property is suitable for the anticipated public use. Indeed, North Dakota’s statute is modeled on California’s pre-1963 entry statute…
Pop quiz: in eminent domain valuation proceedings, may an owner who is not qualified as an expert witness testify about the value of her or his own property? If you said “yes,” most courts would agree with you, either as percipient witness testimony or as lay expert testimony. As would the U.S. Court of Appeals for the Fourth Circuit in most circumstances. As the court noted, “federal courts routinely permit landowners to testify as…