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No Severance Damages for You, You Have a Special Benefit by OCA Member Mike Rikon

August 27th, 2019 — In Articles

No Severance Damages for You, You Have a Special Benefit by OCA Member Mike Rikon

In his Condemnation and Tax Certiorari column, OCA New York Member Michael Rikon discusses partial acquisitions in condemnation cases and writes: “Within the area of consequential damages, we must explore, not only the loss in value suered by the remaining property, but the possible benefits to that remainder which are the result of the improvement for which the part taken was acquired. To further complicate things, the question arises, do we consider special benefits to the remainder as distinguished from general benefits? Read more here.

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August 23rd, 2019 — In News & Events

Nebraska Supreme Court Rules on Transcanada’s XL Pipeline Route by William Blake

The Nebraska Supreme Court has affirmed the decision of the Nebraska Public Service Commission’s (PSC) to approve a route through Nebraska for the XL Pipeline, completing one of the final steps before construction of the controversial project can begin. A copy of the full decision can be read here. The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. First announced in 2008, it has remained the focus of controversy and litigation for eleven years.  During that time, the project underwent two route changes through Nebraska, after acquisition of a majority of the needed corridor easements had already occurred. Several condemnation actions were dismissed as premature, until a final route was approved. In  2017 the PSC, an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route. Transcanada had requested approval of its second proposed route, but that route met with substantial opposition. In November, 2017,  the PSC approved a different route, closely paralleling the route of Transcanada’s earlier Keystone pipeline.  A number of farmers and ranchers along the approved route, joined by several native American tribes and environmental groups, appealed the PSC’s decision to the Nebraska Supreme Court. Although the appeal was thought to be placed on the fast track, over a year and a half later, the Nebraska Supreme Court finally entered its unanimous ruling. Rejecting the appellants’ various arguments, the court held that the question of whether a […]

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August 8th, 2019 — In News & Events

Amicus Brief: State Takings Claims Are Constitutional (Not Torts) in Applying Applicable Statute of Limitations

OCA has asked leave to file an Amicus Brief in the case of DW Aina Lea Development vs. State of Hawaii Land Use, currently before the Hawaii Supreme Court.  The Brief, authored by OCA Member Robert Thomas, can be read in full here. The question presented before the Hawaii Supreme Court is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution’s “takings or damagings” clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court. Our OCA brief argues that the closest analogue to a regulatory takings or inverse condemnation case is adverse possession (which is the majority rule, nationwide). And, we also argue that the tort statute of limitations (2 years) is not applicable because a takings claim does not seek recovery for “damage or injury to . . . property.”

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