Yearly Archives: 2019

The idiom “hoist with his own petard” is sometimes misconstrued to mean hoisted up. Not so. A petard was a medieval explosive device. To be hoisted with one’s own petard is to be blown up with your own bomb. President Trump is doing precisely that with an emergency declaration to build his wall due to the legal and practical impossibility of acquiring the property rights necessary to build a wall along the Southern border. The history on this issue began in 2006 when President George W. Bush initiated a border fence project. The Secure Fence Act of 2006 authorized and partially funded 700 miles of border fence. When he signed the bill into law, President Bush said, “This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform.” Acquiring more than 1,000 separate properties in 2006 through voluntary negotiation and the draconian power of eminent domain proved difficult. There were 334 eminent domain cases filed in South Texas, and 60 to 70 cases are still being fought in court a dozen years later. Aside from the practical impossibility of assembling all the property for Trump’s wall and the hundreds or thousands of expensive lawsuits over compensation that would take decades to resolve, the real cost of such an effort is in social justice and equity. The Texas Civil Rights Project has stepped up to protect the rights of individuals with few resources and little practical experience in […]

OCA Member Randall Smith’s eight year battle with St. Bernard Parish Port Authority over the taking of his client’s property may be ending soon as a result of the Louisiana Supreme Court’s recent decision to leave in place an appellate court’s ruling that the parish needs to pay an additional $18 million in just compensation and interest. The high court’s 5-2 ruling in effect wraps up an intricate legal battle that begin when the parish sought to condemn Violet Dock Port’s property in order to hand it over to a private competitor—on the premise that the competitor could operate the dock better and charge more favorable rates. A Louisiana appellate court upheld the condemnation as a valid “public use” because the government said it would help the area’s economic development, similar to the arguments made in the Kelo case.  “For over eight years, these local citizens have had to fight the unwanted taking of their Mississippi River property and business,” Smith said in a statement. “Any check on the widespread governmental abuse of the power of eminent domain should be applauded, and while ultimately unable to stop the taking, we are most gratified to have a final ruling finding (significant) additional compensation.” The purchase price for the property must also include significant attorneys’ fees and costs owed to Violet Dock. Smith estimates that his clients incurred over $6 million in attorneys’ fees and costs during the legal dispute which dates back to 2010.

OCA Member Dana Berliner and the Institute for Justice received a great victory for the Birnbaum family recently in CRDA v. Birnbaum. A New Jersey appellate court ruled that the state’s Casino Reinvestment Development Authority (CRDA) could not use eminent domain for the purpose of seizing private property in order to “bank” it for a possible future use. The appellate court upheld the trial court’s 2016 decision concluding that there cannot be a public use unless CRDA can provide “evidence-based assurances that” it will use the land for a project that “would proceed in the reasonably foreseeable future.” Since it could not do so, the case was dismissed. In the case, CRDA sought to condemn the Birnbaum’s private home even though “[a]t the time of the [trial court] decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the Project area.” Nevertheless, CRDA claimed that “it is statutorily entitled to bank land for future public use, without any temporal limitation.”

Owners’ Counsel of America has elected three accomplished eminent domain attorneys to serve on its Board of Directors for 2019. They are Hertha Lund with Lund Law, PLLC in Bozeman, Montana; Casey Pipes with Helming Leach Law Firm in Mobile, Alabama; and Joseph Suntum with Miller, Miller & Canby in Rockville, Maryland. Hertha Lund represents landowners in matters involving eminent domain, property rights, water rights, and wind energy development across the State of Montana. Hertha has argued numerous cases before the Ninth Circuit and the Federal Circuit Court of Appeals, various Federal Circuit Courts, and the District Courts in Montana. She also served as Law Clerk to Chief Judge Loren A. Smith at the U.S. Court of Federal Claims. While in law school, Hertha served as Co-Editor-In-Chief of the Montana Law Review. And at Montana State University, she studied Animal Science, Range Management, and Pre-Veterinary Medicine. She has served on non-profit boards and is actively involved in the leadership of her church. Casey Pipes is both the managing shareholder of his law firm and an active practicing attorney, representing landowners in condemnation actions throughout Alabama in both federal and state courts.  Casey is also a member of The Counselors of Real Estate®, an international organization of real estate professionals recognized as the leading advisors in complex real property matters.  Casey previously served as Chair of several American Bar Association Committees and is also a frequent speaker at national and state-wide educational seminars on the subject of eminent domain and real property litigation.  On the national level, he has presented papers at several of the […]

John Hamilton, Owners’ Counsel of America Emeritus Member from the State of Kansas, recently prevailed in the case of Nauheim v. City of Topeka, No. 114271 (Jan. 25, 2019) in convincing the Kansas Supreme Court that a tenant who was displaced when the City of Topeka sought to acquire private property for a drainage project was entitled to relocation benefits even though the City did not have to actually file condemnation proceedings to acquire the property.  In a ruling that could have far reaching impacts, the Kansas Supreme Court held that K.S.A. 2017 Supp. 26-518 indentifies two distinct situations requiring the a condemnor to pay relocation benefits to a displaced person, even in the absence of federal funding, i.e. (a) when the acquisition occurs through negotiation in advance of a condemnation action, or (b) when the acquisition occurs through a condemnation action. Thus, when the commerical tenant was displaced based on the mere threat of condemnation, it was nonetheless entitled to receive relocation benefits. The court also ruled that whether a negotiation was in advance of a condemnation action under the relevant statute is a question of fact to be established by a preponderance of the evidence.

https://www.wbur.org/hereandnow/2019/01/16/trump-eminent-domain-border-wall