Yearly Archives: 2019

Read OCA Member Robert Thomas’ take on the recent Knick decision in his blog entitled Inverse Condemnation here.

Congratulations to the Pacific Legal Foundation for winning a big property rights case today! In 2013, Rose Knick was forced to allow public access to a suspected gravesite on her ranch. Ms. Knick  sued over the unconstitutional property taking, but a federal court refused to hear her federal claim citing the 1985 Supreme Court decision Williamson County. Ms. Knick went all the way to the U.S. Supreme Court  seeking to overturn this precedent so property rights would be treated the same as  other constitutional rights, like due process and free speech. In a major ruling announced today, the Supreme Court has agreed that the Williamson County precedent should be overturned. This is a major victory for property owners nationwide. OCA filed an Amicus Brief in the Knick case to support Ms. Knick’s legal position.

The decision in an important takings case, Knick v. Township of Scott, Pennsylvania, reargued Jan. 16, is soon to be released. Be watching for it,… By Dwight Merriam | June 11, 2019. Read more.

Thor Hearne, a parter at Larson O’Brien and perhaps the best known lawyer specializing in Rails to Trails litigation recently filed another lawsuit in the Federal Court of Claims on behalf of 150 landowners whose property is part of an eight-mile rail corridor that will be used to expand Sarasota’s “Legacy Trail.” Despite the fact that in the last 10 years the federal government has had to pay millions to property owners to convert railroad beds into recreational trails, the Department of Justice continues to fight these cases. “It’s crazy for DOJ to contest these cases,” Hearne said. “Why do they keep fighting them?” Great question.

Over the last 40 years, more than 8 million babies have been born through the miracle of in vitro fertilization, creating new love and new families.But when couples split, what happens to the embryos? Is this a property rights issue or someting else? It’s not an easy question to answer. Connecticut would benefit from a law that providesguidance. In the meantime, the Connecticut Supreme Court has that question before it. See OCA Member Dwight Merriam’s recent Article on this controversial topic in the Hartford Courant.

Whether he knows it or not, by declaring a national emergency to build his wall President Donald Trump has doomed the centerpiece of his presidency to an eternity of fights in Congress and the courts. Trump does not see or chooses not to see the naked truth that as a practical matter, the nature of eminent domain litigation and federal law will prevent him from ever assembling the land necessary to build his wall by the end of a second term, even with an emergency declaration. Land assembly for any large project is difficult and takes a long time. It is difficult to find a comparison to Trump’s wall, which is 550 miles long and requires the acquisition of more than 1,000 private properties in Texas alone. But consider the notorious Kelo v. New London eminent domain case involving a relatively modest land assembly of 115 properties covering 90 acres. Read more in the Connecticut Law Tribune.

Owners’ Counsel of America has elected three accomplished eminent domain attorneys to serve on its Board of Directors for 2019. They are OCA Members Hertha Lund with Lund Law, PLLC in Bozeman, Montana; Casey Pipes with Helmsing, Leach, Herlong, Newman & Rouse, PC 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. Casey Pipes is both the managing shareholder of his law firm and an active practicing attorney, representing landowners in condemnation actions throughout Alabama. Casey is also a Fellow in the American College of Real Estate Lawyers (ACREL) and 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 in both the Section of Litigation and in the Real Property, Trust and Estate Section. Casey is a frequent speaker at national and state-wide educational seminars on the subject of eminent domain and real property litigation. On the national […]

OCA is pleased to announce the selection of Mark F. (Thor) Hearne, II as the Primary OCA Representative for the District of Columbia. Thor Hearne is a partner in the Washington D.C. office of Larson O’Brien LLP. Mr. Hearne has earned a national reputation for his work in complex federal and state litigation, appeals, and class actions, especially matters involving election issues; property rights; and constitutional law. In the specific area of property rights, Mr. Hearne served as lead counsel in the representation of more than a thousand landowners in sixteen states in takings claims arising from the enactment of Section 8(d) of the Trails Act. This representation led to the seminal case of Brandt v. United States, 134 S.Ct. 1257 (2014), a decision which set a major precedent with regard to Trails Act litigation involving the General Railroad Right-of-Way Act of 1875. In 2014, the National Law Journal named Mr. Hearne one of Fifty Litigation Trailblazers and Pioneers in the country. In 2013, the National Law Journal recognized Mr. Hearne as a pre-eminent national trial and appellate attorney for his work in class-action eminent domain litigation. Mr. Hearne is also one of the nation’s preeminent political and election law attorneys. He served as President George W. Bush’s national election counsel in 2004, and as then-candidate George W. Bush’s lead counsel in Missouri in 2000 when he won the landmark case Bush-Cheney v. Baker. He was an advisor to the Carter-Baker Commission on Federal Election reform and has testified on election law matters before the U.S. Senate, the U.S. […]

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.