Monthly Archives: August 2020

August 28th, 2020 — In News & Events

26 OCA Members Make Best Lawyers’ Eminent Domain List for 2021

Best Lawyers, the oldest peer-review publication in the legal profession, has named 26 Owners’ Counsel of America members in its 27th Edition for 2021 in recognition of their Eminent Domain and Condemnation expertise and practices. The list includes George Autry (North Carolina), Stephanie Autry (North Carolina), Keith Babcock (South Carolina), Joshua Baker (Virginia), Michael Berger (California), Dana Berliner (Institute for Justice), William Blake (Nebraska), Amy Brigham Boulris (Florida), Andrew Brigham (Florida), Ed Burg (California), James Burling (Pacific Legal Foundation), Ivy Cadle (Georgia), Brandee Caswell (Colorado), Robert Denlow (Missouri), Darius Dynkowski (Michigan), Paul Henry (Missouri), Warren Herlong (Alabama), Dan Manning (Iowa), Alan Marcuvitz (Wisconsin), James Masterman (Massachusetts), Charles McFarland (Texas), Tom Olson (New Jersey), J. Casey Pipes (Alabama), Mark D. Savin (Minnesota), Jack Sperber (Colorado), and Bradley Stout (Kansas).  In addition, eight OCA members were also named “Lawyer of the Year” for 2021. They include:  Michael M. Berger (California), Ed Burg (California), Dan Manning (Iowa), Alan Marcuvitz (Wisconsin), J. Casey Pipes (Alabama), Mark D. Savin (Minnesota), Jack Sperber (Colorado), and Bradley Stout (Kansas). The “Lawyer of the Year” honor is unique, as only one lawyer in each legal specialty and in each designated metropolitan market is recognized for this honor. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Lawyers are not allowed to pay a fee to be listed; therefore, inclusion in The Best Lawyers in America is considered a singular honor. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive […]

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August 27th, 2020 — In News & Events

Bridge Aina Le’a, LLC v. Hawaii Land Use Commission

Developer Bridge Aina Le‘a, LLC, purchased a large tract of land in Hawaii  to build hundreds of new homes. Before the company ever got the chance, however, the Hawaii Land Use Commission re‐​designated the land for agricultural use, effectively preventing any  residential development from occurring. Bridge Aina Le‘a sued asserting its constitutional right against an uncompensated taking of its’ property. After an eight day trial, a jury found the Commission’s actions to be a 5th Amendment taking under the standards enunciated in both Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). The Ninth Circuit reversed, however, in an opinion which effectively eliminates property owners’ ability to recover for temporary regulatory takings of property. OCA has filed an Amicus Brief on behalf of the property owner on a Petition for Writ of Certiorari before the U.S. Supreme Court in this important regulatory taking case, which can be read here. 

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August 15th, 2020 — In Articles

Your Private Property Rights in Minnesota Amidst COVID-19 by Mark Savin, Howard Roston and Ben Tozer

The COVID-19 pandemic has caused substantial uncertainty for businesses. As of March 24, 2020, the President has declared an emergency under the Stafford Act and the Minnesota Governor has declared a peacetime emergency. Given the situation, the government may order businesses to close or take goods, equipment and space that may be needed for the government’s response. While the government has the power to take such extraordinary actions, that may not eliminate the Constitutional protections for private property owners. The Fifth Amendment to the United States Constitution provides that, “private property [shall not] be taken for public use without just compensation.” The Minnesota Constitution similarly provides that, “private property shall not be taken for public use without just compensation therefore, first paid or secured.” If the government issues an order that shuts down businesses in order to “flatten the curve,” it is unlikely that such action will provide a successful takings claim against the government. On the other hand, taking private property or acquiring space —such as condemning a motel to use in isolating coronavirus patients as recently happened in the State of Washington or acquiring privately-owned medical equipment needed to respond to the emergency —may present successful claims for just compensation under the U.S. and Minnesota Constitutions. A practical approach is required as we expect courts to recognize that the government must respond promptly to this emergency. While the COVID-19 pandemic presents unique questions, we have experience protecting private property rights during emergency situations. To read article in full […]

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August 15th, 2020 — In Articles

Natural Gas Pipeline Easements: An Overview of the Takings Jurisprudence by Andrew Brigham

Although the eminent domain power is an attribute of the sovereign, there are instances in which a private licensee is delegated the power for the acquisition of easements necessary to establish a lineal corridor. For the purposes of this article, our examination of the jurisprudence associated with the acquisition of lineal corridor rights takes place in the “laboratory” of the federal district courts in Florida. For it is there that a new interstate pipeline project, known as the Sabal Trail Natural Gas Pipeline, resulted in the filing of approximately 263 condemnation cases for a lineal corridor of some 247 miles needed to construct a thirty-six-inch-diameter pipeline capable of transmitting up to one billion cubic feet of natural gas a day. In review of these cases, some of which are yet pending appeals before the Eleventh Circuit, we are able to observe how private property rights are regarded when it is a private company wielding the eminent domain power to acquire easement rights, which make servient the estates of owners to a use of property that purportedly diminishes the value of their remainder property due to fear or stigma. Likewise, because some of these cases actually proceeded to jury trial on the measure of compensation, a rare look is afforded as to exactly how, as gatekeeper, a trial judge must often balance between admitting evidence that furthers the owner’s entitlement to a measure of compensation, which includes loss or severance damages resulting from fear or stigma, but preclude evidence where under […]

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August 14th, 2020 — In News & Events

Eleventh Circuit Rules Landowners’ Testimonies had a Sufficiently Strong Foundation in Natural Gas Pipeline Condemnation Cases

Landowners, Lee and Ryan Thomas, who were represented by Andrew Brigham, OCA’s Florida member, recently defeated Sabal Trail Transmission, LLC when the Eleventh Circuit affirmed their two jury verdicts totaling over $1.3 million for easement rights for which the pipeline company earlier argued compensation should only be $39,700. Sabal Trail’s appeal sought to overturn the jury verdicts on the basis that the jurors improperly relied on the testimonies of the landowners because the amount of their verdicts exceeded the testimony of their own appraiser. Sabal Trail further argued that their testimonies should have been excluded by the trial judge because they lacked a sufficiently strong foundation in that neither Lee nor Ryan had prior experience selling or buying properties encumbered with natural gas pipelines from which to quantify an opinion of severance damages. The court ultimately disagreed with these assertions. On appeal, Mr. Brigham was assisted by another OCA Member Mark F. (“Thor”) Hearne. For more information about the case, please click here.

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August 13th, 2020 — In News & Events

OCA Files Amicus Brief in Wisconsin Eminent Domain Case Involving Highway Department’s “Jurisdictional Offer”

OCA recently filed an Amicus Brief on behalf of  Christus Church in the state of Wisconsin. The brief addresses important issues arising out of a pre-litigation “jurisdictional” offer made to the Church by the Wisconsin Department of Transportation that contained compensation for severance damages to the Church’s remaining property caused by highway proximity, even though the Department’s underlying appraisal found that there were no severance damages. OCA’s Amicus Brief specifically addresses the applicable standard when construing eminent domain statutes; the proper statutory construction of the Wisconsin statutes at issue; the extraordinary power of eminent domain and why special rules are needed to level the playing field between condemnors and condemnees; the importance of properly ascertaining and determining severance damages in a partial taking case in order to reach overall just compensation; and the duty of the condemnor to make proper and supportable pre-litigation offers, particularly when they become the basis of later determinations, such as whether the landowner should be reimbursed attorney fees incurred in defending the eminent domain case. To view a copy of OCA’s Amicus Brief, click here.

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August 5th, 2020 — In News & Events

Former South Dakota Attorney General and OCA Member Mark Meierhenry Dies

Mark Meierhenry, former South Dakota Attorney General and Owners’ Counsel of America member for many years passed away recently. While we knew Mark as a talented lawyer, a fierce defender of private property rights and a great member of our organization, his obituary revealed many other wonderful dimensions to his personality and background. Who knew for instance that he had argued six times before the U.S. Supreme Court? Or that he co-authored a series of children’s books? Or that while the Attorney General of South Dakota, he never sought the death penalty, believing that it had little to do with keeping crime down. Mark, we will miss you and hope that the exceptional life you led will now bring some solace to your family and love ones.

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