OCA Blog

June 24th, 2019 — In Uncategorized

More than a ‘Knick’—SCOTUS Overrules ‘Williamson County’ in Stunning Victory for Property Owners

Read OCA Member Dwight Merriam’s fascinating article in the Connecticut Law Tribune on the impact of the recent Knick decision on landowner property rights here.

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June 21st, 2019 — In News & Events

U.S. Supreme Court Decides Knick v. Township of Scott, And In Doing so Overturns the Williamson Doctrine

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.

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June 12th, 2019 — In Articles

Awaiting ‘Knick’…Will SCOTUS Fix the Ripeness Mess?

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.

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Thor Hearne

June 5th, 2019 — In News & Events

OCA Member Thor Hearne Files Another Rails to Trails Case

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.

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May 6th, 2019 — By  Dwight H. Merriam, CRE — In Articles

OCA Member Dwight Merriam Weighs In On Controversial Topic Before Connecticut Supreme Court

By Dwight H. Merriam, CRE

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 provides
guidance. 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.

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April 9th, 2019 — In News & Events

OCA Files Amicus Brief Challenging Practice of Conveying Immediate Possession to Natural Gas Pipeline Companies

Recently, several federal courts of appeals have upheld giving immediate possession of property (sometimes called quick take) to a private pipeline condemnor once a district court has ruled in favor of the pipeline that it qualifies to condemn property under 15 U.S.C. § 717f(h). These courts conclude that summary judgment grants a pipeline a “substantive” right, and therefore there’s no reason to not give it possession now by granting a Rule 65 injunction. But a close reading of section 717f(h) establishes that it is only addresses whether a private pipeline company may institute an eminent domain lawsuit to take property, i.e. whether it has standing. It does not delegate the separate power to take immediate possession of property. See OCA’s recently filed Amicus Brief making these points. 

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March 13th, 2019 — In News & Events

OCA Member Dwight Merriam Discusses the Truth About Trump’s Border Wall Plan

OCA Member Dwight MerriamWhether 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.

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March 6th, 2019 — In News & Events

Attorneys Hertha Lund, Casey Pipes and Joseph Suntum Elected as Newest OCA Board Members

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 LundHertha 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 level, he has presented papers at several of the American Law Institute’s “Eminent Domain and Land Valuation Litigation” seminars dating back to 2008.

Joseph Suntum focuses his practice on the representation of property owners throughout Maryland and the District of Columbia in eminent domain litigation. He has also successfully argued numerous appeals before the Maryland courts of appeal. Before joining Miller, Miller & Canby, Joe served as a law clerk to the Honorable Elsbeth Levy Bothe in Circuit Court for Baltimore City. He also served for four years as an assistant public defender for Montgomery County where he first earned his reputation as an outstanding trial advocate.

“I have known all three of these individuals for a long time,” says OCA Executive Director Leslie Fields, “and I am confident they will bring a tremendous amount of energy and enthusiasm to the task of leading this great organization.” 

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March 5th, 2019 — In News & Events

Mark F. (Thor) Hearne, II Joins Owners’ Counsel of America as District of Columbia Member

OCA Representative Mark F. (Thor) Hearne for the District of ColumbiaOCA 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. House of Representatives, the U.S. Commission on Civil Rights, and the U.S. Election Assistance Commission. Mr. Hearne has written numerous articles on various topics of constitutional and election law, as well as Fifth Amendment Takings.

“Mr. Hearne has had a long working relationship with many of our OCA members who know him well and hold him in the highest regard,” says Owners’ Counsel of America’s Executive Director, Leslie Fields. “We are thrilled to be able to make him an official member of our organization to assist us in leading the effort to protect private landowners in takings situations across the country.”

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March 1st, 2019 — In News & Events

OCA Member Dwight Merriam: Emergency Declaration Could Blow up President Trump’s wall

OCA Member Dwight MerriamThe 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 defending their property rights. The government has made take-it-or-leave-it low ball offers for their properties and pressured them to sell.

The Texas Civil Rights Project has achieved real results and its director Efren C. Olivares received national recognition from the Owners’ Counsel of America for defending the property owners. Olivares has said: “If you don’t have a lawyer, you’re just going to get railroaded. We’re trying to make sure this isn’t going to happen.”

To understand why the emergency declaration is doomed to fail, we turn to the constitutional and statutory scheme for eminent domain. The federal government has the constitutional authority to take private property for a public use or purpose. Challenges based on public use would be difficult cases for the property owners to win, but there are good arguments that there are better alternatives than the wall.

On the statutory side, the fundamental power of the federal government to take property by eminent domain comes from an 1888 act providing that the federal government may “acquire real estate for the erection of a public building or for other public uses” and the Declaration of Taking Act of 1931 establishing the process for eminent domain takings.

Importantly, the Declaration of Taking Act enables a “quick take,” which is what we have in Connecticut under state law. The government files a declaration that it intends to take the property, deposits what it thinks the property is worth into court (almost always too little), and then takes possession. Without the quick take authority, assembling large numbers of properties for a major project is a nightmare because the very last holdout controls the entire project. The Declaration of Taking Act is absolutely necessary if Trump is to build his wall.

And here is Trump’s problem — the law has been read to require a legislative enactment and appropriation as conditions necessary for an eminent domain taking. The Office of the General Counsel of the General Accounting Office has made clear that the Declaration of Taking Act requires “a statutorily authorized purpose,” citing a legal case where the court said: “First, the court must determine that the condemnor was in fact authorized by the legislature to effectuate the taking.”

An emergency declaration by Trump would not be based on a “statutorily authorized purpose” by the legislature. He cannot use the Declaration of Taking Act to effect the quick takes of the land he needs for his wall. He may be relegated to going through state court proceedings.

Regardless, he will be bogged down in litigation for a near eternity and whether the wall is truly a public use or purpose will be up for debate in the courts.

So with President Trump having taken the route of an emergency declaration, he will be hoisted with his own petard.

Dwight Merriam is a lawyer practicing in Simsbury and is the Connecticut Member of Owners’ Counsel of America, www.ownerscounsel.com, a network of eminent domain lawyers committed to protecting private property rights.

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