OCA Blog

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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February 22nd, 2019 — In News & Events

St. Bernard Parish Must Pay Over $18,000,000 More in Compensation for Violet Dock Port Property

Violet Dock Port PropertyOCA 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.

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February 22nd, 2019 — In News & Events

Congratulations Institute for Justice for Your Win in CRDA v. Birnbaum

OCA Member Dana BerlinerOCA 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.”

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February 10th, 2019 — In News & Events

Three New Directors Elected to Serve on OCA’s Board of Directors

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 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 also practices in the areas of real estate litigation, complex business litigation and appellate advocacy. Joe is among the few trial lawyers who have successfully tried both murder cases and multi-million dollar civil actions. 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.

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January 31st, 2019 — In News & Events

OCA Emeritus Member John Hamilton Convinces Kansas Supreme Court That A Tenant Is Entitled to Relocation Benefits Even If the Displacing Project Does Not Require The Filing of An Eminent Domain Action

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.

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January 17th, 2019 — In Uncategorized

Listen to OCA Member Andrew Prince Brigham’s NPR Interview on Eminent Domain and Trump’s Border Wall