June 28th, 2019 — In News & Events
Changes Ahead For Property Owners: After More Than 30 Years, Supreme Court Reopens Federal Courthouse Door To Property Rights Claims
OCA Member Robert Thomas seeks to alert all property owners in his recent posting on the impact of the U.S. Supreme Court’s recent landmark decision in Knick v. Township of Scott:
Heads up, property owners: last week the U.S. Supreme Court issued a landmark ruling changing
the way property rights lawsuits have been handled for the last thirty years. In Knick v. Township of
Scott, the Court allowed property owners who sue to enforce their federal right to compensation because a municipal government has taken their property in violation of the U.S. Constitution’s Fifth Amendment by overregulating its use, to bring the lawsuit in federal court.
You might reasonably ask: how could it be that since 1985, property owners who alleged a federalconstitutional violation were barred from suing in federal court? Well, the lawyers in our firm’s Land Use Practice Group who represent property owners in these type of cases had long asked the very same question. The details of why the Supreme Court—in the case Williamson County Regional Planning Commission v. Hamilton Bank (1985)—had barred federal takings plaintiffs from federal court are not terribly important, and it is sufficient to understand that until Knick, these kind of claims had to be raised exclusively in state court. No other federal constitutional right was subject to this requirement, only federal property rights. Williamson County assigned to state judges and state courts the exclusive responsibility for enforcing the federal constitutional right to own and use private property. In Knick, the Supreme Court revisited theWilliamson County prohibition on federal court, and overruled it. (Read More)
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.
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.
OCA Member Dwight Merriam Weighs In On Controversial Topic Before Connecticut Supreme Court
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.
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.
March 13th, 2019 — In News & Events
OCA Member Dwight Merriam Discusses the Truth About Trump’s Border Wall Plan
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.
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 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.”