OCA Blog

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 guide to legal excellence. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.

Sharing is caring!

August 27th, 2020 — In News & Events

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

Developer Bridge Aina Le‘a, LLCDeveloper 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

Sharing is caring!

August 15th, 2020 — In Articles

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

Mark Savin on Private Property RightsThe 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 click here.

Sharing is caring!

August 15th, 2020 — In Articles

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

Andrew Prince Brigham EsquireAlthough 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 Federal Rule of Evidence 403 the probative value is outweighed by unfair prejudice or jury confusion. Within this context, evidence as to the existence of fear or stigma is relevant and admissible, while evidence as to the reasonableness of fear or stigma is irrelevant and inadmissible. Topics discussed in this article include:

(a)  the progression of federal courts in condemnation cases under the Natural Gas Act to grant “immediate possession” in lieu of a delegated “quick-take” power;

(b)  the federal courts’ application of state law instead of federal law as the choice of law that controls the measure of compensation;

(c)  the federal courts’ decision to use jury trials instead of commission trials to determine the measure of compensation;

(d)  the condemnor’s use of Daubert challenges to exclude or limit testimony and evidence that is related to severance damages resulting from fear or stigma;

(e)  the condemnor’s objection to the testimony of the property owner as to the quantification of severance damages resulting from fear or stigma;

(f)  whether jury trials result in a “fair” and “just” determination of the measure of compensation.

To read this article in full please refer to the Brigham Kanner Property Rights Journal, [Vol. 8:121]

Sharing is caring!

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.

Sharing is caring!

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.

Sharing is caring!

August 5th, 2020 — In News & Events

Former South Dakota Attorney General and OCA Member Mark Meierhenry Dies

OCA Member Mark Meierhenry DiedMark 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.

Sharing is caring!

July 1st, 2020 — In News & Events

OCA Files Amicus Brief in Virginia Oystermen Takings Case

Virginia Oystermen Takings CaseOCA joined the Pacific Legal Foundation recently in filing an Amicus Brief in a case before the Virginia Supreme Court entitled Johnson v. City of Suffolk. This case involves a claim by Virginia oystermen that the City of Suffolk and a Sanitation District knowingly operated a sewage and stormwater system in such a way as to discharge wastewater into the Nansemond River, invading oyster beds being leased by the oystermen from the state for the express purpose of oyster cultivation, thereby damaging and taking the oysters—their private property—without compensation. The oystermen are being represented by the law firm of Waldo & Lyle out of Norfolk, Virginia. 
From a lower court decision finding the oystermen’s claims were superseded by the right of localities to pollute freely pursuant to Darling v. City of Newport News, 249 U.S. 540, 543 (1919), the case is now before the Virginia Supreme Court. The issue to be decided is: Can a municipal entity evade liability under Article I, Section 11 of the Virginia Constitution after discharging wastewater from its public sanitation system into the Nansemond River, destroying privately owned oysters on sections of riverbeds leased from the Commonwealth for the express purpose of oyster cultivation?
 
Stay tuned for the decision. A copy of OCA’s Amicus Brief filed on behalf of the oystermen can be accessed here.

 

Sharing is caring!

May 5th, 2020 — In News & Events

Highest Court in North Carolina Resolves Valuation Issues in Notorious Map Act Case

Map Act CaseOn May 1, 2020 the N.C. Supreme Court unanimously affirmed the just compensation judgement in Chappell v. N.C. Dep’t of Transportation, No. 51PA19-1 (May 1, 2020). Chappell is the follow up to the N.C. Supreme Court’s landmark decision in Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), in which the court held that the “Map Act,” a statute by which NCDOT designated vast swaths of property for future highway acquisition, was a taking because it prohibited development and use of designated properties over an extended period of time. In Kirby, the court concluded “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation.

Shortly after the decision in Kirby, the North Carolina Legislature repealed the Map Act, thereby changing an indefinite taking into a finite one. This set the stage for a valuation of the countless properties that had been encumbered by the Map Act for years in order to assess the just compensation due. Further complicating the matter were the actions of NCDOT in filing condemnation actions against some, but not all, of the impacted properties.

In the end, the N.C. Supreme Court issued a decision upholding the damages awarded in the first of the property owner cases to go to trial, but doing so in a way that leaves open the valuation methodology to be employed for future Map Act cases. In Chappelle, the Court ruled that the applicable statute for determining fair market value in North Carolina “does not restrict real estate appraisers with regard to the method they” may use. Slip op. at 16. In other words, appraisers can use any method (comp sales, income cap, and replacement cost), and “[w]hile the comparable sales method is the preferred approach, the next best method is capitalization of income when no comparable sales data is available.” Slip op.at 16.

OCA filed an Amicus Brief in this case in support of the more flexible rental income approach in determining fair market value and just compensation in the Map Act cases, an approach consistent with the temporary nature of the takings.  For more information about the Map Act, the Kirby decision, and court’s valuation rulings in Chappelle, read OCA Member Robert Thomas’ blog posting at Inverse condemnation.com.

Sharing is caring!

April 16th, 2020 — In News & Events

OCA Files Amicus Brief in Case Involving Destruction of Residence by Local Police

Leo Lech at the back of his destroyed house in Greenwood Village.

In this 2015 file photo Leo Lech stands on a pile of wood in his neighbors yard overlooking the back of his destroyed house in Greenwood Village.

After being chased by police for stealing clothing from a Walmart, a man barricaded himself in a house in Greenwood Village, Colorado. Over a 19 hour period, using explosives and a battering ram attached to an armored personnel carrier, the local police department’s SWAT team intentionally destroyed the landowner’s house to force the fugitive to surrender. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to just compensation under the Fifth Amendment of the United States Constitution for the intentional destruction of their house. The Tenth  Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. To read more about the background of the case click here. To review OCA’s Amicus Brief on a cert petition to the United States Supreme Court click here.

Sharing is caring!