OCA Blog
September 17th, 2020 — In News & Events
Brigham-Kanner Property Rights Conference Will Be a Virtual Format This Year
It’s not too late to register for the annual Brigham-Kanner Property Rights Conference presented by the William & Mary Property Rights Project.This ground-breaking conference is held in honor of OCA founder Toby Prince Brigham and OCA Honorary Member Gideon Kanner for their lifetime contributions to private property rights. The conference is designed to bring together members of the bench, bar, and academia to explore recent developments in the law that affect property rights. The Brigham-Kanner Property Rights Conference began in 2004 at William & Mary Law School.
Each year, the conference awards the Brigham-Kanner Property Rights Prize to an individual whose work has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights occupy in the broader scheme of individual liberty. This year’s award recipient is Professor Henry Smith of Harvard Law School. The Conference will honor Henry Smith on Thursday, October 1, and the conference panels will be held on Friday, October 2. Both portions will be presented live over Zoom this year. To find out more details and/or register, click here.
September 17th, 2020 — In News & Events
ALI-CLE Eminent Domain and Land Valuation Litigation Conference Virtual Next Year
Due to ongoing concerns with travel and large public gatherings that we don’t expect to subside in the coming months, ALI CLE has decided to cancel the annual Eminent Domain and Land Valuation Litigation conference which was previously scheduled for January 28-30, 2021 at the Doubletree hotel in Scottsdale, Arizona. They are, however, still planning a virtual conference for the same dates (minus Saturday) to ensure that attendees can still get the updates they need from top practitioners in the field. They are planning two half days of carefully selected topics, and will be announcing the line up sometime this fall. To hear more about what they have up our sleeves, please watch this video from planning co-chair, Robert Thomas.
September 17th, 2020 — In OCA Blog
OCA’s Missouri Member Paul Henry Represents Property Owner in Taking for $190M Development Project
The St. Louis County Circuit Court recently approved University City’s request to condemn seven commercial properties within the footprint of Novus Development’s nearly $190 million project. Novus’ plans to use the site at Olive and Interstate I-70 to develop a mix of retail anchored by a Costco store, apartments, offices and potentially a hotel. Last year, the City approved $70.5 million in tax increment financing for the project. OCA Missouri Member, Paul Henry represents SSC Acquisitions, which entity owns one of the four properties impacted by the project. For more information about the project please click here.
September 17th, 2020 — In OCA Blog
7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment
OCA’s Affiliate Member Michael Ryan covers in his firm’s blog the recent Seventh Circuit Court of Appeals decision in Protect Our Parks, Inc. v Chicago Park District, 2020 WL 4915631, affirming a grant of summary judgment in favor of the government on a Fifth Amendment takings claim. Protect Our Parks, Inc. and several individual Chicago residents had sued the City of Chicago and the Chicago Park District in federal court to halt the construction of the Obama Presidential Center in Chicago’s Jackson Park by its sponsor, the Barack Obama Foundation. Plaintiffs argued several legal theories, one of which was a claim arising under federal law that, by altering the use of Jackson Park and handing over control to the Barack Obama Foundation, the defendants took the plaintiffs’ property interest for a private purpose in violation of the Takings Clause of the Fifth Amendment. In ruling against the plaintiffs on the merits, the Seventh Circuit found that the plaintiffs failed to prove they have a private property interest in Jackson Park that is protected by the United States Constitution. The case is also covered in OCA Member Robert Thomas’ Inverse Condemnation Blog which you can read here.
September 17th, 2020 — In News & Events
Missouri’s Grain Belt Express HVDC Transmission Line Project (Easements and Eminent Domain)
Submitted by OCA Missouri Member Paul Henry
Despite many ups and downs and much opposition from Missouri property owners, a proposed electric transmission line necessitating the acquisition of 206 miles of easements is still in the works to cross Northern Missouri. The massive transmission line was designed by Clean Line partners to deliver wind-generated energy from Kansas to the Illinois and Indiana border. The propose line is unique in the amount of energy it will carry – 600 kilovolts to deliver 4,000 mega-watts of power – and the type of electrical current – direct current. The project was initiated by an investment group known as Clean Line Energy Partners, but it was recently acquired by Invenergy, LLC based in Chicago, Illinois. The process for approval of the Project has a long history that is only summarized below:
- July 2015 – Rejected by Missouri Public Service Commission as not being in the public interest.
- August 2017 – Rejected by Missouri Public Service Commission for failure to obtain assent by counties.
- July 2018 – Missouri Supreme Court reverses Missouri PSC rejection.
- March 2019 – Approved by Missouri Public Service Commission
- December 2019 – Court of Appeals rejects landowner challenge to PSC approval.
- July 2020 – Court of Appeals rejects landowner challenge of transfer of project from Clean Line Partners to Invenergy, LLC
The state approval process for the Missouri portion appears to be completed. However, many hurdles remain. Invenergy still must obtain county approvals and the project does not have approval from Illinois, after an earlier approval was rejected by the courts on procedural grounds. In Kansas, the project was approved, but subject to Illinois approval.
Currently, Invenergy is seeking easements from Missouri landowners in the form of “options,” whereby the company will pay 20% of its offer up front and 80% at the actual time of construction. The offers also include promises to pay additional sums based on the number of transmission line structures and in the event of any lost crops. Publicly, Invenergy seeks to gain support for its project by announcing that it will include broadband data for rural areas and result in lower rates for Missouri electric consumers.
By operation of Missouri statutes, Invenergy possess the authority to exercise eminent domain authority to acquire easements that it is unable to obtain through negotiations with property owners. Efforts in the Missouri Legislature to strip it of its eminent domain authority failed during the 2019 and 2020 legislative sessions. In both years, legislation successfully passed in the House but failed to get approval from the Senate.
If you are an impacted property owner or simply want more information about this project, you can find OCA Member Paul Henry’s contact information here.
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.
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.
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 click here.
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 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]
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.