News & Events

October 9th, 2012 — In News & Events

Timely Discussions Scheduled at the 9th Annual Brigham-Kanner Property Rights Conference

The Ninth Annual Brigham-Kanner Property Rights Conference is taking place this week (Thursday & Friday, Oct. 11-12, 2012) in Williamsburg, Virginia and once again the Conference has coordinated an outstanding group of speakers and discussion topics.

Of particular interest to us is a panel entitled “Property Rights in Times of Economic Crisis,” which features Owners’ Counsel Hawaii attorney, Robert H. Thomas, along with a number of distinguished property law scholars. This timely panel will explore why protecting property rights is especially important during down economic times, whether established rules of property law contribute to such crises, and will consider ways property rights might solve a crisis either independently or at the instigation of government.

“When the economy turns downward, the temptation is to throw out long-standing rules, and look for new and perhaps radical solutions,” explained Robert.  One of the proposals that he will discuss is the effort to get local governments to condemn “underwater” mortgages by eminent domain, in order to lower homeowners’ debt. “I have grave doubts about both the legality and the wisdom of this proposal,” he notes. “My talk will focus on how property rights should not be casually tossed aside when times get tight.”  (Check Robert’s blog for news from the conference.)

Owners’ Counsel Michigan-based eminent domain attorney, Alan T. Ackerman and Virginia-based member, Joseph T. Waldo, will also take part in the Conference.  Alan and Joe will join The Honorable LeRoy F. Millette, Jr, Justice of the Virginia Supreme Court, and two accomplished legal scholars in a discussion focusing upon how the judiciary shapes the law by the manner in which it defines takings and issues relating to the power of eminent domain.  Additionally, Alan’s article “Incorporation of the Right to Just Compensation: The Fourteenth Amendment vs. The Takings Clause” will be published this year in the inaugural volume of the Conference Journal.

This Conference is near and dear to the Owners’ Counsel as it is named in recognition of two property rights attorneys whom we hold in very high esteem, Toby Prince Brigham and Gideon Kanner.  Toby and Gideon have dedicated their life’s work to defending the right of private property ownership.

UPDATE:  See Robert Thomas’s October 15th post here in which he shares his remarks from the 2012 Conference panel on “Property Rights in Times of Economic Crisis.”  See also our post here announcing the publication of the inaugural Brigham-Kanner Conference Journal.

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October 3rd, 2012 — In News & Events

Oral Arguments in SCOTUS Flooding Case Today: Does the Goverment Have a Duty to Pay Compensation For Damages Caused by Temporary Takings by Flooding?

Oral arguments have just begun in the Supreme Court case Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012).  The case concerns the temporary flooding by the Army Corps of Engineers (ACOE) of property owned by the State of Arkansas Game & Fish Commission (AGFC) and subsequent damage to the trees existing on the flooded land. The Court will decide whether the Federal government must pay compensation to property owner(s) for damages resulting from temporary flooding occurrences. (For more background on the case see the SCOTUSblog argument preview, Is Temporary Flooding Causing Permanent Damage A Taking? @ inversecondemnation.com and our previous post here; see also Gideon Kanner’s post here providing a history of takings jurisprudence and a little background on the use of “bullshit.”)

This case came before the Supreme Court following a Federal Circuit ruling that the flooding caused by the ACOE was only temporary, and despite the damage to the trees owned by AGFC, it was not a compensable taking simply because the flooding eventually stopped, and “at most created tort liablity.”  This ruling overturned a lower court’s finding that the Federal government did have a duty to pay upwards of $5 million for the damage caused by the ACOE flooding.

Owners’ Counsel of America filed an amicus brief in support of the property owner/petitioner.  The brief argues that “[w]hen property is damaged permanently, as were petitioner’s trees, there is no principled distinction between a physical invasion that is permanent and compensable, and an invasion that is claimed to be temporary and is not.”

Unfortunately we were not able to be in D.C. to attend the arguments today but we will be following the analysis of the arguments and hope to hear them replayed later this week.

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September 11th, 2012 — In News & Events

9th Annual Brigham-Kanner Property Rights Conference

Annually, The Property Rights Project at William & Mary Law School hosts the Brigham-Kanner Property Rights Conference and presents the Brigham-Kanner Property Rights Prize to a leading property scholar.  The 9th Annual Conference will take place October 11 & 12, 2012 at William & Mary Law School in Williamsburg, Virginia during which Professor James E. Krier will be awarded the Property Rights Prize.  The conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights.

Professor Krier is the Earl Warren DeLano Professor of Law at University of Michigan Law School where he teaches courses on property, trusts and estates, behavioral law and economics, and pollution policy. His research is focused primarily in the fields of property law and economics, and he is the author or coauthor of several books, including Environmental Law and Policy, Pollution and Policy, and Property (7th edition).  Professor Krier’s most recent articles have been published in Harvard Law Review, Supreme Court Economic Review, UCLA Law Review, and Cornell Law Review. Prior to joining the Michigan Law faculty in 1983, he was a professor of law at UCLA and Stanford and has been a visiting professor at Harvard University Law School and Cardozo School of Law.

Professor Krier joins an illustrious list of previous recipients of the Brigham-Kanner Prize, including Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of the University of Chicago Law School (2005), Professor James W. Ely, Jr., of Vanderbilt Law School (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale Law School (2008), Professor Richard E. Pipes of Harvard University (2009), Professor Carol M. Rose, University of Arizona, James E. Rogers College of Law (2010), and most recently Supreme Court Justice Sandra Day O’Connor (2011), who accepted her award during the Conference’s inaugural year abroad in Beijing, China.

Both the conference and the prize are named in recognition of Owners’ Counsel Members Toby Prince Brigham and Gideon Kanner for their ongoing private property rights work, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights.

For more information and a schedule of events see the conference brochure.

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September 1st, 2012 — In News & Events

9th Annual Brigham-Kanner Property Rights Conference October 11-12, 2012

Annually, the Property Rights Project at William & Mary Law School hosts the Brigham-Kanner Property Rights Conference and presents the Brigham-Kanner Property Rights Prize to a leading property scholar. The 9th Annual Conference will take place October 11 & 12, 2012 at William & Mary Law School in Williamsburg, Virginia during which Professor James E. Krier will be awarded the Property Rights Prize. Professor Krier is the Earl Warren DeLano Professor of Law at University of Michigan Law School where he teaches courses on property, trusts and estates, behavioral law and economics, and pollution policy.

Professor Krier joins an illustrious list of previous recipients of the Brigham-Kanner Prize, including Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of the University of Chicago Law School (2005), Professor James W. Ely, Jr., of Vanderbilt Law School (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale Law School (2008), Professor Richard E. Pipes of Harvard University (2009), Professor Carol M. Rose, University of Arizona, James E. Rogers College of Law (2010), and most recently Supreme Court Justice Sandra Day O’Connor (2011), who accepted her award during the Conference’s inaugural year abroad in Beijing, China.

Both the conference and the prize are named in recognition of Owners’ Counsel Members Toby Prince Brigham and Gideon Kanner for their ongoing private property rights work, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights.

The conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. For more information and a schedule of events see the conference brochure.

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August 30th, 2012 — In News & Events

New Eminent Domain Book Sheds Light on the “Dark Corner of the Law”

A new book, The Law of Eminent Domain: Fifty-State Survey, has recently been published by the ABA Section of Litigation, Condemnation, Zoning and land Use Committee offering a summary of the laws and procedures of condemnation in each state and the District of Columbia.  By providing a single reference source for questions about condemnation in every state jurisdiction and DC, the Condemnation, Zoning and Land Use Committee and many contributors to the project have succeeded in illuminating this area of law, which has been referred to as the “dark corner of the law” by such revered legal scholars as Lewis Orgel and Gideon Kanner.

William (Bill) G. Blake of Baylor, Evnen, Curtiss, Grimit & Witt, LLP in Lincoln, Nebraska and the Nebraska Member of the Owners’ Counsel of America, edited the book. “While this project required significant work by myself and Committee Chairs to identify and secure authors for each state and D.C., the end result is a collaborative product produced by more than 51 experienced eminent domain attorneys from across the country,” he said. “It truly was a pleasure working with each of the authors and the Committee Chairs to successfully complete the project and publish a resource that sheds light on the many complexities and variations of the eminent domain process in each jurisdiction.” 

A number of attorneys affiliated with the Owners’ Counsel of America authored chapters in The Law of Eminent Domain, including Oregon Member Jill S. Gelineau, of Schwabe, Williamson & Wyatt in Portland, who supported the project as a past co-chair of the committee and as a state author.   “I am pleased that the efforts of many people have resulted in publication of The Law of Eminent Domain: Fifty-State Survey. This is a tremendously valuable resource for property owners, as well as condemnation, zoning and land use practitioners, across the nation,” she said.

The other eminent domain lawyers affiliated with the Owners’ Counsel who contributed to the publication as state authors include Warren C. Herlong and Casey Pipes (Alabama), Brandon K. Moffitt (Arkansas), Robert H. Thomas (Hawaii), John R. Hamilton (Kansas), James D. Masterman (Massachusetts), Mark D. Savin (Minnesota), Michael A. Schneider (Nevada), Anthony F. Della Pelle (New Jersey), Michael Rikon (New York), Mark Meierhenry (South Dakota), John Kevin Walsh (Tennessee), and H. Dixon Montague (Texas), and Jermey Hopkins (Virginia).

Owner’s Counsel of America applauds the work of Editor Bill Blake, the ABA Condemnation Committee and Co-Chairs, Casey Pipes and Robert J. Will, and all of the contributing authors to complete the publication of The Law of Eminent Domain and congratulates Bill Blake for being named Co-Chair, along with Casey Pipes, of the ABA’s Condemnation, Zoning and Land Use Committee for 2012-2013.

The Law of Eminent Domain: Fifty State Survey is available for purchase in eBook and paperback format on the ABA website here.

New Eminent Domain Book

About The Law of Eminent Domain: Fifty-State Survey

A single resource for eminent domain practitioners, this guide is a reference for questions about eminent domain and condemnation procedure in every state and the District of Columbia. Each state outline is organized in the following manner:

  • Who is Eligible to Condemn?
  • What can be Condemned?
  • The Condemnation Proceedings
  • Procedure to Challenge Condemnation
  • Inverse Condemnation
  • Just Compensation Issues
  • How are Various Ownership Interests Treated?
  • Abandonment
  • Attorney’s Fees and Costs

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August 29th, 2012 — In News & Events

ABA Book, The Law of Eminent Domain, Sheds Light on the “Dark Corner of the Law”

A new book, The Law of Eminent Domain: Fifty-State Survey, has recently been published by the ABA Section of Litigation, Condemnation, Zoning and land Use Committee offering a summary of the laws and procedures of condemnation in each state and the District of Columbia. By providing a single reference source for questions about condemnation in every state jurisdiction and DC, the Condemnation, Zoning and Land Use Committee and many contributors to the project have succeeded in illuminating this area of law, which has been referred to as the “dark corner of the law” by such revered legal scholars as Lewis Orgel and Owners’ Counsel Member, Gideon Kanner.

The Law of Eminent Domain offers lawyers, legal scholars, eminent domain professionals, students and property owners detailed information concerning condemnation procedures in every state and the District of Columbia. The book organizes each state outline with the following information:

  • Who is Eligible to Condemn?
  • What can be Condemned?
  • The Condemnation Proceedings
  • Procedure to Challenge Condemnation
  • Inverse Condemnation
  • Just Compensation Issues
  • How are Various Ownership Interests Treated?
  • Abandonment
  • Attorney’s Fees and Costs

William (Bill) G. Blake, Nebraska Member of the Owners’ Counsel of America, edited the book. “While this project required significant work by myself and Committee Chairs, Casey Pipes and Robert Will, to identify and secure authors for each state and D.C., the end result is a collaborative product produced by more than 51 experienced eminent domain attorneys from across the country,” he said. “It truly was a pleasure working with each of the authors and the Committee Chairs to successfully complete the project and publish a resource that sheds light on the many complexities and variations of the eminent domain process in each jurisdiction.”

A number of attorneys affiliated with the Owners’ Counsel of America authored chapters in The Law of Eminent Domain, including Warren C. Herlong and Casey Pipes (Alabama), Brandon K. Moffitt (Arkansas), Robert H. Thomas (Hawaii), John R. Hamilton (Kansas), James D. Masterman (Massachusetts), Mark D. Savin (Minnesota), Michael A. Schneider (Nevada), Anthony F. Della Pelle (New Jersey), Michael Rikon (New York), Jill Gelineau (Oregon), Mark Meierhenry (South Dakota), John Kevin Walsh (Tennessee), and H. Dixon Montague (Texas), and Jermey Hopkins (Virginia).

The Law of Eminent Domain: Fifty State Survey is available for purchase in eBook and paperback format on the ABA website here.

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August 24th, 2012 — In News & Events

In 15 Words or Less: Texas Judge Upholds Keystone XL Condemnation

In addition to the other eminent domain issue that has been all over the news of late, the Keystone XL pipeline and the grant of eminent domain power to TransCanada for the project has been one of the big eminent domain story this year.

On Wednesday, a County Judge in Texas upheld TransCanada’s condemnation of private property owned by farmer Julia Trigg Crawford.  As reported in this NYT article, the ruling exposes a loophole in Texas’s oil and gas regulations allowing “common carriers” the power of eminent domain with oversight by the Railroad Commission.  In Texas, a common carrier is a company that allows its pipeline infrastructure to be open to any oil company willing to pay the published tariff rates.  In this case specifically, the Texas Railroad Commission skirted responsibility for oversight by asserting that TransCanada’s operations are interstate and, therefore, under the control of the federal regulatory agency.  And, there you have a loophole the size of Texas.

According to a statement by Ms. Crawford, TransCanada failed to produce proof that the company qualifies as a common carrier because it’s attorney did not produce a copy of its tariff rate schedule but rather argued that it would provide the tariff schedule at “about the time it gets ready to transport the product on the line.”  In other words, after the property has been taken and after the pipeline has been built.

Beyond the issue of whether TransCanada is truly a common carrier, this particular pipeline project has gained national attention due to the nature of the product which TransCanada wishes to transport: oil from the oil sands region of Alberta, Canada, which is referred to as tar sands oil.  Environmentalist in both the US and Canada have voiced opposition to the mining of tar sands for oil, the pipeline path that TransCanada had originally proposed through the Ogallala Aquifer in Nebraska and the potential for leaks or spills.

The recent ruling by Judge Harris upholding TransCanada’s power to condemn private property is newsworthy itself, yet the fact that the Judge sent it as a 15-word electronic message from his iPhone has added a little extra gusto to the story.  While the reality is that we may conduct much of our personal and professional lives from the palm of our hand using our smartphones, the fact that the Judge reduced the constitutional guarantee of private ownership which is protected by the Fifth and Fourteenth Amendments to the US Constitution and each and every state constitution to an abbreviated 15 word message stings just a bit too much.

While Ms. Crawford is “[d]isappointed that Judge Harris wholly dismissed our entire case with a 15 word ruling sent from his iPhone,” she has vowed to continue to fight for her own, her family and her fellow Texans’ property rights.

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August 16th, 2012 — In News & Events

Honolulu Museum Film Series Focuses on Current Legal Issues, Including Eminent Domain

The First Thing We Do, Let’s Film All The Lawyers – a Law Film Series Postcard

If you are in Honolulu early next month and looking for something other than beautiful beaches, golf, and hiking trails (among the many other amazing attractions) to enjoy, check out the Honolulu Museum of Art film series: “The First Thing We Do, Let’s Film All The Lawyers.” Sponsored by the Honolulu law firm of Damon Key Leong Kupchak Hastert, the series screens September 1 to 6, 2012, at the museum’s Doris Duke Theatre and will focus on such vexing legal issues as murder, race, ethics, and, yes, eminent domain.

The film series examines the role of lawyers in dealing with some of society’s most pressing questions: when has a convicted murderer paid her debt to society; when should someone’s rights yield to another’s notion of the greater good; when is a person who admits to the act not criminally responsible?  The featured films illustrate how lawyers—for better or worse—are the critical component in answering those questions. After each evening screening, an attorney from Damon Key Leong Kupchak Hastert will lead a discussion about the legal and ethical issues raised by the film.  More information, including featured films, show times, and ticket prices, is available at www.lawinfilm.com.

The Castle Poster
During the series, Owners’ Counsel Hawaii Member Robert Thomas will present The Castle (Spoiler Alert: this Wikipedia link will give away the film’s ending!). This 1997 Australian comedy tackles the issue of “compulsory acquisition” (Australia’s version of eminent domain).

As Robert writes: “The Kerrigan home will never make the pages of Australian House Beautiful: it sits in the flight path of the Melbourne airport, massive power lines run overhead, the back yard used to be a toxic landfill, and the owner has installed a few — ahem — “unauthorized” additions including a greyhound kennel, a massive TV aerial, and a faux chimney.”

Yet, the house owned by this blue collar family is filled with love and the Kerrigan’s take pride in it.  As such, the modest home is the family’s “castle” and, similar to property owners in the United States and beyond, they are willing to fight to defend it.  For more about the film check out Robert’s post about the film: The Castle: Eminent Domain Down Under.

The film series kicks off with an Opening Night reception, Saturday, September 1, from 6:00 – 7:30 p.m. and will be followed by the Hawaii premiere of the award-winning documentary Crime After Crime.  For tickets to this or any screening visit https://honolulumuseum.org/events/films.

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August 9th, 2012 — In News & Events

OCA Attorneys Weigh in on the Use of Eminent Domain to Restructure Underwater Mortgages

There has been much discussion in the media recently concerning a proposed plan developed by San Bernadino County, the cities of Fontana and Ontario, California, and a San Francisco venture capital firm, Mortgage Resolution Partners which seeks to condemn underwater mortgage loans for the purpose of restructuring debt.  For those who may not be following this story closely, below is a recap of the basic ideas.

The municipalities’ plan, and much of the discussion about it, centers around the use of the sovereign’s power of eminent domain, which we know is the power to take private property for a public purpose.  The “Home Protection Plan” creates a public-private partnership between the municipalities and Mortgage Resolution Partners. If the plan follows the proposal suggested by Mortgage Resolution Partners, the local governments will use the power of eminent domain to seize upside down mortgages from the financial institutions and investors who currently hold them using capital raised by Mortgage Resolution Partners from other banks and private investors.  The intent of the plan is to restructure underwater mortgages in an area of California that was hit hard by the drop in the housing market.  By restructuring the mortgage loans to be more in line with property values, the municipalities seek to improve the local economy and housing market.  The idea to use the eminent domain power to seize mortgages for the purpose of restructuring has spread to other municipalities including  Berkeley, CA and Chicago, IL.

The proposed use of eminent domain to bail out distressed mortgagees raise questions as to whether such use constitutes a permissible public purpose under the Fifth Amendment of the U.S. Constitution as well as will mortgage holders receive just compensation as required by the Fifth Amendment.   The Securities Industry and Financial Markets Association, the National Association of Home Builders and other trade groups have expressed strong objection to the “Homeownership Protection Plan” and have tried to instruct council members in these California municipalities as to the potential negative ramifications that may befall local homeowners as well as property owners nationally.

Recently, the Federal Housing Finance Agency (FHFA) spoke out against the plan and threatened yesterday that it would take action against municipalities that attempt to use eminent domain to refinance upside down mortgages.  In an article entitled “FHFA’s Stand Against Eminent Domain Plans Likely To Prevail” in American Banker, eminent domain attorneys affiliated with Owners’ Counsel weigh in on the federal agency’s announcement and the plan overall.

Donna Borak and Kate Berry write, “While it stopped short of specifying what moves it would make, experts said the federal agency is likely to prevail, noting it has jurisdiction to stop local governments like San Bernardino County and the cities of Fontana and Ontario in California from seizing mortgages.”

“San Bernardino County cannot condemn federal property,” said Gideon Kanner, OCA Member, appellate and eminent domain attorney as well as professor of law emeritus at Loyola Law School in Los Angeles. In the article he explains that the FHFA is “a federal agency and the Feds can take the property of a state or city but the state or a local entity cannot take federal property.”

Robert Thomas, OCA Hawaii Member and author of the eminent domain law blog inversecondemnation, was also quoted in the article and referred to FHFA’s response as “a pretty strong shot across the bow,” warning municipalities to rethink the idea of seizing mortgages.

He explained that, “federal property is immune from state and local condemnation so FHFA is trying to nip this before it gets to the courthouse door.” Thomas also said, “This idea to seize performing but underwater mortgages has always been more smoke because the proposal is based on a couple of assumptions that may not be true.”

Anthony Della Pelle, New Jersey Member of Owners’ Counsel and editor of the blog New Jersey Condemnation Law, also shared his insight in the article and agreed that municipalities may have difficulty condemning loans owned by a federal agency.  Della Pelle explained that loans owned by a private bank would have to satisfy the two primary requirements for condemnation – having a public purpose and providing just compensation to the owner of the mortgage.

FHFA issued a notice and has asked for input on the proposed use of eminent domain to restructure home loans.  We’ll be following this story as it continues.

For more discussion about this topic, below is a selection of blog posts commenting on the use of eminent domain to restructure mortgages and on media reports about this story.

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July 24th, 2012 — In News & Events

Connecticut Attorney, Dwight Merriam, Joins Owners’ Counsel of America

We are pleased to announce that Dwight H. Merriam of Robinson & Cole in Hartford, Connecticut has joined the Owners’ Counsel as the Connecticut attorney-member dedicated to representing private property owners, developers and businesses in eminent domain, inverse condemnation, land use and related property rights matters.  Dwight is a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow and Past President of the American Institute of Certified Planners, a Fellow of the American College of Real Estate Lawyers, a Fellow of the Royal Institution of Chartered Surveyors, a member of the Rocky Mountain Land Use Institute National Advisory Board, and the Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law.

Among his many accomplishments, Dwight has been recognized by Connecticut Super Lawyers in the area of Land Use Law since 2006, and has been listed as one of the Top 50 Connecticut Super Lawyers as well as one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.).   He has also been included in Best Lawyers® since 1991 in the areas of land use and real estate law and was honored by that publication as a Hartford Lawyer of the Year in the area of Land Use & Zoning Law in 2012.

Dwight teaches land use law at the University of Connecticut School of Law and at Vermont Law School. He has published over 200 articles and 8 books including The Takings Issue and Eminent Domain Use and Abuse: Kelo in Context as well as chapters in Nichols on Eminent Domain, the seminal treatise on eminent domain law nationwide.

Dwight was a member of the Robinson & Cole condemnation litigation team that recently secured a $167,501,656 just compensation award for Gyrodyne against the State of New York as well as a co-author of a brief in favor of the property owner in the New York rent control case, Harmon v. Kimmel, No. 11-496 (cert. denied April 23, 2012).

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