News & Events
October 8th, 2020 — In News & Events
Podcast Episode 54 – The Emotions of An Eminent Domain Case with Stephen Clarke
OCA Affiliate Member, Stephen Clarke of the law firm of Waldo & Lyle in Norfolk Virginia recently joined Clint Schumacher on his Eminent Domain podcast to share a story about the reaction of his clients to the cancellation of the Atlantic Coast Pipeline project. On a lighter note, Stephen also introduces Clint to the board game “Settlers of Catan.” To listen to the podcast, click here. Clint’s Podcast can also be found on iTunes and Stitcher.
October 6th, 2020 — In News & Events
OCA Crystal Eagle Award Winner and Law Professor David Callies Authors Book on Landmark Knick Case
The Supreme Court’s recent decision in Knick v. Township of Scott has been aptly described as one of the most influential property rights cases of the last decade. In Knick, the Court explicitly overturned the second prong of the so-called Williamson County ripeness test that required property owners to seek a remedy through state action –usually just compensation – for the alleged taking before coming to federal court. In David Callies new book, published by the American Bar Association, entitled “Regulatory Takings after Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes,” he provides a summary of takings law in general and discusses in detail total takings and the exceptions which permit governments to so strictly regulate property as to permit no economically beneficial use. Legal scholars from across the country already have commented on the importance of Mr. Callies’s work. Professor Henry Smith of Harvard Law School called it “a lucid and insightful guide through the labyrinth of the caselaw on categorical takings,” and Steven J. Eagle, of the Antonin Scalia Law School at George Mason University, noted that the new book “sets forth federal and state law respecting the tension between private property rights and government regulation in a way useful to both general readers and specialists.” David Callies is a professor of law at the University of Hawaii Law School and a former recipient of the prestigious Crystal Eagle Award from Owners’ Counsel of America.
September 24th, 2020 — In News & Events
Joseph Waldo Continues Fight For Oystermen in Income Loss from Latest Dump of Raw Sewage into Nansemond River
To follow up on a story we ran earlier regarding OCA’s Amicus Brief filing in the case of the City of Suffolk’s operation of a sewage and stormwater system so as to discharge wastewater into the Nansemond River, we learn that after recent rains an estimated 1.5 million gallons of raw sewage has been dumped in the river. “They are discharging and allowing raw sewage to be discharged into the rivers that we swim in…” says attorney Joe Waldo (seen in the photo) who represents several oystermen currently suffering huge losses due to the situation. Robert Johnson, who owns one of the businesses impacted, estimates he has 750 acres of oyster beds that can’t be harvested right now, and that is costing him $2,000 to $3,000 a day. “We are totally shut down. Ninety percent of our oysters are in the Nansemond River which is the best growing ground in this area.”
September 18th, 2020 — In News & Events
OCA Members Robert Thomas and Katie Gray To Present at the CLE International Eminent Domain Conference in Denver
For the past 22 years, CLE International has sponsored presentations by the most knowledgeable and experienced eminent domain professionals. This year will be no exception! During a two-day virtual Conference to be held on September 24-25, the industry’s leading experts and attorneys in eminent domain, relocation, appraisals, and land planning will present on a variety of timely topics. Owners’ Counsel of America’s Hawaii Member, Robert Thomas, Owner’s Counsel’s Executive Director, Leslie Fields, and Glenn Roper with the Pacific Legal Foundation will all participate in a panel discussion on the landmark Knick case. Further, Katie Gray, an affiliate member with Owners’ Counsel of America and an associate with Faegre Drinker & Biddle will present on Oil and Gas Assets in Eminent Domain. For more information about the conference and how to register, click here.
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.
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.
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 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.