News & Events
August 23rd, 2019 — In News & Events
Nebraska Supreme Court Rules on Transcanada’s XL Pipeline Route by William Blake
The Nebraska Supreme Court has affirmed the decision of the Nebraska Public Service Commission’s (PSC) to approve a route through Nebraska for the XL Pipeline, completing one of the final steps before construction of the controversial project can begin. A copy of the full decision can be read here.
The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. First announced in 2008, it has remained the focus of controversy and litigation for eleven years. During that time, the project underwent two route changes through Nebraska, after acquisition of a majority of the needed corridor easements had already occurred. Several condemnation actions were dismissed as premature, until a final route was approved.
In 2017 the PSC, an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route. Transcanada had requested approval of its second proposed route, but that route met with substantial opposition. In November, 2017, the PSC approved a different route, closely paralleling the route of Transcanada’s earlier Keystone pipeline. A number of farmers and ranchers along the approved route, joined by several native American tribes and environmental groups, appealed the PSC’s decision to the Nebraska Supreme Court.
Although the appeal was thought to be placed on the fast track, over a year and a half later, the Nebraska Supreme Court finally entered its unanimous ruling. Rejecting the appellants’ various arguments, the court held that the question of whether a pipeline will be in the public interest of Nebraska is a question peculiarly left to determination by the PSC, and that a route application includes alternative routes. Of interest to condemnation lawyers, the court stated that the case did not relate to condemnation proceedings. Rather, the PSC permit is an antecedent issue that is not part of a condemnation proceeding under the power of eminent domain.
For now, this long-awaited decision appears to remove the Cornhusker State from the middle of the legal battle.
Contributed by OCA Nebraska Member William Blake
August 8th, 2019 — In News & Events
Amicus Brief: State Takings Claims Are Constitutional (Not Torts) in Applying Applicable Statute of Limitations
OCA has asked leave to file an Amicus Brief in the case of DW Aina Lea Development vs. State of Hawaii Land Use, currently before the Hawaii Supreme Court. The Brief, authored by OCA Member Robert Thomas, can be read in full here.
The question presented before the Hawaii Supreme Court is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution’s “takings or damagings” clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations.
Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court.
Our OCA brief argues that the closest analogue to a regulatory takings or inverse condemnation case is adverse possession (which is the majority rule, nationwide). And, we also argue that the tort statute of limitations (2 years) is not applicable because a takings claim does not seek recovery for “damage or injury to . . . property.”
July 23rd, 2019 — In News & Events
Upcoming Webinar – Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right?
On Friday, July 26th from 2:00 p.m. to 2:30 p.m. ET the Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right?
OCA presenters Dwight Merriam (featured to the left) and Robert Thomas (featured below) will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater? Will the federal courts become a forum resembling a small town zoning board of appeals, buried in trivial cases to the detriment of more important issues on the docke
In this fast-paced half-hour, the presenters will ripen the ripeness problem for you, poke about the entrails of the decision to conjure up its true meaning, offer up a doyens’ debate on other pundits’ prognostications, and preview the in-depth program which will be held at the upcoming ABA Annual Meeting in San Francisco (Thursday, August 8, 2019).
For more details about the webinar, read Robert Thomas’ Inverse Condemnation Blog here.
Knick v. Township of Scott(June 21, 2019) overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.
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.
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.”