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.
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.
August 5th, 2020 — In News & Events
Former South Dakota Attorney General and OCA Member Mark Meierhenry Dies
Mark 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.
July 1st, 2020 — In News & Events
OCA Files Amicus Brief in Virginia Oystermen Takings Case
OCA 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.
April 16th, 2020 — In Uncategorized
PA Supreme Court Rejects Takings Challenge To COVID-19 Shut-Down Orders
In one of the first comprehensive court opinions on an issue of national interest, the Pennsylvania Supreme Court rejected business owners’ challenges to the recent shut down orders issued by Governor Tom Wolf in response to COVID-19 on various legal grounds. Ruling that the orders were supported by a compelling public health rationale and were not a regulatory taking of property because they were temporary in nature, the court upheld them. For a full review and analysis of the opinion, click here.
April 7th, 2020 — In News & Events
Can the Government Commandeer My Hotel to Fight COVID-19?
OCA Affiliate member Ivy Cadle of Baker Donelson asks in his recent posting, “With the COVID-19 pandemic in full swing, can the government take private hotel rooms to expand the capacity to care for individuals with or exposed to the virus?” Governmental entities at every level are taking unprecedented steps to fight the COVID-19 pandemic as they work to slow transmission of the virus and to prevent health care facilities from reaching overcapacity. Given that many health care facilities are nearing capacity already, it is easy to envision a world where governmental entities could appropriate private property to help respond to the crisis until the efforts are able to “flatten the curve.” The federal government has already taken the formal steps to allow the appropriation of private property. When President Trump declared a national emergency under the Stafford Act on March 13, 2020, he authorized the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to acquire both physical facilities and supplies. Even though FEMA is required to compensate owners, the Stafford Act also allows for an immediate right of possession. Accordingly, FEMA could immediately appropriate buildings, land, food, medicine, testing supplies and medical equipment, parts, fuel, etc. Read more.
March 20th, 2020 — In News & Events
Private Property Owners May Soon Find Themselves on the Front Lines of Government Efforts to Combat the Coronavirus
On March 13, 2020, President Trump declared a national emergency under the Stafford Act in an effort to combat the spread and transmission of COVID-19 (commonly referred to as the coronavirus). Relevant to property owners across the country, the Stafford Act allows the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to immediately acquire, not only the physical facilities it needs (like buildings and land), but also supplies, such as medicine, food, equipment, respirators, and other parts and supplies. In short, the Stafford Act gives FEMA broad eminent domain powers to take what is necessary to address this national emergency. Below are three recent postings by OCA members concerning the potential consequences of such actions on the statutory and constitutional protections afforded property owners who may be subjected to the power of eminent domain under the Stafford Act. While we must all try to protect each other from the spread of COVID-19, it is important that those facing the potential taking of their property and property rights to fight this pandemic are properly counseled and represented by attorneys experienced in eminent domain takings. OCA lawyers are the leading eminent domain lawyers in the country who are dedicated to the defense and protection of private landowners nationwide. Katie Gray: “Condemnation and COVID-19: When National Emergencies and Eminent Domain Collide” Anthony DellaPelle: “Can The Covid-19 Pandemic Allow the Government to Seize My Property?” Robert Thomas: “Emergencies, Police Power, Commandeering, And Compensation: Essential Readings”
November 18th, 2019 — In News & Events
Eminent Domain and Land Valuation Litigation 2020
American Law Institute Continuing Legal Education (ALI CLE) has announced that Eminent Domain and Land Valuation Litigation 2020 will be held on January 23-25, 2020 in Nashville, TN. The only CLE event for eminent domain practitioners with a national focus and reach, this conference features new topics, customizable content, and valuable networking opportunities, all in the heart of Music City. Many OCA members will be in attendance, both as faculty members and attendees. Don’t miss this opportunity to learn about developing issues in eminent domain, inverse condemnation and regulatory takings. Practice area experts will be coming from across the country to represent the diverse stakeholders in these disputes, including land owners and government agencies and other condemning bodies. Judges, appraisers, consultants, and law professors will round out the prestigious group of over 60 speakers sharing their knowledge and experience with attendees.
September 23rd, 2019 — In News & Events
OCA Files Amicus Brief in North Carolina Map Act Case
Many will recall the infamous Map Act that was adopted in North Carolina during the 1990’s. As a result the North Carolina Department of Transporation (NCDOT) recorded corridor maps that restricted the use of property in the path of several future road projects similar to negative easements. Although the North Carolina General Assembly repealed the maps in 2016, the North Carolina Supreme Court ruled that these restrictions amounted to takings by inverse condemnation. NCDOT is now initiating actions to physically take some of the properties to build roads and highways. The legal issue now presented is how to value these properties in determining just compensation after they have been impacted by the Map Act for years? OCA’s recently filed Amicus Brief (which you can read here) seeks to assist the North Carolina Supreme Court in addressing this issue to ensure that all impacted landowners receive proper just compensation.
August 27th, 2019 — In Articles
No Severance Damages for You, You Have a Special Benefit by OCA Member Mike Rikon
In his Condemnation and Tax Certiorari column, OCA New York Member Michael Rikon discusses partial acquisitions in condemnation cases and writes: “Within the area of consequential damages, we must explore, not only the loss in value suered by the remaining property, but the possible benefits to that remainder which are the result of the improvement for which the part taken was acquired. To further complicate things, the question arises, do we consider special benefits to the remainder as distinguished from general benefits? Read more here.