Takings

News & Analysis as of

Utah Prairie Dog Could Narrow Endangered Species Act

A Utah federal court has created the potential for a constitutional showdown that could result in a significant narrowing of the Endangered Species Act and further limiting Congress’ power to legislate. In an unprecedented...more

Aviation & Aerospace and Surface Transportation Quarterly Newsletter

In This Issue: - Update on Developments in California Drone Law - One Community Gets Relief from Aircraft Noise - California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the...more

The Unintended Effects of Protecting the Environment – How Banning Fracking Can Lead San Benito County To Bankruptcy

On November 4, 2014, San Benito County voters went to the poles to vote on Measure J, the measure designed to prohibit hydraulic fracturing, known as fracking, and related gas and oil extraction activities, as well as other...more

Pa. Gas Utility May Use Eminent Domain to Supply Private Power Plant

A Lycoming County, Pennsylvania, judge recently authorized a natural gas public utility to use its eminent domain power in condemning easements for the construction and maintenance of a pipeline to supply gas to a private...more

Utah Federal Court Strikes Down as Unconstitutional a Regulation Under the Endangered Species Act Protecting Utah Prairie Dogs on...

The Utah Prairie Dog is a species that exists only in Utah, where it lives on both federal and private land. The species is listed as threatened under the federal Endangered Species Act of 1973, and a federal regulation...more

District Court Strikes Down Regulation of Purely Intrastate Species on Private Land

In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that...more

Court Finds Endangered Species Act Cannot Regulate Species on Private Lands Within a Single State

In a win for property owners and project proponents, a Utah federal district court has ruled that the United States Constitution does not authorize the U.S. Fish and Wildlife Service (“FWS”) to regulate impacts to the Utah...more

Federal Court States Rationale for U.S. Take of California Land a “Sham”

The question now is, is the court’s statement merely a bump in the road or a roadblock? The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when...more

Eminent Domain Begins for County of Sacramento Road Projects

As traffic continues to increase and roadways become more congested, California’s transportation infrastructure needs to keep up. While there has been a concerted focus on alternative methods of transportation (such as rail,...more

There is Still No Private Right of Condemnation (Generally)

Most people understand the basic concept of eminent domain: the government takes someone’s private property and pays the owner “just compensation” for the taking. Sometimes, however, the government “takes” (or “damages”)...more

Utah Court Bucks the Trend: Holds Congress Lacks Power to Regulate Intrastate Species on Private Land

Contrary to every federal court of appeal decision that has addressed the issue, a federal court in Utah has held that the broad authority of the U.S. Fish and Wildlife Service (Service) to regulate "take" of threatened...more

Court Holds Congress Lacks Power to Regulate Take of Intrastate Species that Has No Substantial Effect on Commerce

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only...more

“Frac Free Denton” Faces Legal Fight

On November 4, 2014, Denton, Texas, became the first Texas city to vote to ban fracking within city limits, as covered by Reuters, the Star-Telegram, and The Wall Street Journal. The ballot initiative, which passed with just...more

Coastal Commission’s Public Access Easement Found to Be A Taking

In a published decision, the California Court of Appeal for the Second Appellate District rejected the California Coastal Commission’s (“Commission”) finding that there is no rational nexus or rough proportionality between...more

Food and Beverage News and Trends - Food and Beverage Alert (US): October 2014

School Nutrition Association responds to critical article, sets forth its views on healthy lunches. The School Nutrition Association, which represents school cafeterias across the nation, responded on October 7 to a New York...more

Public Projects and Business Losses – Who Gets What and When?

Most of us have been inconvenienced by road construction or other public works. Streets can be more congested, exits closed, and traffic re-routed, making it more difficult to get to the restaurants, yogurt shops, book...more

B.C. Surface Rights Board Reduces Rent Payable After Landowners Fail to Prove Loss

In the recent decision of the B.C. Surface Rights Board in Encana Corporation v Perry Burl Piper and Leslie Lancelot Dowd, the Board awarded compensation to landowners less than the amount previously offered by the operator. ...more

Challenging the Right to Take: What Happens When a Government Agency Requires a Property that is Already Devoted to a Public Use?

Often times government agencies require property for a public project that is already put to a public use. What are the acquiring agency’s options, assuming an agreement cannot be reached prior to filing a condemnation...more

Texas Railroad Commission Proposes New Rules Related to Pipeline Eminent Domain Claims

The November 2011 issue of the Energy Newsletter addressed the case of Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, in an article titled Texas Supreme Court Ruling May Slow the Installation of Certain...more

District Court Rules Grizzly Bears Trump Montana's Plan to Log Forest Lands to Fund Schools

On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended...more

Washington Redskins Challenge the Constitutionality of Section 2(a) of the Lanham Act

The Washington Redskins trademark controversy is far from over. Despite the fact that certain news and sports commentators and mainstream newspapers and organizations have announced that they will no longer use the term...more

Florida DFS Unclaimed Property Grab “Clearly Erroneous”

Florida’s First District Court of Appeal filed an opinion yesterday in Thrivent Financial for Lutheran’s appeal from a declaratory statement issued by the Florida Department of Financial Services interpreting Florida’s...more

California Legislature Moves One Step Closer to Authorizing Eminent Domain for Martins Beach

Just in case you lost track of the Martins Beach saga, here is a quick summary and update. According to reports, a couple of years after billionaire Vinod Khosla bought beachfront property in San Mateo County for over $30...more

Full Steam Ahead for Eminent Domain Actions after High Speed Rail Authority Negotiations End in Impasse

The State Public Works Board (the “Board”) adopted four Resolutions of Necessity approving the High-Speed Rail Authority’s (the “Authority”) use of eminent domain for public necessity to acquire four parcels in Fresno and...more

Did Koontz Stop Illegal Development Exactions?

Much was written by law school professors and property rights groups following the U.S. Supreme Court's 5-4 decision in Koontz v. St. John's River Water Management District (2013), which found that land-use permit...more

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