Lawsuit Seeking Compensation for Mandatory Store Closures – Who’s Going to Pay for My Loss?

Illinois’ attorney general asked a federal judge Monday to dismiss a lawsuit alleging Gov. J.B. Pritzker’s executive orders closing nonessential businesses and workplaces are unconstitutional. A group of Chicagoland business owners argued the governor’s COVID-19 restrictions amount to the confiscation of private property without monetary compensation.  Such an action would violate the U.S. and Illinois constitutions, they say. Those orders “caused the seizure of property, business interests and livelihoods of individuals across the state, forcing indefinite closures and the layoff of hundreds of thousands of people,” according to the group’s… read more

Posted in Pandemic, Police Power, Takings, Uncategorized
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Who’s in Charge Here: The Province of the Trial Court in a Condemnation Case

New York is one of only three states in the nation that does not allow trial by jury in an eminent domain case.  All claims against the State of New York and certain other state authorities have exclusive jurisdiction in the Court of Claims where, regardless of the nature of the claim, there are no jury trials.  Appropriation claims in the Court of Claims are certainly included and are tried by a Court of Claims Judge.  Other condemnation matters must be tried by a Justice of the Supreme Court.[i]  This… read more

Posted in Decision by Jury, Trial, Uncategorized
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Taking an Ancient Mound Access

The Ohio Supreme Court will hear a country club’s appeal of orders that it provides public access to the state historical agency to ancient burial mounds.   The lower courts ruled that the Ohio History Connection can reclaim the lease for the 2,000-year-old Octagon Mounds from Moundbuilders Country Club by eminent domain.   The Ohio History Connection has leased the 134-acre property to Moundbuilders where golf has been played since 1910.  The agency wants to buy back the lease and convert the property to a park to improve public access… read more

Posted in Access, Historic Burial, Site, Uncategorized
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The Atlantic Coast Pipeline is No Mas

The natural gas project which would have crossed the Appalachian Trail has been canceled as delays and costs mount.  This blog has reported on the pipeline frequently.  See “The Atlantic Coast Pipeline. Bulldozers at Your Doorstep,” June 16, 2020.  At that time, it was noted that the U.S. Supreme Court ruled that the Atlantic Coast Pipeline can traverse sixteen miles within the George Washington National Forest.  The case, U.S. Forest Service v Cowpasture River Prevention Assoc., 590 US ___ (2020) considered the grant of a special permit from the Forest… read more

Posted in Appalachian Trial, Pipelines, Sioux Nation, Uncategorized
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The Court of Appeals Upholds a Pipeline that May Never Be Built

The Court of Appeals handed down a 25-page decision on June 25, 2020 that approved the condemnation of private property for a pipeline that may never be built. In 2017, the Federal Energy Regulatory Commission issued a Certificate of Public Convenience and Necessity to National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. The issue before New York’s highest court was did the Certificate of Public Convenience and Necessity which did not condition Natural Fuel’s eminent domain power… read more

Posted in EDPL 204(B), FERC, Pipelines, Water Quality Certificate
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Pipelines Here, There and Everywhere

Sooner or later a pipeline case had to arrive at the Supreme Court.  Last week the Court rules on the first high profile case.  The court ruled in favor of a 600-mile natural gas pipeline proposed to go under the Appalachian Trail in rural Virginia.  We wrote on the case in our blog on June 16, 2020.  The decision also removed a hurdle for another 300-mile pipeline and could prompt development on other ecologically important lands. The Supreme Court will now consider whether it will grant or deny review, or… read more

Posted in Eleventh Amendment, Pipelines
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Border Wars Trump Style

The U.S. has actively been pursuing the wall between the United States and Mexico.  And, no, Mexico is not paying for it.  Since the month of March, the government has filed 24 new condemnation cases to acquire private property from South Texas landowners which is more than were filed in the preceding eight months.  All this despite the pandemic. There are currently 657 miles of primary barriers and 50 miles of secondary barriers along the 2000-mile border. Remember that the vast majority of the barriers were constructed prior to the… read more

Posted in Border Wall, Condemnation
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Notice of “Rails to Trails” Constitutes a Taking

On May 29, 2020, the Federal Circuit Court o Appeals issued a decision in Caquelin v U.S., No. 19-1385 (Fed. Cir. 2020), which held that a categorical taking analysis applies to the evaluation of whether a Notice of Intended Trail use constitutes a taking. In the early development of our County, railroads were critical to development.  Development of railroad networks was very important.  So important, that railroads were given the power of eminent domain.  The railroads used the power to negotiate or take easements over private property for the use… read more

Posted in Categorical Taking, Rails-to-Trails
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The Atlantic Coast Pipeline

The United States Supreme Court ruled on Monday that the controversial Atlantic Coast Pipeline can traverse sixteen (16) miles of land within the George Washington National Forest.  The case, United States Forest Service v Cowpasture River Prevention Assoc., 590 U.S. ___ (2020), considered the grant of a special permit from the Forest Service for a right of way some 600 feet below a portion of the Appalachian National Scenic Trail.  The Respondents filed a petition for review alleging that the special permit for the right of way violated the Mineral… read more

Posted in Appalachian Trial, Easements, Right-of-Way
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No Soup for You – Colorado Supreme Court Refuses Compensation for Taking of Restrictive Covenant

The Town of Monument condemned a privately owned lot in a residential subdivision for the purpose of locating a water storage tank.  The lot was subject to a restrictive covenant requiring that it remain residential in use and that only a single-family home could be built on it.  Restrictive covenants are not unusual and are common in the development of planned unit communities.  Restrictive covenants have significant and substantial impact on the use and value of property. In response to the Town’s condemnation proceeding, dozens of property owners in the… read more

Posted in Compensation, Easements, Just Compensation, Restrictive Covenants
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