Articles

More briefs, fewer answers in Arkansas Game & Fish Commission

September 04, 2012 | By BRIAN HODGES

Last week, I reported that the federal government’s merits brief in Arkansas Game & Fish Commission shed very little light on the question whether recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause. Unfortunately, the two amicus briefs filed in support of the federal government of ...

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Koontz oral argument : what do state and local governments think the Takings Clause protects?

January 10, 2013 | By JONATHAN WOOD

In Koontz, governments across the country argue that the Takings Clause only applies to real property and not to demands for money.  But that argument can’t be squared with the text of the Takings Clause which reads: nor shall private property be taken for public use, without just compensation. As you can see from its … ...

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Rails-to-trails returns to the U.S. Supreme Court

October 01, 2013 | By BRIAN HODGES

Earlier today, the U.S. Supreme Court decided to grant review of the important property rights case, Marvin M. Brandt Revocable Trust v. United States. The case arises from the federal government’s “Rails-to-Trails” program, which seeks to convert old, abandoned railroad tracks into recreational trails. As nice as that program may ...

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Federal Circuit revives Lake Michigan takings case

January 28, 2014 | By BRIAN HODGES

Earlier today, we received an excellent opinion from the Federal Circuit in the physical takings case, Banks v. United States. At issue was the so-called “stabilization doctrine”—a legal doctrine that will suspend the 6-year statute of limitations in cases where a taking is occurring as a result of a gradual physical process like eros ...

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Will Arkansas Game & Fish fix temporary takings?

April 15, 2014 | By BRIAN HODGES

Yesterday, the Boston College Environmental Affairs Law Review made my article, Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings?, available online. Here is the abstract: The U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States recognized that any governme ...

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Can constitutional rights be destroyed by desuetude?

August 25, 2014 | By JONATHAN WOOD

Earlier this month, the Second Circuit rejected a Takings Clause challenge to a New York statute that, by increasing the state’s homestead exemption, destroyed a lien holder’s property interest. Rather than resolving what sort of property interest the lien was or what test applied to the taking, the Second Circuit concluded that, regard ...

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Water as property and habitat under the Takings Clause

November 03, 2014 | By TONY FRANCOIS

Can preventing take (of endangered species) cause a take (of private property)? That is the question I will be answering tomorrow morning, along with a distinguished panel, in our special session on Water Rights and Regulatory Takings at the 2014 Annual Water Resources Conference, sponsored by the American Water Resources Association.  I will be ...

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Fifth Amendment for sale

August 20, 2015 | By CHRISTINA MARTIN

Can the government take a person’s home to pay a $133 debt without paying the homeowner a penny? A case pending before a federal district court, Coleman v. District of Columbia, asks just that question. Benjamin Coleman, an elderly veteran suffering from dementia, owned a house in Northeast Washington, D.C that he’d bought with cash &# ...

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Did the raisin case silently insulate the Endangered Species Act from the Constitution?

August 24, 2015 | By JONATHAN WOOD

A recent article in Greenwire, reports that opponents of robust Constitutional protections for property rights and limits on federal power are finding a kernel of hope in the Supreme Court’s opinion in the raisin case decided last term. They contend that the opinion insulates regulations to protect wildlife — like those adopted under th ...