Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Mark F. “Thor” Hearne, II

Thor Hearne, Partner at Arent Fox LLP
Mark F. “Thor” Hearne, II
Washington, DC

Thor Hearne has earned a national reputation for his work in three areas of legal practice; complex federal and state litigation and appeals, especially matters involving property rights; constitutional law; and election issues. Thor has been counsel to high net-worth families and closely held businesses on wealth preservation and tax and succession planning, and, political and election law.

Political and Election Law

Thor is one of the nation’s preeminent political and election law attorneys. Among the highlights of his practice:

  • President Bush’s legal counsel in Missouri in 2000 where he won the landmark case Bush-Cheney v. Baker which overturned a trial court’s order holding polls open beyond legal closing time.
  • President Bush’s national election counsel in the 2004 presidential re-election campaign where he oversaw more than 75 different lawsuits in state and federal court, including appeals to the US Supreme Court, various state supreme courts, and federal courts of appeal.
  • Legal counsel to a number of state and federal officials, including governors, members of the Senate and US House of Representatives and their campaign committees.
  • Represented federal and state candidates in successful election contests and recount litigation.
  • Counsel for leadership of the US House and Senate in their amicus brief in the landmark US Supreme Court Crawford case and also counsel for Democrat and Republican election officials in separate amicus brief in Crawford.
  • Nationally recognized authority in election law, he was advisor to the Carter-Baker Commission on Federal Election Reform and has testified on election law matters before the US Senate, US House of Representatives, US Commission on Civil Rights, and the US Election Assistance Commission.
  • Has written numerous articles on various topics of constitutional and election law and has appeared on NPR, CNN, Fox News, and other national media and has been quoted in the Wall Street Journal and USA Today.

Counsel to High Net-Worth Families and Closely-Held Businesses

Since he began his legal practice, Thor has been a trusted advisor to several generations of high net-worth families and closely-held businesses on matters of investment, tax and succession-planning. Thor was recently named one of the Top Wealth Advisors in St Louis. Thor’s work in this area includes:

  • Advising families on strategies to preserve wealth for successive generations.
  • Working with individuals to establish charitable trusts and other strategies to steward wealth and provide a legacy of family and community philanthropy.
  • Representing individuals and businesses in tax disputes before the Internal Revenue Service.

Litigation — Before Federal and State Trial and Appellate Courts

Thor is nationally recognized for his practice before state and federal trial and appellate courts. Typical of Thor’s litigation practice is that, in a recent two-month period, Thor argued cases before the US Court of Appeals for the Federal Circuit, the Kansas Supreme Court and the Missouri Court of Appeals. Thor’s argument before the Missouri Court of Appeals was highlighted as part of the Washington University Appellate Advocacy Program and his argument before the Federal Circuit involved a class-action case against the federal government that is of national importance that was recently featured in the National Law Journal.

In the coming months, Thor will argue cases before the United States Supreme Court, Missouri Supreme Court, Florida Supreme Court, Eleventh Circuit, Eighth Circuit, and Federal Circuit and a number of lower federal district courts. These cases (and those cases Thor has argued in past years) attest to Thor’s recognized ability to not only advocate his client’s interest but to also shape the law.

  • US Supreme Court challenge to Arizona legislative redistricting: The case is Harris v. Arizona Independent Redistricting Commission. Thor brought this challenge because Arizona’s redistricting commission violated the Equal Protection principle of one-person, one-vote. Thor already won a significant victory when the Supreme Court agreed to hear this challenge. The Supreme Court’s decision will be one of the most significant voting rights decisions this term. Thor is lead counsel and will argue this case before the Supreme Court on December 8th. Thor’s briefs are available here.
  • Defending the Commonwealth of Virginia against a federal election law challenge: Virginia Attorney General Herring engaged Thor to represent the Commonwealth defending a constitutional challenge to Virginia’s voter identification law. The case is Lee v. Virginia. Thor is lead counsel representing Virginia before federal Judge Henry Hudson. Trial is set for February and the Fourth Circuit and possibly the Supreme Court will likely review the decision. Thor’s latest brief is here.
  • Representing national organizations in US Supreme Court: Thor is counsel for Cato Foundation and the National Reversionary Property Owners Association supporting Ministerio Roca Solida in a property rights appeal to the Supreme Court. The government took a Nevada church’s water rights without compensating the church. The government said it didn’t have to pay because, under an obscure provision of a Civil War-era statute, the church forfeited its constitutional right to be justly compensated. One constitutional scholar labeled the statute a “jurisdictional ambush.” Thor argues the provision is unconstitutional. Thor’s brief is here.
  • Defending religious liberty in the Eighth Circuit: Thor Hearne as lead counsel, joined by noted University of Missouri law professor Carl Esbeck, filed an amicus brief before the Eighth Circuit on behalf of the National Association of Evangelicals and the Christian Legal Society arguing principles of federalism require Missouri courts (not a federal district court) to provide the first interpretation of Missouri’s state constitutional guarantee of religious liberty.
  • Representing prominent Florida philanthropist in successful $28 Million challenge to IRS in the Eleventh Circuit. Thor sued the IRS over a $28 Million conservation easement the Culverhouse family donated to Sarasota for a public park. The IRS disallowed the Culverhouse family’s deduction. The IRS lost. The IRS is now appealing its loss in the Eleventh Circuit. Thor will argue the appeal next month. The IRS is seeking to undermine Congress’s policy of granting tax deductions to encourage the donation of conservation easements. Thor is defending the policy. Thor is also lead counsel in a companion federal district lawsuit against the IRS for the IRS’s wrongful retaliation against the Culverhouse family. Learn more about the case here.
  • Successfully defending Missouri’s Right to Farm Amendment before the Missouri Supreme Court: In July Missouri’s Supreme Court upheld the Right to Farm Amendment to the Missouri Constitution. A majority of Missouri voters adopted this amendment in a state-wide election. But opponents asked the Missouri Supreme Court to invalidate the results of the election. Thor was lead counsel and argued the case successfully defending the constitutional amendment. The brief is available here.
  • Representing landowners in property rights appeal before Florida Supreme Court: In June Thor argued an appeal before the Florida Supreme Court on behalf of almost 200 Florida landowners. The appeal involves substantial issues of Florida property law. Thor was joined by former Florida Supreme Court Justice Raoul Cantero and Vanderbilt University law professor James Ely who were co-counsel. Other parties appearing in the case included two other former Florida Supreme Court justices and numerous amicus curie including the Florida Bar Association. The initial brief is available here and the reply brief is here. Thor is lead counsel for the landowners.
  • Representing Michigan landowners in landmark constitutional challenge to federal Tucker Act: During the Civil War Congress passed a widely-criticized statute, the Tucker Act, which denies landowners whose property is taken by the federal government the right to trial by jury or trial before an Article III judge. The Constitution (which trumps a statute) guarantees owners the right to trial by jury and trial before an Article III judge. See complaint here. Thor is challenging the Tucker Act’s denial of these foundational constitutional rights and represents a group of mostly minority landowners from Muskegon Michigan bringing this challenge. See response brief to government’s motion to dismiss and our three page-summary of motion to dismiss. The Pacific Legal Foundation and Mountain States Legal Foundation have already joined as amicus curie supporting Thor’s arguments. The case is ultimately expected to go to the Court of Appeals and Supreme Court.

Reported Decisions

Thor has more than 20 years experience successfully representing clients in federal and state trial and appellate litigation. Many of these cases involve significant issues of constitutional law in which a state or the federal government is the opposing party. Thor has successfully represented clients before the US Supreme Court, state supreme courts and other trial and appellate courts. The following representative cases illustrate his experience.

  • Crawford v. Marion County Election Bd, 553 US 181 (2008). Counsel for leadership of United States Senate and House of Representatives (Senators Mitch McConnell, Robert Bennett, Christopher S. “Kit” Bond and United States Representatives Roy Blunt, Lamar Smith and Vernon Ehlers) as amici curiae before the United States Supreme Court in support of Indiana election officials on issues of federal preemption and the federal Help America Vote Act; and, counsel for group of Democrat and Republican Election Professionals, as amici curiae, in support of Indiana Secretary of State Todd Rokita. (amici curiae).
  • Fauvergue, Bright et. al. v. United States, ____ F.3d _____ (Fed. Cir., 2010). (Available here). Counsel in class-action Fifth Amendment taking case brought against the federal government. Successfully overturned adverse decision by Court of Federal Claims. National Law Journal noted this case “could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government.” Scarcella, Mike, National Law Journal, “Broken Trails” June 22, 2009. US Justice Department touted the government’s lower court win as one of the DOJ’s most significant accomplishments in 2009. In a unanimous decision issued May 3, 2010 the Federal Circuit overturned the Court of Federal Claims and issued a decision that broadly affirmed the use of class action procedure in cases against the federal government. The Federal Circuit’s broadly written rejection of the Justice Department’s argument is a landmark victory for the plaintiffs in this and more than 30 other pending class action cases. (Audio of the oral argument is available here.)
  • Dorothy L. Biery et. al v. United States and Jeremy Pankratz et. al v. United States.102,006 (KS, 2009). Certified question referred to Kansas Supreme Court by US Court of Claims. Amicus curiae, including Kansas Farm Bureau, filed briefs in support due to precedential importance of issue. Argued on October 30, 2009. Argument available. Decision pending.
  • Rogers v. United States, ___ Fed.Cl. ___, 2009 WL 4139560 (2009). Counsel for more than 350 Florida property owners in Fifth Amendment lawsuit against federal government for taking property without paying compensation. Court of Federal Claims ruled in favor of Plaintiffs, holding that the Plaintiffs “are entitled to just compensation under the Fifth Amendment.”
  • Jack Ladd v. United States, 2009-5010 (Fed. Cir. 2009). Counsel for class of Arizona property owners in Fifth Amendment taking claim against federal government. Pending appeal concerns significant Fifth Amendment issue of whether property owner is entitled to compensation when government totally excludes property owner from land. Decision pending.
  • St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., ___ S.W.3d ___, 2009 WL 4823866, (Mo.App. E.D., 2009). Successful trial and appeal involving a commercial lease dispute. Appellate argument selected for Appellate Advocacy Program at Washington University School of Law.
  • Miller v. United States, 67 Fed.Cl. 542 (2005). Counsel for class of Missouri landowners (including municipalities and school districts) in successful Fifth Amendment takings litigation against federal government. Successfully concluded with judgment for Plaintiffs in excess of $8.1 million in total compensation and won landmark decision on rate of interest due property owners under the Fifth Amendment.
  • Grantwood Village v. United States, 45 Fed. Cl. 771 (2000). Counsel for Plaintiff, Town of Grantwood Village, in Fifth Amendment takings litigation against United States. Successful verdict for full amount of claim sought and attorney fees and expenses. Decision on government’s liability established significant legal precedent finding United States liable for paying “just compensation” for Trails Act takings of landowners “reversionary” interest in land.
  • Lowe v. American Standard (E.D. Mo., 2005). Counsel for Plaintiff (former senior executive) in employment contract dispute. Plaintiff prevailed with verdict in full amount of demand — in excess of $500,000 — after multi-day federal jury trial.
  • Bush-Cheney, 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. App., 2000). Counsel for President Bush and Bush-Cheney presidential campaign in successful emergency appeal overturning trial court order holding polls open beyond legal closing hour. Court of appeals decision established significant election law precedent.
  • Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002). Lead counsel for Plaintiffs in the successful federal civil rights redistricting litigation of St. Louis County, Missouri. Represented individuals including minority plaintiffs and worked closely with the local NAACP in achieving a successful reapportionment of St. Louis County government. Counsel for the NAACP said, “[Mr. Hearne carried] the burden of a substantial amount of the NAACP’s case…. [Mr. Hearne] provided great help to counsel for the NAACP during this fast-paced redistricting litigation. [And Mr. Hearne took] the leading role in this action and in incorporating the NAACP’s objectives.”
  • McCurdy v. St. Luke’s Episcopal Presbyterian Hospitals, 265 S.W.3d 286, (Mo.App. E.D., 2008). Successfully represented property owner in trial court and court of appeals by preventing condemnation of private road easement across property owner’s land.
  • In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71,479 Mich. 1, 740 N.W.2d 444, Mich., July 18, 2007 (NO. 130589). Counsel for amicus curiae before Michigan Supreme Court in support of constitutionality of provision of Michigan election statute.
  • McNary, v. Akin, Cause No: 00CC-002969, (Cir. Ct. St. Louis Cty, Div. 10, 2000). Counsel for US Congressman Todd Akin in successful defense of primary election recount challenge.

Testimony Before Congress and Federal Agencies

  • United States Commission on Civil Rights — Testimony on Voter Fraud and Voter Intimidation, October 10, 2006.
  • Testimony before US Senate Judiciary Committee, Subcommittee on Constitution, Civil Rights and Property Rights, July 2006.
  • Testimony before US House Administration Committee, March 21, 2005. The Help America Vote Act and the 2004 Presidential Election.
  • Testimony before Federal Election Assistance Commission, December 7, 2006.
  • Academic Advisor — Commission on Federal Election Reform (“Carter-Baker Commission”), 2005.

Publications, Presentations and Recognitions

  • “The Missouri Voter’s Protection Act — Real Election Reform for All Missouri Voters,” Bar Association of Metropolitan St. Louis — St. Louis Lawyer, June 2006.
  • “The New Federal Lobbying Regulations, and What In-House Counsel Need to Know About Them,” Bloomberg Corporate Law Journal, Vol. 3, Winter 2008.
  • “Is There Life after the Clean-Air Act,” In-Form: Journal of The American Oil Chemists Society, May 1995.
  • “Legal Aspects of Doing Business in Missouri, Kluwer & West,” Chapter on Missouri and annual updates, Doing Business in North America Series, July 1990.
  • “Missouri Tightens Regulations of Underground Storage Tanks,” St. Louis Business Journal, April 1991.
  • “When Retirement Homes are Ad Valorem Tax Exempt,” Missouri Bar Journal, May-June 1994.

Life Beyond the Law

Thor is a private pilot and sailor. In the summer, he and his family enjoy any opportunity they have to escape to northern Michigan, where Thor grew up. Thor and his brother are active in efforts to preserve the unique character of the last undeveloped beach front property in their northern Michigan community.


Blog Posts by Mark F. “Thor” Hearne, II

Steve Davis presents at the American Law Institute’s 2017 Eminent Domain and Land Valuation Litigation nationwide conference

Arent Fox attorney Steve Davis presented at the American Law Institute’s Eminent Domain and Land Valuation Litigation nationwide conference in San Diego. Steve spoke on whether the Fifth Amendment requires the government to pay a landowner attorney fees when the government takes private property.

Arent Fox’s Federal Takings group represents hundreds of property owners across the country whose property has been taken by the federal government under the Trails Act for the creation of recreational trails across their property. In these cases the government provides no notice of the taking and requires the property owners to sue the government in order to obtain any compensation.

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Media Mention
Soon to Be Resolved: Cochise County Record Discusses Ten Year Legal Battle Over Railroad Land

There may finally be an end in sight for Jack Ladd et al v. United States, a decade-long federal court battle involving a number of Cochise County landowners who sued the US government for interfering with private property rights linked to railroad easements issued under the General Railroad Right-of-Way Act of 1875.

In June 2007, the property owners filed an initial complaint with the U.S. Court of Federal Claims demanding payment from the government for violating the "Takings Clause" of the Fifth Amendment. Amidst dozens of legal filings and after two dismissals and three appeals, the Court finally ruled in favor of the landowners in 2012. Yet four years later, the parties had still not reached an agreement as to the amount each plaintiff is due.

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Media Mention
The Bedford Times-Mail Features Second “Rails to Trails” Case in Indiana

An Indiana newspaper covering Bedford and Lawrence counties recently reported on Arent Fox’s continued representation of landowners in the area, specifically for property that was taken for the Milwaukee Trail extending between Bedford and Crane. Arent Fox estimates that around 50 landowners are now eligible to qualify for a claim in the case of Schulenburg v. United States. A public meeting, during which Arent Fox attorneys will discuss the case, will be held on Tuesday, August 23, 2016 at the Bedford Holiday Inn Express.

Schulenburg v. United States follows on a related case, McCarty v. United States, in which Arent Fox resolved more than 75 claims for property owners in the area.

The Times-Mail article can be read here

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.