Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Our Success

Arent Fox’s Rails-to-Trails Experience

US Supreme Court

  • PPL Montana v. State of Montana, No. 10-218 (2010). Represented the Montana Farm Bureau Foundation and Cato Institute as amicus curiae to the United States Supreme Court. In PPL Montana, the Montana Supreme Court used a novel standard to determine the navigability of certain Montana rivers, thus converting ownership of those rivers to the state of Montana. In its brief, the Montana Farm Bureau argued that the Montana Supreme Court’s adoption of a standard contrary to that of the United States Supreme Court was not only a violation of precedent, but an arbitrary act amounting to a judicial taking of the private property of thousands of private property holders, including farmers and ranchers represented by the Montana Farm Bureau. The Supreme Court ultimately granted review and unanimously reversed, adopting our position.
  • Brandt v. United States, No. 12-1173 (2013) Authored two US Supreme Court amicus briefs. The first brief, submitted on behalf of the Cato Institute and the National Association of Reversionary Property Owners, successfully urged the Supreme Court to grant the Brandt family’s petition for certiorari, even though the decision being appealed was unpublished. Once certiorari was granted, Thor authored a second brief on the merits of the case, representing an impressive coalition of property rights organizations and scholars, including the Cato Institute, the American Farm Bureau Federation, the American Land Title Association, the National Cattlemen’s Beef Association, the Public Lands Council, and distinguished property law professors James W. Ely, Richard A. Epstein, Donald Kochan, and Dale A. Whitman. On March 10, 2014, the United States Supreme Court ruled in favor of the landowner in this pivotal Fifth Amendment property rights case, setting a major precedent that will allow thousands of people to maintain ownership of millions of acres of land across the country. By an 8-1 vote, the Court preserved the certainty and predictability in land titles and upheld one of the fundamental policies of the country’s property law system.

US Courts of Appeal

  • Biery v. United States, ___ F.3d ___, 2014 WL 2491779 (Fed. Cir. 2014). Successful reversal of a decision of the US Court of Federal Claims denying Fifth Amendment takings liability for property owners in Kansas, requiring the federal government to pay the landowners “just compensation” after it refused to do so. The decision sets a precedent that will help landowners in similar cases across the country.
  • Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012). Lawsuit brought by the Lieutenant Governor of Missouri regarding the Patient Protection and Affordable Care Act.
  • Evans v. United States, 694 F.3d 1377 (Fed. Cir. 2012). Successful reversal of two district court decisions following the Federal Circuit’s decision in Bright v. United States. The court expressed frustration at the government’s actions and clarified the law according to plaintiffs’ requests.
  • 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)
  • Jack Ladd v. United States, 630 F.3d 1015 (Fed. Cir. 2010). Successful reversal of Court of Federal Claims adverse ruling setting a major precedent in Trails Act cases that a Fifth Amendment taking pursuant to the Trails Act takes place at the time of the issuance of the Notice of Interim Trail Use by the Surface Transportation Board.
  • Ladd v. United States, --- F.3d ----, 2013 WL 1405871 (Fed. Cir. April 9, 2013). Precedent-setting reversal by the US Court of Appeals for the Federal Circuit ruling that the six-year statute of limitations applicable in Fifth Amendment takings claims against the federal government is suspended when the accrual of the claim is “inherently unknowable.”
  • Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). 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.” Mike Scarcella, “Broken Trails,” National Law Journal (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.

State Supreme Courts and Courts of Appeal

  • Biery v. United States and Pankratz v. United States, (KS 2009). Certified question referred to Kansas Supreme Court by U.S. Court of Claims. Amicus curiae, including the Kansas Farm Bureau, filed briefs in support due to precedential importance of issue.
  • St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 301 S.W.3d 549 (Mo. Ct. 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.
  • 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.
  • Weinschenk v. State of Missouri, 203 S.W.3d 201 (Mo. 2006). Counsel for intervenors seeking to uphold Missouri’s voter registration law requiring photo identification in the Missouri Supreme Court.
  • 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.
  • McCurdy v. St. Luke’s Episcopal Presbyterian Hospitals, 265 S.W.3d 286 (Mo. Ct. App. 2008). Successfully represented property owner in trial court and court of appeals by preventing condemnation of private road easement across property owner’s land.

Federal Trial Court

  • Ladd v. United States, 110 Fed. Cl. 10 (2013). Favorable trial court decision on the valuation of Fifth Amendment takings claims following successful litigation in the court of appeals reversing a prior Federal Claims Court adverse decision.
  • Rogers v. United States, 90 Fed. Cl. 418 (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.”
  • 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 the federal government. 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.
  • Miller v. United States, 67 Fed. Cl. 542 (2005). Representation of Missouri property owners in a class action Fifth Amendment takings claim.
  • Glosemeyer v. United States, 45 Fed. Cl. 771 (2000). Representation of Missouri property owners in a class action determining that “railbanking” and conversion of railway to public use constituted a taking under the Fifth Amendment.
  • Biery v. United States, 99 Fed. Cl. 565 (2011). Representation of Kansas property owners in litigation successfully determining that “railbanking” and conversation of railway to public use constituted a taking pursuant to Kansas law.
  • Rogers v. United States, 101 Fed. Cl. 287 (2011). Representation of Florida landowners in a class action Fifth Amendment takings claim, successfully determining method of valuation of property.
  • Rogers v. United States, 90 Fed. Cl. 418 (2009). Prior decision in Florida landowner Fifth Amendment takings class action successfully determining that conversion of railway to public trail use constituted a taking under Florida law.
  • Thompson v. United States, 101 Fed. Cl. 416 (2011). Representation of Michigan landowners in Fifth Amendment takings claim successfully determining that landowners had reversionary rights to property underlying an abandoned railway triggering Fifth Amendment’s “just compensation” requirement.
  • Hodges v. United States, 101 Fed. Cl. 549 (2011). Representation of Michigan landowners successfully determining that abandoned railway right-of-way conversion to a public trail constituted a taking under the Fifth Amendment.
  • Ingram v. United States, 105 Fed. Cl. 518 (2012). Representation of South Carolina landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
  • Whispell v. United States, 106 Fed. Cl. 635 (2012). Representation of Florida landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
  • Douglas R. Bigelow Trust v. United States, 107 Fed. Cl. 490 (2012). Representation of Michigan landowners’ class action claim asserting Fifth Amendment taking of land subject to railroad right-of-way.

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