McCarran International Airport and Clark County, A Political Subdivision of the State of Nevada v. Steve Sisolak (06-658)

Petition Filed: Nov. 8, 2006
Lower Court Opinion: The opinion of the Nevada Supreme Court is reported at 137 P.3d 1110 (Nev. 2006)(Pet. App. 1a-52a). The judgment of the Eighth Judicial Court of the State of Nevada is unreported (Pet. App. 53a-56a).

Questions Presented:

In light of federal law, which confers on the federal government "exclusive sovereignty" in the airspace of the United States, grants all citizens a public right of transit through "the navigable airspace," and defines the "navigable airspace" to include any airspace less than 500 feet above ground level that is needed to ensure safe takeoffs and landings of aircraft, the questions presented are:

1. Whether federal law precludes recognition under state law of private ownership of federally defined "navigable airspace" that is less than 500 feet above a landowner's property and that the landowner never used before it became part of the navigable airspace.

2. Whether zoning ordinances that merely restrict the use of property near a major airport, by limiting the height of structures in the navigable airspace, effect a per se regulatory taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), particularly where (a) the ordinances authorize variances for structures that the FAA concludes do not pose hazards to aviation, and (b) half of respondent's property was subject to a pre-existing perpetual avigation [sic] easement for the passage of aircraft that has never been found to violate the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

Detroit International Bridge Company v. United States (06-639)

Petition Filed: November 3, 2006
Lower Court Opinion: The opinion of the court of appeals (App. 1a-15a) is reported at 450 F.3d 205. The district court's decisions (App. 17a-27a and 29a-53a) are reported at 286 F. Supp.2d 865 and 188 F. Supp.2d 747

Questions Presented:

1. Whether requiring courts to apply the interest rate set in the Declaration of Taking Act, 40 U.S.C. s 3116, to determine the compensation due when the government delays payment of just compensation for private property taken under the Act violates the Just Compensation Clause and the separation of powers when applying the statutory interest rate would materially undercompensate the landowner.

2. Whether the court's reduction of the amount of compensation paid to a property owner based on the fact that the intended taking had been made public at the time the owner purchased the property contravenes this Court's repeated holding that the just compensation due to a landowner under the Fifth Amendment is not to be affected by the government's decision to condemn the property.

Hillsboro Properties, and Paul Goldstone Enterprises, Inc. dba Rancho Grande Mobilehome Park, v. City of Rohnert Park, a municipal corporation, and City of Rohnert Park Rent Appeals Board, S. Ct. No. 06-510

Petition Filed: October 9, 2006
Lower Court Opinion: The opinion of the California Court of Appeal, First Appellate District, is reported as Hillsboro Properties v. City of Rohnert Park, 138 Cal. App. 4th 379, 41 Cal. Rptr. 3d 441 (2006), and is reproduced as Appendix (App.) A. The Order of the California Supreme Court denying Hillsboro's petition for review is unreported and is reproduced as Appendix C. The Order of the California Superior Court for the County of Sonoma is unreported and is reproduced as Appendix B.

Question Presented:

Nineteen years ago, in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, this Court required all States to provide a remedy of just compensation for regulatory takings. Since that time, the appellate courts of the State of California have not upheld a single award of compensation for a taking not involving a physical invasion or occupation of property, and in the decision below the California court carved out one category of takings for which no remedy at all is available under state law.

For seven years the City of Rohnert Park enforced an unconstitutional rent control law that extinguished Hillsboro's vested property right to collect lawfully noticed rents from the tenants of its mobile home park. After the law was struck down, Hillsboro sued to recover its losses through either a mandatory prospective rent increaser under the City's successor rent ordinance, or an award of just compensation against the City. In the decision below, the California Court of Appeal ruled that no remedy exists in that state for Hillsboro's constitutional injury.

This presents the following questions:

1. Under First English, when a property owner has obtained a judicial determination that a rent control law is unconstitutional, may the City that administers that law avoid paying just compensation for the temporary abridgment of an owner's contractual right to collect lawfully noticed rents over the seven years in which the unconstitutional regulations were in effect?
2. Since Petitioners' regulatory takings claim is now ripe for federal adjudication, but Petitioners are barred from litigating their claim in federal district court by this Court's recent decision in San Remo Hotel v. City and County of San Francisco, should this Court directly rule on Petitioners' regulatory takings claim as a matter of federal law?

Bart Didden, Domenick Bologna, Cabernet 119 Realty Corp., Opus 113 Corp., Pauillac 115 Realty Corp., and 117 North Main Street Corp. v. The Village of Port Chester, et al.

Petition Filed: November 7, 2006
Lower Court Opinion: The decision of the U.S. Court of Appeals for the Second Circuit of which review is sought was unreported but is available at 173 Fed. Appx. 931, 2006 U.S. App. LEXIS 8653, 2006 WL 898093 (2d Cir. Apr. 5, 2006) and is reproduced in the Appendix at App. 1. The decision of the District Court for the Southern District of New York is reported at 322 F. Supp. 2d 385 (S.D.N.Y. 2004) and reproduced in the Appendix at App. 5.

Questions Presented:

1. In Kelo v. City of New London, this Court held that economic development within an integrated development plan was a "public use" under the meaning of the Fifth Amendment to the U.S. Constitution. Does Kelo therefore completely preclude all claims of private purpose takings within an integrated development plan area, including a claim that eminent domain was used for financial extortion and the purely private financial goals of a single party?

2. What limits if any do the Fifth and Fourteenth Amendments to the U.S. Constitution place on demands for cash in exchange for refraining from the use of eminent domain?

Alegretti & Company v. County of Imperial, California Petition Filed: October 24, 2006

Lower Court Opinion: The decision was filed on March 28, 2006. Initially not certified for publication, the Court of Appeal responded to numerous requests from State and National organizations explaining the national importance of the opinion - and their desire to cite it to other courts around the country - and ordered the opinion published. (The pulbication Order is at App., p. 32.) It is now reported as Allegretti & Company v. County of Imperial, 138 Cal.App.4th 1261, 42 Cal.Rptr.3d 122 (Cal. App. 2006). (App., p. 1.) The California Supreme Court denied review on July 26, 2006. (App., p. 49.) The unpublished Opinion of the California Court of Appeal on an earlier appeal in this same case is at App., p. 34. The trial court's order reviewed on appeal is unpublished and is at App., p. 43.

Questions Presented:

Imperial County concededly was without jurisdiction to regulate the quantity of water that Petitioner could pump from beneath its own land to irrigate its own farm. Nonetheless, the county insisted that it would not allow even the repair of a damaged well unless Petitioner agreed to forego its rights to future withdrawals of water underlying its land. Such access is acknowledged by State law as a property right.

The questions presented are:

1. When property owners' right of access to water beneath their own land is substantially abrogated by a government agency, is the resulting taking measured by regulatory taking standards (as held below) or is it more aptly "characterized as a physical invasion" (as held in a decision of the U.S. Court of Federal Claims, applying Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 [1978])?

2. When regulatory action denies property owners the use of the substantial bulk of their land by denying them use of their own water rights - necessary for irrigation in the arid California climate - has there been a denial of "all economically viable or productive or beneficial use" even though a small portion of the land can still be used? Does such a denial unconstitutionally interfere with the owners' "distinct, investment-backed expectations" for use of the land which is, and always has been, agricultural? What are the standards for litigating each issue?

John Drebick and Jane Doe Drebick, husband and wife, d/b/a Drebick Investments, v. City of Olympia, a Washington code city, S. Ct. No. 06-223
Petition Filed: August 10, 2006
Lower Court Opinion: The opinion of the Supreme Court of Washington is reported at 126 P. 3d 802 (Wash. 2006), Appendix (App.) A. The Washington Supreme Court's unreported order denying Drebick's petition for rehearing and modfying the opinion is reproduced as App. B. The opinion of the Court of Appeals of Washington, Division 2, is reported at 83 P.3d 443 (Wash. Ct. App. 2004), App. C. The Final Judgment, Findings of Fact and Conclusions of Law, and Letter Opinion of the superior court were not published, but are included in App. D. The Findings and Decision of the Hearing Examiner of the City of Olympia are reproduced as App. E.

Question Presented:

1. May a local government avoid the "nexus" and "rough proportionality" tests of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), by imposiong development exactions in the form of "impact" fees?
2. May a local government avoid the "nexus" and "rough proportionality" tests of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), by imposiong development exactions by legislative enactment?

Don Roger Norman, Roger William Norman, and South Meadows Properties Limited Partnership v. The United States, S. Ct. No. 05-1050
Petition Filed: February 15, 2005
Lower Court Opinion: The Opinion of the Federal Circuit, decided November 18, 2005, is reported at 429 F.3d 1081 (Fed. Cir. November 18, 2005, is reported at 429 F.3d 1081 (Fed. Cir. 2005), and is reproduced in the appendix ("App.") at 1A. The Opinions of the United States Court of Federal Claims are reported at 63 Fed.Cl. 231 (2004) and 56 Fed.Cl. 255 (2003), and reproduced at App. 27A and App. 155A.

Question Presented:

In 1988, Petitioners paid $8.4 million for a 470-acre parcel of land approved for commercial development, which did not require a wetlands permit according to a 1988 U.S. Army Corps of Engineers' wetland delineation. Two years later, however, the Corps revoked its 1988 delineation and performed a re-delineation, this time identifying 87 acres of wetland and making development impossible without a permit from the Corps. The original delineation was prepared using the 1987 Federal Wetland Manual; the second delineation was performed using the highly controversial Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989 Manual), in violation of Public Law 102-104 (App. 190A). Faced with either leaving their 470-acre parcel idle in perpetuity or submitting to the 1989 re-delineation, Petitioners chose the latter and applied for a Section 404 permit. The Corps granted the permit only on condition that Petitioners transfer title to 220.85 acres of other land to a non-profit association as a public wetland preserve or create a funding mechanism to provide the costs of the maintenance of the wetland mitigation and preserve area in perpetuity.

The questions presented by this case are:

1. Whether the federal government may retroactively re-deine property rights so as to defeat a Nollan-type takings claim?
2. Whether deeming compliance with a permit condition "voluntary" means that it escapes constitutional scrutiny, an issue left open by this Court's decision in Dolan v. City of Tigard?
3. Whether the Federal Circuit erred when it defined the relevant parcel as 2,280 acres of land which Petitioners bought in seperate parcels at different times, never owned all at once, and developed with different objectives, an issue this Court has never addressed?
4. Does the Tucker Act grant the Court of Federal Claims jurisdiction over due process violations based on illegal exactions without regard to the nature of the statute upon which the United States relied to exact or retain money?

Ventura Group Ventures, Inc v. The State of California, S. Ct. No. 05-937
Petition Filed: January 23, 2005
Lower Court Opinion: The opinion of the District Court in the instant dispute was unreported and is reproduced in App. G at 8a-11a. The Memorandum Decision of the Ninth Circuit Court of Appeals affirming the judgment of the district court is unreported and is reproduced in App. B at 3a-5a.

Question Presented:

1. Does sovereign immunity preclude claims brought by a private party in federal district court seeking money damages against a State for an uncompensated taking of private property for public use.
2. In such an action maintainable directly under the Fifth and Fourteenth Amendments to the United States Constitution pursuant to the district courts' federal question jurisdiction under 28 U.S.C. §1331?
3. Did the Ninth Circuit misapprehend and misapply the prior and subsequent decisions of this Court to reach the conclusion that there was no federal constitutional damage remedy for an uncompensated taking against the States merely because the States are not "persons" for purposes of the statutory damage remedy Congress provided under 42 U.S.C. §1983?

SEVEN UP PETE VENTURE v. The State of Montana, S. Ct. No. 05-588
Petition Filed: November 04, 2005
Lower Court Opinion: The Montana Supreme Court decision (Pet. App. 1a-39a) is reported at 114 P.3d 1009. The decisions of the state district court (Pet. App. 40a-65a and 66a-88a) are unreported.

Question Presented:

1. Whether real property interests and State Mineral Leases, which carried with them an opportunity to seek a mining permit, are "property" protected under the Takings Clause.

Gene Cashman and Eugina Guinn v. The City of Cotati, S. Ct. No. 05-676
Petition Filed: November 22, 2005
Lower Court Opinion: The Judgement of the Ninth Circuit Court of Appeals, dated July 15, 2005, (Pet. App. A) is unpublished. The Ninth Circuit's July 15, 2005, Order granting the City of Cotati's petition for rehearing and reversing its earlier opinion (Pet. App. B), is published at 415 F.#d 1027 (9th Cir. 2005). The September 4, 2002, Judgement of the district court (Pet. App. C), adopted by the ninth Circuit Court after its grant of Cotati's petition for rehearing, is unpublished. the Findings of Fact and Conclusions of Law (Pet. App. D), also dated September 4, 2002, are unpublished.

The Ninth Circuit's order denying Cashman's and Guinn's petition for rehearing (Pet. App. E) is dated August 25, 2005, and is unpublished.

The Ninth Circuit's July 14, 2004, opinion before rehearing (Pet.App. F) is published at 374 F.#d 887(9th Cir. 2004) The June 21, 2000, Judgement of the district court (after summary judgement) (Pet. App. G), adopted by the Ninth Circuit Court in its July 14, 2004, opinion, is unpublished as is the June 21, 2000, memorandum Decision and Order (Pet. App. H).

Questions Presented:

This Court, in Lingle v. Chevron, 125 S. Ct. 2074 (2005), held that a "substantially advances a legitimate state interest" test requiring courts to decide whether an ordinance furthers its objectives is not a stand alone takings test. This sort of meansends analysis is limited to a due process claim.

Petitioners brought a takings claim under another form of the substantially advances test-one that requires a close connection between the effect of an ordinance and the objective sought to be achieved by a regulatory constraint. This is the cause-effect test applied in Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

1. Does this Court's decision in Lingle v. Chevron breclude an independent substantially advances takings claim that requires courts to decide whether there is a close connection between the effect of a regulation and the objective sought to be achieved by a regulatory constraint?
2. Should Petitioners' pre-Lingle substantially advances i takings claim be decided under a due process analysis post-Lingle, where Circuit Court precedent prohibited Petitioners from bringing a due process claim?

Marine Forests Society and Rodolphe Streichenberger, v. California Coastal Commission, S. Ct. No. 05-373
Petition Filed: September 20, 2005
Lower Court Opinion: The June 23, 2005 opinion of the California SUpreme Court was reported as Marine Forests Society, et al. v. California Coastal Commission, et al., Case No. S113466.
Question Presented:

1. May a state supreme court suddenly and arbitrarily change state law, unpredictable in terms of relevant precedents, so as to allow the state to defeat the constitutional protection against taking property without payment of just compensation and without due process of law or has a federal issue arisen making the exercise of this Court's review power necessary?

Timmy C. Riggle, Kelly A. Riggle v. United States, S. Ct. No. 05-392
Petition Filed: August 1, 2005

1. Whether the Circuit Court, in finding that the jurisdiction of the Court of Federal Claims is limited to actions for recovery of money damages has set aside the intent of Congress and functionally revised the meaning embodied in the plain language of the Tucker Act.
2. Whether the violation of regulatory procedures by administrative agencies of the federal government in violation of due process rights are in essence a violation of contractual property rights; and whether, given so, the just-compensation clause of the Fifth Amendment being applicable, jurisdiction of said violations fall under the Court of Federal Claims.

Aegis Security Insurance Company v. people of the State of California, S. Ct. No. 05-171
Petition Filed: June 13, 2005
Cert Denied:October 11, 2005
Lower Court Opinion: It was not published
Question Presented:

1. Whether a Superior Court's declaration of forfeiture on a bail bond and powers of attorney, which disregards express limiting language in the bond and powers, constitutes an impermissible taking of property right without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

Mark E. Overland, Pamela Poloski, and Overland & Borenstein LLP, v. County of Los Angeles and Superior Court of Los Angeles County, S. Ct. No. 05-194
Petition Filed: August 8, 2005
Cert Denied:October 11, 2005
Lower Court Opinion: The opinion of the California Court of Appeals is reported at 126 Cal. App. 4th 131, 23 Cal. Rptr. 3d 676, review denied, May 11, 2005, and is reprinted in the Appendix to the Petition for a Writ of Certiorari. Pet. App. 1-17
Question Presented:

1. When a county government and state superior court appropriate for their own use the interest actually earned on a cash deposit in lieu of bail, does the confiscation of the interest constitute a taking of private property under the Fifth and Fourteenth Amendments of the United States Constitution as applied in Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 161 (1980) and Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), such that the county and the superior court must pay just compensation to the depositor under Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), if any compensation is due?

The Stearns Company, LTD., v. United Sates, S. Ct. No. 05-131
Petition Filed: July 22, 2005
Lower Court Opinion: The opinion of the Federal Circuit, decided Janurary 28, 2005, is officially reported at 396 F.3d 1354
Question Presented:

1. Whether the federal government's appropriation for itself of an easement constitutes a per se taking giving rise to a ripe cause of action for just compensation under the Fifth Amendment.

State of South Carolina; Grady L. Patterson, Jr., in his official capacity as Treasurer of the State of South Carolina; Jim Hodges, Governor of South Carolina; Charles M. Condon, Attorney General; and Robert M. Stewart, individually, v. Holliday Amusement Company of Charleston, Incorporated and Warren P. Holliday, S. Ct. No. 04-1650
Petition Filed: June 6, 2005
Lower Court Opinion: The opinion of the United States Court of Appeals for the Fourth Circuit is officially reported at 401 F.3d 534.
Question Presented:

1. Whether the Rooker-Feldman Doctrine applies to this action brought by a Respondent who was not a named party in the Westside Quik Shop state-court action, but who was a member of a trade association that participated in the state court action and who is represented by the same attorneys that litigated the previous state court action?

New York Coastal Partnership, Inc., Maurice Barbash, John W. Lund, Sandy Associates, Eugene D. Falk, David Ash, Jerome Levy, M.D., Wells Newell, Joyce Segal, The Harbour Club, Modica Associates of New York 122, LLC, Fire Island Ferries, Inc., JMA Industries, Inc., David A. Sloane, Harry Paritsky, White Cap Fish Company, Inc., Leonard Weinstein, Richard Stafford, Pamela Johnson, Sayville Ferries Service, Inc., Davis Park Ferry Co., Inc., Robert Johnson, Dunewood Property Owners' Association, Fair Harbor Fire District, and James Grover, Jr., v. United States Department of the Interior, Gale Norton, Secretary of Interior, Michael T. Reynolds, Superintendent of the Fire Island National Seashore, United States Army Corps of Engineers, Francis J. Harvey, Secretary of the Army, Carl A. Strock, Chief of Engineers, U.S. Army Corps of Engineers, Randy L. Daniels, Secretary, New York State Department of State, and Denise M. Sheehan, Acting Commissioner, State of New York, Department of Environmental Conservation, S. Ct. No. 04-1612
Petition Filed: May 31, 2005
Lower Court Opinion: The decision of the United States Court of Appeals for the Second Circuit is reported at 341 F.3d 112 (2d Cir. 2003).
Question Presented:

2. Are federal courts categorically precluded from awarding declaratory and injunctive relief under the Takings Clause?

(Question 1 omitted.)

Kenneth Schwartz v. Karen A. Murphy and Kathleen A. Murphy, S. Ct. No. 04-1614
Petition Filed: May 27, 2005
Lower Court Opinion: The opinion of the Supreme Court of Connecticut is reported at 273 Conn. 912 (2005).
Questions Presented:

1. May state instrumentalities take airspace above a person's residential shorefront land for the sole express purpose of improving the water view of a single neighboring private landowner?

2. Since there is no direct right of appeal to the U.S. Supreme Court, how do property owners have a purely private taking that was affirmed by the state's highest court voided pursuant to Hawaii Housing Auth. V. Midkiff, 467 U.S. 229, 245 (1984)?

(Question 3 omitted).

Palm Beach Isles Associates; Martin Slifka, Individually and as Trustee; Marjorie Margolis and Robert Franklin, Individuals as Tenants in Common; and the Estate of Joseph Slifka, represented by Alan Slifka and Barbara J. Slifka, Co-Executors v. United States, S. Ct. No. 04-1587
Petition Filed: May 23, 2005
Lower Court Opinion: The United States Court of Appeals for the Federal Circuit entered the judgment sought to be reviewed on February 23, 2005. There was no petition for rehearing.
Question Presented:

1. Whether the judgment of the United States Court of Appeals for the Federal Circuit, affirming the judgment of the Court of Federal Claims, contravenes well-established precedent holding that the Commerce Clause of the United States Constitution is not a blanket exception to the Fifth Amendment.

 

Southern California Water Company v. California Public Utilities Commission, S. Ct. No. 04-1547
Petition Filed: May 17, 2005
Lower Court Opinion: The order of the California Public Utilities Commission at issue in this Petition is unreported.
Questions Presented:

1. Whether the California Public Utilities Commission may require a privately owned public utility to involuntarily convert privately-held water rights to property dedicated to the public use.

2. Whether the involuntary conversion of private property to property dedicated to the public use amounts to an unconstitutional taking of property without just compensation.

 

Hans W. Flagg and Eileen S. Flagg, on behalf of themselves and all others similarly situated v. Yonkers Savings and Loan Association, FA, also known as Yonkers Financial, S. Ct. No. 04-1553
Petition Filed: May 16, 2005
Lower Court Opinion: The Opinion of the United States District Court for the Southern District of New York dismissing Petitioners' claims is reported at Flagg v. Yonkers Sav. & Loan Ass'n, FA, 307 F. Supp. 2d 565 (S.D.N.Y. 2004). The Opinion of the United States Court of Appeals for the Second Circuit affirming the dismissal by the district court is reported at 396 F.3d 178 (2d Cir. 2005).
Question Presented:

2. Whether the OTS preemption regulations that "freed [Respondent and other FS&L's] from any legal duty to pay interest on mortgage escrow accounts" arising under state law constitutes a state action "nexus" sufficient to support a claim against Respondent under the Takings Clause of the Fifth Amendment to the United States Constitution?

(Question 1 omitted).

Intermountain Sports, Inc. v. Utah Department of Transportation, S. Ct. No. 04-1551
Petition Filed: May 13, 2005
Lower Court Opinion: The February 16, 2005 denial of certiorari by the Utah Supreme Court is unreported. The opinion of the Utah Court of Appeals is reported at 103 P.3d 716 (UT App. 2004).
Questions Presented:

1. Do the condemnation laws of this land allow the government to destroy (take) a real property owner's business without just compensation for economic business loss merely because the land underneath the business was not actually taken?

2. Should a state's constitution or its narrow interpretation of condemnation laws block a property owner's entry to the courts when there is a provable nexus between a taking and a business loss?

3. Do state constitutions and existing condemnation laws sufficiently and uniformly protect property owners' economic business rights in accordance with the Equal Protection Clause and the Fifth Amendment of the United States Constitution?

Stephen S. Adams and 14,302 Other Similarly Situated Plaintiffs v. United States, S. Ct. No. 04-1225
Petition Filed: March 9, 2005
Lower Court Opinion: The decision of the District Court for the District of Columbia is reported at 946 F. Supp. 37
Questions Presented:

1. Whether the federal government can withhold and confiscate the wages that it owes its employees, for work already performed, without paying just compensation under the Takings Clause.

2. Whether monetary obligations of the United States qualify as property protected by the Takings Clause.

3. Whether legislation retroactively abrogating federal employees' meritorious wage claims against the United States for work already performed violates the Due Process Clause.

El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris v. United States, S. Ct. No. 04-1291
Petition Filed: March 25, 2005
Cert Denied: June 28, 2005
Lower Court Opinion: The opinion of the Federal Circuit Court of appeals is reported at 378 F.3d 1346. The opinion of the Court of Fed eral Claims is reported at 55 Fed. Cl. 751.
Question Presented:

Petitioners sued the United States in the Court of Federal Claims, seeking compensation under the Just Compensation Clause of the Fifth Amendment for the value of a Sudanese manufacturing facility destroyed by the United States military.

The question presented is as follows:

Whether an alien may sue under the Just Com pensation Clause to recover the value of property located abroad that was determined by the President to be enemy property and was destroyed by United States
military personnel pursuant to a Presidential directive.

Kim's Auto & Truck Service, Inc., v. City of Toledo, Lucas County Treasurer, Lucas County Auditor and Keybank, S. Ct. No. 03-1629
Petition Filed: June 1, 2004
Cert. Denied: June 28, 2005
Lower Court Opinion: The opinion of the Ohio Supreme Court is unreported.
Questions Presented:

1. Have federal and state requirements that eminent domain takings serve a "public use" withered away since Berman v. Parker, such that the legislative determination of "public use" is, immune from court scrutiny?

2. What role, if any, should the courts play in determining whether transfers of private property to a private party for economic projects are a public or an essentially non-public (hence unconstitutional) use?

3. Should the legislative finding of "public use" in eminent domain takings be accorded the status of a binding legal conclusion, or is it instead a rebuttable presumption subject to adjudication?

American Pelagic Fishing Company, L.P. v. United States, S. Ct. No. 04-1252
Petition Filed: March 18, 2005
Cert. Denied: June 27, 2005
Lower Court Opinion: The opinion of the court of appeals for the Federal Circuit is reported at 379 F.3d 1363.
Questions Presented:

In response to the federal government's invitation to U.S. fishermen to deploy large vessels to harvest under-utilized fish stocks, petitioner American Pelagic Fishing Co., L.P. ("APFC") invested $40 million in such a vessel, the Atlantic Star. After all required fishing permits were issued, Congress enacted special legislation revoking only the Atlantic Star's permits and adopting vessel size limits barring only the Atlantic Star from fishing in any U.S. fisheries. The trial court found that the legislation deprived the Atlantic Star of all economically viable use and effected a compensable taking.

The court of appeals for the Federal Circuit reversed without performing any takings analysis. It held that the government's authority to regulate fishing precludes vessel owners from having a compensable property interest in using their fishing vessels to fish.

The questions presented are as follows:

1. Whether the government's authority to regulate a traditional property use is a "background principle" that excludes such a use from the owner's title and allows the government to restrict or abolish the use without any risk of takings liability.

2. Whether special legislation that targeted a single property owner, deprived that owner's property of all economically viable use, and defeated that owner's reasonable investment-backed expectations was a taking requiring the government to pay just compensation, as the trial court held on an undisputed factual record.

United States of America v. Rose Acre Farms, Inc., S. Ct. No. 04-1311
Petition Filed: March 30, 2005
Cert. Denied: June 6, 2005
Note: this is a Conditional Cross-Petition for a Writ of Certiorari
Lower Court Opinion: The opinion of the court of appeals is reported at 373 F.3d 1177.
Questions Presented:

1. Whether, for purposes of regulatory takings analysis under the Fifth Amendment, regulations promulgated by the United States Department of Agriculture in 1990 to control the spread of salmonella enteritidis (SE) in eggs, which were grounded in a new scientific understanding that SE can be transferred from hen to egg, interfered with the reasonable investment-backed expectations of a commercial egg producer.

Rose Acre Farms, Inc. v. United States, S. Ct. No. 04-1149
Petition Filed: February 24, 2005
Cert. Denied: June 6, 2005
Lower Court Opinion: The Federal Circuit's decision is reported at 373 F.3d 1177.
Questions Presented:

1. Whether this Court should resolve the prevailing confusion as to what constitutes the proper denominator in the takings fraction.

2. Whether this Court should resolve the longstanding confusion over the legal standards that govern a regulatory takings challenge under the Fifth Amendment.

3. Whether the confiscation and destruction of private property - in this case, thousands of healthy, egg-producing hens - constitutes a categorical taking under the Fifth Amendment.

Jimmy L. Grabach and Deama Grabach v. Larsson Family Trust and Douglas Larsson, Trustee of the Larsson Family Trust, S. Ct. No. 04-1281
Petition Filed: March 25, 2005
Cert. Denied: May 31, 2005
Lower Court Opinion: The opinion of the Court of Appeals of the State of California has been reported at 121 Cal.App.4th 1147.
Question Presented:

1. Do state trial and appellate courts deny private landowners due process of law and facilitate the unlawful taking of private property in violation of the Fifth and Fourteenth Amendments by granting private civil litigants an easement over the landowners' property without compensation and in derogation of settled law.

Tien Fu Hsu, et al., v. County of Clark, a politicial subdivision of the State of Nevada, S. Ct. No. 04-1282
Petition Filed: March 25, 2005
Cert. Denied: May 23, 2005
Lower Court Opinion: Nevada Supreme Court, unpublished.
Question Presented:

Clark County, Nevada, as owner and operator of the commercial jet airport serving Las Vegas, enacted laws that require property owners adjacent to its airport to set aside large amounts of valuable airspace (the kind of property used by others in the vicinity for the construction of major high rise hotels) to permit the occasional physical use of the airspace by pilots who need a bit more maneuvering room on approach or departure than the airport operator purchased to provide for that purpose.

The question presented is:

When government action requires owners of private property adjoining an airport to allow aircraft to enter their airspace on an ad hoc basis so that the airspace must be set aside for public use, rather than private development, has the government physically taken property requiring just compensation under the 5th Amendment?

Albert J. Avenal, Jr., et al. v. The State of Louisiana and The Department of Natural Resources, S. Ct. No. 04-1295
Petition Filed: March 25, 2005
Cert. Denied: May 23, 2005
Lower Court Opinion: The opinion of the Louisiana Supreme Court is reported at 886 So.2d 1085 (La. 2004)
Question Presented:

1. Whether the taking, through State action, of a property interest premised on a leasehold interest granted by the State for use of State land is properly assessed through: 1) this Court's traditional physical taking analysis, or 2) this Court's regulatory taking analysis, or 3) whether this Court should articulate a new hybrid analysis.

2. Whether, if a regulatory taking analysis is appropriate, the State can override its obligation to pay just compensation under the Fifth Amendment by expanding its "police power" and the "background principles" of the State's "law of property and nuisance."

Serra Canyon Company, Ltd, v. California Coastal Commission, et al., S. Ct. No. 04-971
Petition Filed: January 18, 2005
Cert. Denied: May 16, 2005
Lower Court Opinion:The opinion of the court of appeal is published at 120 Cal. App. 4th 663 (2004) and 16 Cal. Rptr. 3d 110 (Ct. App. 2004).
Question Presented:

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), this Court condemned as "'an out-and-out plan of extortion'" a decision in which the California Coastal Commission approved a building permit on the condition that the property owner convey a public easement that was wholly unrelated to any adverse impacts caused by the owner's proposed building project. Before Nollan was decided, the California Coastal Commission conditioned some building permits not on immediate conveyance of unrelated property interests (as occurred in Nollan), but on the property owner's recordation of an offer to dedicate wholly unrelated property.

The question presented is:

Whether the California Coastal Commission and other state entities may thwart Nollan's holding by accepting offers to dedicate wholly unrelated property that were coerced prior to Nollan, then invoking a 60-day statue of limitations as to the original Commission decision imposing the condition to bar any challenge to acceptance of the offer, even though the property owner did not lose the right to possess and exclude others from the property until the offer to dedicate was accepted, and any takings claim challenging the loss of these rights brought within 60 days of the Commissions's decision would have been unripe.

Eleanor Breitinger and John Baron v. State of New Jersey Department of Environmental Protection, S. Ct. No. 04-1185
Petition Filed: March 2, 2005
Cert. Denied: April 25, 2005
Lower Court Opinion: The decision to deny certification by the Supreme Court of New Jersey is reported at 182 N.J. 139 (2004).
Questions Presented:

1. Whether, under Palazzolo, a reasonable investment-backed expectation can be inherited from the property's previous owner.

2. Whether notice of a pre-existing regulation prohibits a subsequent property purchaser from inheriting a previous property owner's reasonable investment-backed expectation.

In the Matter of property located at 14255 53rd Ave. S., Tukwila, King County, Washington; Sheila Jeanne Malbrain and Lee Terrell, In the Matter of property located at 14247 53rd Ave. S., Tukwila, King County, Washington; Carl and Patrice Gorgey, husband and wife, In the Matter of property located at 14215 53rd Ave. S., Tukwila, King County, Washington; Ralph and Thelma Kissinger as Trustees of the R&T Kissinger Living Trust v. Washington State Department of Agriculture, S. Ct. No. 04-1174
Petition Filed: February 28, 2005
Cert. Denied: April 18, 2005
Lower Court Opinion: The opinion below by Division I of the Court of Appeals of Washington is reported at 120 Wn. App. 737, 86 P.3d 222 (2004).
Question Presented:

1. As a result of nursery importation of bonsai plants from Korea, five citrus long horned beetles may have exited the plants and escaped into the adjacent residential neighborhood. The beetles are considered a severe pest that if introduced would cause significant ecological and economic damage. To avoid infestation, the Washington Department of Agriculture destroyed all potential host trees within a one-eighth mile radius of the nursery. When government enters a private residential yard and destroys and hauls away healthy trees that are part of the owner's landscaping, is there a taking of private property requiring payment of just compensation under the Fifth Amendment of the federal Constitution?

S.E.W. Friel, a Maryland General Partnership and Friel Lumber Company, a Maryland General Partnership v. Maryland State Roads Commission and The Maryland State Highway Administration, S. Ct. No. 04-1092
Petition Filed: February 10, 2005
Cert. Denied: April 18, 2005
Lower Court Opinion: The opinion of the Court of Appeals for Maryland is unreported.
Question Presented:

When the State of Maryland prepared to build a highway from the Chesapeake Bay Bridge to Delaware, it required six acres of Petitioners' land. Instead of paying money for the land, the State agreed to build Petitioners a macadam road across the new highway. This permitted Petitioners, and their customers continued access to their cannery and lumber yard.

One question is presented:

1. Did these improvements and access constitute a property right of the Petitioners, so that fifty years later, when the State removed the road and the access, over Petitioners' objections, they were entitled to compensation?

DLX, Inc. v. Commonwealth of Kentucky, Kentucky Environmental and Public Protection Cabinet, and the Secretary, Kentucky Environmental and Public Protection Cabinet, In Her Official Capacity, S. Ct. No. 04-1018
Petition Filed: January 25, 2005
Cert. Denied: April 4, 2005
Lower Court Opinion: The decision of the United States Court of Appeals for the Sixth Circuit is reported at 381 F.3d 511 (6th Cir. 2004).
Question Presented:

This case involves the Fifth Amendment and Fourteenth Amendment takings claim of Petitioner, DLX, Inc. ("DLX"), brought in the United States District Court for the Eastern District of Kentucky against the Commonwealth of Kentucky, the Kentucky Natural Resources and Environmental Protection Cabinet (the "Cabinet"), and James E. Bickord, in his official capacity as Secretary of the Cabinet (referred to hereinafter together as the "Commonwealth"). DLX's claim arises out of the denial by the Cabinet of the DLX application for a permit to mine coal beneath the Lilley Cornett Wood (the "Woods") in Letcher Country, Kentucky. The following question is presented:

Did the Sixth Circuit err in its determination that Kentucky enjoys sovereign immunity, in federal district court, from DLX's Fifth and Fourteenth Amendment takings claim?

Ag Route Seven Partnership, et al., v. United States, S. Ct. No. 04-835
Petition Filed: December 20, 2004
Cert. Denied: March 28, 2005
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the Federal Circuit is available at 104 Fed. Appx. 184, 2004, WL 1564907 (Fed. Cir. 2004).
Question Presented:

1. Whether the Federal Circuit Court of Appeals erred in failing to find, contrary to decisions of this Court, that the availability of contract remedies and the existence of a federal regulatory scheme does not preclude recovery of just compensation under the Fifth Amendment of the Constitution for the Federal Government's taking of private property.

 

Franklin Savings Corp., et al., v. United States, S. Ct. No. 04-693
Petition Filed: November 17, 2004
Cert. Denied: March 28, 2005
Lower Court Opinion: The decision of the U.S. Court of Appeals for the Federal Circuit is available at 97 Fed. Appx. 331, 2004 WL 1153651 (Fed. Cir. 2004).
Question Presented:

1. Whether the federal government's seizure of a solvent banking institution constitutes a taking under the Fifth Amendment.

B. W. Carr, Individually, and under power of attorney for his father and mother, J.C. Carr and Dorothy M. Carr, v. The City of Cisco, et al., S. Ct. No. 04-917
Petition Filed: December 30, 2004
Cert. Denied: March 21, 2005
Lower Court Opinion: The opinion of the Eleventh Court of Appeals, Eastland, Texas, is reported at 2004 WL 1468907 (Tex. App.-Eastland).
Question Presented:

1. Does acquisition of title to real property by the governmental entity through adverse possession constitute a taking of land without compensation in violation of the "takings" clauses of the Texas and United States Constitutions?

Appolo Fuels, Inc., v. United States, S. Ct. No. 04-907
Petition Filed: January 5, 2005
Cert Denied: February 28, 2005
Lower Court Opinion: The opinion of the Federal Circuit affirming the judgment of the Court of Federal Claims is reported at 381 F.3d 1338. The opinion of the Court of Federal Claims is reported at 54 Fed. Cl. 717.
Questions Presented:

1. Whether landowners who purchased land after the passage of SMCRA may have any reasonable investment-backed expectations in mining coal on their property.

2. Whether the Federal Circuit and the Court of Federal Claims erred in their takings analysis by adopting a "relevant parcel" neither proposed nor advocated by either party, and on which no evidence was presented or taken.

3. Whether legislative findings considering only hypothetical facts conclusively determine the "character of the governmental action" as to a specific party for takings purposes.

Lawrence (Bud) Moon, Jr., et al., v. North Idaho Farmers Association, et al., S. Ct. No. 04-594
Petition Filed: November 1, 2004
Cert. Denied: February 22, 2005
Lower Court Opinion: The opinion of the Idaho Supreme Court is reported at 96 P.3d 637 (2004), as Moon v. North Idaho Farmers Ass'n.
Questions Presented:

1. Defendants are Kentucky Bluegrass farmers in Northern Idaho who, for two months every year, burn their grass fields after harvest, producing thick plumes of smoke that choke and sicken Plaintiffs and thousands of class members who live in the area, forcing many of them to confine themselves inside or flee their properties altogether. Plaintiffs sued Defendants in Idaho state court for their injuries based on Defendants' invasions of their properties. During the course of the litigation, the State of Idaho passed Idaho Code § 22-4803A(6), which immunizes Defendants from any liability to Plaintiffs for these property invasions, leaving them free to interfere with Plaintiffs' property rights. On review, the Idaho supreme Court found that I.C. § 22-4803A96) did not violate the Fifth Amendment to the United States Constitution. Did this ruling affect a fundamental property right protected by the Constitution and did it conflict with rulings from this Court and various state supreme courts?

2. Under these same circumstances, the Idaho Supreme Court held that a state-sanctioned physical invasion of a home that renders the home uninhabitable for some and interferes with use and enjoyment for many others is not a physical taking. Does that holding directly conflict with this Court's holdings in Kaiser Aetna v. United States , 444 U.S. 164, 179-80 (1979), which held that any servitude or easement imposed on private property necessarily constitutes "an actual physical invasion of the privately owned" home?

3. This Court has held that the "great principle of the common law which is equally the teaching of Christian morality, to use one's property as not to injure others," forbids a government from granting immunity to any private person for invading the property rights of another. Baltimore & Potomac R.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 331 (1883). Does the Idaho Supreme Court decision conflict with that ruling?

Sinclair Haberman v. The City of Long Beach, and The City Council of the City of Long Beach, S. Ct. No. 04-403
Petition Filed: September 20, 2004
PETITION DISMISSED January 12, 2005
Lower Court Opinion: The Decision and Judgment of the Appellate Division of the Supreme Court of the State of New York, Second Department is reported at Haberman v. City of Long Beach, 307 A.D.2d 313, 762 N.Y.S.2d 425 (2d Dep't 2003).
Questions Presented:

1. Since petitioner was (and is) willing and able to develop his valuable oceanfront property in complete conformity with the City's proposed "mixed-use development," is the requisite dominant "public purpose" for condemning his property missing, and does the City's action in taking his property and turning it over to another private developer constitute an unnecessary and excessive taking in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States?

2. Can a municipality's taking of private property assessed for $20,000,000 to enable a private developer to arbitrage a sweetheart contract under which he must pay only $11,000,000 be justified under the rubric of "public purpose?"

City of Morgan Hill, a California General Law City and The City of Morgan Hill Rent Review Commission, v. Hacienda Valley Mobile Estates, S. Ct. No. 03-1681
Petition Filed: June 18, 2004
PETITION DISMISSED January 5, 2005
Note: this is a Conditional Cross-Petition for a Writ of Certiorari
Lower Court Opinion: The opinion of the 9th Circuit Court of Appeals is reported at 353 F.3d 651.
Questions Presented:

1. Is a "premium-based" failure to substantially advance regulatory taking challenge to a rent ordinance a "facial" claim which is barred by applicable statutes of limitations if not timely filed after the enactment of the ordinance or may such a premium-based challenge be brought later as an "as-applied" claim?

2. Can a federal regulatory taking claim, which is unripe in federal court under Williamson County because the claimant has an adequate state procedural compensation remedy, somehow "ripen" in federal court if the claimant thereafter receives an unfavorable decision on the merits in state court?

Hacienda Valley Mobile Estates, a California Limited Partnership v. City of Morgan Hill and City of Morgan Hill Rent Review Commission, S. Ct. No. 03-1571
Petition Filed: May 19, 2004
Petition Denied: December 30, 2004
Lower Court Opinion: The decision of the United States Court of Appeals for the Ninth Circuit is reported as Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651 (9th Cir. 2003).
Questions Presented:

This case involves a constitutional challenge to mobile home park rent regulations, brought under the Takings Clause of the Fifth Amendment and 42 U.S.C. § 1983. The Ninth Circuit Court of Appeals held that the federal takings claim was not ripe for federal adjudication because Petitioner had not attempted to obtain compensation for the taking through state procedures, as required by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. The questions presented are:

1. Whether the court of appeals erred in interpreting Williamson County to require a federal takings claimant, who has already received a final administrative determination, to seek a writ in state court to set aside that final determination and then repeat the entire administrative process a second time in order to "ripen" a Fifth Amendment compensation claim for adjudication in federal court?

2. Whether the court of appeals erred in holding - contrary to the rule of the Fourth, Fifth, Seventh, and Eleventh Circuits - that a federal takings claimant must "ripen" its Fifth Amendment takings claim by first pursuing just compensation in the California state courts, when the courts of that state have unambiguously held that just compensation is not available under the theory of takings liability upon which the claimant relies?

Esperanza Sanchez and Amararnte Sanchez v. The County of Bernalillo Board of County Commissioners, S. Ct. No. 04-509
Petition Filed: October 12, 2004
Cert. Denied: December 13, 2004
Lower Court Opinion: The opinion of The Court of The Supreme Court of The State of New Mexico is unreported.
Questions Presented:

Whether a county zoning decision denying the existing use of a property as a mobile home park, based on a zoning ordinance adopted after the park was established, but which lacked any articulated reasonable relation to any legitimate government interest, constituted a regulatory "taking" of property without just compensation under the Fifth Amendment, or a denial of equal protection of the law under the Fourteenth Amendment?

John Breneman and William D. Breneman v. United States of America, S. Ct. No. 04-496
Petition Filed: October 7, 2004
Cert. Denied: December 6, 2004
Lower Court Opinion: The Court of Appeals for the Federal Circuit's per curiam judgment was not reported.
Questions Presented:

The Federal Circuit Court of Appeals per curiam affirmed the summary judgment decision of the Court of Federal Claims denying compensation for a Fifth Amendment Takings Claim. The Fifth Amendment Takings Claim involved the taking of the surface, above the surface and at least three feet below the surface of petitioners' property by the imposition of a navigational servitude for the benefit of the public. The public use airport in an earlier action stipulated that it did not have a claim for adverse possession of petitioners' property. The Federal Circuit and the Court of Federal Claims in denying the claim improperly distinguished the Supreme Court precedent of Kaiser Aetna v. United States, 444 U.S. 164 (1979) and ignored the airport's stipulation in deciding the petitioners lost their "right to exclude." This conclusion is inconsistent with the holding of the District of Columbia Circuits' decision that Determinations of Hazard and such navigational servitudes have no enforceable legal effect.

Three questions are presented:

1. What protection does the Fifth Amendment provide against granting the public the right of transit and excluding the private landowner from the surface and below the surface of private property by a federal agency enforceable by federal and state civil and criminal penalties.

2. Does the loss of the "right to exclude" public use of the surface and at least three feet below the surface of private property require a per se takings analysis under the Fifth Amendment.

3. Did the Federal Circuit and the Court of Federal Claims improperly conclude the United States took nothing despite the stipulation by the public use airport that it did not acquire rights to petitioners' property by adverse possession.

Esther P. Emmerman and Ronald Z. Emmerman v. The City of Highland Park, et al., S. Ct. No. 04-242
Petition Filed: August 19, 2004
Cert. Denied: November 8, 2004
Lower Court Opinion: The Opinion of the Illinois Court of Appeals, Second District, is reported at 799 N.E.2d 781 (Ill. Ct. App. 2003)
Question Presented:

Can a property aggregation ordinance alone defeat a claim that a city has stripped a separately platted and independently developable plot of land of all economically beneficial use to create public open space, thus causing an unconstitutional taking of property by requiring that the economically idled plot be treated as an appendage of a valuable, contiguous area of land?

Ronnie Lynn Goforth; Susan D. Goforth; and Weaver Enterprises, Inc., v. East Tennessee Natural Gas Company, S. Ct. No. 04-221
Petition Filed: August 12, 2004
Cert. Denied: November 8, 2004
Lower Court Opinion: The opinion of the Court of Appeals, which is reported as East Tennessee Natural Gas v. Sage, is reported at 361 F.3d 808, rehearing denied, 369 F.3d 357 (4th Cir. 2004)
Question Presented:

1. Did the Fourth Circuit err when it granted East Tennessee Natural Gas Company immediate possession of the Goforths' and the Weavers' farms before the value of the farm was determined and compensation paid?

 

Maynard R. Joyce, et al., v. East Tennessee Natural Gas Company, S. Ct. No. 04-174
Petition Filed: August 4, 2004
Cert. Denied: November 8, 2004
Lower Court Opinion: The opinion of the United States Court of Appeals for the Fourth Circuit is reported at 361 F.3d 808.
Question Presented:

1. After Congress withheld the extraordinary eminent domain power of immediate possession of private property from private gas companies under the Natural Gas Act, 15 U.S.C. § 717 et. seq., did the district court violate the constitutional separation of powers and usurp the exclusive authority of Congress to delegate the powers of eminent domain when the district court issued an injunction granting East Tennessee Natural Gas Company immediate possession of individuals' property and provided the gas company with federal marshals to enforce possession of the property without further hearing?

Robert Mottl v. Missouri Lawyer Trust Account Foundation, Honorable Stephen N. Limbaugh, Jr., Honorable Duane Benton, Honorable William Ray Price, Jr., Honorable Ronnie L. White, Honorable Michael A. Wolff, Honorable Laura Denvir Stith and Honorable Richard B. Teitelman, S. Ct. No. 04-257
Petition Filed: August 23, 2004
Cert. Denied: October 12, 2004
Lower Court Opinion: The opinion of the Missouri Court of Appeals, Western District, in the case styled Robert Mottl v. Missouri Lawyer Trust Account Foundation, et al., is reported at 133 S.W.3d 142 (Mo. App.W.D. 2004)
Questions Presented:

Missouri's Interest on Lawyer Trust Accounts ("IOLTA") program differs from the IOLTA program in the State of Washington which this Court approved in Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), in that Missouri lawyers are required to deposit all nominal or short-term funds of their clients into IOLTA accounts, whether or not those funds might earn interest elsewhere. Lawyers must choose once a year whether or not to participate in the program for the remainder of that year. This case presents the following question:

1. Whether Missouri's program is immune from challenge as a taking of property for public use without just compensation, on the theory that it involves no "state action" because (1) the state allows lawyers voluntarily to opt out of participation in the otherwise mandatory IOLTA program on an annual basis and (2) the lawyers' private decisions to participate, entwined with the otherwise actionable taking of property by state actors, "destroy state action" even with regard to taking claims solely against those state actors.

Evandro S. Santini, et al., v. Connecticut Hazardous Waste Management Service, S. Ct. No. 04-142
Petition Filed: July 27, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the Second Circuit is published at 342 F.3d 118 (2003).
Questions Presented:

1. Did the Second Circuit err in interpreting Agins v. Tiburon, 447 U.S. 255 (1980), and First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), as holding that "pre-condemnation activity" is categorically exempt from liability under the Takings Clause of the Fifth Amendment?

2. Did the Second Circuit contravene several decisions of this Court by holding that an agency's proposed condemnation of an under-construction subdivision for public use as a radioactive waste disposal facility, which action continued for eleven months and undisputedly reduced the property's value from approximately $2 million to zero for at least 24 months and undermined a $5 million equity investment, was not a taking on the grounds that it was incomplete "regulatory" action of "short duration," and protecting the condemnation process from liability was "sound public policy?"

Carson Harbor Village, Ltd., a Limited Partnership, dba Carson Harbor Village Mobile Home Park, v. City of Carson, a Municipal Corporation; Carson City Mobilehome Park Rental Review Board; and Carson Harbor Village Mobilehome Park Homeowners Association, Real Party in Interest, S. Ct. No. 04-115
Petition Filed: July 20, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The decision of the United States Court of Appeals for the Ninth Circuit is reported as Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824 (9th Cir. 2004).
Questions Presented:

This case involves a regulatory takings claim brought under the Fifth Amendment and 42 U.S.C. § 1983. The Ninth Circuit Court of Appeals ruled that the claim was not ripe for federal adjudication because Petitioner had not attempted to obtain just compensation through state procedures, as required by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. The questions presented are:

1. Whether the court of appeals erred in holding - contrary to the rule of the Fourth, Fifth, Seventh, and Eleventh Circuits - that Petitioner must ripen its Fifth Amendment takings claim by first pursuing just compensation in the California state courts, when the courts of that state have previously denied compensation in factually indistinguishable cases, and the state's supreme court has held that inverse condemnation is not available for this class of takings claims?

2. Whether the court below erred in holding that Williamson County requires Petitioner to ripen its Fifth Amendment takings claim by pursuing state procedures that cannot lead to payment of just compensation by the government, but hold out the untested prospect of obtaining offsetting revenues from private third parties who were in no way responsible for the government's confiscatory actions?

Marsha Seiber and Alvin Seiber v. United States, S. Ct. No. 04-100
Petition Filed: July 16, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The opinion of the United States Court of Appeals for the Federal Circuit is reported at 364 F.3d 1356.
Questions Presented:

1. Can Petitioners state a claim for a taking under the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution when state law defines standing timber as a separate and independent property interest and when the refusal of the United States Fish & Wildlife Service to issue an incidental take permit for a spotted owl nesting site denied Petitioners all economically beneficial or productive use of such timber and eviscerated their reasonable investment-backed expectations?

2. Can Petitioners state a claim for a physical taking of their property in violation of the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution when, in order to protect a spotted owl nesting site, the United States Fish & Wildlife Service denied Petitioners the right to exclude the owls by refusing to issue an incidental take permit that would have authorized Petitioners to log their 40-acre tract of land?

Cathey Baskin v. Rutherford County, a political entity of the State of Tennessee, Martha Jordan Wilson, Jane Maurice Wilson, Diane Wilson McCord, Grassland Financial Services, Inc., and Sebring Capital Corporation, S. Ct. No. 03-1604
Petition Filed: May 27, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The principal opinion of the Supreme Court of Tennessee, filed May 6, 2003, is reported at 121 S.W.3d 591.
Question Presented:

Does the retroactive overruling in a condemnation case by a State court of last resort of the settled judicial construction of a statute regarding the passing of real property under statutes of descent and distribution amount to a taking without just compensation in violation of federal constitutional due process guaranties where the heir of a decreased owner of a vested, transmissible remainder interest in real property is thereby retroactively deprived of her right to inherit the decedent's interest in the property?

Victorio J. Martinez, Ofir Martinez, Joseph S. Griffin, Colleen Griffin, Verner R. Glenn, Janie E. Glenn, John S. Wade, Jr., and Iris Riley, v. United States of America, S. Ct. No. 03-1568
Petition Filed: May 18, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The order denying a rehearing and hearing en banc in the federal circuit is unreported:
Question Presented:

The United States and Florida have destroyed 2.5 million healthy Florida citrus trees on the flawed theory that this is necessary to halt the spread of a "plant pest" - citrus canker, Asian strain. Each agency acts under its own statute, but in strict compliance with the federal Plant Protection Act and the explicit instructions of the Secretary of Agriculture, who jointly selects the trees to be destroyed, whereupon a contractor cuts them down.

Question: When the United States acting under federal law requires a state to join with it under state law to produce a result compelled by the federal law, and they jointly commit a taking, does the United States, the state, or both have liability for the outcome?

Ronald Johnson and Dee Johnson, v. City of Shorewood, et al., S. Ct. No. 03-1512
Petition Filed: May 4, 2004
Cert. Denied: October 4, 2004
Lower Court Opinion: The opinion of the 8th Circuit Court of Appeals, App. 1, is reported as Johnson v. City of Shorewood, 360 F.3d 810 (8th Cir. March 5, 2004).
Questions Presented:

1. Does the Williamson jurisdictional requirement to exhaust state judicial remedies permit a federal court remedy when the state court final judgment awards nothing for a previously-adjudicated physical taking?

2. Whether 42 U.S.C. § 1983 jurisdiction exists for violation of Just Compensation Clause when a state court final judgment awards ZERO compensation for a previously-adjudicated physical taking?

3. Whether Rooker-Feldman doctrine applies when landowners did not have a reasonable opportunity to litigate Corps' and municipality's misrepresentations of pre-ownership Clean Water Act wetland in the state court condemnation proceeding?

Coastal Petroleum Company, Charles E. Arnold, et al., and Robert W. Clark, et al., v. State of Florida, Department of Environmental Protection, and Board of Trustees of the Internal Improvement Trust Fund, S. Ct. No. 03-1412
Petition Filed: April 7, 2004
Cert. Denied: June 14, 2004
Lower Court Opinion: The opinion of the First District Court of Appeal, State of Florida, is reported at 864 So. 2d 402 (Fla. 1st DCA 2004).
Questions Presented:

1. Does a property owner's agreement to comply with environmental permitting laws operate as an inherent limitation on the property making it a conditional right, constitutionally unprotected against a taking before an environmental permit is granted?

2. Does the possibility that an indefinite government policy may change in the future preclude a finding that the policy effects a taking of a lease issued by that government when the sole use of the lease is prohibited by the application of the policy?

H.C. Bailey, Jr., W.C. Bailey, Joan B. Bailey, Harperville Irrevocable Trust, John T. Cossar, Glynn Hughes, Lewis S. Tilghman, Kenneth W. Warren and Madison Hills Farms, Inc. v. United States of America and the Federal Deposit Insurance Corporation, S. Ct. No. 03-1073
Petition Filed: January 26, 2004
Cert. Denied: June 1, 2004
Lower Court Opinion: The opinion of the court of appeals is reported at 341 F.3d 1342 (Fed. Cir. 2003).
Questions Presented:

The Government breached a contract, indistinguishable from those at issue in United States v. Winstar Corp., 518 U.S. 839 (1996), providing Petitioners' savings and loan institution with regulatory capital. As a direct result of that breach, the thrift failed to satisfy its regulatory capital requirements, was seized by the Government, and placed in the hands of the Federal Deposit Insurance Corporation as receiver. ***

2. Did the Federal Circuit err in rejecting as a matter of law Petitioners' claim that their property had been taken without payment of Just Compensation?

(Question 1 omitted).

Twin Lakes Development Corp. v. Town of Monroe, S. Ct. No. 03-1121
Petition Filed: January 28, 2004
Cert. Denied: April 5, 2004
Lower Court Opinion: The opinion of the New York Court of Appeals (App., infra 1-a) is reported at 1 N.Y.3d 98, - N.E. 2d - (2003).
Questions Presented:

Dolan v. City of Tigard, 512 U.S. 374, 391, FN8 (1994) holds that the evidentiary burden of justifying a land use exaction in terms of its rough proportion to the impacts created by the development in question falls upon the government imposing the exaction. In light of that holding the question presented is as follows.

1. After a developer alleges that an "in lieu of" parkland fee lacks any proportion to either the actual recreational impacts generated by its development or the resulting parklands necessitated by those impacts, does the government then become obligated to demonstrate that the fee is roughly proportional to the impacts, or must the developer first introduce hard evidence that the fee lacks such proportion?

Richard Pryor and Capitol Avenue Homes, Inc. v. The City of Lansing, S. Ct. No. 03-1054
Petition Filed: December 16, 2003
Cert. Denied: March 22, 2004
Lower Court Opinion: The opinion of the Western District of Michigan was unpublished.
Question Presented:

1. When a city conditions the grant of a sewer permit for two homes on an unimproved public road on the owner agreeing to install on the right-of-way a public sewer extension for the use of up to six more homes and to pay for road improvements to be used by others without cost, has the City committed an uncompensated taking under Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L.Ed.2d 304 (1994)?

4. If Petitioners did not raise their takings and Equal Protection arguments the first time the City violated them, is the City immunized against later violations?

(Questions 2 and 3 omitted).

Carol Pappas, John H. Pappas, Jr., and Harry J. Pappas v. City of Las Vegas Downtown Redevelopment Agency, Fremont Street Experience Limited Liability Company, and Fremont Street Experience Parking Corporation, S. Ct. No. 03-972
Petition Filed: January 1, 2004
Cert. Denied: March 8, 2004
Questions Presented:

1. Whether the Supreme Court of Nevada's reading of Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 29 (1984), violates the fundamental constitutional right of private property ownership by permitting local governmental agencies acting in the name of "economic redevelopment" to take property that is neither blighted nor surrounded by blight and give it to other private parties who supposedly can use that property more profitably on the theory that enhanced private profitability indirectly will benefit the public.

2. Whether the conflict among state courts interpreting Berman and Midkiff in addressing the extent to which local governmental agencies can take property from one private owner and give that property to another private owner in the name of "economic redevelopment" demonstrates the need to revisit and clarify the holdings of those decisions.

3. Whether, if the Nevada Supreme Court's reading of Berman and Midkiff is accurate, this Court must now revitalize the "public use" limitation placed on the power of eminent domain by the Fifth and Fourteenth Amendments in light of this Court's more recent decision in Dolan v. City of Tigard, 512 U.S. 374 (1994), and in light of recent abuses of that power in the name of "economic redevelopment."

Encinitas Country Day School, Inc. a California corporation, dba Encinitas Country Day School; Kathleen Porterfield, an individual; and M&M Development Company, a limited liability corporation v. California Coastal Commission, S. Ct. No. 03-733
Petition Filed: November 18, 2003
Cert. Denied: Febraury 23, 2004
Lower Court Opinion: The Opinion of the California Court of Appeals, Fourth Appellate District, is partially reported at 133 Cal. Rptr. 2d 551 (May 8, 2003).
Question Presented:

1. Did the court below incorrectly apply the standards that a taking occurs when a regulation fails to "substantially advance a legitimate state interest" by concluding (a) that a claimant must first show that the challenged restrictions prevented all economically viable use of property and (b) that the claimant must also show that an unlawful regulation was imposed solely for the purpose of delaying use of the property?

Fairmount Properties, Inc. v. Zoning Board of Adjustment of The City of Philadelphia and The City of Philadelphia, S. Ct. No. 03-783
Petition Filed: September 24, 2003
Cert. Denied: February 23, 2004
Lower Court Opinion: The opinion of the Pennsylvania Supreme Court is unreported.
Question Presented:

2. Was the denial of a dimensional variance by Respondent Zoning Board of Adjustment of the City of Philadelphia to Petitioner Fairmount Properties, Inc. to construct an addition to Petitioner's existing commercial/residential building an unlawful taking of private property without just compensation, because it deprived Petitioner the full use of its property?

(Question 1 omitted).

C. Peyton Barton, Jr. v. District of Columbia, S. Ct. No. 03-672
Petition Filed: November 3, 2003
Cert. Denied: January 13, 2004
Lower Court Opinion: The opinion of the District of Columbia Court of Appeals is reported at 817 A.2d 834 (2003).
Questions Presented:

1. Whether Petitioner has rights that are legally enforceable, offensively or defensively, under well-settled legal principles, where the Congress made a grant of $3 Million to the District of Columbia explicitly conditioned on the District's negotiating and signing a 30-year lease with Petitioner, or whether the District can accept the $3 Million grant, while refusing to comply with such statutory conditions?

2. Whether the Court of Appeals' decision allows a violation of the takings clause of the Fifth Amendment?

Extrusions Division, Inc. v. Silver Creek Drain District, S. Ct. No. 03-653
Petition Filed: October 29, 2003
Cert. Denied: January 13, 2004
Lower Court Opinion: The opinion of the Michigan Supreme Court is reported at 468 Mich. 367, 663 N.W.2d 436 (2003).
Question Presented:

1. Does the "just compensation" clause of the Fifth Amendment of the United States Constitution require that all factors relevant to market value always be considered in the just compensation determination?

John Deep v. The Recording Industry Association of America, Incorporated, et al., S. Ct. No. 03-658
Petition Filed: October 28, 2003
Cert. Denied: January 13, 2004
Lower Court Opinion: The opinion of the United States Court of Appeals for the Seventh Circuit is reported at 334 F.3d 643 (2003).
Question Presented:

1. Whether, or to what extent, a court may use its power under the Copyright Act's injunction clause to order Petitioner affirmatively to monitor and prohibit Internet communications and file attachments (encrypted by the sender and decrypted by the recipient), consistent with the Copyright Act's fair-use clause, and also with: (a) the First Amendment's speech, press and association clauses; (b) the Fifth Amendment's takings clause; and (c) the safe harbor clause of the Digital Millennium Copyright Act.

(Parts of Question 1 omitted.)

Liberty Mutual Insurance, Co. v. Caldwell Trucking PRP Group, S. Ct. No. 03-638
Petition Filed: October 22, 2003
Cert. Denied: January 13, 2004
Lower Court Opinion: The opinion of the New Jersey Supreme Court is reported at 819 A.2d 410 (New Jersey Supreme Court).
Question Presented:

1. Whether it is a violation of the Due Process Clause or the Takings Clause for a state supreme court to impose millions of dollars in retroactive liability on an insurer by nullifying an unambiguous insurance contract provision solely for the purpose of promoting a judicially created policy of increasing the money available to pay for environmental clean up.

Yardarm Restaurant, Inc.v. The City of Pompano Beach, S. Ct. No. 03-531
Petition Filed: October 3, 2003
Cert. Denied: January 13, 2004
Lower Court Opinion: The opinion of the District Court of Appeal of Florida, Fourth District, is reported at 834 So.2d 861 (Fla. App. 2002).
Question Presented:

1. Must Florida comply with this Court's repeated holding that a regulatory taking of private property occurs when government action fails to substantially advance a legitimate state interest, or is it free to disregard that 5th Amendment rule as it did here?

(Questions 2 and 3 omitted).

Pascoag Reservoir Dam, LLC v. The State of Rhode Island, acting by and through Jan Reitsma, in his capacity as Director of the Rhode Island Department of Environmental Management, and Patrick Lynch, in his capacity as Attorney General for the State of Rhode Island, S. Ct. No. 03-597
Petition Filed: October 17, 2003
Cert. Denied: December 15, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the First Circuit is reported at 337 F.3d 87 (1st Cir. 2003).
Question Presented:

1. Whether, in a physical taking, a landowner could have reasonably known, to a justifiable certainty, that its federal claim for compensation against a State had accrued and ripened prior to the resolution of contentious state court litigation as to whether the State had acquired an interest in the landowner's property?

Boise Cascade Corporation, a Delaware corporation v. State of Oregon, S. Ct. No. 03-626
Petition Filed: October 23, 2003
Cert. Denied: December 8, 2003
Lower Court Opinion: The decision of the Oregon Court of Appeals in Boise Cascade Corp. v. Board of Forestry, is reported in 63 P.3d 598 (Or. Ct. App. 2003).
Question Presented:

1. Whether the Supremacy Clause of the U.S. Constitution required the Oregon Court of Appeals to apply controlling new case law from this Court, i.e. Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002); and Brown v. Legal Foundation of Washington, 123 S. Ct. 1406 (2003), to Petitioner's pending federal constitutional takings claims or whether the lower court was free to ignore those decisions based upon the "law of the case" doctrine.

Indian Creek Corporation and Curt Daniels, v. State of Iowa, ex rel., Iowa Department of Natural Resources, 99 AG23542 and The District Court of Jasper County, Iowa, S. Ct. No. 02-1797
Petition Filed: April 7, 2003
Cert Denied: December 1, 2003
Lower Court Opinion: The opinion of the Iowa Supreme Court is unreported.
Questions Presented:

1. Whether U.S. Constitution Amendment V, guaranteed rights to property, can be deprived by state environmental regulators in the absence of statutory authority and in contradiction to legislative intent when no pollution, environmental insult or public nuisance is documented or alleged. (Animal Feed Operator regs).

(Questions 2 and 3 omitted).

Eric Karl Spangenberg, Edward J. Niland, John B. Gunn and Emeka Nchekwube, Individuals, v. City of San Jose, California, A Municipal Corporation and California Agriculture and Forest Products Corporation, in the Capacity of Judgment Debtor, S. Ct. No. 03-355
Petition Filed: Sept. 2, 2003
Cert Denied: November 10, 2003
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the 9th Circuit is unpublished.
Questions Presented:

2. Can claims for just compensation be brought directly under the Constitution of the United States, or must they be brought under the Civil Rights Act? 42 U.S. § 1983.

4. Does the destruction of a Lien constitute a taking of property in violation of the Fifth and Fourteenth Amendments to the Constitution and the Civil Rights Act, 42 U.S.C. § 1983, requiring just compensation?.

(Questions 1, 3, and 5 omitted).

Lorena Daddario, as personal representative of Francis E. Daddario v. The Cape Cod Commission, S. Ct. No. 03-408
Petition Filed: May 28, 2003
Cert Denied: November 10, 2003
Lower Court Opinion: The opinion of the Supreme Judicial Court of the Commonwealth of Massachusetts, dated July 11, 1997 is reported at 425 Mass. 411 (1997); the opinion of the Appeals Court of the Commonwealth of Massachusetts after remand, dated December 18, 2002 is reported at 56 Mass. App. Ct. 764 (2002).
Questions Presented:

1. Whether an estate in land which is separately recognized and protected by state property law should be used as the denominator against which loss of value is to be measured in applying the "parcel as a whole" rule in categorical regulatory takings analysis under the Fifth Amendment.

2. Whether a partial regulatory taking in violation of the Fifth Amendment can be established where a property retains substantial after-impostion economic value.

3. The trial court found that the Respondent's permit denial was a regulatory taking in violation of the Fifth Amendment. The Supreme Judicial Court of Massachusetts vacated the trial court judgment, ruling that no taking had occurred. The Massachusetts Supreme Judicial Court went onto hold, sua sponte, that Petitioner's constitutional takings claim was not ripe for judicial review. The questions presented are:

a. Whether prudential ripeness is jurisdictional in nature, such that an appellate court may consider the issue despite the Respondent regulatory agency's concession of the issue at trial and on appeal.

b. Whether the futility exception to the prudential ripeness requirement rendered Petitioner's regulatory takings claim appropriate for judicial review.

Sam B. McQueen v. South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (formerly known as South Carolina Coastal Council), S. Ct. No. 03-159
Petition Filed: July 30, 2003
Cert Denied: November 3, 2003
Lower Court Opinion: The opinion of the Supreme Court of South Carolina is reported at 580 S.E.2d 116 (2003).
Question Presented:

1. Whether a court may deny compensation for a categorical taking by invoking a new and expansive conception of the public trust doctrine, thereby disregarding the limits placed by this Court's regulatory takings decisions on the definition of a background principle of law.

United States of America v. John H. Banks, et al., S. Ct. No. 03-402
Petition Filed: Sept. 15, 2003
Cert Denied: November 3, 2003
Lower Court Opinion: The opinion of the Court of Appeals for the Federal Circuit is reported at 314 F.3d 1304. The decision of the Court of Federal Claims is reported at 49 Fed. Cl. 806.
Question Presented:

1. Whether efforts by the United States to mitigate ongoing erosion caused by a government navigation project prevent accrual of landowners' erosion-based takings claims, thereby extending the time for bringing those claims.

Towner Leeper and LaFonne Leeper v. Commissioner of Internal Revenue, S. Ct., No. 02-1537
Petition Filed: March 25, 2003
Cert Denied: October 6, 2003
Lower Court Opinion: The opinion of the United States District Court for the Western District of Texas, El Paso Division is published at 88 AFTR 2d 2001-5388 (DC Tx, 2001); the opinion of the Fifth Circuit Court of Appeals is published at 90 AFTR 2d 2002-7053 (CA5, 2002).
Question Presented:

The IRS seized and sold an asset owned by Petitioners, Towner Leeper and his wife LaFonne Leeper. Towner Leeper received actual notice of the sale, LaFonne Leeper received no notice.

2. Is this also a violation of the Fifth Amendment's proscription against the government's taking of property without due process, as determined by the Third Circuit Court of Appeals, so that her ownership is not extinguished by the sale?

(Second introductory paragraph and Question 1 omitted).

Peter J. Loewenstein and Helen Loewenstein v. City of Lafayette, a Municipality, S. Ct. No. 02-1162
Petition Filed: May 12, 2003
Cert Denied: October 6, 2003
Lower Court Opinion: The opinion of the California Court of Appeal, First Appellate District (Division One) is reported at 103 Cal. App. 4th 718 (Nov. 13, 2002).
Questions Presented:

1. Whether litigation regarding the erroneous application of a land use regulation which resulted in denial of a development project is simply a "normal" part of the development process so that compensation for a temporary taking was properly denied pursuant to First English Evangelical Lutheran Church of Glendale vs. County of Los Angeles, 482 U.S. 304 (1987).

2. Whether a landowner is entitled to just compensation for a temporary taking of his land if a land use regulation as generally applied might be viewed as a part of a reasonable regulatory process, but if, as applied to a specific development project, it actually failed to substantially advance any legitimate government interest.

3. Whether a landowner is entitled to just compensation pursuant to Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), for the temporary deprivation of all economically feasible use of his land due to the erroneous application of land use regulation which effectively prevented access and which precluded utilities services.

Michael A. Campbell v. John Hancock Financial Services, Inc., John Hancock Life Insurance Co., and John Hancock Mutual Life Insurance Company, S. Ct. No. 02-1681
Petition Filed: May 14, 2003
Cert Denied: October 6, 2003
Lower Court Opinion: The opinion of the Fifth Circuit is unreported.
Questions Presented:

There are four questions presented. The first two questions are also presented in separate, related Petitions For Certiorari filed with the Court on April 21, 2003 in Tancredi v. Metropolitan Life Ins. Co., No. 02-1542, and Gayman v. Principal Financial Servs., Inc., 02-1551. Tancredi, Gayman and this Petition all involve a statutory conversion of a mutual life insurance company to a stock company. The third question presents a circuit conflict with respect to this Court's decision in Williamson County Regional Planning Com'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The fourth question appears to be presented in Dow Chemical v. Stephenson, No. 02-271, which was orally argued on February 26, 2003. The questions presented are:

1. In connection with the statutory conversion of John Hancock Mutual Life Insurance Company from a mutual to a stock company, could the Fifth Circuit disregard as outdated the law in Phillips Petroleum Company v. Jenkins, 297 U.S. 629, 634-35 (1936), which sets forth the rule that the Takings Clause and Contracts Clause prohibit the use of a state's reserved power "to take property without just compensation . . . or to destroy or impair any vested property right."?

2. Does the per se Takings Clause analysis of Brown v. Legal Foundation of Washington, 123 S.Ct. 1406 (2003) apply when, as here, a private actor (a mutual insurer) exercises the state's reserved power to force the owners of property (the mutual policyholders) to relinquish their property rights in a forced sale under a state conversion law, where the mutual insurer otherwise lacked the contractual right to take the mutual policyholders' property?

(Questions 3 and 4 omitted).

The George Washington University v. The District of Columbia, et al., S. Ct. No. 02-1835
Petition Filed: June 16, 2003
Cert Denied: October 6, 2003
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the D.C. Circuit is reported at 318 F.3d 203 (2003).
Questions Presented:

1. Once a court has determined that a university has a constitutionally protected "property interest" with which local regulators have interfered, may the court uphold the regulation in a substantive due process challenge if the regulators articulated a facially illegitimate government purpose?

(Questions 2 and 3 omitted).

Franklin P. Kottschade v. City of Rochester, S. Ct. No. 02-1848
Petition Filed: June 19, 2003
Cert. Denied: October 6, 2003
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the 8th circuit is reported at 319 F.3d 1038 (2003).
Questions Presented:

1. Should this Court resolve the conflict between its decisions in Williamson County Reg. Plan Comm'n v. Hamilton Bank 473 U.S. 172 (1985), and City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997)? The former requires landowners seeking compensation for regulatory taking of property to sue in the state courts and prohibits them from suing in U.S. District Court. However, the latter simultaneously grants municipal defendants in such cases the absolute right to remove them to U.S. District Courts - even though (a) removal is authorized by 28 U.S.C. § 1441 (a) only if the plaintiff could have filed suit in federal court in the first instance which, under Williamson County, landowners may not; and even though (b) the combination of Williamson County and City of Chicago gives municipal defendants a veto power over the plaintiff's 7th Amendment right to a jury trial under City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999).

The Court of Appeals agreed with Petitioner that this situation represents an "anomalous . . . gap in Supreme Court jurisprudence," but declined to address it, explicitly concluding that how to resolve the conflict "is for the Supreme Court to say, not us."

2. When a city openly defies this Court's holding in Dolan v. City of Tigard, 512 U.S. 374 (1994), by (1) imposing onerous conditions on a land use approval that are grossly disproportional to the burdens the proposed project will create, and (2) flatly refusing its duty to show any proportionality, has the landowner stated a claim on which relief can be granted by a U.S. District Court?

Conrail c/o Transportation Displays, Inc. v. Society Created To Reduce Urban Blight (SCRUB), The Center City Residents Association, Mary Crawley Tracy, Philadelphia Councilwoman Anna Verna and Philadelphia Councilman David Cohen and The Zoning Board Of Adjustment Of The City Of Philadelphia and The City Of Philadelphia, S. Ct. No. 02-1578
Petition Filed: April 28, 2003
Cert. Denied: June 26, 2003
Lower Court Opinion: The Order of the Supreme Court of Pennsylvania is not published. Questions Presented:

1. Is the enforcement of a zoning classification that is erroneous on its face a violation of the due process and takings clauses of the United States Constitution?

2. Under the due process and takings clauses of the United States Constitution, should the burden for obtaining a dimensional variance be different from and lower than the burden for obtaining a use variance?

Clem Abrams and John Bohannon v. City of San Diego, S. Ct. No. 02-1545
Petition Filed: April 22, 2003
Cert. Denied: June 26, 2003
Lower Court Opinion: The opinion of the California Supreme Court is unreported. Questions Presented:

1. May an intermediate California appellate court be permitted
to tamper with the core language of the "rough proportionality" test of
Dolan v. City of Tigard, 512 U.S. 374 (1994) (acquiesced in by the
California Supreme Court in Ehrlich v. City of Culver City, 12 Cal.4th
854, 860 (1996)), the terms of which have become uniform and
well-settled throughout Takings Clause Jurisprudence, so as to pervert
the true and intended meaning of this important test and allow local
government and its developer cohort to engage in chicanery to deny owner
just compensation for the taking of his land, thereby forcing this owner
alone to bear public burdens which in all fairness and justice should be
borne by the public as a whole? Armstrong v. United States, 364 U.S. 40,
49 (1960).

2. May the California state courts be allowed to avoid (indeed,
stand on its head) the true and intended meaning of the "rough
proportionality" test of Dolan v. City of Tigard by the disingenuous
artifice of eliminating therefrom the words "impact of the project" and
substituting the word "benefits" in their place whenever they purport to
apply and conform to Dolan's "rough proportionality" standard, so that,
to owner's loss, the new, made up, California rendition of the Dolan
test reads: "the Dolan/Nollan test requires that the assessment be
roughly proportional to the benefit received by the property"? [App. 12]

3. May a local government successfully circumvent the rough
proportionality requirements of Dolan v. City of Tigard and take private
property without paying just compensation, simply by contriving a
so-called Cost Reimbursement District, relying on obsolete (pre-Dolan)
state law, to accomplish indirectly what it could not justify directly,
that is to take owner's property without paying just compensation, a
process which one highly regarded California jurist described as "a
cynical method of automatically shifting the cost of an improvement
benefiting the public onto the backs of a few landowners because of the
fortuity of their location," where the local government agency first
"puts funds therefor in a landowner's pocket - and then proceeds to pick
the pocket"? The City and its cohort did exactly that in this case.

4. Was the California courts' mendacious substitution of the
word "benefits" in place of "the impact of the project" in purporting to
apply the rough proportionality test of Dolan v. City of Tigard, an
intolerable violation of settled federal constitutional law, requiring
reversal of the judgment of the California courts and issuance of an
order requiring entry of judgment in favor of Property Owners, so their
13-year quest for constitutional justice may finally be concluded?

 

John A. Baldi and Elsie M. Baldi v. Henry J. Farrin; Laurence D. Yeaton; John D. Hickey; Peter P. Bosiak; Town of Epsom, S. Ct. No. 02-1589
Petition Filed: April 30, 2003
Cert. Denied: June 23, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the First Circuit in unreported.
Question Presented:

1. Whether the First Circuit erred in holding that a physical takings claim is not ripe for adjudication by the Federal District Court, without first exhausting State law remedies, as set forth in the two prong test established by the United States Supreme Court for regulatory takings, in the case of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108 (1985).

Esther L. Gayman v. Principal Financial Services, Inc., Principal Financial Group, Inc., and Principal Life Insurance Company, S. Ct. No. 02-1551
Petition Filed: April 21, 2003
Cert. Denied: June 23, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the Seventh Circuit is reported at 311 F.3d 851 (7th Cir. 2002).
Questions Presented:

1. In connection with the conversion of Principal Mutual Life Insurance Company from a mutual to a stock company, could the Seventh Circuit disregard as outdated Phillips Petroleum Company v. Jenkins, 297 U.S. 629, 634-35 (1936), which sets forth the rule that the Takings Clause and Contract Clause prohibit the use of a state's reserved power "to take property without just compensation ... or to destroy or impair any vested property right?" The Seventh Circuit construed American Mfrs. Mutual Ins. Co. V. Sullivan, 526 U.S. 40 (1999) and other recent cases as sub silentio overruling the more specific "reserve power" law stated in Phillips Petroleum.

2. Does the "per se" Takings Clause analysis of Brown v. Legal Foundation of Washington, 123 S.Ct. 1406 (2003), apply when, as here, a private actor (a mutual insurer) exercises the state reserved powers to force the owners of property (the mutual policyholders) to relinquish their property rights in a forced sale under a state conversion law, where the mutual insurer otherwise lacked the contractual right to take the mutual policyholders' property?

Stephen Tancredi and Ronald Speidel v. Metropolitan Life Insurance Co., and MetLife, Inc., S. Ct. No. 02-1542
Petition Filed: April 21, 2003
Cert. Denied: June 23, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the Second Circuit is reported at 316 F.3d 308 (2nd Cir. 2003); the opinion of the district court is reported at 149 F.Supp.2d 80 (S.D.N.Y. 2001).
Questions Presented:

1. In connection with the conversion of Metropolitan Life Insurance Company from a mutual to a stock company, could the Second Circuit disregard as outdated Phillips Petroleum Company v. Jenkins, 297 U.S. 629, 634-35 (1936), which set forth the rule that the Takings Clause and Contract Clause prohibit the use of a state's reserved power "to take property without just compensation . . . or to destroy or impair any vested property right?" The Second Circuit construed American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999) and other recent cases as sub silentio overruling the more specific "reserve power" law stated in Phillips Petroleum.

2. Does the "per se" Takings Clause analysis of Brown v. Legal Foundation of Washington, 123 S. Ct. 1406 (2003), apply when, as here, a private actor (a mutual insurer) exercises a state's reserved powers to force the owners of property (the mutual policyholders) to relinquish their property rights in a forced sale under a state conversion law, where the mutual insurer otherwise lacked the contractual right to take the mutual policyholder's property?

Esplanade Properties v. City of Seattle, S. Ct. No. 02-1304
Petition Filed: March 4, 2003
Cert. Denied: June 16, 2003
Lower Court Opinion: 307 F.3d 978 (9th Cir. 2002)
Questions Presented:

1. May a federal court impose upon the state a unique, restrictive version of the public trust doctrine that is incompatible with the state's own doctrine and with the decisions of this Court upon which the state's doctrine is premised?

2. Whether a federal court may modify a state's long established public trust doctrine and declare the doctrine a "background principle of the state's law of property" that allows local governments to preclude any economic use of private tidelands that interferes with public recreation without incurring an obligation to pay just compensation.

3. Whether a substantive due process claim is categorically barred when the alleged violation may be partially addressed by a claim for just compensation under the Fifth Amendment, even when the facts and theory relevant to the due process claim differ from the facts and theory applicable to the takings claim.

John K. Castle, et al., v. United States, S. Ct. No. 02-938
Petition Filed: December 16, 2002
Cert. Denied: June 16, 2003
Lower Court Opinion: 301 F.3d 1328 (U.S. Court of Appeals for the Federal Circuit 2002)
Question Presented:

3. Whether the court of appeals erred in holding, contrary to decisions of this Court, that the availability of contract remedies and the existence of a federal regulatory scheme precludes recovery of just compensation under the Fifth Amendment for the government's taking of private property.

(Questions 1 and 2 omitted).

Henry Torromeo and MDR Corporation v. Town of Fremont, S. Ct. No. 02-1507
Petition Filed: April 14, 2003
Cert. Denied: June 9, 2003
Lower Court Opinion: The opinion of the Supreme Court of New Hampshire is reported at 813 A.2d 389 (N.H. 2002).
Question Presented:

1. Liability for a Fifth Amendment Taking: When a state's highest court declares a growth control regulation "invalid ab initio," but a town had enforced that illegal regulation in excess of its police powers against a specific piece of property, is the town liable to the affected property owner for a taking because it has failed to "substantially advance legitimate state interests"? (Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)).

2. Liability for a Fifth Amendment Takings: Alternatively, when a state's highest court declares a growth control regulation "invalid ab initio" but a town had enforced that regulation against a specific piece of property, should that illegal municipal conduct be considered under the "character of government action" factor set forth in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978), as one element to determine whether the town is liable for a taking?

3. Remedy for a Fifth Amendment Taking: Does the "self-executing character" of the Takings Clause compel the payment of "just compensation" to an aggrieved property owner for the time period in which a growth control regulation, declared "invalid ab initio" by a state's highest court, was enforced against a specific piece of property? (First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987)).

Harvey and Doris Madison, Charles and Elena D'Autremont, and Harrison Saunders v. Patrick J. Graham, Director, Montana Department of Fish, Wildlife, and Parks; Stan Meyer, David Simpson, Charles Decker, Darlyne Dascher, and Tim Mulligan, Commissioners, Montana Fish, Wildlife and Parks Commission; Montana Coalition for Stream Access; Montana Wildlife Federation; Montana Chapter of Trout Unlimited; and Fishing Outfitters Association of Montana
Petition Filed: March 24, 2003
Cert. Denied: May 27, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 316 F.3d 867 (9th Cir. 2002).
Question Presented:

1. Whether the Due Process Clause of the Fourteenth Amendment provides substantive protection against arbitrary state interference with private property, or whether a property owner's sole remedy for arbitrary state interference with private property is to seek "just compensation" under the Takings Clause of the Fifth Amendment?

Douglas A. Mauler and Judith A. Mauler, v. United States of America, et al., S. Ct. No. 02-1316
Petition Filed: February 24, 2003
Cert. Denied: May 19, 2003
Lower Court Opinion: 204 F. Supp. 2d 1168 (W.D. Wis. 2001); 309 F.3d 997 (7th Cir. 2002).
Question Presented:

4. Is the conversion an abandoned railroad right of way to a recreational trail a taking without just compensation contrary to the U.S. Constitution, Amendments V and XIV?

5. Is an abutting landowner entitled to quiet title and just compensation against a local government claiming title to abandoned railroad right of way under the United States where the United States disclaims all right, title and interest in such right of way under the Quiet Title Act, 28 U.S.C. § 2409a?

(Questions 1, 2, and 3 omitted).

Palais Royal, Inc and 3 Beall Brothers 3, Inc. v. Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, et al., S. Ct. No. 02-1352
Petition Filed: March 12, 2003
Cert. Denied: May 5, 2003
Lower Court Opinion: The opinions of the Texas Supreme Court are not reported.
Question Presented:

1. Did the implementation of the Texas earned surplus tax violate due process and the takings clause by taxing income earned nineteen months before the enactment date?

Augustus J. Simmons vs. United States, S. Ct. No. 02-1280
Petition Filed: February 27, 2003
Cert. Denied: May 5, 2003
Lower Court Opinion: 53 Fed.Cl. 131 (Court of Federal Claims 2002)
Question Presented:

1. When the Government (F.A.A.) physically invaded, appropriated, and converted petitioner's private property under exclusive authority of 49 U.S.C. § 44502, in addition to a joint obligation under the contract of guaranty under Federal Grant Agreement #9-06-009-5708 (1955), (49 U.S.C. § 47109), into an "overriding federal navigational servitude" with the installation, operating, and maintenance of navigational instrumentation for exclusive jurisdictional control of all air traffic in, on, and around Bradley Airport, Connecticut's premier airport, creating a public right of access to the airport - did the Government lack authority to open the airfield to the public without any obligation whatever to pay fair just compensation under the eminent domain clause of the Fifth Amendment to the United States Constitution under the logic of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)?

Vincent Grasso, et al., v. City of New Bedford, et al., S. Ct. No. 02-1128
Petition Filed:January 28, 2003
Cert. Denied: May 5, 2003
Lower Court Opinion: 438 Mass. 1102, 777 N.E.2d 1264 (Supreme Judicial Court of Massachusetts 2002)
Questions Presented:

1. Whether government actors can be held jointly liable for using and participating in diverse regulatory proceedings to keep the value of land down while the government considers whether to take the land for a secondary wastewater treatment plant.

3. Whether the state statute of limitations for the assertion of the Fifth Amendment right to compensation for a taking by regulatory action can be construed in a manner prohibited by United States v. Dickinson, 331 U.S. 745 (1947) to force landowners to engage in the piecemeal and premature litigation of potentially unripe claims and to otherwise unfairly put the burden on the landowner to determine the precise moment a taking has occurred during regulatory processes when the taking has been effected by a continuing series of decisions and actions taken by diverse government actors in different ongoing administrative and other proceedings.

(Question 2 omitted).

 

Interstate Power Company vs. Daniel Martins and Coleen Martins, S. Ct. No. 02-1151
Petition Filed: February 3, 2003
Cert. Denied: May 5, 2003
Lower Court Opinion: 652 N.W.2d 657 (Iowa Supreme Court 2002)
Questions Presented:

1. Does the ruling by the Iowa Supreme Court imposing strict liability a multi-state electrical utility for the use of a particular legislatively-approved electrical distribution system collectively burden the multi-state transmission and distribution of electricity to a degree that negatively impacts interstate commerce, when the undisputed evidence is that the "nuisance" system upon which that and future liability is premised is used everywhere in this country, by every utility, every commission that regulates those utilities, and by every state except for "part of California, maybe Florida and one city in Michigan?"

4. Do the rulings of the Iowa Appellate Court and the Iowa Supreme Court constitute a governmental taking without compensation when they identify no state interest advanced for refusing to acknowledge Interstate's easement, its property rights in its multi-state transmission and distribution systems, and its investments made in reliance on and in compliance with all applicable state and national codes?

(Questions 2 and 3 omitted).

Walmar Investment Company v. Charles Brunjes, et al., S. Ct. No. 02-1220
Petition Filed: February 14, 2003
Cert. Denied: April 28, 2003
Lower Court Opinion: The opinion of the Missouri Court of Appeals, Eastern District, is unreported.
Question Presented:

1. Whether a court's application of the "reasonable relationship" test to government takings of land in exchange for routine site plan approval, whereby the landowner bears the burden of proving that the government exactions are not reasonably related to the purported impact of the proposed development, is in direct and apparent conflict with this Court's precedent in Dolan v. City of Tigard, 512 U.S. 374 (1994), in which this Court rejected the "reasonable relationship" standard and held that "unconstitutional conditions" will result if the government fails to prove by individualized determinations that its exactions are "roughly proportional" to the purported impact of the proposed development in violation of the Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Richard Leider, v. United States of America; United States Treasury Department and Robert E. Rubin, Secretary of the Treasury, S. Ct. No. 02-1088
Petition Filed: January 21, 2003
Cert. Denied: April 21, 2003
Lower Court Opinion: 301 F.3d 1290 (United States Court of Appeals for the Federal Circuit, 2002)
Question Presented:

2. Where the government takes the property of private citizens,should the government be responsible for the lost use of that property.

(Question 1 omitted).

Aubrey E. Henry v. Jefferson County Planning Commission, et al., S. Ct. No. 02-359
Petition Filed: September 4, 2002
Cert. Denied: March 31, 2003
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the Fourth Circuit is unpublished.
Question Presented:

(Introduction omitted)

1. Is a landowner seeking a permit entitled to substantive due process protection even when he does not have a "vested right" to the permit?

Penn Triple S T/A Penn Vending Company, and Melody Vending Service v. United States, S. Ct. No. 02-734
Petition Filed: November 8, 2002
Cert. Denied: March 24, 2003
Lower Court Opinion: 304 F.3d 1349 (Fed.Cir. Jul 15, 2002), rehearing denied (Aug 14, 2002).
Question Presented:

1. Whether the Government is liable for a regulatory taking, under the Fifth Amendment to the Constitution where the Food & Drug Administration (FDA) undertook their implementation of promulgated tobacco regulations in good faith, with the public approval of the President; money was appropriated for their enforcement, but where later the regulations were later held by the Supreme Court to be invalid as beyond the scope of the FDA's statutory authority.

(Questions 2 and 3 omitted).

Keith Winston Watters TA Keith Watters and Associates, v. Washington Metropolitan Area Transit Authority TA WMATA, S. Ct. No. 02-1034
Petition Filed: November 4, 2002
Cert. Denied: March 24, 2003
Lower Court Opinion: The opinion of the U.S. Court of Appeals for the District of Columbia is unreported.
Question Presented:

1. Whether sovereign immunity under the eleventh amendment is a bar to a suit for just compensation for a taking under the fifth amendment.

Tri-County Concerned Citizens Association, Patty Brann, Kathy Brill, William Cranston, Holly Hartshorne, and Barbara Messner, v. Raymond Carr, Morgantown Properties, Inc., William Betz, Judith Betz, Robert G. Williams, Carolyn Williams, Cheryl Conkel, and New Morgan Borough, S. Ct. No. 02-1017
Petition Filed: December 26, 2002
Cert. Denied: March 10, 2003
Lower Court Opinion: 47 Fed.Appx. 149 (U.S. Court of Appeals for the Third Circuit, 2002)
Question Presented:

1. Is a local government subdivision exempt from liability for takings without substantive due process because those takings are effectuated against properties in neighboring local government subdivisions?

(Questions 2 and 3 omitted).

City of Mayfield Heights, Mayor Margaret A. Egensperger, et al., v. Michael A. Shemo, Trustee, and Larry Goldberg, Trustee, S. Ct. 02-914
Petition Filed: December 11, 2002
Cert. Denied: March 10, 2003
Lower Court Opinion: 95 Ohio St. 3d 59, 765 N.E.2d 345 (2002)
Questions Presented:

1. Whether a land-use restriction that does not substantially advance a legitimate public purpose can be deemed, on that basis alone, to effect taking of property requiring the payment of just compensation.

2. Whether the sole remedy available to an owner of property encumbered by a zoning restriction that does not substantially advance a legitimate public purpose is invalidation of the restriction as a deprivation of property prohibited by the Due Process Clause of the Fourteenth Amendment.

Boise Cascade Corporation, a Delaware corporation, v. United States, S. Ct. No. 02-862
Petition Filed: November 27, 2002
Cert. Denied: March 10, 2003
Lower Court Opinion: 296 F.3d 1339
Question Presented:

1. Whether Petitioner states a claim for a physical taking of its property in violation of the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution based upon the U.S. Fish and Wildlife Service having obtained an injunction pursuant to the Endangered Species Act that prohibited Petitioner from harvesting any timber on a 65 acre parcel of its land in order to preserve it as a Northern Spotted Owl habitat and required Petitioners to allow government agents to enter its property to conduct owl surveys?

Rogers Machinery Company, Inc., v. City of Tigard, and Washington County, S. Ct. No. 02-750
Petition Filed:November 12, 2002
Cert. Denied: March 10, 2003
Lower Court Opinion: 181 Or.App. 369, 45 P.3d 966 (Oregon Court of Appeals)
Question Presented:

1. May a local government exact development fees it has adopted through a legislative process without complying with the "rough proportionality" standards of Dolan v. City of Tigard, 512 U.S. 374 (1994)?

Recent Developments: Washington Legal Foundation (WLF) has filed a brief with the U.S. Supreme Court, urging the Court to reverse the Oregon ruling. To read WLF's brief, click here.

Agencia La Esperanza Corporation, Inc., v. Orange County Board of Supervisors and Orange County Public Facilities and Resources Department, S. Ct. No. 02-638
Petition Filed: October 23, 2002
Cert. Denied: March 10, 2003
Lower Court Opinion: The opinion of the California Court of Appeals is unreported.
Question Presented:

1. May a local government avoid the "rough proportionality" test of Dolan v. City of Tigard, 512 U.S. 374 (1994), by imposing development exactions (including "impact" fees) by legislative enactment?

Three O Realty, LLC, v. New York State Urban Development Corporation D/B/A/ Empire State Development Corporation, and 42nd Street Development Project, Inc., S. Ct. 02-909
Petition Filed: December 11, 2002
Cert. Denied: February 24, 2003
Lower Court Opinion: 98 N.Y.2d 727, 779 N.E.2d 187, 749 N.Y.S.2d 476
Question Presented:

1. Whether pretextual findings of blight by a state or local government satisfy the Fifth Amendment's requirement, which is incorporated by the Fourteenth Amendment, that all takings of private property be for "public use."

 

West 41st Street Realty LLC, EMM Realty Corp., and Times Square Garage, LTD., v. New York Urban Development Corporation d/b/a Empire State Development Corporation, 42nd St. Development Project, Inc., 632 Eighth Avenue Associates, LLC, Romack Realty Corp., and Three O Realty, LLC, S. Ct. 02-910
Petition Filed: December 11, 2002
Cert. Denied: February 24, 2003
Lower Court Opinion: The opinion of the Court of Appeals of the State of New York is unreported.
Questions Presented:

1. May the respondents, consistently with the Due Process and Takings Clauses of the United States Constitution, use the eradication of "blight" as the purported public purpose for condemning the petitioners' property and giving it to another private party to develop, when the petitioners wish to develop their own property, and any residual "blight" is the result of the respondents' own actions in preventing the petitioners from developing their property?

2. Do the respondents' actions in preventing the development of the petitioners' property for more than two decades, followed by their attempt to use the undeveloped condition of the property as the basis for turning it over to another private party to develop, violate the petitioners' rights under the Due Process and Takings Clauses of the United States Constitution?

Blue Ribbon Properties, Inc., doing business as Long Hollow Landfill, v. Hardin County Fiscal Court; Hardin County, Kentucky; Hardin County Planning and Development Commission, S. Ct. No. 02-759
Petition Filed: November 13, 2002
Cert. Denied: February 24, 2003
Lower Court Opinion: The opinion of the United States Court of Appeals for the Sixth Circuit is unreported.
Questions Presented:

1. A County denied a business investor's renewed application to develop property it had acquired in response to the County's request for a proposal to dispose of its solid waste. The County's action was based on a zoning ordinance previously declared invalid by the state courts in a suit brought by the application. Was the County's action a compensable, regulatory taking of property ***.

2. A County invited private investor proposals to handle or dispose of its solid waste, and with the County's knowledge a business investor expended substantial capital to respond, including the acquisition of suitable land and the completion of tests necessary to establish its fitness for the proposed use. After all of these expenditures were made, the County denied the investor's application for a conditional use permit on the basis of a County zoning ordinance previously declared invalid in a suit brought by the same investor following its denial of the investor's earlier application. Was the County's destruction of the business investor's investment-backed interests a compensable, regulatory taking ***.

Marsha Seiber and Alvin Seiber v. State of Oregon, by and through the Oregon State Board of Forestry, and Audubon Society of Portland, Oregon Trout, Inc., Pacific Coast Federation of Fisheries, and Institute for Fisheries Resources (Intervenors), S. Ct. No. 02-348
Petition Filed: August 30, 2002
Cert. Denied: January 13, 2003
Lower Court Opinion: The opinion of the Oregon Supreme Court is unreported.
Question Presented:

1. Whether Petitioners state a claim for a physical taking of their property in violation of the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution, because an administrative order enforcing a state regulation prohibited them from harvesting 40 acres of merchantable timber on their 200-acre tree farm or from engaging in any activities that might cause "owls to flush from the nesting site" in order to protect the subject timber as a public resource for spotted owl nesting habitat?

Paul Conti and Conti Corporation (as owner of F/V Providenza), v. United States, S. Ct. No. 02-779
Petition Filed: November 19, 2002
Cert. Denied: January 13, 2003
Lower Court Opinion: 48 Fed. Cl. 532 (2001 United States Court of Federal Claims)
Question Presented:

1. Whether a commercial fisherman is entitled to his day in court under the Fifth Amendment's takings clause based on a federal fishery regulation that deprives him of all economic use of (a) his vessel, (b) his fishing gear, and (c) his fishing license, under the given circumstances of the case.

Board of Commissioners of The Orleans Levee District, et al., v. Anthony L. Vogt, et al., S. Ct. No. 02-601
Petition Filed:October 7, 2002
Cert. Denied: December 16, 2002
Lower Court Opinion: 294 F.3d 684 (5th Cir. (La.) Jun. 14, 2002)
Question Presented:

1. The Fifth Circuit held that the Orleans Levee District has "taken" the property of the plaintiffs by not satisfying the prior money judgment against it. In doing so, the Fifth Circuit found that the money judgment was the property of the plaintiffs. Did the Fifth Circuit err by confusing a liquidated money judgment expressed as a "royalty" with a "mineral interest" in holding that the Orleans Levee District had taken the property of the plaintiffs?

2. Does the Orleans Levee District, an agency of the State of Louisiana, enjoy sovereign immunity as an "arm of the state" under the 11th Amendment to the U.S. Constitution so as to bar the present lawsuit in federal court?

Machipongo Land and Coal Co., Inc., Victor E. Erickson Trust and Joseph Naughton, v. Commonwealth of Pennsylvania, Department of Environmental Resources, The Environmental Quality Board and Arthur A. Davis, S. Ct. No. 02-321
Petition Filed: August 27, 2002
Cert. Denied: November 4, 2002
Lower Court Opinion: 799 A.2d 751 (Pennsylvania Supreme Court 2002)
Questions Presented:

(Introduction omitted)

1. Is the proper denominator in the takings fraction from a vertical perspective the coal estate where the regulation prohibits all mining of coal in a 555 acre tract and the state's property law recognizes the coal estate as a separate and unique interest in land?

2. Is the proper denominator in the takings fraction from a horizontal perspective the coal estate in the regulated parcel where it has independent economic viability as it can be mined profitably as a separate and independent unit?

3. May a state avoid the payment of just compensation for a regulatory taking resulting from the adoption of a regulation that prohibits the mining of coal, based upon purported background principles of its nuisance law, where the state has permitted others to mine coal in the same area both before and after the adoption of the regulation?

4. Where there was no intermediate appellate court, should the lower court have used the standard of review set forth in Easley v. Cromartie to evaluate the trial court's factual findings in its dismissal of one of the regulatory takings claims under the Fifth Amendment?

R. J. Walser, Paul Walser, Andrew Walser, Walser Auto Sales, Inc. and Motorwerks, Inc., v. The Housing And Redevelopment Authority In And For The City of Richfield, S. Ct. No. 02-278
Petition Filed: August 20, 2002
Cert. Denied: October 21, 2002
Lower Court Opinion: 641 N.W.2d 885 (Minnesota Supreme Court 2002)
Questions Presented:

1. The Richfield Housing and Redevelopment Authority condemned two successful automobile dealerships from the Walser family and transferred the property to Best Buy Co. for its new corporate headquarters. Did the taking by the Housing and Redevelopment Authority violate the Public Use Clause of the Fifth Amendment of the United States Constitution?

2. Does the highly deferential standard of review set forth in Berman v. Parker, 348 U.S. 26 (1954), apply in a condemnation action such as this where there were no municipal findings to support the allegation of "blight," and where it appeared that the stated purpose for the taking was pretextual?

Ann Daniel and Leonard Hill v. County of Santa Barbara, S. Ct. 02-107
Petition Filed: July 17, 2002
Cert. Denied: October 21, 2002
Lower Court Opinion: 288 F.3d 375 (9th Cir. 2002)
Question Presented:

1. Whether a county may take a permanent easement over private property, and thereby deprive the owner of the right to exclude, without satisfying either the nexus or proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) or Dolan v. City of Tigard, 512 U.S. 374 (1994), and without paying just compensation, solely because 11 years earlier the State was able to extort from a prior owner an offer to dedicate that easement, not for any consideration but by sheer intimidation and threats of significant fines?

(Also see Cole, below)

Joseph L. Cole, Trustee of the Stanford Farms Trust v. County of Santa Barbara, et al., S. Ct. No. 01-1773
Petition Filed: June 5, 2002
Cert. Denied: October 21, 2002
Lower Court Opinion: The opinion of the California Supreme Court is unreported.
Questions Presented:

1. Whether a county may take a permanent easement over private property, and thereby deprive the owner of the right to exclude, without satisfying either the nexus or proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) or Dolan v. City of Tigard, 512 U.S. 374 (1994), and without paying just compensation, solely because two decades earlier the State was able to "extort" from a prior owner an offer to dedicate that easement as a condition of obtaining a building permit?

(Also see Daniel, above)

Travis County Landfill Company, L.L.C., v. City of Austin, S. Ct. No. 02-309
Petition Filed: August 27, 2002
Cert. Denied: October 15, 2002
Lower Court Opinion: 73 S.W. 3d 234 (Texas Supreme Court 2002)
Questions Presented:

1. Do this Court's holdings in Griggs v. Allegheny County and Loretto v. Manhattan Teleprompter CATV Corp. require the public airport proprietor to acquire an overflight easement over land within the approach/takeoff area where airplanes routinely operate at altitudes below 500 feet while utilizing the runway?

2. Where land within the approach area suffers unquestioned limitations on its use and unchallenged substantial reduction in market value because of overflights, does the decision in United States v. Causby prohibit the landowner's inverse condemnation claim?

Coltec Industries, Inc. v. William P. Hobgood, Michael H. Holland, Marty D. Hudson, Thomas O.S. Rand, Elliot A. Segal, Carlton R. Sickles, Gail R. Wilensky, as Trustees of the United Mine Workers of America Combined Benefit Fund; the UMWA Combined Benefit Trust, and the United States of America, S. Ct. No. 02-54
Petition Filed: July 2, 2002
Cert. Denied: October 15, 2002
Lower Court Opinion: 280 F.3d 262 (3rd Circuit 2002)
Questions Presented:

1. Did the United States Court of Appeals for the Third Circuit violate the Constitution and this Court's decision in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), by forcing Coltec Industries, Inc. ("Coltec"), after that decision, to pay premiums under the Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C. § 9701 et seq. ("Coal Act"), even though Coltec, like Eastern Enterprises, did not sign National Bituminous Coal Wage Agreements ("NBCWAs") in 1974 or thereafter?

2. Did the United States Court of appeals for the Third Circuit violate the principles of separation of powers by disregarding the exclusive authority Congress gave to the Commissioner of Social Security to establish the basis for the assessment of premiums under the Coal Act?

Spanish Cove Sanitation, Inc. v. Louisville and Jefferson County Metropolitan Sewer District, S. Ct. 02-149
Petition Filed: July 24, 2002
Cert. Denied: October 7, 2002
Lower Court Opinion: 72 S.W. 3d 918 (Kentucky Supreme Court)
Question Presented:

1. Whether the Kentucky courts can properly dismiss, with prejudice, federal and state constitutional claims for taking of property, after finding that those claims are not ripe.

Southwestern Illinois Development Authority v. National City Environmental, L.L.C. and St. Louis Auto Shredding Company, S. Ct. No. 02-34
Petition Filed: July 1, 2002
Cert. Denied: October 7, 2002
Lower Court Opinion: 768 N.E.2d 1; 710 N.E.2d 896
Question Presented:

1. Did the Illinois Supreme Court, in ruling that petitioner's exercise of eminent domain was unconstitutional, disregard the holdings in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Berman v. Parker, 348 U.S. 26 (1954), and create a conflict with decisions in many other states, (a) by improperly substituting its judgment for that of the legislature in determining that the proposed use of the condemned property after the taking was not a public use; (b) by holding that the use of property taken by eminent domain is not a public use unless after the taking the general public has the use or enjoyment of the property as of right; and (c) by holding that a taking of property for economic redevelopment is unconstitutional if private business will earn a profit from the post-taking use of the property?

Bay View, Inc. v. United States, S. Ct. No. 01-1863
Petition Filed: June 20, 2002
Cert. Denied: October 7, 2002
Lower Court Opinion: 46 Fed. Cl. 494 (Fed. Cl. 2000); 278 F.3d 1259 (Fed. Cir. 2001); 285 F.3d 1035 (Fed. Cir. 2002)
Questions Presented:

1. Whether Congress, in legislation enacted at the request of one of the parties to litigation, may retroactively terminate vested property rights in transactions long completed without the United States incurring liability under the Fifth Amendment?

2. Whether the Court of Appeals for the Federal Circuit violated the standards set by this Court in dismissing on the pleadings petitioner's fact intensive complaint of a retroactive taking of its property rights by Congress.

(Questions 3 and 4 omitted.)

Roger M. Donlon, et al., v. City of Oxnard, et al., S. Ct. No. 01-1718
Petition Filed: May 21, 2002
Cert. Denied: October 7, 2002
Lower Court Opinion: The opinion of the Ninth Circuit Court of Appeals is unreported.
Questions Presented:

1. Does the Rooker-Feldman doctrine deprive the District Court of jurisdiction to hear and decide the merits of a federal taking claim where that claim was not justiciable under Williamson County Regional Planning Comm'n v. Hamilton Bank of Jackson City, 473 U.S. 172, 190, 191 (1985) ("Williamson County") until well after this Court denied certiorari to review the prior state court decision?

2. Can Rooker-Feldman ever deprive the district courts of jurisdiction to hear and decide the merits of a federal taking claim predicated on or arising from a prior state court holding where this Court lacked jurisdiction to review, or was under a duty to abstain from reviewing, the prior state court holding?

3. Do the lower federal courts abdicate their duty to resolve federal cases and controversies when they refuse to exercise jurisdiction by invoking Rooker-Feldman without first considering whether this Court was precluded (by the principles of jurisdiction or abstention) from considering the merits of that claim in the prior state court proceedings?

4. Does Rooker-Feldman deprive district courts of jurisdiction to hear a just compensation claim filed under 42 U.S.C.§ 1983 where that relief can be granted without disagreeing with the prior state court's holdings?

Timothy Patrick Kornwolf v. United States of America, S. Ct. No. 01-1534
Petition Filed: April 11, 2002
Cert. Denied: October 7, 2002
Lower Court Opinion: 276 F.3d 1014 (8th Cir. 2002)
Questions Presented:

In Andrus v. Allard, 444 U.S. 51 (1979), this Court concluded that a ban on the sale of Indian artifacts with golden eagle feathers was not a taking in violation of the Fifth Amendment even if the feathered artifacts predated the Bald and Golden Eagle Protection Act, which imposed the ban in 1962. Since Allard, this Court has held that a statute burdening property is a violation of the Takings Clause if it does not "substantially advance" a legitimate state interest or deprives the owner of the economic value of his property. The courts below concluded that they were precluded by Allard from applying these standards to Petitioner's case, which involves a Native American headdress and Sioux dance shield obtained by his great uncle, about 1904, while working for Buffalo Bill's Wild West Show.

The questions presented are:

1. Is Andrus v. Allard still good law despite its inconistency with subsequent opinions of this Court, the almost unanimous criticism of commentators, and the confusion it has promotoed in the lower courts?

2. Is it an unconstitutional taking of private property to impose criminal sanctions on the sale of innocuous, historically significant, antique Indian artifacts containing golden eagle feathers where Petitioner's ownership of those artifacts predates the statutory protection of the golden eagle, there is no evidence that the ban on sale substantially advances protection of the golden eagle, and the effect of the ban is to destroy the economic value of the artifacts?

Rith Energy, Inc. v. The United States, S. Ct. 01-1145
Petition Filed: February 4, 2002
Cert. Denied: June 28, 2002
Lower Court Opinion: 247 F.3d 1355 (Fed. Cir. 2001); 270 F.3d 1347 (Fed. Cir. 2001); 44 Fed. Cl. 108 (1999); 44 Fed. Cl. 370 (1999).
Questions Presented:

1. When there is a total prohibition on any further use of the leases, does the taking become non-categorical merely because the owner was able to make limited use of the leases prior to the taking?

If the taking is partial instead of categorical:
2. When the owner is prohibited from mining coal based on a statutory application which was unforeseeable, and never applied to any other miner in the state before or since, does the owner lack reasonable investment backed expectations solely because the statute existed before it acquired the leases?

3. Do various facts which show that the owner was treated in discriminatory and unfair ways, and which otherwise are relevant to several issues in a regulatory takings case, become irrelevant because the agency's permit denial is presumptively lawful?

4. Did the Court of Appeals misconceive the legal content of and misapply various factors relevant in a partial takings case, including the economic impact on the property owner and the character of the government's action?

Peter Sudarsky v. The City of New York, The New York City Planning Commission, The New York City Department of City Planning, The New York City Transit Authority, and The Metropolitan Transit Authority, S. Ct. No. 01-1539
Petition Filed: April 16, 2002
Cert. Denied: June 10, 2002
Lower Court Opinion: 247 A.D.2d 206 (N.Y. App. Div. 1998)
Questions Presented:

[Introductory Statement omitted]

1. Whether a takings claim forever remains unripe when a landowner sells the property interest before obtaining a final and authoritative determination of land use.

2. Whether an owner is required to split a property into segments to ripen a regulatory takings claim.

3. Whether access to the federal courts is forever barred on res judicata or on ripeness grounds after denial of justice in the state court where the merits of a regulatory takings claim have not been litigated.

Commonwealth Edison Co. v. United States of America, S. Ct. No. 01-1411
Petition Filed: March 20, 2000
Cer. Denied: May 28, 2002
Lower Court Opinion: 271 F.3d 1327 (Fed. Cir. 2001)
Questions Presented:

1. Whether the en banc Federal Circuit erred in adopting, in acknowledged conflict with other circuits, a per se test that avowedly immunizes even "severely retroactive" governmental exactions from constitutional challenge, and that accords no weight to such important factors as: the period of retroactivity, the amount of the exaction, the assessed party's comparative responsibility, the government's own commercial self-interest in imposing the assessment, or the expectation created by the assessed parties' contracts with the government.

2. Whether the wholly retroactive assessment at issue in this case, which requires private parties to pay $2.25 billion based on transactions dating back to 1959, and which the government adopted wit the avowed purpose of increasing the sales price of a commercial enterprise it was simultaneously divesting, violates the Takings or Due Process Clauses.

[Question #3 omitted]

Omaha Public Power District v. United States of America, S. Ct. No. 01-1398
Petition Filed: March 20, 2002
Cert. Denied: May 28, 2002
Lower Court Opinion: 271 F.3d 1357 (Fed. Cir. 2001)
Questions Presented:

[Question #1 omitted]

2. Whether the wholly retroactive assessment at issue in this case, which requires private parties to pay $2.25 billion based on transactions dating back more than forty years, and which the government adopted with the avowed purpose of increasing the sales price of a commercial enterprise it was simultaneously divesting, violates the Takings or Due Process Clauses.

Sacramento Municipal Utility District v. United States of America, S. Ct. No. 01-1020
Petition Filed: Jan. 10, 2002
Cert. Denied: May 28, 2002
Lower Court Opinion: 271 F.3d 1357 (9th Cir. 2001)
Questions Presented:

1. Does the retroactive exaction of the "special assessments" from SMUD take SMUD's property for public use without just compensation, or deprive SMUD of its property without due process of law, in violation of the Fifth Amendment?

2. Does the retroactive exaction of the "special assessments" from SMUD constitute a targeted breach of the commercial service purchase contracts between SMUD and the Government, requiring the payment of damaged by the Government under United States v. Winstar Corp., 518 U.S. 839 (1996)?

Eastern Minerals International, Inc. et al., v. The United States, S. Ct. No. 01-1100
Petition Filed: Jan. 25, 2002
Cert Denied: May 20, 2002
Lower Court Opinion: 271 F.3d 1090 (Fed. Cir. 2001)
Questions Presented: 

In a case seeking just compensation for categorical regulatory takings of real property interests:

1. When the holder of a renewable lease proves that seeking a permit became futile before the right to renew the lease expired, can the holder recover for a taking of the remaining lease tem and the right to renew?

2. Can the holders of a royalty interest in minerals, which is of unlimited duration,  recover for a taking of that interest when it is shown that seeking a permit became futile, and also that a final decision denying a permit later was issued?

3. When a federal agency uses unfair and protracted procedures to prevent the use of property, including failing to issue in  writing a decision it has reached to deny a permit, can affected property owners recover for a taking?

4. What standards should a federal appellate court follow when reviewing a trial court's factual findings on extraordinary delay and other issues in a regulatory takings case?

Pheasant Bridge Corp. v. Township of Warren, S. Ct. No. 01-807
Petition Filed:  Oct. 25, 2001
Cert Denied: May 20, 2002
Docketed:  Dec. 3, 2001
Lower Court Decision:  777 A.2d 334 (N.J. 2001)
Questions Presented:

1. Does a land use regulation that does not bear any real and substantial relationship to the ostensible purposes of zoning, as applied to a particular property, fail to substantially advance a legitimate state interest as to that property and thus constitute a taking of that property so as to require the payment of just compensation under the Takings Clause of the Fifth Amendment, without regard to the economic impact of the regulation?

2.  Is a property owner entitled to just compensation under the Takings Clause of the Fifth Amendment for a temporary taking of property between the enactment of a land use regulation and a subsequent judicial declaration that, as applied to such property, it fails to substantially advance legitimate state interests?

Rick's Amusement, Inc. v. State of South Carolina, S. Ct. No. 01-1139
Petition Filed: February 1, 2002
Cert. Denied: April 13, 2002
Lower Court Opinion: The opinion of the Supreme Court of South Carolina is unreported.
Question Presented:

1. Are firms in heavily-regulated sectors categorically barred from establishing cognizable property interests under the Takings and Contracts Clauses, even when their businesses may be totally dependent on regulatory licensing?

Tal Technologies, Inc. v. The City of Oklahoma City, S Ct. No. 01-1147
Petition Filed: February 1, 2002
Cert. Denied: April 15, 2002
Lower Court Opinion: The opinion of the Oklahoma Supreme Court is unreported.
Question Presented:

Whether the taking by condemnation of private land under a false pretense of specific public use by a municipality, with the city then using that land for sale to a private developer who will profit therefrom with private businesses, violates the Fifth and Fourteenth Amendments to the U.S. Constitution concerning the taking of land for public use only.

Homebuilders Assoc. of N. Calif. v. City of Napa, S. Ct. No. 01-893
Petition Filed: Dec. 11, 2001
Cert. Denied: March 15, 2002
Lower Court Opinion: 90 Cal. App. 4th 188 (2001)
Questions Presented:

1.  Whether a city may condition a permit to build homes on one's property on the landowner's subsidy of "low-income" housing (either by selling or renting a specified percentage of the homes at below-market rates or by paying an in-lieu fee), where the city has failed to establish any nexus between the construction of market-rate housing and an increased shortage of low-income housing.

2.  Must a property owner request a waiver from a regulation that is unconstitutional in every application before he can present a claim that is ripe for judicial review?

3.  Is the Due Process Clause of the Fifth Amendment to the United States Constitution violated when apartment owners are required to rent certain units in perpetuity at rates tied to the median income of a city's residents without any consideration of actual costs?

Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of La Vegas, et al., S. Ct. No. 01-918
Petition Filed: Dec. 21, 2002
Lower Court Opinion: 257 F.3d 937 (9th Cir. 2001)

Although the Petition raises a First Amendment issue, this case raises issues regarding property rights, including the right to exclude.  Pacific Legal Foundation has filed an amicus brief in support of the petition.  The Petitioner argues that the effect of the appeal court's ruling is to convert private property into public property without compensation.

Question presented:

1. Whether, as the divided Ninth Circuit held below, a wholly private entity is constrained by the First Amendment when controlling protests on its own private sidewalk on the basis that the sidewalk -- although private property -- resembles a "public forum" in certain respects, or whether, as other federal and state courts have held  and as this Court's decisions instruct, a private entity's control of expressive activity on its own property can be deemed state action subject to the First Amendment only in exceptionally narrow circumstances involving the equivalent of a "company town."

Phillip D. Forner, F&B Development, L.L.C. and Allendale Heating Co., Inc. v. Allendale Charter Township, S. Ct. No. 01-951
Petition Filed: Oct. 29, 2001
Lower Court Opinion: 627 N.W. 2d 596 (Mich. 2001)
Question Presented:

1. The ZBA's variance included, among other conditions, a 7.55-acre open space that must continue until one year after the adjacent turkey farm ceased operating as an intensive animal operation.  Did the ZBA or the continued agricultural zoning result in a taking of some (7.55 acres) or all of petitioners' land without compensation?

Darwin R. Griffith v. New Jersey Department of Environmental Protection, S. Ct. No. 01-853
Petition Filed: Dec. 5, 2001
Cert. Denied: Feb. 25, 2002
Lower Court Opinion: 340 N.J.Super. 596, 775 A.2d 54 (May 2001)
Questions Presented:

1. Whether the Fifth and Fourteenth Amendments of the United States Constitution and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) require this Court to provide just compensation for a temporary taking of real property, in the context of unreasonable and extraordinary administrative delays in the developmental approval process, which occur prior to a governmental entity's exercise of state statutory provisions enabling that entity to ameliorate a landowner's damaged by modifying its conduct and thereby avoid a permanent takings?

2. Whether the lower court erred in finding that:

A. The time consumed by the judicial review of a state agency decisions, which contributes to an overall extraordinary delay, prior to the ultimate reversal of an irrational agency decision denying development approvals, is inherently part of a reasonable administrative approval process, and therefore, not compensable in a temporary takings claim brought pursuant to the Fifth and Fourteenth Amendments of the United States Constitution?

B. A permit applicant is require to exhaust all available administrative processes prior to instituting a judicial action for a temporary takings where (1) the responsible state agency has rendered a final decision relative to a specifically require permit, that effectively extinguishes all feasible economic development on the applicant's property, and where (2) the simultaneous or sequential pursuit of additional development permits by the applicant would not clarify or broaden the scope of the property's development potential?

Rowe v. North Carolina Dept. of Transp., S. Ct. No. 01-819 
Petition Filed: Nov. 14, 2001 
Cert. Denied: Feb. 19, 2002
Lower Court Opinion: 549 S.E.2d 203 (N.C. 2001)
Question Presented:

(Paraphrase) Whether a statute allowing a jury to consider general benefits -- which include increases in land value that arise from the project that justified the taking and that result from enjoyment of the new facilities and from increased general prosperity resulting from such enjoyment -- when it calculates just compensation for a taking violates the Takings or Equal Protection Clauses.

Wilkinson v. Dallas Forth Worth International Airport Board, et al., S. Ct. No. 01-735
Filed: Nov. 21, 2001
Cert. Denied: Feb. 19, 2002
Lower Court Decision: 54 S.W.3d 1 (Tex. Ct. App. 2001).
Questions Presented:

1. Whether Texas, by upholding the actions of the Court of Appeals, has rendered its own constitutional provisions relating to takings to be in violation of the provisions of the United States Constitution and 42 U.S.C. § 1983 by allowing the expansion of the notion of “community” damages in this case. By doing so, they have fostered the use of “community” damages as a subterfuge for immunity which has been made improper under previous rulings of this Court and also in violation of recent decisions of this Court with regards to the standards for partial takings. A “community damage” standard has been created which allows the system to make some pay for a benefit to be enjoyed by all and the community standard has been subverted to be one in which it is impossible for any large number of people to be legally harmed simply because they are a large number. Furthermore, this decision specifically upsets existing law with regards to navigation easements by wrapping them under the community exemptions – clearly in violation of existing law.

2. The actions of the Texas Court have been incompatible to recent actions of this Court as well as established law in that they have found that all takings, contrary to the plain language of their own constitutional provisions, must be total to rise to a constitutional wrong and also providing that the “community” blanket will prevent any sort of analysis for diminutions in value (even if serious) if they are characterized as a generalized taking rather than specific which rulings are in violation of this Court’s recent pronouncements.

* * * [Question 3 omitted.]

Section 28 Partnership, Ltd. v. Martin County, Florida, S. Ct. No. 01-713
Filed: Nov. 19, 2001
Cert. Denied: Jan. 22, 2002
Lower Court Decisions  772 So.2d 616 (Fla. Ct. App. 2000); 794 So.2d 606 (Fla. 2001).
Questions Presented:

1. Whether there is a “substantially advances a legitimate public interest” prong to the takings analysis under the Fifth Amendment which applies to exercises of the police power in regard to individual properties and particular development proposals which do not involve exactions?

* * * [Question 2 omitted.]

Grogan v. City of Cincinnati, S. Ct. No. 01-828
Filed: Oct. 23, 2001
Cert. Denied: Jan. 7, 2002
Lower Court Decisions: 753 N.E.2d 256 (Ohio Ct. App. 2001); 751 N.E.2d 481 (Ohio 2001).
Questions Presented:

1. Does Ohio Revise Code § 3767.06(A), which permits the closure and pad-locking of property found to be a public nuisance, violate the Fifth and Fourteenth Amendments to the United States Constitution when applied to close and padlock a commercial establishment located in a high crime area which is open to the public, where the owner of the establishment has taken reasonable steps to abate the behavior which forms the basis of the alleged nuisance, has not acquiesced thereto, yet proves unsuccessful in completely eradicating such behavior?

* * * [Questions 2 & 3 omitted.]


MC Associates v. Town of Cape Elizabeth, S. Ct. No. 01-655
Filed: Oct. 19, 2001
Cert. Denied: Jan. 7, 2002
Lower Court Decision: 773 A.2d 439 (Me. 2001)
Questions Presented:

1. Can the owner of a residential building lot (a lot of record since 1964) be barred from building a single family house on that lot, and from constitutionally challenging that bar, merely because the present form of his legal ownership of that lot arises after the passage of local land use ordinances that prevent development of the property?

2. Does a diminution in value of a single family house lot from $88,000 (if buildable) to $3,000 (if unbuildable) constitute a categorical taking, notwithstanding the fact that the residual value of the unbuildable lot is greater than zero?

3. In settings where a categorical takings is not found, may the court dispose of the case on a summary judgment motion (as happened here), or must it then proceed to determine whether a non-categorical taking has occurred under more conventional Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) takings doctrines and analyses?

4. In the face of an unequivocal denial by the Town of the right to build on a residential lot (a denial predicated on Wetlands and Minimum Lot Size provisions in the town's Zoning Ordinance) must the owner of the building lot nonetheless pursue to finality (actually obtain) a State waste discharge permit in order to show compliance with the Town's Sewage Disposal Ordinance and to perfect his taking claim?

State Engineering Ass'n v. George Lightbourn, S. Ct. No. 01-638
Filed: Oct. 16, 2001
Cert. Denied: Jan. 7, 2002
Lower Court Decision: 627 N.W.2d 807 (Wis. 2001)
Questions Presented:

1. Whether the assets and earnings of the Wisconsin Retirement System are the "private property" of participants in the Wisconsin clause of the Fifth and Fourteenth Amendments to the United States Constitution.

2. Whether the judicial abandonment or recasting of well established private property rights, properly voids the Constitutional protections of the Fifth and Fourteenth Amendments to the United States Constitution as to the taking of such private property without just compensation and without due process of law.

3. Whether the challenged provisions of 1999 Wisconsin Act 11 take the private property of participants in the Wisconsin Retirement System without just compensation and without due process of law.

4. Whether the challenged provisions of 1999 Wisconsin Act 11 impair the contract between participants and the State of Wisconsin in violation of Article I, §10 of the United States Constitution.

Roedler v. Department of Energy, S. Ct. No. 01-582
Filed: Oct. 4, 2001
Cert. Denied: Dec. 3, 2001
Lower Court Opinions: 1999 WL 1627346 (D. Minn. 1999); 255 F.3d 1347 (Fed. Cir. 2001).
Question Presented:  

1. Does the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq., trump the taking clause of the Fifth Amendment by implementing a contractual scheme where users of nuclear generated power pay a Congressionally mandated fee, collected by the Utility and paid over to the Governments’ [sic] Nuclear Waste Trust Fund, dedicated removal of Spent Nuclear Fuel (SNF), where it has been judicially determined that the government has breached its Contract obligations to remove SNF but retains and still collects hundreds of millions of dollars from the fee payers who received nothing in return? The Court’s [sic] below denied fee payers, [sic] prayer for legal and equitable relief dismissing the Complaint under F.R. C. P. 12(b)(6).

[Question 2 omitted.]

Consolidated Edison Company of New York, Inc. et al., v. United States of America, et al., S. Ct. No. 01-205
Filed: August 1, 2001
Cert. Denied: Dec. 3, 2001
Lower Court Rulings: 247 F.3d 1378 (Fed. Cir. 2001), 45 F. Supp. 2d 331 (S.D.N.Y. 1999)
Questions presented:

1. Whether the Federal Circuit’s abrogation of this Court’s decision in Bowen v. Massachusetts, 487 U.S. 879 (1988), should be permitted to stand and, contrary to this Court’s decision in Eastern Enterprises, Inc. v. Apfel, 524 U.S. 498 (1998), the District Court deprived of subject matter jurisdiction to hear petitioners’ Fifth Amendment challenges to EPACT and claims for prospective, equitable relief.

2. Whether, contrary to this Court’s precedent and decisions of other circuit courts of appeals, the CRC can render judgment on petitioners’ Takings and Due Process Clause challenges to EPACT and provide an “adequate remedy” under 5 U.S.C. § 704 for their equitable claims, hereby depriving the District court of its subject matter jurisdiction over this case.

R.W. Docks & Slips v. Wisconsin, S. Ct. No. 01-520
Cert. Denied: November 26, 2001
Lower Court Opinions: 628 N.W.2d 781 (Wis. 2001); 617 N.W.2d 519 (Wis. Ct. App. 2000).
Questions Presented:

1. Is the public trust doctrine a "background principle" of state property law as to always be a complete defense to a regulatory taking claim?

2. Are individual condominium units to be regarded each as the relevant parcel in the "takings fraction," for purposes both of the categorical rule of Lucas v. South Carolina Coastal Council and the balancing test of Penn Central Transportation Co. v. City of New York?

Allustiarte, et al. v. United States, S. Ct. No. 01-575
Cert. Denied: November 26, 2001
Lower Court Opinions: 46 Fed. Cl. 713 (2000); 256 F.3d 1349 (Fed. Cir. 2001).
Questions Presented:  

The petitioners filed a claim against the United Statesin the United States Court of Federal Claims alleging that certain decisions of various bankruptcy courts in the Ninth Circuit amounted to takings of their property without just compensation in violation of the Fifth Amendment to the United States Constitution.  

The Court of Federal Claims dismissed the action for lack of jurisdiction.  The Court of Appeals for the Federal Circuit affirmed.  The question presented here is:  

Should a decision of a bankruptcy court that results in a devaluation or loss of property to a debtor, a creditor, or a person not a party to the bankruptcy action, but which is proper and routine in the administration of the bankruptcy estate, be considered a taking of property without just compensation for which the property owner may seek compensation in an independent claim in the Court of Federal Claims?

Burgess v. Florida Dept. of Envt'l Protection, S. Ct. No. 01-477
Cert. Denied: November 26, 2001
Lower Court Opinion: 772 So.2d 540 (2000)
Questions Presented:

1. Whether a property owner who establishes that he has been denied all economically viable use of his land is also required to prove that such denial "interfered with his reasonable, distinct, investment-backed expectation, held at the time he purchased the property."

2. Whether the remaining permissible uses of regulated property are economically viable when they consist of "personal recreational use[s]," i.e., "nature walks and fishing."

Bugryn, et al. v. City of Bristol, S. Ct. No. 01-407
Cert. Denied: November 13, 2001
Lower Ct. Opinions: 776 A.2d 1143 (Conn. 2001) (denying cert.); 774 A.2d 1042 (Conn. Ct. App. 2001)
Question Presented:

     When a municipality exercises its condemnation authority in such a manner as to directly benefit a specific and identifiable private interest, do the Fifth and Fourteenth Amendments to the United States Constitution require the application of a heightened standard of review in determining whether the condemnation is being carried out for a valid public use?

Harris County, Texas, v. Simi Investment Co., Inc., S. Ct. No. 01-544
Cert. Denied: November 13, 2001
Lower Court Opinions: 13 F. Supp.2d 603 (S.D. Tex. 1998); 236 F.3d 240 (5^th Cir. 2000).
Question Presented:                    

1. Whether substantive due process claims alleging deprivations of property are subsumed under the Takings Clause.

[Questions 2 & 3 omitted.]

Winters v. Oregon, S. Ct. No. 01-386
Cert. Denied: Oct. 29, 2001
Lower Ct. Opinion: 10 P.3d 961(Ore. Ct. App. 1999).
Question Presented:

As a matter of law, is there a "taking" under the Fifth and Fourteenth Amendments to the Constitution of the United States when the Government, over the objection of the owner, repeatedly physically invades and uses private property to construct a public project on adjacent land, the physical invasion is temporary, and the physical invasion causes no physical damage to that property?

Tilley v. Town of Aberdeen, et al., S. Ct. No. 01-321
Cert. denied: Oct. 29, 2001
Lower Court Rulings: Unreported. 4th Circ. No. 01-1192; M.D.N.C. No. 1:98:CV00896.
Question presented:

        Whether the takings, due process, equal protection, and conspiracy claims
were prudentially ripe. {Citing Palazzolo.]

Weinberg v. Comcast Cablevision of Philadelphia, L.P. S. Ct. No. 00-1859
Cert Denied: Oct. 1, 2001
Lower Court Ruling: 759 A.2d 395 (Pa. Super. Ct. 2000).
Questions Presented:
In addition to a due process claim (1.) there are two takings claims: 

2. Whether Pennsylvania’s Tenants’ Right to Cable Television Act is unconstitutional because it effected a taking of Petitioner’s Property without just compensation, by arbitrarily limiting the measure of damages to “loss of value,” thereby creating, by legislative fiat, a fixed, nominal payment of $1 as “just compensation” for the occupation of Petitioner’s property, in violation of the Fifth and Fourteenth Amendments. 

3.  Whether Pennsylvania’s Tenants’ Right to Cable Television Act is unconstitutional because the requirement that Petitioner pay one-half of all expenses and fees for an arbitration proceeding to which he did not consent, in an of itself, constitutes “a taking without just compensation,” in violation of the Fifth and Fourteenth Amendments.

Weir v. City of Springfield, Illinois, S. Ct. No. 00-1801
Cert. Denied: Oct. 1, 2001
Lower Court Rulings: The orders of the Illinois Supreme Court, Appellate Court, and Sangamon County Circuit Court are unreported.  
Question Presented:

The first question presented is whether the Takings Clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, precludes a municipality from charging the owner of a landlocked parcel of land a fee to use a "private road," owned by the municipality as part of its municipal street system, for ingress to and egress from the landowner's residential real estate located outside the boundaries of the municipality. 

 

Askins v. County of Williamsburg, S. Ct. No. 00-1915
Cert. Denied: Oct. 1, 2001
Lower Court Rulings:  The opinion of the Court of Appeals is unpublished (Unpublished Opinion No. 2000-UP-552 (S.C. Ct. App. Aug. 22, 2000)) and the opinion of the Court of Common Pleas is not reported.
Question Presented: 

Whether the judgments of the South Carolina courts that there had been an implied dedication of real property owned by the Petitioner solely because there had been no objection to use of the property by the public constituted a taking of the Petitioner’s real property for a public use without the compensation required by U.S. Const. amends. V and XIV.  

Phelps Dodge Corp. v. United States, S. Ct. No. 00-1464
Petition Filed: March 19, 2001
Lower Court Rulings: 9 P.3d 1069 (Ariz. 2000); 857 P.2d 1236 (Ariz. 1993).
Question Presented:

Does a sudden, unpredictable and retroactive change in judicial precedent that revokes vested property rights in groundwater constitute a taking of private property without just compensation in violation of the Fifth Amendment to the United States Constitution?

Greenspring Racquet Club Inc., et al. v. Baltimore County, Maryland, S. Ct. No. 00-1227
Petition Filed: Jan. 29, 2001
Docketed: Jan 31, 2001
Lower Court Ruling: (unpublished) 2000 WL 1624496 (4th Cir. Oct. 31, 2000)
Questions Presented:

1. Whether a regulatory takings claim based on a land use ordinance's failure to substantially advance a legitimate state interest is categorically barred whenever the regulation is an "ordinary zoning restriction" limiting height and density and when "statements by local lawmakers set out legitimate reasons" for imposing the height and density restrictions? (App. 12-13, 14).

2. In light of Olech v. Village of Willowbrook, is a land use ordinance creating irrational and wholly arbitrary classifications and motivated by malice, bad faith and retaliatory intent immune from a claim that it violates the equal protection clause?

3. In light of Williamson County Reg. Plan. Comm'n v. Hamilton Bank, may federal causes of action be dismissed for failure to state a claim upon which relief can be granted notwithstanding litigant's request to stay all proceedings in federal court until the causes of action are "ripened" in state court and litigant's express "reservation" in the state action of all federal claims which may be subsequently pursued?

Cayetano v. Chevron USA, S. Ct. No. 00-1198
Petition Filed: Jan. 24, 2001
Docketed: Jan. 24, 2001
Lower Court Ruling: 224 F.3d 1030 (9th Cir.)
Questions Presented:

1. Does the Takings Clause authorize a court to invalidate state rent control or land use regulatory legislation on its face, without regard to whether it diminishes economic value or use or causes any physical invasion of the plaintiff's property, when the court concludes that the statute does not substantially advance a legislative purpose?

2. Does the facial constitutional validity of state legislation depend on whether a federal court predicts that it will achieve its objective?

Karuk Tribe of Calif. v. United States, S. Ct. No. 00-1012
Petition Filed: Dec. 18, 2000
Docketed: Dec. 20, 2000
Lower Court Ruling: 209 F.3d 1366 (Fed. Cir. 2000).
Question Presented: 

1. Whether Indians of reservations established by express statutory authorization, the locations of which were determined by delegation to the Executive, have a compensable interest in reservation property under the Fifth Amendment such that it may not be taken by the government without payment of just compensation.   

Boise Cascade Corp. v. Oregon, S. Ct. No. 00-1238
Petition Filed: Jan. 30, 2001
Docketed: Jan. 30, 2001
Lower Court Ruling: 991 P.2d 563 (Or. App. 1999)
Questions Presented:

1. Whether respondent's regulatory order forcing petitioner to submit to the physical occupation of its timberland by northern spotted owls constituted a physical taking of petitioner's property for which just compensation is due.

2. Whether petitioner's regulatory takings claim, which arose when respondent issued a self-described "Final Order" denying petitioner's application for a timber harvesting permit, was rendered "unripe" merely because petitioner did not seek a completely different kind of permit from a separate federal agency that lacked authority to authorize the harvesting under state law.

McKeithen v. United States Fidelity & Guaranty Co., et al., S. Ct. No. 00-1189
Petition Filed: Jan. 23, 2001
Docketed: Jan. 23, 2001
Lower Court Ruling: 226 F.3d 412 (5th Cir. 2000)
Questions Presented:

1. The United States Court of Appeals for the Fifth Circuit decided an important federal question in a way that conflicts with the majority of the Court's opinions in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L.Ed. 2d 451 (1998).
Did the United States Court of Appeals for the Fifth Circuit improperly interpret the majority of the Court's opinion in Eastern Enterprises to apply the Takings Clause to invalidate the funding mechanism for a vital Louisiana program even though the statute held unconstitutional does not impact an identifiable property interest or fund?

2. There is a split in the United States Courts of Appeal as to whether Eastern Enterprises supports invalidating a statute other than the Coal Act.  The United States Courts of Appeals for the District of Columbia, Third, and Fourth Circuits have refused to extend the Takings Clause analysis of Eastern Enterprises beyond the Coal Act, and then only to parties in a substantially identical position to Eastern Enterprises with respect to both the plurality and Justice Kennedy's concurrence. Is the Takings Clause analysis of Eastern Enterprises properly applied to a non-Coal Act statute that only imposes a general financial assessment against a company without identifying a particular property interest or fund?

3. Is it proper for the United States Court of Appeals for the Fifth Circuit to grant summary judgment invalidating the funding mechanism for a vital Louisiana program on the basis that it violates the Takings Clause of the United States Constitution even though the Insurers failed to carry their substantial burden of proof in that they failed to present any evidence to support essential elements of their claim?

B&G Enterprises v. United States, S. Ct. No. 00-709
Petition Filed: Nov. 2, 2000
Docketed: Nov. 2, 2000
Denied: Feb. 20, 2001
Lower Court Rulings: 220 F.3d 1318 (Fed. Cir. 2000); 43 Fed. Cl. 523 (1999).
Questions Presented:

Whether block grants authorized by Congress in 42 U.S.C. s 300x-26(a) and implemented by the Department of Health and Human Services and carried out by the states and their subdivisions rendered the action taken by the states attributable to the federal government as a taking of property under the Fifth Amendment to the Constitution.

a. Whether an affirmative act to compel or coerce action of a state that results in a taking is necessary to attribute the taking to the federal government.

b. Whether the activities of the State of California enforcing a ban on cigarette vending machines, pursuant to a federal block grant program, are attributable to the federal government.

c. Whether a party seeking just compensation from the federal government for state action must prove that the state was acting as the common law agent of the federal government.

Hansen v. Snohomish County, S. Ct. No. 00-989
Petition Filed: Oct. 10, 2000
Docketed: Dec. 18, 2000
Lower Court Ruling: 97 Wash. App. 1083 (1999), cert. denied, 10 P.3d 403 (2000) (table).
Questions Presented: 

1. Whether a regulatory takings claim based on denial of all “economically viable use” (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)) may be dismissed as a matter of law by merely showing that there has not been a total deprivation of value? 

2. When regulations allow constructing a house on a parcel, is that use a per se “economically viable use” so that a takings claim may be dismissed as a matter of law even though undisputed expert testimony concludes that residential construction is not economically reasonable or viable for a builder or the land owner? 

3. Where current government land use restrictions require that 96% of a four acre parcel be left in its natural state to serve as a public drainage/water detention basin for a 250 acre upland area (owned by others), is there a taking of the 96% portion that is required to be left economically idle? 

4. Does the “ripeness” doctrine require dismissal of a regulatory takings claim where a land owner has not sought a permit for a particular use that is not economically viable? 

Virgin v. County of San Luis Obispo, S. Ct. No. 00-960
Petition Filed: Dec. 12, 2000
Docketed: Dec. 12, 2000
Lower Court Opinions:  from the Cal. Ct. App. and the cert. denial from the S. Ct. are unreported.
Question Presented: 

1. Is due process of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States denied when state courts summarily dismiss concurrent jurisdiction federal constitutional clams against local governments under 42 U.S.C. § 1983, for takings, equal protection, and substantive and procedural due process violations, under a standard of review that “expressly required” that the state court (a) “look only to the evidence supporting” the governmental action, (b) discard “evidence unfavorable” to the government, (c) accept only those inferences from the evidence as drawn by the government, and (d) disregard “even uncontradicted evidence”? 

Barrett v. Borough of Carlisle, S. Ct. No. 00-977
Petition Filed: Dec. 11, 2000
Docketed: Dec. 15, 2000
Lower Court Opinions: from the 3^rd Cir. and the federal district court, M.D. Pa., are unreported. 

Note: The petitioner is pro se. The petitioner alleges that the local historic district was never properly certified and that landowners were denied due process during the certification process, and that absent certification, the historic district regulations and denial of building permits constitutes a taking. The petitioner argues that the District Court misread Penn Central Transp. Co. v. New York City to mean that historical designation is never a takings and should not have dismissed his claim due to res judicata. 
Questions Presented: 

1. Whether property owners were deprived of rights to due process in alleged proceedings before the historic certification authority, in violation of 42 U.S.C. § 1983? 

2. Whether property owners were deprived of rights to just compensation for the regulation of their property, absent Constitutionally valid historic certification, in violation of  42 U.S.C. § 1983? 

3. Whether Petitioner established excusable neglect or good cause for extending the time for filing a notice of appeal under 42 U.S.C. § 2107(c)? 

4. Whether the Appellate Court has jurisdiction to hear the appeal?

New Pulaski Co., L.P. v. Mayor and City of Baltimore, S. Ct. No. 00-759
Lower Court Ruling: 217 F.3d 840 (4^th Cir. July 20, 2000) in Table of Decisions without Reported Opinions.
Text of unpublished disposition at 2000 WL 1005207.
Petition Filed: November 13, 2000
Question Presented: 

1. In the finality requirement for the ripeness of a constitutional claim inapplicable where the available variance or exemption process requires a decision by a “legislative/political” body?  

Stevens Creek Quarry, Inc. v. Santa Clara County Planning Commission, S. Ct. 00-491
Lower Court Rulings: unreported
Petition Filed: September 25, 2000
Question Presented:

Was it error to convert the plaintiff's substantive due process claim, which alleged the violation of a non-property-based fundamental right, into a takings claim?

Louisiana v. Avenal, S. Ct. 00-456
Lower Court Rulings: 2000 WL 320460 (La. Ct. App. March 5, 2000) rehearing of 757 So. 2d 1 (La. Ct. App. 1999).
Petition Filed: September 20, 2000
Questions Presented:

Whether a State court's refusal to apply or even recognize the preclusive effect of a Federal court's finding of fact related to an identical issue of whether a "taking" occurred constitutes a violation of the "Full Faith and Credit Clause," the "Supremacy Clause" of the United States Constitution and/or the federal "Full Faith and Credit" statute.

Westside Quik Shop, Inc. v. Stewart, S. Ct. 00-433
Lower Court Ruling: WL 823346 (S.C. June 21, 2000).
Petition Filed: September 19, 2000
Questions Presented:

Whether a State Legislature may, by statute, designate a class of property, the ownership and use of which has been legal within the State for decades and where the State has taken specific action to require expenditures and investments to maintain that property, as illegal "contraband" and thereby avoid the constitutional duty to pay just compensation for the taking of such property even though this Court held in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980)), that a "'State, by ipse dixit, may not transform private property into public property without compensation'"?

Whether the court below erred in holding that reasonable investment-backed expectations are part of every takings case, even those cases in which the property owner has shown that he has been deprived of all economically beneficial use of his property?

Kinross Copper Corp. v. Oregon, S. Ct. 00-431
Lower Court Ruling: 988 P.2d 400 (Or. Ct. App. 1999) 
affirming prior Ct. of Appeals decision, 981 P.2d 833 (Or. Ct. App. 1999).
Petition Filed: September 18, 2000
Questions Presented:

When an unpatented mining right protected by federal law is abrogated by a state regulation prohibiting discharge of nonpolluting mine waters, does a taking occur under the Fifth Amendment's Takings Clause?

Is a state regulation that prohibits the discharge of nonpolluting mine waters, and thus prevents an unpatented mining claim on federal lands from being developed, preempted by federal law?

Does takings jurisprudence require a property owner to show that it has a property interest in the very thing the state seeks to regulate, rather than merely showing that the effect of the regulation as applied to the petitioner denies it all economic use of a federally recognized property right?

Can a state court, under the guise of stating that the holder of an unpatented mining claim never had the right to appropriate water for the mine and, therefore, never had the right to discharge it as a part of its property right, thus avoid a "taking," when at commonlaw it was not a nuisance for a miner to discharge nonpolluting mine waters into streams?

Advance Leasing and Development v. Hart (Hillsborough County), S. Ct. 00-348
Petition Filed: Sept. 1, 2000
Questions Presented:

Whether the Eleventh Circuit's after-the-fact, hypothetical consideration of any conceivable justification for a local government's zoning denial, at summary judgment without trial by jury, conflicts with this Court's requirements of a jury trial to examine the reasonableness of the local government's proffered justifications, as established by City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624 (1999) ("Del Monte Dunes").

Whether the Eleventh Circuit's refusal to recognize a due process takings claim is in direct conflict with this Court's decision in Del Monte Dunes which expressly holds that a due process takings claim is cognizable under 42 U.S.C. § 1983.

Dunn v. Commonwealth of Massachusetts, S. Ct. 00-341
Petition Filed: Aug. 30, 2000
Lower Court Rulings: Dunn v. Executive Office of Envtl. Affairs, 725 N.E.2d 1087 (Mass. App. Ct. 2000) (table), petition for cert. denied, 733 N.E.2d 1065 (Mass. 2000) (table).
Questions Presented:

Whether the principle of reasonable investment backed expectations should apply to the Petitioners, who acquired their property by inheritance.

Whether the Petitioners can be deprived of a trial by jury in a claim made under the State Declaratory Judgment Act.

Whether the Petitioners can be denied just compensation, when the proposed use of their property would not create a public nuisance.

Troy v. Pierce County, S. Ct. 00-163
Petition filed: July 31, 2000
Lower court ruling: 1999 WL 780997 (Wash. App. Div. 2)
Questions Presented:

In this case the government desires to permanently preserve areas of land in a natural, undisturbed state, and a County ordinance accomplishes this by requiring owners of the selected land, as a building permit condition, to "protect" the selected area by deeding a tract, easement, or land dedication to "the County" or "the public", and, by having county signs installed every 30 feet to mark the boundaries of the preserved tract.

Where the owner's proposed construction does not create the need for a land preserve, is just compensation required under the U.S. Constitution's Fifth Amendment (applied to the States through the Fourteenth Amendment) for the property conveyance and/or for the physical occupation of the signs?

In acquiring the above tract, where the County provides no hearing, nor any process for getting compensation, and requires the conveyance to be made by recording a plat of subdivision that violates plat statutes (a gross misdemeanor), is there just cause for damages for denial of due process under the U.S. Constitution's Fifth Amendment and/or for deprivation of civil rights under 42 U.S.C. § 1983?

Since the above ordinance is applied at development time, when it is common to have the land as subject or collateral in financing contracts, is the County's appropriation of a property interest without any consideration of existing contract interests or obligations, in violation of Article 1 § 10 [1] of the U.S. Constitution: "No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *"?

Chevy Chase Land Co. of Montgomery County, Md. v. United States, S. Ct. No. 00-31
Petition filed: July 3, 2000
Lower court ruling: 1999 U.S. App. LEXIS (Fed.Cir.)
Questions Presented:

May a court re-define a property interest, using new legal principles, to reject a constitutional takings claim.

Where petitioner originally conveyed only a right of way easement to a railroad, was the property of the petitioner taken when the government appropriated the property for a recreational trail and/or other uses not intended when the easement was conveyed.

Where the railroad to whom petitioner conveyed a right of way easement abandoned that easement, was the property of the petitioner taken when the government thereafter appropriated the property for its own use.

City of Los Angeles v. Ali, S. Ct. No. 99-2084
Petition filed: June 27, 2000
Lower court ruling: 77 Cal. App. 4th (1999)
Questions Presented:

Whether the California Court of Appeals erred in holding that a city requirement that a landowner complete a land use development approval process by itself constitutes a compensable "temporary" regulatory taking under the Fifth Amendment.

Whether the California Court of Appeals erred by holding that a land-use regulation that violates state law effects a temporary taking of property on that basis alone.

Saboff v. St. Johns River Water Management Dist., S. Ct. No. 99-2011
Petition filed: June 15, 2000
Lower court ruling: 200 F.3d 1356 (11th Cir. 2000)
Questions Presented:

If the State denies compensation to a landowner, under state law, are the state court proceedings res judicata to a Fifth Amendment taking claim under section 1983.

Must a landowner reserve a Fifth Amendment taking claim for subsequent litigation in federal court if the Fifth Amendment taking claim does not accrue until after exhaustion of state court remedies.

If a Fifth Amendment taking claim does not accrue until a landowner has been denied an adequate post-deprivation remedy in the state court, thus creating a separate Fifth Amendment constitutional cause of action, is a formal written reservation under Fields v. Sarasota Manatee Airport Authority, 953 F. 2d 1299 (11th Cir. 1992) and Jennings v. Caddo Parrish School Board, 531 F. 2d 1331 (5th Cir. 1976), cert. denied, 429 U.S. 897, 97 S. Ct. 260, 50 L. Ed. 2d 180 (1976), necessary to preserve the right to proceed in federal court after the state court has denied relief under state law.

Miami-Dade County v. Agripost, Inc., S. Ct. No. 99-1856
Petition Filed: May 18, 2000
Lower court ruling: 195 F.3d 1225 (11th Cir. 1999)
Questions Presented:

Does the Eleventh Circuit's exception to this Court's rule against reversing state court judgments prevent state courts from deciding whether regulatory actions should be reversed as confiscatory in order to avoid permanent takings such as the claimed $140,000,000 taking in question.

If a federal court lacks jurisdiction over a federal regulatory taking claim because it is unripe, does the court nevertheless have jurisdiction to adjudicate preclusion defenses.

By holding that a state takings claim was neither before the court nor germane, did the Eleventh Circuit deprive the County of its right to appeal the district court's exercise of jurisdiction over, and its disposition of, the County's defenses to that claim.

District Intown Properties Ltd. Partnership v. District of Columbia, S. Ct. No. 99-1666
Petition filed: April 17, 2000
Lower court ruling: 198 F.3d 874 (D.C. Cir. 1999)
Questions Presented:

When analyzing a governmental regulation of property for Takings Clause purposes, how should courts determine the relevant unit of property in a case where a landowner owns several geographically contiguous parcels, only some of which are burdened by the regulation.

Does a governmental regulation of property that requires a landowner to leave eight contiguous lots in a completely undeveloped state as a grass lawn deny "all economically beneficial and productive use of land" within the meaning of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

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