Eminent Domain Report

Dodge, duck, dip, dive and… dodge. An interesting case from the United States Supreme Court yesterday. Interesting because of what it says, and interesting because of what it very explicitly declined to say.

The question presented in DeVillier v. Texas, 601 U.S. ___ (2024) was whether the Takings Clause of the Fifth Amendment was “self-executing”. That is, whether a landowner could sue a State for money directly under the Takings Clause, even if there is no statute specifically creating a cause of action (and where the closest statute very expressly does not provide a remedy ...

On June 23rd, the United States Supreme Court held that a California regulation allowing labor organizations to intermittently access agricultural employers’ property was an unconstitutional taking. The Court reversed the decision from the Ninth Circuit Court of Appeals, an outcome we predicted in our post last year about this issue. The decision is a major victory for property owners, and raises questions going forward about a public agency’s ability to regulate private property rights—particularly as it pertains to allowing temporary access … 

The U.S. Supreme Court recently agreed to decide whether a California regulation allowing union organizers to access employers’ property is an unconstitutional taking under the Fifth Amendment.

In the lower court’s decision, Cedar Point Nursery v. Sheroma, a two-judge majority of the Ninth Circuit Court of Appeals rejected a claim by a group of employers that the regulation created uncompensated easements on their property. The California Agricultural Labor Relations Board regulation permits union organizers to use an employer’s property for up to three hours per day ...

With the recent government mandates surrounding COVID-19, many businesses are completely shut down and are legally unable to open their doors to the public.  Are those businesses -- movie theaters, gyms, retail stores, etc. -- entitled to compensation for a regulatory taking?  Similarly, landlords are experiencing massive losses as those tenants are unable to make rental payments; are those losses compensable?  Should governments worry about liability when issuing orders requiring the closure of businesses? 

While compensation arguably should be paid from a decency and “good ...