Eminent Domain Report

Earlier this week, I spent a day in Los Angeles at a seminar involving regulatory takings issues. It featured a great panel of speakers on a variety of takings, eminent domain, and land use issues. (In fairness, you should view my characterization of the panel's quality with some skepticism; I was Co-Chair of the seminar and therefore played a large role in assembling the panel.)

There were a number of quality take-aways from the day, but a few stood out for me. 

• Mark Alpert of Hart, King & Coldren spoke on a number of regulatory takings issues, focusing in particular on the "investment-backed expectations" prong of the Penn Central test. In his view, the law as it currently stands is stacked way too far in favor of the government. The bottom line, according to Mr. Alpert, is that the government can essentially take anything it wants to without liability, as long as it does it slowly. In other words, small, incremental regulatory "takes," are unlikely to justify relief in the courts, so the government is free to make many small regulatory changes that, cumulatively, would clearly constitute a taking if they happened all at once.

• Gary Hanken of Greenburg Glusker echoed what Mr. Alpert said. He explained that if the law is that any facial challenge to a government regulation must occur at the time of the regulation's enactment, incremental changes -- without risk of liability -- becomes a major risk. (And yes, this pretty much is the current state of the law.)

• Mike Berger of Manatt spoke eloquently on litigating cases under Penn Central. One of his key strategic suggestions for representing landowners is to adopt a shotgun approach, throwing every conceivable theory and fact at the court in the hope that something will resonate. Proving he really means what he says, he told stories about judges being angry at him for complaints that spanned more than 100 pages in an effort to do just what he recommends. Many others echoed this sentiment, and given the complexity and uncertainty in this area of law, it seems like a pretty good strategy.

• Finally, I want to report on a conversation I had after the seminar with a former partner of mine, Rick Friess from Allen Matkins, that sort of sums up the whole day. We both agreed that we felt much more secure about our knowledge of this area of the law. Until this week, we'd both secretly felt a little inadequate because neither one of us has been able to discern any coherent pattern or rule to regulatory takings cases. But when Mike Berger says – as he did – that there is no coherent pattern or identifiable rule…you can be pretty sure that there is in fact no pattern or rule. And that means I haven't been missing something, so I give myself a gold star. If you were confused about this issue and have struggled to tie the case law together, feel free to give yourself a gold star, too.