Friday, April 9, 2010

Supreme Court Denies Cert in Marshall Islands Takings Case

Earlier this week, the Supreme Court denied a petition for certiorari filed by Marshall Islanders seeking to reverse a 2009 ruling of the Federal Circuit.  The case has a fascinating factual context and raises interesting questions about the relationship between the Takings Clause and sovereign immunity.

As explained here by the WSJ Law Blog, the litigation was based on damages resulting from U.S. nuclear testing in the Marshall Islands in the 1940s and 1950s.  In the early 1980s, groups representing descendants of the Bikini and Enewetak Atolls sued the federal government for just compensation, asserting that the destruction of land occassioned by the testing constituted a taking of property under the Fifth Amendment.  During the course of this litigaiton, the United States and Marshall Island governments entered a Compact of Free Association, subsequently adopted by Congress, that purported to settle the takings claims.  In exchange for the United States' acceptance of responsibility and the establishment of a tribunal to administer the just compensation claims, the Marshall Islands agreed to settle all past, present, and future claims based on the testing.  Additionally, the compact documents provided that no United States court would have jurisdiction to entertain such claims.

The tribunal subsequently awarded a total of $949,210,000 to the plaintiffs, even though Congress only appropriated $45,750,000 for payment of awards.  See People of Bikini v. United States, 554 F.3d 996, 998 (Fed. Cir. 2009).  To date, less than 1% of the tribunal's award has been paid, and only $1,000,000 remains in the claims fund.  See id.  In 2006, the plaintiffs again brought suit, asserting that they still had not received just compensation for the takings of their property.  In 2009, the Federal Circuit affirmed a decision of the Court of Federal Claims to dismiss the suit, holding that the claims had been waived by the plaintiffs and that the federal courts had been stripped of jurisdiction to hear them in any event.

The cert briefs, which can be found on SCOTUSBlog (scroll to the bottom of the page), raise interesting issues concerning the Tucker Act, sovereign immunity, and the "self-executing" nature of the Takings Clause (for those who like that sort of stuff).

Mike Kent

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April 9, 2010 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 8, 2010

The General Average and Necessity

Over at CoOp, Gerard Magliocca has an interesting post comparing the maritime doctrine of general average, where some compensation is owed to people whose property is destroyed to save a ship, and the property doctrine of necessity, which holds that no compensation is due when, for example, property is destroyed to prevent the spread of a fire.

Ben Barros

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April 8, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 6, 2010

More on the Meteorite

Andrea Boyack (Catholic) has an interesting essay in the National Law Journal on ownership of the Lorton, VA, meteorite.  Check it out!

Ben Barros

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April 6, 2010 in Finding, Personal Property | Permalink | Comments (0) | TrackBack (0)

Unlawful Possession and the Foreclosure Crisis

I dislike the word 'squatting' because we tend to use it to mean unlawful possession we don't like; unlawful possession we do like we call 'pioneering' or, if it continues for long enough, perhaps 'adverse possession.'  Therefore, to describe unlawful possession as 'squatting' is to end the debate over the morality of any particular form of unlawful possession before it begins.

Let's talk about the morality of unlawful possession.

The foreclosure crisis has increased at least four types of unlawful possession of homes.  Which, if any, do you consider 'wrong'?  Why?

(1) Possessors of their former homes, whom lenders have not removed.

Lenders who have foreclosed on properties are increasingly refraining from evicting former owners, who now are in unlawful -- and rent free -- possession of their former homes.  100,000 former homeowners are living in their foreclosed properties in the Inland Empire area of California alone.  The glut of foreclosed homes on the market makes a quick sale of many properties unlikely.  An occupied home holds its value better than an unoccupied home, which often deteriorates from neglect.  So even though lenders may claim they are merely being kind (which they sometimes do), they have a strong financial incentive not to evict the former owners.      

(2) Possessors of their former homes, who refuse to leave despite lenders' efforts.

Some former owners remain in possession of foreclosed upon properties, refusing to leave unless forcibly evicted by the local sheriff, despite demands from their lenders that they vacate.  In fact, Congresswoman Marcy Kaptur has urged them to do it.  Refusing to leave extends their possession -- perhaps indefinitely.  The sheriff of Wayne County, Michigan has refused to carry out forcible evictions of former owners.  The sheriffs of Cook County, Illinois and Cuyahoga County, Ohio have refused to forcibly evict renters in properties that have been foreclosed.   

(3)  Possessors of empty homes, who care for the property.

Take Back the Land and other advocacy groups have begun placing homeless families in vacant homes in neighborhoods where foreclosures have become common. The group screens the families, and requires them to earn sweat equity in the properties by cleaning them and repairing them.  The families in unlawful possession are sometimes welcomed by neighbors, because they care for the properties, preserving the value of surrounding homes and keeping vandals at bay. 

(4)  Possessors of empty homes, who do not care for the property.

In some places, foreclosed upon homes have been unlawfully possessed by drug users and thieves, who use the homes as drug dens and bases of criminal operations. 

Now, I suspect most people -- but not all, by any means -- would find unlawful possession of type 1 morally unobjectionable, and unlawful possession of type 4 morally objectionable.  Do you agree?

But where does the line fall between types 2 and 3?  Is the critical factor the external benefits provided by unlawful possessors -- benefits to neighbors and, ultimately, us -- that determines the morality of their possession?  Or is their behavior intrinsically moral or immoral?

I would love to hear your thoughts.

Mark Edwards

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April 6, 2010 in Adverse Possession, Home and Housing, Mortgage Crisis | Permalink | Comments (2) | TrackBack (0)

Salkin on Nonconforming Uses

Patricia Salkin (Albany) has posted Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters of Zoning Regulations on SSRN.  Here's the abstract:

With a significant volume of litigation focused on the subject of nonconforming uses, this article offers practical strategies for drafters of local zoning ordinances and laws on the subject of abandonment, discontinuance and amortization of nonconforming uses.

Ben Barros

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April 6, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)