Text Size Decrease Font SizeIncrease Font Size

A Wyoming man has won a Supreme Court case fighting efforts to route the Medicine Bow Rail Trail through his family’s property. On Monday the Supreme Court decided in favor of the landowner ruling abandoned rail road tracks are not under the federal government’s control.

Last year we discussed in a blog the Supreme Court’s acceptance of the Marvin Brandt Revocable Trust v. United States for review. At issue was the disagreement over who retained the ownership of a railway after abandonment. The government claimed that it retained exclusive possession of the right-of-way. The landowner, Brandt, contended that he owned the right-of-way without any rights reserved to the United States.

Brandt brought a lawsuit when the Forest Service moved to convert a portion of abandoned rail road tracks through the Brandt property into a bike trail. Before the lawsuit reached the Supreme Court, district and appeals courts had ruled in favor of the government concluding that the United States possessed an “implied” ownership interest in the abandoned right-of-way. These rulings subjected Brandt to an easement that was arguably found nowhere in any deed or declaration on the property.

The Supreme Court overruling the decisions by the lower courts could have vast implications in other rail to trail projects being planned throughout the nation. The wider impact is hard to estimate in part because the U.S. government doesn’t have a central database of the land it owns under railroad easement that has since been abandoned. Currently there are about 80 similar cases where this decision could mean that the landowner will walk away victorious.

We will continue to monitor this decision and its effect on landowners and property rights.

{ O Comments }


When the condemning authority exercises its power of eminent domain it is commonly referred to as a “taking”.  A “taking” is any sort of publicly inflicted private injury for which the Constitution requires payment of compensation.  Our general perception of a “taking” involves a physical invasion of private property by a condemning power which results in the payment of compensation to the landowner and the transfer of ownership of the subject property  from the landowner to the condemning authority.

It’s important to understand that not all “takings” involve a physical invasion and transfer in ownership of private property.  One such taking has been termed a “regulatory taking”.    Many courts have defined a regulatory taking as an inverse condemnation claim based on land use restrictions.  Generally, regulatory takings actions have been brought on the following grounds:

  1. Denial of a permit or license
  2. Zoning, rezoning and other land use regulations

While more traditional eminent domain cases are initiated by the government, regulatory takings are generally initiated by the landowner as an inverse condemnation claim.  Learn more about inverse condemnation claims.  Before you initiate a regulatory takings case, it’s important to know what type of claim you have.  Generally, these types of cases fall under three categories:

  1. A regulation that will necessarily affect the physical invasion of unspecified private property
  2. A regulation that substantially causes property to lose all economic utility, and
  3. A regulation that substantially interferes with a property’s economic utility.

Physical Invasion-Loretto

In some instances, a regulation may contemplate a physical invasion.  In Loretto v. Teleprompter Manhattan CATV Corp., the City of New York required landlords to allow cable television companies to install wiring on the sides of residential buildings.  458. U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982).  The regulation did not appropriate any property in particular, but did give cable companies the right to place cable in the exterior physical space previously under the exclusive domain of the landlord.  The Supreme Court held that this regulation, which necessarily caused a physical invasion, was a taking that required compensation.  To obtain relief under this claim, the landowner must establish that the regulation necessarily causes a physical invasion of his private property.

Total Loss of Value – Lucas

In rare circumstances, the interference with the landowner’s property rights may be so sever as to trigger this “categorical” taking even without a physical invasion.  This occurs only when the regulation “denies all economically beneficial or productive use of land.” Lucas, 505 U.S. at 105.  As an illustration, in Lucas, the landowner, David Lucas, purchased two residential lots on the Isle of Palms off the coast of South Carolina in 1986.  Lucas intended to build two single family homes on the lots.  In 1988, the South Carolina Legislature enacted the “Beachfront Management Act” that prohibited Lucas from building these homes or any other structure.  The trial court held that this restriction left Lucas’ property “valueless” and ordered just compensation be paid.  The Supreme Court agreed: where a regulation deprives an owner of all economic utility, it is a taking under the First Amendment.

Substantial Interference with Economic Utility – Penn Central

Although an act that deprives the owner of all economic utility is categorically a taking, the regulation need not completely eliminate the economic use of a property to give rise to a regulatory takings claim.

So, how far is too far?  The issue then moves to what specific facts are necessary to show that a regulation has gone “too far?”  For those regulatory takings cases that involve economic interference with property rights but fall short of Lucas’ total deprivation of value, courts rely on what is known colloquially as the “Penn Central Test”.

The Lucas or Loretto cases are rare.  Much more common is the case that requires application of the Penn Central factors.  In Penn Central, New York City applied a landmark historical preservation law to Grand Central Terminal.  In 1968, the owner of the Terminal, Penn Central, entered into a lease with UGP Properties to construct a multistory office building above the Terminal.  UGP and Penn Central presented two proposals to the historic preservation commission, both of which contemplated office towers of 50-stories or more.  The commission denied both proposals noting in part that the 50-story structures did not harmonize with the look and feel of the historic terminal.

UGP and Penn then “sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site…” Penn Cent., 438 U.S. at 119, 98 S. Ct. at 2656.  UGP and Penn Central argued that application of the landmark designation affected a “taking” of the Terminal.

Although the Court found against UGP and Penn Central, the Court nevertheless ushered in a new era of regulatory takings.  The Court suggested that a substantial interference could potentially affect a taking (even if in Penn Central it did not).  The Court enumerated the factors to be considered by the courts for this claims as follows:

  1. The character of the government action;
  2. The economic impact of the regulation on the claimant,
  3. The extent to which the regulation has interfered with reasonable investment-backed expectations.

The Supreme Court failed to articulate exactly how these factors should be applied (or even exactly what they mean) and in practice, courts around the country seem to either ignore 2 of the factors, or analyze them all under this paramount factor: the extent to which the regulation has interfered with reasonable investment-backed expectations.

One of the issues then becomes: what expectations by the landowner is reasonable?  How far is too far?  We’ve analyzed this question in Land Owner Expectations vs. Land Use Regulations.


{ O Comments }


We are pleased to announce that lead attorney Dan Biersdorf of Biersdorf & Associates has been selected to the 2014 Super Lawyers List.   This is an exclusive list, recognizing no more than five percent of attorneys in the state.

Super Lawyers, a Thomson Reuters business, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

  •     Peer nominations
  •     Independent research by Super Lawyers
  •     Evaluations from a highly credentialed panel of attorneys

The objective of Super Lawyers is to create a credible, comprehensive and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Minnesota Super Lawyers Digital Magazine.

Please join us in congratulating Dan Biersdorf on his selection.

{ O Comments }


Two public meetings for property owners affected by the Ohio Pipeline Energy Network Project (OPEN) being constructed by Spectra Energy will be held on Saturday, March 1st. The meetings will be facilitated by our local attorneys in Ohio, Phil Sever and George Padgitt. Anyone interested in hearing more about the project and learning about your rights as a property owner is welcome and encouraged to attend.

Meeting Details:

Meeting 1:
Time: 10:30 AM

Location: Schiappa Library
4141 Mall Drive
Steubenville, OH 43952

Meeting 2:
Time: 2:00 PM

Location: Ohio County Library
Downstairs – Auditorium
52 16th Street
Wheeling WV 26003

If you have any immediate questions regarding the project and how it might affect your property, don’t hesitate to call us at 866-339-7242.

{ O Comments }










Work on the $1.4 billion new US Route 460 in Virginia has been halted for the foreseeable future pending a permit from the Army Corps of Engineers. Secretary of Transportation in Virginia says she believes that the permit should have been issued years ago and until that process is complete, no more money will be spent on the 460 project.

It seems the future of the project will remain questionable even after the permit is granted. Governor Terry McAuliffe has said once the permit process from Army Corps of Engineers has been completed, he will “take a hard look” at the project to determine if this would be the best use of resources from the DOT, Virginia Port Authority and ultimately, the taxpayers. $250 million is also expected to come from tolls collected by users of the new highway.

The project still has supporters who say the project will help the local economy while providing a safer route for motorists. Supporters also sight the increased safety a new route will provide residents if ever there is a need to evacuate due to weather or other unforeseen events that would call for people to leave their homes or businesses.


If Route 460 Moves Forward, What’s Next?

If the project does get the permit it needs from the Army Corps of Engineers to move forward and the Governor decides to pick up the project where they left off, they will need to continue acquiring private property. Land owners affected by the project should know that the government is like any buyer, it will want to purchase your property as cheaply as it can.  Property owners have rights in the eminent domain process if they choose to assert them.  Under Virginia eminent domain law, property owners are entitled to just compensation.  Unfortunately, the determination of just compensation often involves a wide range of issues that appraisers may neglect to consider, such as the highest and best use of property and damages to the remainder parcel.

If the appraiser hired by the government doesn’t understand the full complement of issues and severance damages that should be included in the valuation, then the property owner will not receive just compensation.  Learn more about hiring an appraiser for eminent domain.  Learn more about Virginia eminent domain

{ O Comments }


Project Neon Update

Wednesday, January 22nd, 2014 . 0 Comments

in Nevada Projects

Project Neon Gets Money to Move Forward


Project Neon is a multi-phase, $1.3 billion road construction project to improve traffic conditions in the “Spaghetti Bowl” of Las Vegas. To read about the different phases and general information about the project click here.

Recently, the Nevada Board of Finance approved a plan to issue $100 million in bonds to purchase right-of-way and put Project Neon on the fast-track. Construction on the project has been slated to begin in 2015 and Gov. Brian Sandoval wants nothing to stand in the way of construction starting on time. If the project moves forward as planned with these bonds, the project could be complete by 2020.

The bonds will be used as soon as possible to purchase homes and businesses in the downtown area that will be necessary to complete this project. Property values have nearly doubled in the past two years in Las Vegas and lawmakers and DOT officials are anxious to purchase the property needed to keep this project moving forward within the budget.

What does this mean for property owners?

The next step DOT officials will be taking in this project will be pursuing the acquisition of land which will likely involve an appraisal of your property. If you are affected by Project Neon, you are entitled to just compensation. Often times, a property owner will only receive just compensation in Nevada eminent domain cases by allowing condemnation to occur.  In condemnation, a property owner can show that the rules for highest and best use will produce a higher price than the amount offered by the government. Before settling in this matter, please call us for a consultation. You have rights if you choose to assert them.

For questions regarding the value of your easement, don’t hesitate to call us at 866-339-7242.

{ O Comments }


The Project

The Ohio Pipeline Energy Network (“OPEN”) Project will consist of approximately 73 miles of new 30-inch diameter mainline pipeline and associated pipeline support facilities in Ohio, including a new compressor station.  The pipeline will extend through Columbiana, Carroll, Jefferson, Belmont, & Monroe counties and is designed to provide pipeline transportation capacity to deliver new production from the emerging Utica Shale and Marcellus Shale plays to the markets in the Midwest, Southeast and Gulf Coast.

Project Timeline

The project is facilitated by Spectra Energy and Texas Eastern and regulated by the Federal Energy Regulatory Commission (FERC).  Texas Eastern initiated the pre-filing process with FERC in June 2013, and they plan on submitting the certificate application by January 2014 in order to begin construction by April 2015.   Once the application is filed, the next major milestone is the issuance of the Environmental Assessment (EA)  by FERC, followed by a comment period and public hearings.   The Commission will consider the findings in the EA together with non-environmental information before making its decision about whether or not to approve the project.

Texas Eastern is expecting FERC approval by December 2014.  However, before a project of this caliber can be constructed, it must obtain approval from various cooperating agencies in addition to FERC.   They must also secure the necessary ROW for the project.  Many landowners will choose not to sell their property willingly, which will force Texas Eastern to invoke their eminent domain authority (if the project is approved by FERC).   For most landowners, condemnation will be their only legal remedy for securing just compensation for their loss.  In condemnation, landowners can show that their easement and severance damages are worth more than what is being offered.

What does this mean for landowners?

The proposed Project will impact approximately 255 landowners or 382 tracts along the pipeline. In April 2013, Texas Eastern hosted 3 informational meetings for stakeholders in Ohio in the vicinity of the proposed facilities. Alignment sheets identifying impacted tracts by landowner were set up on posters to allow for site specific discussion between right-of-way agents and interested stakeholders.

If your property lies within the pipeline’s path, you will be approached about the purchase of an easement across your land.  It is important for property owners affected by the project to know that utility companies are like any buyer, they will want to purchase your property as cheaply as they can.

Utility companies determine the value of easements by analyzing the impact to the surface of land with the easement in place.  This analysis invariably leads to low levels of compensation.    They consistently fail to compensate property owners for the value of the easement itself.  When determining just compensation for utility and pipeline easements, the largest value typically doesn’t come from the impact to the surface of the property; it comes from the value of the easement.

If you’re a property owner affected by the OPEN Project, you should know that you have time to determine how best to proceed, and you have rights if you choose to assert them.  Do NOT feel pressured into accepting their offer without first contacting an eminent domain lawyer.

If you have questions regarding the value of your easement and your rights in the eminent domain process, don’t hesitate to contact us.

{ O Comments }


The U.S. Supreme Court has long held that land use regulations (e.g. zoning ordinances) can go “too far” and cause a “taking” of property for which just compensation must be paid under the fifth amendment of the Constitution.   These cases are known as “regulatory takings.”  Less clear is how to establish how far is “too far.”

In one of the leading cases on regulatory takings, Penn Central, the Court set out 3 factors to determine if a regulatory taking had occurred.  In practice however, courts around the country seem to either ignore 2 of the factors, or analyze them all under this paramount factor: the extent to which the regulation has interfered with reasonable investment-backed expectations.

One of the issues then becomes: what expectations by the landowner are reasonable?  In many cases, state courts have ruled that if the land use regulation was in effect at the time the landowner took possession of the property, then any expectations inconsistent with that regulation are unreasonable.  The Supreme Court has phrased this argument as such: “The theory underlying the argument that postenactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. So, the argument goes, by prospective legislation the State can shape and define property rights and reasonable investment-backed expectations, and subsequent owners cannot claim any injury from lost value. After all, they purchased or took title with notice of the limitation.”  Once determining that the landowner’s expectations are unreasonable, the courts have then dismissed the regulatory takings claim.

In an Oregon case decided in 1993 (Dodd), the landowners (the Dodds) purchased 40 acres in Hood River County’s forest zone in 1983.  The owners intended to construct a retirement home on the property.  At the time of purchase, the zoning allowed construction on a dwelling, but the County was then in the process of revising its comprehensive plan to bring the plan into compliance with statewide planning goals.  After the zoning was amended, the ordinance prohibited the construction of a dwelling unless necessary for a forest use.  When, in 1990, the Dodds applied to construct a dwelling, the County denied the permit.  After an administrative appeal, the Dodds pursued a takings claim.  The Oregon Supreme Court denied the Dodds’ claim, noting that the property could still be used productively for timber, and that the Dodds plans to build a dwelling were not reasonable because they had “constructive notice as to the pending zoning limitations.”

In 2001, however, the U.S. Supreme Court decided Palazzolo v. Rhode Island.  In Palazzolo, the majority held that unreasonable regulations “do not become less so through passage of time or title.”  The Supreme Court held that taking title with notice of regulations does not exempt their challenge under the takings clause and noted that “[f]uture generations, too, have a right to challenge unreasonable limitations on the use and value of land.”

Although Palazzolo seemed to discourage courts from using notice of a regulation as a total bar to a takings claim, state courts have nevertheless applied a Dodd analysis.  The confusion may stem from the nature of the Palazzolo majority.  Three justices seemed to agree that notice of the regulation was irrelevant to a determination of investment-backed expectations.  Justice Scalia, concurring with the majority, stated explicitly that the existence of a regulation at the time the purchaser took title “should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking,” and  that investment-backed expectations “do not include the assumed validity of a restriction that in fact deprives property of so much of its value as to be unconstitutional.” Palazzolo, 533 U.S. at 637, 121 S. Ct. at 2468.

Justice O’Conner, however, stated that the holding of Palazzolo “does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis.”  Indeed, O’Connor went on to state that “the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations.”  O’Connor concluded by saying that pre-acquisition notice of a regulation is a single non-dispositive factor in a Penn Central analysis.  Palazzolo, 533 U.S. at 635-36, 121 S. Ct. at 2467.

Nevertheless, when Penn Central applies, “state courts have continued to find the claimant’s investment-backed expectations unreasonable and the claim without merit if the owner was on notice of regulation at the time of property acquisition.”  J. David Breemer, Playing the Expectations Game: When Are Investment-Backed Land Use Expectations (Un)reasonable in State Courts?, The Urban Lawyer, Vol.   38 No. 1, Winter 2006.  In other words, despite the implicit holding of three Supreme Court Justices and explicit holding of another, state courts are considering pre-acquisition notice as a factor in determining the reasonableness of investment-backed expectations.  Not only that, but, seemingly also ignoring Justice O’Connor, state courts are continuing to use pre-acquisition notice of a regulation as a categorical bar to a Penn Central takings claim.  Before pursuing any regulatory takings claim, be certain to know how your state treats notice of regulations before acquisition of your property.


{ O Comments }


Representatives from the proposed Pacific Connector Gas Pipeline Project (PCGP) have indicated that construction could begin by early 2015, barring any delays in the FERC approval process.  The proposed pipeline will deliver natural gas from Wyoming via the Ruby Pipeline and Canadian natural gas from Alberta through the existing Gas Transmission Northwest line to the Port of Coos Bay where it will be converted to LNG for export.

The Final Environmental Impact Statement (FEIS) is expected to be released in the third quarter of 2014, which could allow construction to begin as early as 2015.  The proposed pipeline will extend approximately 230 miles from Malin to Coos Bay and cross through private property in Klamath, Jackson, Douglas and Coos Counties.

However, before a project of this caliber can be constructed, it must obtain approval from various cooperating agencies, including FERC.   They must also secure the necessary ROW for the project.  Many landowners will choose not to sell their property willingly, which will force Williams to invoke their eminent domain authority.   For most landowners, condemnation will be their only legal remedy for securing just compensation for their loss.  In condemnation, landowners can show that their easement and severance damages are worth more than what is being offered by PCGP.  Because Williams will likely have the authority to use eminent domain to secure easements, they will have little incentive to negotiate honestly with land owners.

PCGP Modified Blue Ridge 2013 Alternative

Several property owners impacted by the proposed PCGP have worked tirelessly to move the proposed PCGP further to the East from the South side of the crossing of the Coos River (T25S, R12W Section 29) to approximately MP 21.6 West of Fairview, Oregon (T27S, R12W Section 22) in order to minimize the impact to landowners and the environment.

This proposed route was submitted to FERC for review and In October 2013, FERC released a document stating: “The FERC staff believes that the PCGP Modified Blue Ridge 2013 Route is environmentally preferable to the June 2013 application route between MPs 11.3 and 21.8, because it is shorter, would affect fewer landowners, and would cross less waterbodies…”  If FERC selects the Modified Blue Ridge 2013 Alternative as preferred in their EIS, then PCGP will likely adopt this route into their preferred alternative.   Learn more about the PCGP Modified Blue Ridge Alternative.

Next Steps

In a project update released in November, FERC discusses the issuance of the draft EIS, which is the next major step in the approval process.   When the draft EIS is completed, FERC will issue a Notice of Availability that will also appear in the Federal Register.  There will be a 90-day period to review and comment on the document.  During the review period FERC staff will hold public meetings at various locations in southern Oregon to take verbal comments on the draft EIS.

At the close of the comment period, they will review and consider all comments submitted and revise the EIS as necessary to create the Final EIS.  The Commission will consider the findings in the FEIS, together with non-environmental information, before making its decision about whether or not to approve the projects.

What does this mean for landowners?

We have reviewed some offers made to landowners by the PCGP, and in our opinion, they don’t come close to fully compensating landowners for the value of their easement and damages to their remainder parcel.  Before settling in this matter, please call us for a consultation.   You have rights in this matter if you choose to assert them.  Most landowners will only obtain just compensation by allowing condemnation to occur.

For questions regarding the value of your easement, don’t hesitate to call us at 866-339-7242.

{ O Comments }


In 2013, two states passed legislation requiring the condemning authority to pay a property owner’s attorneys fees if the amount of just compensation determined by the courts is greater than the amount offered by the government or condemning authority.

Arkansas was the first state in 2013 to pass this type of legislative reform and  Wyoming was the second state.  For Wyoming landowners, Wyo. Stat. Ann. § 1-26-509 now states that if the court or jury finds that the amount of just compensation exceeds the condemning authority’s offer by 15% or more, then the government or condemning authority shall reimburse the landowners for their litigation expenses.

We’ve said it before and we’ll say it again.  The most blatant eminent domain abuse occurs when the condemning authority makes “low ball” offers.  This scenario invariably requires the property owner to hire an attorney to pursue a claim on their behalf.  Although a property owner might be successful at pursuing an additional damages claim, they are not entirely happy when a portion of that claim must be paid to the attorney.

This legislation should motivate the condemning authority in Wyoming to negotiate honestly with property owners and their attorneys, and even avoid low ball offers to begin with, because they can now be liable for the attorney’s fees incurred by the property owner.  Additionally, Wyoming’s legislation doesn’t appear prejudicial against small claimants, so land owners pursuing significantly more than the offer (100% or more) with relatively small dollar amounts should be able to secure quality legal representation in order to obtain just compensation.

Although the statute identifies a specific threshold that must be met in order to trigger the reimbursement of fees, the courts have yet to interpret the statute.  Will property owners be able to recovery fees on both an hourly and contingent fee basis?  Will the courts limit the attorney’s hourly rate for recovery?  How will they define ‘litigation expenses’?  Will that include all costs incurred?

Wymoning would go a long way in leveling the playing field between property owners and the government if they interpreted the statute liberally in favor of property owners.  The US Supreme Court has consistently held in condemnation cases, that the government’s obligation is to “put the owner in as good a position pecuniary as if the use of their property had not been taken” Monongahela Nav. Co. v United States, 148 U.S. 312 (1893); Phelps v. United States, 274 U.S. 341 (1927); Olson v. United States, 292 U.S. 296 (1934).   That is, property owners should receive fair and just compensation and not be at any financial loss resulting from the government’s action to seize their property

{ O Comments }



Connect With Us



Location of Central Office:

33 South 6th Street, Suite 4100
Minneapolis, MN 55402

Toll Free: 1-866-339-7242
Phone: 612-339-7242
Fax: 612-339-0585

©2010 Biersdorf & Associates
*Click here for a full explanation of our fee structure
Law Firm Website by The Modern Firm