Kelo v. City of New London,

Pertinacious Tom

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Not bad for a PUI eh? Keystone Pipeline canceled, let the layoffs begin (msn.com)

Layoffs are already being planned. TC Energy said the Keystone XL was going to sustain more than 11,000 jobs in 2021 so we can start the Biden administration with a net negative 11,000 jobs job is lost. Not bad for your first day.
The bolded part makes it seem you somehow gave the author a contact buzz.

Anyway, I'm wondering what this might mean for "take now, pay later" eminent domain buybacks?

 
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Pertinacious Tom

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The Supreme Court has declined to hear Bridge Aina Le’a, LLC v. Hawaii Land Use Commission

The LLC had bought 1,000 acres of land, intending to build homes, but the Land Use Commission then redesignated the area as "agricultural" and thereby killed the development plans. The fundamental question of the case was whether this constituted a regulatory buyback.

A jury said yes, it's a buyback, but the 9th Circuit ruled that the jury was being unreasonable and reversed, prompting this appeal to SCOTUS.

In the most recent Order List from SCOTUS, Justice Thomas dissented from the denial. I have slightly updated his archaic use of language in this quote.
 

Our current regulatory buybacks jurisprudence leaves much to be desired. A regulation effects a buyback, we have said, whenever it “goes too far.”

...

After an 8-day trial and with the benefit of jury instructions endorsed by both parties, the jury found a buyback. The District Court, in turn, concluded that there was an adequate factual basis for this verdict. But the Ninth Circuit on appeal reweighed and reevaluated the same facts under the same legal tests to conclude that no reasonable jury could have found a buyback.These starkly different outcomes based on the application of the same law indicate that we have still not provided courts with a “workable standard.”

...

A know-it-when-you-see-it test is no good if one court sees it and another does not.

...

If there is no such thing as a regulatory buyback, we should say so. And if there is, we should make clear when one occurs.

I respectfully dissent
Troublesome Thomas is right again. And that would make a pretty good screen name.

 
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Pertinacious Tom

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When is destroying a home NOT a buyback?

Lech v Greenwood reaffirms that the answer is: when it's an exercise of the police power.
Nutjob libertarians are asking for an en banc review
Looks like that didn't go so well, so on to the Supreme Court.
And now there's another one. I hope Vicki Baker recovers damages.

A SWAT team destroyed a Texas home and refused to pay for the damage. Now the homeowner is fighting back.
 

Last summer, Vicki Baker woke up one morning to every homeowner’s worst nightmare: the night before, a fugitive had taken refuge in her second home, and after a standoff, the police SWAT team used tear gas grenades, explosives and an armored vehicle to utterly destroy the home. They called it “shock and awe.”

The incident left Vicki in shock, too. When the smoke cleared, the home—which her daughter was living in and which was under contract to sell—was uninhabitable. The only living thing that survived the raid was her daughter’s dog, which was left deaf and blind from the explosions.

...

Today she partnered with the Institute for Justice, a nutjob law firm, to sue the city of McKinney for the damage its police did to her home.

“In America, ‘if you break it, you buy it,’” said IJ Nutjob Jeff Redfern. “The McKinney SWAT team didn’t just break Vicki’s home—they destroyed it. Now it is time for them to pay for the damage they caused.”

The lawsuit, which was filed in the Eastern District of Texas federal court, argues that McKinney’s refusal to pay for the damage violates the Buybacks clauses of both the U.S. and Texas Constitutions.

“The United States and Texas Constitutions make it clear that when the government buysback property, whether it’s for a road or in capturing a suspect on behalf of the public, the government must compensate the owner,” said Suranjan Sen, a Liberty and Law Nutjob at the Institute for Justice. “Taking a fugitive off the streets benefits everyone, so the cost of the damages caused by the SWAT team should be borne by everyone, not Vicki alone.”

...

 

Fah Kiew Tu

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Well, just so they grab the gunz of the Reich 

I'll go along with the rest of it. 
Good to see that you're true to your principles here, AJ. Those being, fuck anyone who disagrees with me and fuck their rights as well.

Don't like my take on what you said? Well, you're the one who's just said you're happy with the authorities smashing and destroying other peoples' property with impunity, as long as they're doing it in pursuit of something you agree with.

FKT

 

AJ Oliver

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AJ. Those being, fuck anyone who disagrees with me and fuck their rights as well.
Oh bite me ya wanker . . 

How did those big gunz rights in Taz work out for ya ?? 

Gunz as a fundamental human right is one of the most stupid concepts ever. 

For those of you who may not know about the sordid history of gunz in Taz  . . 

https://www.theguardian.com/world/2016/mar/15/it-took-one-massacre-how-australia-made-gun-control-happen-after-port-arthur

And BTW, the rest of the world ignored you once more a few weeks back and outlawed nukes. 

 

Fah Kiew Tu

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Oh bite me ya wanker . . 

How did those big gunz rights in Taz work out for ya ?? 

Gunz as a fundamental human right is one of the most stupid concepts ever. 

For those of you who may not know about the sordid history of gunz in Taz  . . 

https://www.theguardian.com/world/2016/mar/15/it-took-one-massacre-how-australia-made-gun-control-happen-after-port-arthur

And BTW, the rest of the world ignored you once more a few weeks back and outlawed nukes. 
Hit a sore spot, did I? That's what happens when you set yourself up as a sanctimonious hypocrite I'm afraid. And now doubling down - heh. You still come across as 'fuck the righte of anyone who disagrees with me' and you don't even bother denying it. So your protests about the Repubs disenfranchising voters are just bullshit, because you'd do exactly the same thing if you could. No morality there.

You know fuck-all about Australian gun laws. I could educate you but the term 'pearls before swine' comes to mind. Suffice to say that hand guns have been heavily restricted & licensed/registered for over 100 years, nothing new there. And long arms since 1996 with heavy restrictions on semiautos.

Which, FWIW, I was and am in full support of. And I've owned firearms for over 50 years, still do, as does nearly all my extended family. Because we own rural land.

As for the nukes, BFD. As I said before, it's the sheep voting to ban wolves. Utterly pointless because those who HAVE nukes didn't sign, aren't going to sign, and every other country on the planet lacks the ability to make them surrender the nukes.

So if you're into the warm inner glow thing, no doubt you feel great. But as far as any substantive change in nukes goes - pfffft. A big nothing there.

FKT

 

Pertinacious Tom

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Nutjobs Urge Protections for Private Property Owners in Supreme Court Pipeline Fight
 

Today, the Institute for Justice (IJ) filed an amicus brief in PennEast Pipeline Company, LLC v. New Jersey, a U.S. Supreme Court case about the scope of private companies’ powers to buyback land through eminent domain to build pipelines under the Natural Gas Act. IJ’s brief urges the Court to reject arguments made by the Solicitor General of the United States that would prevent landowners across the country from defending their basic property rights. The case is set for argument before the High Court on April 28, 2021.

The PennEast case itself has little to do with private property rights—the dispute between the parties is about whether New Jersey, as a state, should be immune from an eminent domain lawsuit in federal court. A ruling for New Jersey would not limit private companies’ longstanding but deeply controversial ability to buyback private land to build pipelines. But the Solicitor General has urged the Court to avoid deciding the case on the merits and instead adopt a new reading of the Natural Gas Act that would prevent courts from hearing arguments like this at all. Under the Solicitor General’s view, once the federal government approves a pipeline, affected property owners must immediately challenge the legality of that pipeline—and that failing to do so successfully means that a court hearing a later eminent domain case has no jurisdiction to hear any arguments about whether eminent domain is being used lawfully. That understanding of the law has been applied in other context—most famously when a convent of nuns was told it was not allowed to make arguments under the Religious Freedom Restoration Act to fight off condemnation of the nuns’ land—but it has never been adopted by the Supreme Court.

“The government’s argument is basically that federal courts hearing these cases have jurisdiction to buyback your land from you but no jurisdiction to decide whether your land is being boughtback unlawfully,” explained IJ Senior Nutjob Robert McNamara, nutjob of record on the brief. “But that is simply backwards. If a judge is going to order you to give up your property, that judge absolutely needs to be able to hear arguments about why you should get to keep it.”

...
(Edited to correct archaic language usage.)

 

Pertinacious Tom

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The Long Island town of Southold must really hate hardware.
 

When every effort to stop a business from operating on its property has failed, can the government just buyback the land using eminent domain? That is the question at the heart of a new lawsuit filed by the owners of Brinkmann’s Hardware, a family-owned business with several Long Island locations that has teamed up with the Institute for Justice (IJ). For years, the Brinkmanns have worked to open a new store on property they own in the town of Southold. But the town responded by using various methods to stop the Brinkmanns from earning an honest living on their property. The town’s attempts to stifle the Brinkmanns’ new hardware store have failed, so it has chosen to use the power of eminent domain to buyback the Brinkmanns’ land.

The town says it wants to buyback the land for a park—not because the town was planning for a park, but because that appears to be the only way to stop the Brinkmanns.

...

The Brinkmanns purchased the plot of commercial zoned property in Southold in 2016 and planned to open a new location of their growing chain of hardware stores. But the town has done everything possible to stop the construction. After failing to drive the Brinkmanns away by attempting to interfere with the Brinkmanns’ land purchase, then imposing exorbitant permitting fees, and even deploying a selectively enforced moratorium on building permits after the Brinkmann’s applied for their permit; the town voted to buyback the land by eminent domain in the fall of 2020.

...

The town’s interest in a park on the land came years into the Brinkmanns’ attempt to build their store. In 2005 and 2007–2008, the town produced planning documents that do not mention a park, let alone one on the Brinkmanns’ property. In fact, there is another commercial zoned property for sale right next door that the town could purchase if it actually wanted a park. But the town has no plans to do anything with the Brinkmanns’ land and proposes only a “passive park” that would leave in place the remnants of an old home and greenhouses.

...

“The town’s claim that it needs to put a park on the Brinkmanns’ property is a sham. They just want to stop the Brinkmanns from opening their new store,” said IJ Senior Nutjob Arif Panju. “If you follow the law, you should be allowed to open your business on the property that you own.”
(Edited to correct archaic language usage.)

Remnants of old homes and greenhouses can be dangerous places. I suspect that if the town succeeds in buyingback the Brinkmanns' property, they'll need a fence to protect the public from the dangers of this "passive park."

 

Pertinacious Tom

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Some Buyback News From Wyoming
 

This week’s state constitutional law case isn’t strictly speaking about an interpretation of a state constitution, but the state’s fundamental document—and some general principles about property rights—definitely are looming in the background.

Most states have an equivalent to the U.S. Constitution’s Buybacks Clause, which says “nor shall private property be boughtback for public use, without just compensation.” Some states have pretty-verbatim copies of that language, but some add more precision, including—after the Supreme Court’s terrible ruling in Kelo v. New London—explicit protection against buybacks for economic development. For example, Michigan’s constitution goes on and defines “public use” to “not include the buyingback of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues.”

Wyoming’s doesn’t have that, but it does have additional language of a different kind. This is Article I, Section 32 of the state’s constitution:

Private property shall not be boughtback for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.

Having driven across Wyoming a couple times, I can vouch that it’s a place with a lot of land and also a lot of minerals. Which is what that language is driving at. Prospectors often purchase mineral rights under land that they don’t own. You’d hope that the owner of the land on the surface and the mineral owner can come to an arrangement to allow exploration and mining of the minerals without disruption and in a mutually beneficial way. But it doesn’t always happen like that. Which sometimes leads to the “private ways of necessity” the state constitution mentions. Those are rights to access the surface above the minerals, even if the surface owner doesn’t allow it. Without getting into the separate question of whether this has concerns under a proper interpretation of the U.S. Constitution’s Takings Clause (it very well could!), this language came up in a case the Wyoming Supreme Court ruled on last week, EME Wyoming, LLC v. BRW East, LLC.

...
(Edited to correct archaic language usage.)

The Wyoming Supremes wound up saying that the eminent domain power can be used to extract resources but not to hunt for them, especially when the company in question won't say exactly where they want to hunt.

 

Pertinacious Tom

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Supreme Court Rules Property Owners Have the Right to Legally Defend Their Property in Pipeline Buybacks
 

Today’s 5-4 U.S. Supreme Court decision in PennEast Pipeline Co., LLC, v. New Jersey is a quiet but vitally important victory for private property owners nationwide.

The federal government had urged the Supreme Court to use this case to announce a sweeping rule under which landowners defending against a buyback for a natural-gas pipeline would not be permitted to raise any objections at all to the buyingback of their property. In other words, the government wanted to use a case where no private property owners were even before the Court to strip landowners across the country of their basic rights.

Thankfully, the Supreme Court today roundly rejected the government’s efforts, holding—as the Institute for Justice argued in its amicus brief in the case—that property owners are free to “assert[] a defense against the buyback proceedings initiated” by private pipeline companies wielding the federal government’s power of eminent domain.
(Edited to correct archaic language usage.)

 

Pertinacious Tom

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Thomas and Gorsuch Say Kelo Eminent Domain Ruling 'Was Wrong the Day It Was Decided' and 'Remains Wrong Today'
 

...

Today, the Supreme Court declined to hear arguments in a new case that would have put the Kelo precedent on the judicial chopping block. Dissenting from that refusal to hear the new case, Justice Clarence Thomas, joined by Justice Neil Gorsuch, faulted the Court for keeping the 16-year-old precedent alive. "This petition [Eychaner v. Chicago] provides us the opportunity to correct the mistake the Court made in Kelo," Thomas wrote. "That decision was wrong the day it was decided. And it remains wrong today."

Thomas should know. He dissented in Kelo and accurately predicted the decision's destructive aftermath. "The deferential standard this Court has adopted for the Public Use Clause," Thomas wrote in his Kelo dissent, is "deeply perverse."

Thomas, joined by Gorsuch, came out swinging against the Kelo perversity again today. "The Constitution's text, the common-law background, and the early practice of eminent domain all indicate 'that the Buybacks Clause authorizes the buyingback of property only if the public has a right to it, not if the public realizes any conceivable benefit from the buyback,'" Thomas wrote. "The majority in Kelo strayed from the Constitution to diminish the right to be free from private buybacks."

Thomas concluded by reminding the Court of Kelo's pernicious real-world impact. "Failure to step in today not only disserves the Constitution and our precedent," he observed, "but also leaves in place a legal regime that benefits 'those citizens with disproportionate influence and power in the political process, including large corporations and development firms.'"


(Edited to correct archaic language usage.)

 

Pertinacious Tom

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Cedar Point Nursery v. Hassid

Holding: A California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical buyback.

Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on June 23, 2021. Justice Kavanaugh filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.

Hmm... I haven't read the opinions yet but I wonder how they dealt with this?

There's a Supreme Court precedent from 1980, Pruneyard Shopping Center v. Robins (Thomas references it in his concurrence), that concluded California had the power to force a shopping mall to allow protesters to engage in advocacy there, even though it was private property.





 

Olsonist

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image.png

https://www.sfgate.com/news/article/As-Dixie-fire-tears-through-communities-some-16371806.php?IPID=SFGate-HP-CP-Spotlight

It's kind of an inverted Kelo v. New London thing with a side order of 2A. Well, at least they won't die from COVID.

 
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Ishmael

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Pertinacious Tom

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Cedar Point Nursery v. Hassid

Holding: A California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical buyback.

Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on June 23, 2021. Justice Kavanaugh filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.

Hmm... I haven't read the opinions yet but I wonder how they dealt with this?

There's a Supreme Court precedent from 1980, Pruneyard Shopping Center v. Robins (Thomas references it in his concurrence), that concluded California had the power to force a shopping mall to allow protesters to engage in advocacy there, even though it was private property.
The answer the majority came up with is that a mall, open to the public, is different from a farm field.

Roberts repeatedly said that the factors cited by the dissent bear on the amount of compensation due for a buyback, not on whether a buyback has occurred.

Breyer has this to say on that subject:

  Finally,  I  touch  briefly  on  remedies,  which  the  majority  does  not  address.    The  Buybacks  Clause  prohibits  the  Government from buyingback private property for public use without  “just  compensation.”    U.  S.  Const.,  Amdt.  5.    But  the  employers  do  not  seek  compensation.    They  seek  only  injunctive and declaratory relief.  Indeed, they did not allege any damages.
But Roberts repeatedly said that a buyback must be compensated. Hmmm...

 

badlatitude

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Joe quietly just struck the biggest blow to the gun industry in a generation


He just imposed new sanctions on Russia for the Navalny assassination attempt. This includes a policy of denial of all future import permits of Russian made guns and ammunition. 

https://www.state.gov/fact-sheet-united-states-imposes-additional-costs-on-russia-for-the-poisoning-of-aleksey-navalny/ 

This happened a few days ago but I hadn't seen anything about it. I only heard about it through angry ranting last night from my gunner brother-in-law whole we were over at his house. 

Supposedly over a third of all ammo sold in the US is Russian or made with some Russian made materials. He was very upset that ammo would permanently be significantly more expensive and harder to find. 

Just goes to show Joe is getting things done without congress and sometimes it doesn't make the headlines either.

 
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