IJ’s Constant Vigilance in Defense of Property Rights

Robert McNamara
Robert McNamara  ·  April 1, 2023

For more than 25 years, IJ has led the national fight against eminent domain abuse. Sometimes that fight takes the form of IJ’s own high-profile lawsuits on behalf of iconic eminent domain clients like Susette Kelo or Atlantic City piano tuner Charlie Birnbaum. Indeed, the backlash we stoked against the U.S. Supreme Court’s Kelo decision was so successful that governments now find it much more difficult to take land for private development. But that doesn’t mean those exercising eminent domain power have given up on abusing it. So we are constantly vigilant, regularly scouring the country for additional opportunities to bring our decades of experience to bear against the abuse of eminent domain. 

Take, for example, our recent amicus brief in Ohio Power Company v. Burns, an Ohio Supreme Court case about condemnations for power lines. Power lines are a traditional public use, like a road or a school, which might seem like a difficult arena for IJ to fight in. But Ohio power companies claimed the mere fact that power lines are a public use meant they could take whatever land they wanted—on whatever terms they wanted—without having to prove the taking was actually necessary. IJ’s brief, drawing on history and our own successful eminent-domain litigation in Ohio, argued this was wrong: The baseline presumption is that property owners control their land unless power companies prove taking it is necessary. And we won—late last year the Ohio Supreme Court affirmed that these condemnations need to be backed by real evidence, not just a power company’s say-so. 

Just a couple months later, in February, we took that Ohio victory across the border to Kentucky with a brief in that state’s high court. There, energy companies empowered with eminent domain similarly claim this gives them the power to do anything—from destroying vegetation to ordering property owners to take down signs—without ever proving their demands necessary. By looking for opportunities to challenge these arguments in strategically selected cases, IJ aims to stop these abuses in Kentucky and nationwide. 

Sometimes that even means taking over cases originally filed by other attorneys, as in the case of the DeVillier family of Texas. When road construction flooded their family farm (and a number of neighboring properties), the DeVilliers sued, arguing this flooding was a taking. Their claim was far from novel—over the past 150 years, the U.S. Supreme Court has repeatedly held that government-created flooding can constitute a taking under the Fifth Amendment. But the state of Texas argued that it could not be sued under the Takings Clause unless Congress or the state Legislature first passed a law ordering it to pay just compensation to aggrieved property owners. Shockingly, in a single sentence, the Fifth Circuit agreed, depriving property owners like the DeVilliers of any remedy for violations of their Fifth Amendment rights. IJ swooped in immediately and filed a petition for certiorari in March asking the U.S. Supreme Court to set things right. 

Ensuring that none of these cases slip through the cracks isn’t easy, but it is vital to defending property rights. The precedent these cases set can affect millions of Americans, including IJ’s own clients. And so we remain ever vigilant, so that the courts deciding these cases have access to the very best legal arguments—the arguments IJ has honed for decades.

 Robert McNamara is IJ’s deputy litigation director.

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