Connecticut Attorney, Dwight Merriam, Joins Owners' Counsel of America

We are pleased to announce that Dwight H. Merriam of Robinson & Cole in Hartford, Connecticut has joined the Owners' Counsel as the Connecticut attorney-member dedicated to representing private property owners, developers and businesses in eminent domain, inverse condemnation, land use and related property rights matters.  Dwight is a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow and Past President of the American Institute of Certified Planners, a Fellow of the American College of Real Estate Lawyers, a Fellow of the Royal Institution of Chartered Surveyors, a member of the Rocky Mountain Land Use Institute National Advisory Board, and the Immediate Past Chair of the American Bar Association's Section of State and Local Government Law.  

Among his many accomplishments, Dwight has been recognized by Connecticut Super Lawyers in the area of Land Use Law since 2006, and has been listed as one of the Top 50 Connecticut Super Lawyers as well as one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.).   He has also been included in Best Lawyers® since 1991 in the areas of land use and real estate law and was honored by that publication as a Hartford Lawyer of the Year in the area of Land Use & Zoning Law in 2012. 

Dwight teaches land use law at the University of Connecticut School of Law and at Vermont Law School.  He has published over 200 articles and 8 books including The Takings Issue and Eminent Domain Use and Abuse: Kelo in Context as well as chapters in Nichols on Eminent Domain, the seminal treatise on eminent domain law nationwide.   

Dwight was a member of the Robinson & Cole condemnation litigation team that recently secured a $167,501,656 just compensation award for Gyrodyne against the State of New York as well as a co-author of a brief in favor of the property owner in the New York rent control case, Harmon v. Kimmel, No. 11-496 (cert. denied April 23, 2012).

Owners' Counsel of America files Amicus Brief in Support of Property Owner in Arkansas Flooding Case

Last week the Owners’ Counsel of America filed an amicus curiae brief in support of the property owner in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted April 2, 2012) urging the United States Supreme Court to reverse a decision by a Federal Circuit Court which erroneously found that the federal government’s recurrent flooding did not constitute a compensable taking of private property simply because of its temporary nature.  At issue in this case is whether government actions that cause recurring floods must be intended to be permanent in order for the property owner to recover just compensation under the Fifth Amendment.  The brief was prepared and filed by Owners' Counsel Hawaii member, Robert H. Thomas, of Damon Key Leong Kupchak Hastert in Honolulu. (Read more about this case on Robert's blog inversecondemnation.)

The brief argues that "[w]hen property is damaged permanently, as were petitioner's trees, there is no principled distinction between a physical invasion that is permanent and compensable, and an invasion that is claimed to be temporary and is not."  As an organization that has long advocated for private property rights, Owners’ Counsel asks the Court to clarify this issue by reaffirming that all “direct and substantial” physical occupations of private property, even if temporary, are takings requiring the payment of just compensation under the Fifth Amendment.

Petitioner Arkansas Game & Fish Commission, a state agency charged with overseeing the protection, conservation and preservation of various species of fish and wildlife in Arkansas owns and operates 23,000 acres of land as a wildlife refuge and recreational preserve.  AGFC filed an inverse condemnation action to recover compensation from the federal government for physically taking its hardwood trees within the Dave Donaldson Black River Wildlife Management Area through six consecutive years of protested flooding during the sensitive growing season. The flooding, while temporary in nature, destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate and prevented the use and enjoyment of the area. 

“The claim that government officials intended to flood the land only temporarily shouldn’t matter, what is important is the fact that the federal government permanently destroyed the trees,” said Thomas.  “This case presents the Supreme Court with the chance to clear up takings law and insure than when the government destroys private property, it has a constitutional obligation to compensate the property owner,” he said.

The Court of Federal Claims awarded AGFC $5.78 million in just compensation, finding that the flooding actions of the Army Corps of Engineers constituted a taking of private property for which damages are recoverable under the Takings Clause of the Fifth Amendment. That award, however, was overturned by a divided appeals court which ruled that the flooding was not a taking because it was not permanent and eventually stopped.  

 

"My sincerest hope is that the U.S. Supreme Court will rule in favor of the Petitioner in this case and in doing so will underscore the importance of one of our most fundamental rights as citizens of this great country -- private property ownership," said Arkansas eminent domain attorney and Owners' Counsel representative Michael B. Phillips of Moffitt & Phillips, PLLC.  Phillips and his partner, Brandon K. Moffitt, represent landowners throughout Arkansas in condemnation litigation and joined Mr. Thomas on the brief.

"A win for the Arkansas Game & Fish Commission is a win for property owners everywhere," said Phillips.

Links to the brief's in this case are available below:

• AGFC's merits brief
• Pacific Legal Foundation, Cato Institute and Atlantic Legal Foundation amici brief

Brief Amicus Curiae of Owners' Counsel of America, Arkansas Game & Fish Comm'n v. United States, No...