Government Takings

No person shall be deprived of life…

liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

—FIFTH AMENDMENT, United States Constitution

Government Takings

Government takings law applies when the federal government seizes private property for public use or regulations infringe upon private property ownership to such an extent that the regulation can be considered a taking.

Governments must possess the authority to acquire private land and carry out its ordinary and legitimate functions. However, once the government exercises objection, the Fifth Amendment of the United States Constitution mandates the government provide the landowner “just compensation,” or fair market value, for taking of the property. Nevertheless, sometimes private property is taken without just compensation, entitling landowners to file a claim against the United States to pay the monetary value of the property taken.

Takings can come in two forms: physical or constructive. A physical taking means that the government literally takes the property from its owner. A constructive taking (also called a regulatory taking), means the government restricts the owner's rights so much that the governmental action itself becomes the functional equivalent of a physical seizure.

Unlike other practice areas, all takings claims are heard only by the United States Court of Federal Claims, a specialized court based in Washington, D.C. with exclusive, national jurisdiction over monetary disputes against the United States. The Court of Federal Claims has its own separate rules of court, all cases against the federal government are defended by the United States Department of Justice. Monetary judgments rendered by the court are paid out of the Judgment Fund, administered by the United States Department of the Treasury.

Eminent Domain

Occurs when the federal government takes private property for public use in exchange for “just compensation” to the property owner.

Inverse Condemnation

Occurs when the government takes private property but fails to pay the “just compensation” required by the Fifth Amendment of the United States Constitution.

Regulatory Takings

Occurs when governmental regulations limit the use of private property to such a degree that the property owner is effectively deprived of all economically reasonable use or value of their property.

Advantage

Flint Cooper is a recognized leader in government takings litigation, representing property owners, consumers, manufacturers and corporate interests for damages from governmental actions in violation of the United States Constitution, federal statutes, federal regulations or a government contract.

Flint Cooper works with clients to challenge the government’s justification for seizing the tangible or intangible property, and ensure the government pays “just compensation.”

Flint Cooper knows the rules and practices of the United States Court of Federal Claims are essential to success, and boasts a team of experienced attorneys specially admitted to appear before it.

Rails-to-Trails

Flint Cooper specializes in Rails-to-Trails cases, representing owners of land located next to a railroad that will be converted to a public recreational trail. If you have a potential claim against the federal government for the taking of your property as a result of the proposed Rails-to-Trails project, please contact Flint Cooper to learn about your rights and what you can do to ensure you are fairly paid for the value of your property.
 
Rails-to-Trails takings are property confiscations by the federal government under the National Trails System Act, which authorizes abandoned railroad corridors to be converted to public biking and walking trails. Landowners like yourself are often left unaware of the rail conversion, and if you do not make a claim for compensation, the government will not pay you for your property.
 
Flint Cooper is passionate about the protection of constitutional rights. The team of experienced government takings attorneys has successfully represented landowners across the country against the federal government, and is one of only a few firms with experience litigating Rails-to-Trails cases.
 
Flint Cooper can help win your settlement by proving the taking has occurred, makes sure the federal government pays fair market value for the property taken, along with interest from the date it was taken.

Resources

Common Questions

Claims Process

Current Rails-To-Trails Cases

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If you recieved the information packet and/or have any additional questions, Flint Cooper is here to help you take the next step for just compensation. Please email railstotrails@flintcooper.com or click the button below to sign up.

Roy Lynn McCutchen, Paducah Shooter’s Supply, Inc. v. The United States (“Bump Stock”)

Since the National Firearms Act of 1934 (NFA), Congress has consistently defined “machine guns” and, for decades, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has affirmed that non-mechanical bump stocks are not machine guns, primarily because the devices do not rely on internal springs or similar mechanical parts to channel recoil energy.​

In 2006, the ATF reviewed an earlier bump-stock type device using internal springs to channel recoil energy called the Akins Accelerator. Their ruling determined that the device was, in fact, a machine gun. Following its reclassification of the Akins Accelerator as a machine gun, the ATF advised owners of Akins Accelerator devices that the removal and disposal of the internal spring — the component causing the rifle to slide forward in the stock — would render the device a non-machine gun. Thus, the ATF determined that an owner could retain the device by removing and disposing of the spring, in lieu of destroying or surrendering the device.

However, on December 26, 2018, after nearly nine years of bump stocks being completely unregulated or tracked, the ATF published Final Rule 66514, unexpectedly and retroactively redefining bump-fire stocks as “machine guns” under the NFA and the Gun Control Act of 1968 (GCA). Final Rule 66514 requires previously lawful owners of bump stocks to surrender their devices to the ATF, destroy them or reduce them to scrap before March 26, 2019. Anyone in possession of a bump-fire stock after March 26, 2019 faces up to a ten-year prison sentence.

Unlike any other time in the history of the United States, the ATF banned a previously legal item and has not allowed someone to either keep the item or provide compensation for the item, as is required under the United States Constitution.​ ATF’s dramatic reinterpretation of the NFA and GCA prohibited bump stock owners from possessing their tangible property, provided no opportunity to register or transfer them, criminalized previously lawful behavior and compelled owners to destroy or relinquish lawfully acquired property.

As a result, in 2021, Flint Cooper filed the first-class action on behalf of bump stock owners seeking compensation for a taking of their property under the Fifth Amendment of the United States Constitution (Roy Lynn McCutchen, Paducah Shooter’s Supply, Inc. v. The United States). For those owners who lawfully purchased a bump-fire stock between June 7, 2010 and December 26, 2018, you may be entitled to compensation.

Hermit's Peak/Calf Canyon Fire

On September 30, 2022, President Biden signed into law the Hermit’s Peak/Calf Canyon Fire Assistance Act, providing $2.5 billion of critical relief funding for those impacted by the largest wildfire in New Mexico history. 

This financial support package, administered by The Federal Emergency Management Agency (FEMA), is intended to compensate victims who were negatively affected by the April 2022 wildfires. These fires resulted from a United States Forest Service (USFS)-prescribed burn that spread outside the project boundary. As a result, FEMA is charged with receiving, processing and paying claims for damages such as loss of property, business loss, financial loss and any other damages in accordance with this Act.

Flint Cooper is actively signing up fire and flood victims to recover losses from the federal government who has admitted liability in causing these devastating fires. The team of experienced takings attorneys will work on behalf of, and seek as much compensation as possible for, those who have struggled to rebuild in the months since losing their homes and property.

Flint Cooper is committed to holding the federal government responsible for paying all expenses associated with the fire and flooding to New Mexico property owners who have suffered damages from the Hermit’s Peak/Calf Canyon Fire.

Resources

Common Questions

Claims Process

Recursos

Preguntas Comunes

Proceso de Reclamos

Hermit's Peak/Calf Canyon Fire Map

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If you recieved the information packet and/or have any additional questions, Flint Cooper is here to help you take the next step for just compensation. Please email fires@flintcooper.com or click the button below to sign up.

Riverview Farms et al. v. The United States (“Olmsted Dam”)

Farmers in the Midwest have been hit hard from the trade war with China, but that is not what is putting many of them underwater. Hundreds of landowners in Kentucky, Illinois and Missouri have faced a recent deluge of flooding from the Mississippi and Ohio Rivers that has destroyed their land and their livelihoods. 

For the past 150 years, the U.S. Army Corps of Engineers (Corps) has been reshaping the Mississippi, Ohio and other Midwestern rivers to facilitate navigation. In recent years, the Corps has introduced new varieties of river training structures in the Middle Mississippi River, the Lower Mississippi River, the Lower Ohio River and tributaries to minimize the costly and environmentally detrimental dredging component of maintaining a navigable river channel. As a result of the Corps’ increasingly aggressive manipulation of the rivers, the newer structures gradually raised water surface elevations over time.

In 2018, Flint Cooper filed a complaint on behalf of the landowners in Kentucky, Illinois, and Missouri subject to the substantial, frequent, and inevitably recurring flooding caused by government action. The plaintiffs allege that the United States government took tens of thousands of acres of land without just compensation because it has constructed river training structures and dams, which have started to cause atypical flooding, making the land practically unusable, putting hundreds of farmers underwater. 

​This is an important case for Flint Cooper because it presents a clean vehicle to relieve midwestern farmers from the onslaught of flooding caused by federal government activities. It would also provide a big boost to the agricultural industry in light of the steep drop in grain prices from tariffs and the pandemic. Furthermore, resolution of these claims will give the federal government wide latitude to support the inland marine industry and promote river navigation without concern for future liability.