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After more than a year and a half of postponements, the second-phase trial in a long-running dispute pitting farmers along the Missouri River against the federal government will take place this summer, using a virtual format rather than in person.

In an April 14 hearing conducted by telephone, Senior Judge Nancy B. Firestone of the U.S. Court of Federal Claims granted a motion from the plaintiffs, who are led by Ideker Farms Inc. of St. Joseph, allowing the case to proceed to trial with the parties appearing remotely. Firestone also set a July 20 trial date.

The lead attorney for the plaintiffs, R. Dan Boulware of Polsinelli in St. Joseph, said the government argued that the trial should be postponed indefinitely, which his clients opposed. He said the plaintiffs are happy with Firestones decision.

Were pleased with that because we wanted to get it tried this summer, and it looks like were going to, he said.

Boulware

Boulware said the plaintiffs believe that using videoconferencing technology is the best option to proceed as long as the COVID-19 pandemic continues without the discovery of a vaccine to counter it.

During the trial, each side will have 30 hours to argue their case before Firestone, Boulware said. He anticipates the trial will run for about two weeks, as opposed to the four-month first phase of trial, which ended in 2018.

To prepare for a trial held virtually, Boulware said Firestone asked the parties to conduct de bene esse depositions depositions that can stand in for live witness testimony before the trial.

You dont hold anything back when you depose the other side, he said. You better get your licks in because that may be the testimony offered at trial. All in all, we were fully agreeable to what she wanted to do. I told her we didnt want any undue delay and we were flexible.

The case is considered a bellwether case for the Fifth Amendment issues it raises.

The plaintiffs are a group of more than 350 landowners along the Missouri River from Missouri to the Dakotas.

They assert that flooding of their land, caused by a 2004 change in policy by the U.S. Army Corps of Engineers to protect wildlife, amounted to a taking under the Takings Clause of the Fifth Amendment, which required the government to compensate landowners.

In March 2018, after the first phase of trial, Firestone ruled mostly in the plaintiffs favor, finding the Corps was responsible for flooding along the river. The plaintiffs have estimated they could receive damages of $300 million.

In the second phase of the trial, the government is set to present its defenses, and the plaintiffs will make their arguments for damages.

Other landowners along the river who are not parties to the suit are following it closely to see if they also will be able to seek damages as the river continues to flood on an annual basis.

Brent Allen, an attorney in the U.S. Department of Justice Environment and Natural Resources Division in Washington, D.C., is representing the government. He did not respond to a request for comment.

The case is Ideker Farms Inc. et al. v. United States of America, 1:14-cv-183.

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Second phase of river-flooding trial to go virtual - Missouri Lawyers Media

Provo City Police Department officers took two local men into custody after one allegedly threatened a neighbor walking her dog.

According to the probable cause statements filed in support of the arrests, a woman contacted police after her downstairs neighbor began screaming at her through her vents.

The woman also told police that about an hour before contacting dispatch, a man began screaming and cursing at her from the window of the apartment under her while she was taking her dog out.

About half an hour later, the woman told authorities she heard footsteps outside her door and looked out the peep hole to see the same man standing outside her door. The woman provided a physical description of the man she had seen.

When officers arrived, they knocked on the door of the apartment the man was believed to have come from but did not receive an answer. The officers went to the complainants apartment to speak with her, and while the officers were standing outside, heard a man walk out of the downstairs apartment.

According to arrest documents, the officers heard the distinct sound of a gun racking before a mans voice said, Come knock on my door again. Come see what happens. I got a present for you.

Authorities called for other officers to respond to the area and establish a perimeter. While securing the perimeter, two men, one of which was walking a dog, approached officers.

The two men later identified as 36-year-old Curtis Nathaniel Stewart and 31-year-old Scott Vernon McElderly were walking from the area of the downstairs apartment, and one of the men had a defined bulge in his sweatshirt pocket, according to the probable cause affidavit.

Officers made contact with the men and detained them at gunpoint, placing them in handcuffs.

Authorities searched each man and allegedly discovered a 9-millimeter handgun in Stewarts sweatshirt pocket with a bullet in the chamber and a full magazine inserted in the gun. Officials asserted Stewart did not have a concealed weapons permit at the time of the search.

Stewart was discovered to be the tenant in the apartment below the complainants, and McElderly matched the description the woman had given police.

During an interview, Stewart said he had seen a marked, armed person knocking on the door, but advised officers he did not want to answer any more questions without a lawyer, according to arrest documents. McElderly invoked his fifth amendment right, refusing to be interviewed.

Stewart and McElderly were arrested under suspicion of third-degree felony aggravated assault threat with the show of force or violence necessary to injure and a class A misdemeanor threat of a dangerous weapon in a fight. Stewart also faces an additional potential class A misdemeanor charge for carrying a concealed, loaded firearm.

Both men are being held at the Utah County Jail. McElderly is being held on $7,500 bail, while Stewart is being held on $10,000 bail.

Continued here:
2 Provo men arrested after alleged altercation with neighbor, police - Daily Herald

GOLDEN v. U.S.

Before OMalley, Mayer, and Wallach. Appeal from the United States Court of Federal Claims.

Summary: (1) Patent infringement claims against the government must be brought under 28 U.S. 1498, not as a Fifth Amendment taking claim. (2) An IPR initiated by a government agency is not a taking if the patent owner voluntarily canceled all claims in a non-contingent motion to amend.

Larry Golden filed suit pro se in the U.S. Court of Federal Claims seeking compensation for the governments alleged taking of his patents. The complaint alleged the takings occurred by (1) the governments use of subject matter outlined in the claims and specification of Goldens patents, (2) the cancellation of patent claims during an IPR initiated by the Department of Homeland Security (DHS), and (3) the dismissal of Goldens taking claims in a previous case. The Claims Court dismissed Goldens claims because they were duplicative of the previous case and were actually patent infringement claims that had to be pursued under 28 U.S.C. 1498. Golden appealed.

The Federal Circuit concluded the dismissal of Goldens patent infringement-based takings claims was proper because a patentee could not sue the government for patent infringement as a Fifth Amendment taking. Rather, patent claims against the government must be pursued exclusively under 28 U.S.C. 1498. As for the IPR-based takings claims, the Federal Circuit previously held in Celgene Corp. that IPR is not normally an unconstitutional taking under the Fifth Amendment. The Federal Circuit noted that the DHS is a government agency, which is not a person that can petition for IPR under the Supreme Courts Return Mail decision. However, that did not impact the decision because (1) Golden did not appeal the IPR, which became final before Return Mail, and (2) the claims were canceled as a result of Goldens voluntary non-contingent motion to amend during the IPR.

More:
Patent Owners Cannot Sue the Government for Patent Infringement as a Fifth Amendment Taking - Lexology

A Haskell Indian Nations University (HINU) student was vacated from the university dorms during the height of the COVID-19 pandemic over allegations of intimidation and harassment of a Haskell employee without due process to appeal the decision.

HINU athlete Russell Parker received a HINU Action Notice for an Emergency Level II suspension from Danelle McKinney, Student Rights Specialist, that required Parker to leave campus during stay-at-home orders from the state. The notice outlined that Parker wasnt currently allowed to appeal allegations against him but was allowed to appeal his Permanent Loss of Housing. Parker says he is unaware of how an appeal for housing would work at this time since there are policies in place to keep students who have left campus from returning among HINUs COVID-19 response efforts and hes currently required to be off campus until his hearing.

Parkers suspension is based on allegations of harassment of Haskell employee and intimidation by student to Haskell employee. These allegations came as a shock for Parker, and contrasts the Report Synopsis Overview in the Incident Report which states that [the] student failed to comply with verbal directives from Facilities Staff. The referenced directives in the report had asked Parker to move his car and golf mat and move onto the current golfing range.

According to the incident report, Steven LaCour, Acting Facilities Foreman stated I noticed that he had a golf club in his hand and was getting very agitated. The surrounding text does not support that Parker, who was golfing, threatened LaCour, but mentions Parker accusing him of being on a power trip and calling him an ahole when he walked away, both protected rights under the First Amendment as well as the Code of Student Conduct. Parker feels LaCour embellished his report by describing Parker as belligerent and agitated; LaCour referred to himself as acting kindly.

In addition to LaCours statement being taken in the incident report by Ernest Wilson, Acting Supervisor: College Resident Assistant, LaCours account was also recorded in the activity log of Lead Security Officer James Yarnall who LaCour asked to confront Parker. Yarnall wrote that after asking Parker to move his car and to golf on the range, the student packed up his stuff and left and did not say much to me. He did note that Parker seemed irritated.

Parkers own experience was not documented by either the security activity log nor the Incident Report used to determine Parkers suspension. Despite his best efforts to advocate for himself, Student Rights is not allowing him to appeal their allegations.

As a federally funded school, HINU is bound by constitutional rights including the right to due process which is also part of the Code of Student Conduct. The code of conduct says every student, student organization, and campus organization is entitled to due process and appeal in every instance of disciplinary action for alleged violation of Haskell expectations.

This decision and lack of due process puts Parkers life in danger. Parker said its like walking around with a bomb strapped to my chest referring to him trying to find temporary housing off campus in the midst of the pandemic. Parker also showed concerns for its effects on his financial situation and how it will affect his scholarships. Parker had told Tonia Salvini, Vice President of University Services, through email that this would leave [him] homeless at the height of a pandemic.

For Parker to be charged with Intimidation or Threat outlined in the Code of Student Conduct, LaCour would have to have had a fear of bodily harm or feel threatened by word or action of a perceived threat to inflict bodily harm. In Parkers message to Salvini, he told her that these allegations simply arent true and that at no point did [he] approach Mr. LaCour or say anything that would imply a threat or violence. Allegations of intimidation automatically trigger an additional charge of harassment due to HINU defining intimidation as a form of harassment.

Parker has been receiving support from his peers who have witnessed Parker golfing over the past few weeks during isolation before the incident. Haskell student, Michael King said Haskell protects their employees more than they protect their students. The climate of the current COVID-19 pandemic has complicated relationships between students and staff. King said I feel staff is targeting students and pointing blame at them for [COVID-19] and that the staff thinks their health is at a greater risk than students. One of LaCours coworkers commented on an Indian Leader Facebook post that he felt it was a very bad choice to let students live here and he feels like staff arent equipped to protect themselves. One of LaCours relatives also posted concerns that essential staff have families too referencing the fact that students who are staying on campus put them, the staff and their families, at risk (see article When Home isnt Home ).

Not only is Parker up against a mindset that students on campus threaten staff safety, but Parkers peer, Marklin Morales says I dont doubt race had something to do with it. Parker told Indian Leader that as a bi-racial non-traditional student, he doesnt look like his peers and that has caused challenges for him including this incident.

A study from the American Psychological Association (APA) found that black men, in hypothetical situations, were perceived as more capable of causing harm Parker said, I dont like playing the race card, but he finds that his bi-racial status affects his life, even in Black and Native communities. This comes several weeks after multi-racial Black students discussed their discrimination on HINUs campus at the Black History Month Student Panel.

Parker is one of at least five students who have been vacated during HINUs isolation through allegations of breaking the Code of Student Conduct, and it is unknown if the others were given their due process, and if there was any consideration for their safety during this pandemic. Parkers hearing for Permanent Loss of Housing will be Friday April 17, Parkers birthday.

Vice President of Student Services Toni Salvini, Student Rights Specialist Danelle McKinney, and Acting President Jim Rains were given an opportunity to comment before publication with no response.

UPDATE April 16, 2020 At the request of Parker, he would like his documents pertaining to this instance made public to help provide context to his circumstances and the event reference in the article above.

Note: There is a reference to an attached police report. To Parkers knowledge, this is just the security log from Yarnall. Parker contacted the Lawrence Police Department who has no record of this incident.

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Student Safety Jeopardized by Violation of Fifth Amendment - The Indian Leader

What happens when the government destroys your house in pursuit of acriminal? That seems like atoo common story now, as our police are armed to the teeth and frequently use armored vehicles and heavy weaponry. Arecent petition filed at the Supreme Court comes out ofawellpublicized incident of police destroying property in the Denver suburbs.

Lech in front of his destroyed house.

Leo and Alfonsia Lech owned ahome in Greenwood Village, Colorado where their son John lived. In early June of 2015, ashoplifter who was fleeing from the police chose the house at random to hide from the police. When the police arrived, they discovered that the shoplifter was armed and dangerous. Flushing him out of the house required two gascanisters, breaking down the front and back doors, and blowing holes in the walls and windows. The shoplifter was captured, but the home was uninhabitable. This case is about who covers the costs of building anew house, the public who were protected from aviolent criminal, or the innocent family that lost their home.

Theres an old saying, you break it, you buy it, but that apparently doesnt apply in Greenwood Village. The city offered only temporary living expenses while the Lechs paid to rebuild. The Lechs sued for compensation under the Takings Clause of the Fifth Amendment, which says the government may not take private property for public use, without just compensation.

The district court denied Lechs claim, and the Tenth Circuit affirmed the district court. The Tenth Circuit held that the destruction of property by police is different than when the government takes ahouse to, say, build aroad. Taking property to build roads and schools are classic eminent domain cases, the court said, but the police destruction is just, well, luck of the draw. Because the Lechs property was destroyed while trying to protect the health, safety, and welfare of the citizens, no compensation was owed. Essentially, the Tenth Circuit created an exception to the Takings Clause that historically has not been recognized.

Represented by our friends at the Institute for Justice, the Lechs have petitioned the Supreme Court to hear their case. Cato and Professor Ilya Somin of George Mason Universitys Antonin Scalia Law School have filed abrief in support. We argue that the Tenth Circuits policepower exception conflicts with the history of the Takings Clause. There should be aremedy for innocent bystanders who lose property to destructive police tactics for the public good, especially given the militarization of police over the past decades.

Fundamentally, the Takings Clause means, in the words of the Supreme Court, the government cannot force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as awhole. The Supreme Court has often required the government to compensate the owners of physically taken or destroyed property, such as wagons commandeered for the MexicanAmerican War or land flooded when the government builds adam. But the Tenth Circuit relied heavily on acase from 1887, Mugler v. Kansas, where abrewer sued for the loss of value in his property after the state banned alcohol. There the Supreme Court ruled that no compensation was owed. In that case, however, the property itselfthe beer and the equipment to produce itwas considered noxious. But the Lechs are entirely innocent, and their property only became noxious after acriminal chose to hide in it.

Both the history and spirit of the Takings Clause show that the Lechs should be compensated for their lost property. In some sense, they did the people of Greenwood Village afavor by sacrificing their property to catch acriminal, and they should receive compensation. If the government breaks it, they should buy it.

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"You Break it, You Buy it" Applies to the Government Too - Cato Institute