Federal Takings, Property Rights and Litigation

Thor Hearne has earned a national reputation for his work in complex federal and state litigation and appeals, especially matters involving property rights, constitutional law and election issues.  Thor has represented more than 1,000 landowners in federal property rights litigation arising under the Rails to Trails Act.  Thor was named one of the nation’s top-fifty “Litigation Trailblazers and Pioneers” by the National Law Journal and featured as a pre-eminent national trial and appellate attorney for his work in property rights litigation. In 2014, the National Law Journal named Mr. Hearne one of Fifty Litigation Trailblazers and Pioneers in the country. In 2013, the National Law Journal recognized Mr. Hearne as a pre-eminent national trial and appellate attorney for his work in class-action eminent domain litigation.

Thor Hearne’s courtroom successes have made him a sought after speaker at top eminent domain CLE conferences, including the Brigham-Kanner Property Rights Conference at William & Mary Law School, where he serves as a member of the Advisory Council. He is a faculty member on the ALI-CLE Eminent Domain and Land Valuation Litigation Conference. Mr. Hearne was selected by the judges of the Court of Federal Claims to serve on the Court’s Advisory Council and takings committee.

Mr. Hearne is nationally-recognized for his practice before state and federal trial and appellate courts. Over the past two decades, Mr. Hearne has served as lead counsel, representing more than a thousand landowners in sixteen states in takings claims arising from the enactment of Section 8(d) of the Trails Act. Mr. Hearne has successfully represented clients before the US Supreme Court, state supreme courts, and other trial and appellate courts. One of Mr. Hearne’s recent arguments before the Missouri Court of Appeals was highlighted as part of the Washington University Appellate Advocacy Program.

Mr. Hearne is also one of the nation’s preeminent political and election law attorneys. He served as President George W. Bush’s national election counsel in 2004, and as then-candidate George W. Bush’s lead counsel in Missouri in 2000, when he won the landmark case Bush-Cheney v. Baker. He was an advisor to the Carter-Baker Commission on Federal Election reform and has testified on election law matters before the U.S. Senate, the U.S. House of Representatives, the U.S. Commission on Civil Rights, and the U.S. Election Assistance Commission. Mr. Hearne has written numerous articles on various topics of constitutional and election law, as well as Fifth Amendment Takings.

Mr. Hearne has written a number of law reviews and other articles on property rights and constitutional law.  The American Bar Association asked Thor to write one of the leading articles on the Trails Act, The Trails Act: Railroading Property Owners and Taxpayers for More Than a Quarter Century, Real Property, Trust & Estate L.J., Vol. 115, Spring 2010.  And Thor authored “The Fifth Amendment Requires the Government to Pay an Owner Interest Equal to What the Owner Could Have Earned Had the Government Paid the Owner the Fair-Market Value of Their Property on the Date the Government Took the Owner’s Property,” Brigham-Kanner Property Rights Conference Journal, Vol. 1, September 2012..

Representative Matters

• In Brandt v. United States, 134 S.Ct. 1257 (2014), Thor was counsel for amici curiae Cato Institute, American Farm Bureau Federation, American Land Title Association, National Cattlemen’s Beef Association, Public Lands Council, and Property Law Professors James Ely, Jr., Richard Epstein, Donald Kochan, and Dale Whitman in a case filed by the U.S. government against a Colorado ranching family.  The decision set a major precedent with regard to Trails Act litigation involving the General Railroad Right-of-Way Act of 1875, which affects thousands of acres of property across the United States.
• In St. Bernard Parish Government v. United States, Nos. 2016-2301, 2016-2373 (Fed. Cir. 2017), Thor served as lead counsel for amici curiae in an appeal to the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court related to takings claims arising from the government’s construction and operation of the Mississippi River Gulf Outlet. Thor represented Owners’ Counsel of America, the Cato Institute, NFIB Small Business Legal Center, Southeastern Legal Foundation, Property Rights Foundation of America, the National Association of Reversionary Property Owners, National Association of Home Builders, and Professors of Property Law James Ely, Jr., Shelley Ross Saxer, and Robert H. Thomas.
• In Brott v. United States, 858 F.3d 525 (6th Cir. 2017), Thor represents a group of Michigan property owners challenging the Tucker Act’s prohibition on filing taking cases against the United States over $10,000 in an Article III court with the right to trial by jury.  The landowners petitioned for Supreme Court review and were supported by amicus briefs filed by twenty esteemed property rights organizations and legal scholars.
• In Lee, et al. v. Virginia State Board of Elections, 188 F. Supp.3d 577 (E.D. Va. 2016), affirmed 843 F.3d 592 (4th Cir. 2016), served as special counsel on appointment by Virginia’s Attorney General to defend the state’s photo-voter ID law. As lead trial and appellate counsel, Mr. Hearne successfully defended the Virginia law in a two-week trial in the Eastern District of Virginia and then successfully represented the Commonwealth before the U.S. Court of Appeals for the Fourth Circuit.
• In Palmer Ranch v. Commissioner of Internal Revenue Service, T.C. Memo 2014-79 (US Tax Court 2013), affirmed, 812 F.3d 982 (11th Cir. 2016), successfully represented a family in two-week trial before the US Tax Court regarding a $83 million dollar dispute with the IRS.
• In Zoltek Corp. v. United States, 815 F.3d 1302 (Fed. Cir. 2016), successfully represented Zoltek, Inc. in a patent infringement lawsuit before the Court of Federal Claims and related appeals to the Federal Circuit.
• In Childers v. United States, 116 Fed. Cl. 486 (2013), obtained a $5.7 million award for property owners following a trial before the Court of Federal Claims.
• In McCann Holdings, Ltd. v. United States, 111 Fed. Cl. 608 (2013), obtained a $3.2 million trial judgment for Florida property owners after a trial before the Court of Federal Claims.
• In Ladd v. United States, 713 F.3d 648 (Fed. Cir. 2013), successfully represented a class of Arizona property owners in Fifth Amendment takings claim, including landmark, precedent-setting appeals arising from the issuance of a Notice of Interim Trail Use under the Trails Act.
• Successfully represented scores of landowners in Fifth Amendment takings lawsuits related to property throughout the United States, including in Florida, South Carolina, Michigan, Arizona, North Carolina, Indiana, Missouri, Kansas, Nebraska, Tennessee, Kentucky, Illinois, Oregon, and Georgia.
• In Bush-Cheney, 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000), represented President Bush and the Bush-Cheney presidential campaign, obtaining an emergency appellate order regarding the legal closing hour of polls.
• In Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002), represented Plaintiffs in a successful federal civil rights redistricting litigation of St. Louis County, Missouri.