Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

Inverse Condemnation Claims after Knick

The Promise and Peril of Litigating in Federal Court

May 2020

This article explores inverse condemnation claims after Knick v. Township of Scott, Pennsylvania. It highlights considerations for determining the appropriate forum in which to bring an inverse condemnation claim.

Inverse condemnation claims provide a means of obtaining just compensation for those whose property has been taken by a governmental entity without a proper exercise of the power of eminent domain. Takings claims are unique in that they potentially arise under both the US and Colorado Constitutions.1 Yet until 2019, a property owner whose property was taken without just compensation faced a procedural conundrum created by a pair of US Supreme Court decisions. Previously, a private property owner was first required to pursue an inverse condemnation claim in state court before seeking relief in federal court. However, a state court’s ruling on the claim had preclusive effect in any subsequent federal suit. Thus, as a practical matter, property owners could not vindicate their claims in federal court.

The issue was resolved in mid-2019 when the Supreme Court held in Knick v. Township of Scott, Pennsylvania that a property owner may pursue an inverse condemnation claim in federal court regardless of whether the claim has first been litigated in state court.2 The newfound possibility of litigating these claims in federal court raises a host of questions for practitioners concerning how federal judges will handle these cases and the extent to which state or federal law will govern the proceedings. This article explores the practical ramifications of Knick and highlights considerations for practitioners in determining the appropriate forum in which to bring an inverse condemnation claim.

Claims Pre-Knick

The requirement that a landowner first pursue an inverse condemnation claim in state court originated in Williamson County Planning v. Hamilton Bank, a 1985 regulatory takings case in which the US Supreme Court held that the landowner’s claim was not ripe in part because the landowner had not first availed itself of the procedures for obtaining compensation provided by the state.3 The Court found that the Fifth Amendment only requires that “‘a reasonable, certain and adequate provision for obtaining compensation’ exist at the time of the taking.”4 Accordingly, the Court held that if a state provides a procedure for seeking just compensation, such as an inverse condemnation claim, there is no violation of the federal constitution’s Takings Clause until the landowner has used the procedure and been denied just compensation.5

Following Williamson County, property owners dutifully began to first pursue their inverse condemnation claims in state court. But if they were dissatisfied with the outcome in state court and attempted to later pursue their claim in federal court, the result was dismissal of their cases due to issue and claim preclusion.6 This occurred where litigants attempted to reserve their federal takings claims during the state court proceedings,7 and even where state courts denied compensation based on erroneous applications of the law.8 Despite holding that the claims were precluded, some federal courts expressed doubts that the Court intended Williamson County to foreclose the right to relief in federal court, calling it a “draconian result.”9

Nevertheless, 20 years later the Court held in San Remo Hotel, L.P. v. City and County of San Francisco that 28 USC § 1738, which provides that judicial proceedings shall have the same full faith and credit in every US court, did indeed preclude a property owner from re-litigating a regulatory takings claim in federal court after a state court had resolved the claim.10 The Court noted that there was no right to a federal forum.11 Thus, the combined result of Williamson County and San Remo was that property owners could only pursue inverse condemnation claims, including claims brought under the Fifth Amendment, in state court. The Court would later describe this in Knick as “[t]he San Remo preclusion trap.”12

Knick Alters the Landscape

In Knick, the US Supreme Court reconsidered the practical result of Williamson County and San Remo. After a state court dismissed her claims for declaratory and injunctive relief, Knick sued the Township of Scott in federal district court, alleging that a local ordinance effected a taking of her property in violation of the Fifth Amendment.13 The district court dismissed her suit because she had not first pursued an inverse condemnation claim in state court.14 In considering Knick’s case, the Court explicitly overruled Williamson County, concluding that “the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs,” and holding that a property owner has an actionable claim under the Fifth Amendment at the very moment that a government takes property without compensation.15 The Court held that a property owner may bring an inverse condemnation claim under 42 USC § 1983 in federal court without necessarily pursuing the claim first in state court.16

The dissent cautioned against two potentially harmful consequences of the majority’s ruling. First, it noted that well-meaning government officials will inevitably be deemed lawbreakers because there typically is no way to determine in advance the full extent of a regulatory program’s effects on landowners. Because the majority held that a constitutional violation occurs at the very moment of a taking, there will often be no way to avoid a violation, particularly in the context of regulatory takings.17

Second, the dissent cautioned that the decision will funnel a large amount of “quintessentially local cases involving complex state-law issues” into federal court.18 It noted that takings claims often require complicated inquiries into state law property rights and land use issues with which federal judges are unfamiliar. The dissent further argued that it is not proper for federal courts to become the arbiters of local and state land use issues.19

Nevertheless, the groundbreaking result of Knick is that property owners are now able to bring inverse condemnation claims against local governments in both state and federal court.

Post-Knick Constructions

In the wake of Knick, federal courts have opened the doors to takings claims that would have previously been barred under Williamson County,20 with two important caveats. First, at least one federal district court has held that Knick applies only to inverse condemnation claims; the decision does not permit landowners to remove direct condemnation actions to federal court.21 Second, the Fifth and Tenth Circuits have held that Knick did not have any effect on the immunity of states and state officials to suit in federal court under the Eleventh Amendment, and thus takings claims may not be brought against state governments, including state agencies, in federal court.22 However, inverse condemnation claims against counties and other municipal corporations may proceed in federal court.23

Deciding Whether to Litigate in State or Federal Court

Historically, some practitioners have preferred to litigate land use issues in federal court for several reasons. First, federal judges are theoretically more immune to local politics, and therefore potential local bias, than state judges, who typically are either elected officials or, as in Colorado, subject to retention by popular vote.24 Second, some practitioners believe they will be in a better negotiating position if local officials are confronted with the reality of litigating a Fifth Amendment claim before a federal judge.25 Finally, there are the more generalized and well-known advantages of litigating in federal court: less-crowded dockets and speedier resolution of cases.

However, there are several important differences between state and federal takings law. Litigating these claims in federal court will raise complex choice-of-law issues that many federal district court judges have not had much occasion to address, because property owners were not previously permitted to litigate these claims in federal court absent the existence of diversity jurisdiction.

Procedural Considerations

Pursuant to the principles set forth in Erie Railroad Co. v. Tompkins, all procedural issues in an inverse condemnation suit brought in federal district court are governed by the Federal Rules of Civil Procedure, while substantive legal issues concerning claims brought under the Colorado Constitution are governed by state law.26 Although traditional condemnation cases brought in federal court are governed by the special procedures set forth in Fed. R. Civ. P. 71.1, the Ninth Circuit, for example, has opined that Rule 71.1 does not apply to inverse condemnation claims.27 Thus, the general Federal Rules of Civil Procedure apply. Because the Colorado Rules of Civil Procedure are largely modeled after their federal rule analogues,28 there should not be any significant procedural differences to consider when deciding whether to litigate inverse condemnation claims in federal or state court.

However, it is worth noting that pursuant to Colorado law, collateral issues that change the nature of the case, such as quiet title claims, cannot be considered in an eminent domain proceeding.29 Conversely, objections to the taking itself must be raised in that proceeding and may not be raised in a collateral proceeding.30 The US District Court for the District of Colorado has previously taken note of these limitations in considering eminent domain suits arising under Colorado law.31

Evidentiary Matters

Although the Colorado Rules of Evidence are patterned after the Federal Rules of Evidence,32 federal judges in Colorado have exhibited a willingness to more closely scrutinize appraiser methodology under the Daubert33 standard than is typical of state judges under the Shreck34 standard.

Colorado state courts have routinely held that the evidentiary rules in eminent domain proceedings are expansive.35 For example, with respect to an appraiser’s comparable sales, Colorado district courts have admitted comparable sales that were similar to the property at issue in at least one aspect.36 Comparable sales ranging in size from 7.84 acres to 135 acres have been held admissible in valuing a 129-acre property,37 and comparable sales with significant variations in development status have also been held admissible.38 Colorado district courts frequently hold that disputes over the relevance of comparable sales and other aspects of an appraiser’s testimony go to the weight of the testimony, not its admissibility.39

By contrast, federal courts in Colorado have more readily excluded comparable sales based on differences in size, development status, and highest and best use in federal takings cases. For example, a federal judge in Colorado recently excluded three of an appraiser’s six sales based on differences in size, development status, and highest and best use.40 Each of the three comparable sales was a 34-acre home site that was subdivided and ready for construction.41 The subject property was a 154-acre lot that was unimproved, with a highest and best use of interim hold with future large lot development, including a residential subdivision of 35-acre lots.42 The condemnation action was initiated by the federal government, and therefore no Colorado law was discussed in the opinion.

The Tenth Circuit has not specifically considered whether the expansive evidentiary rules developed by Colorado state courts apply in inverse condemnation suits brought in federal court that arise at least partially under Colorado law. However, the Tenth Circuit has somewhat enigmatically held in another context that although the Federal Rules of Evidence are not subject to Erie, where a conflict exists between the Federal Rules of Evidence and state law, the federal rules apply unless the state law at issue reflects substantive concerns or policies.43 Pure rules of evidence are concerned with accuracy, efficiency, and fair play in litigation, while substantive rules are concerned with behavior outside of the courtroom.44 It therefore seems likely that Colorado law concerning the admissibility of appraiser testimony will be deemed purely procedural and therefore inapplicable in an inverse condemnation suit brought in federal district court.

Substantive Issues

The takings clauses of the Colorado and US Constitutions are not co-extensive. The Colorado Constitution affords greater protection than the US Constitution by allowing compensation for damage caused to property abutting public improvements, in addition to actual physical takings.45 Thus, to the extent an inverse condemnation suit is based solely on such damage, it cannot be brought in federal district court because no violation of the US Constitution will have occurred.46 A federal constitutional claim arises only where there has been an actual physical invasion of property, or where the effects of governmental action are “so complete as to deprive the owner of all or most of his interest in the subject matter.”47

In cases that truly arise under both the Colorado and US Constitutions, federal courts must apply state law on substantive questions concerning the right to compensation.48 This is likely to increase the number of questions the Tenth Circuit certifies to the Colorado Supreme Court49 because the US Supreme Court has held that federal judges should certify questions to state courts in situations where the state law issue is of vital concern and the question is truly novel.50 The US Supreme Court has specifically noted that eminent domain “is intimately involved with sovereign prerogative,” and has opined that issues as to the nature and extent of the delegation of the power of eminent domain between a state and a municipality are appropriate for certification.51 Candidates for certification therefore include questions about

  • the nature and extent of a specific entity’s power of eminent domain, particularly if that entity is a nontraditional governmental entity such as a quasi-governmental entity or a private party;
  • the types of property interests protected by the Colorado Constitution’s Takings Clause, particularly where such interests do not consist of full fee ownership of the property at issue;52 and
  • the right to recover attorney fees and costs, as discussed below.

Certification of unsettled questions of state law is a possibility that attorneys and their clients should consider carefully when determining whether to bring suit in federal court, given the significant delay in compensation that will result from certification.

Quasi-Substantive Issues

Several potential conflicts exist between state and federal law on issues that are not clearly substantive or procedural.

Landowner testimony. The first potential conflict concerns testimony by property owners concerning the value of their property. Colorado courts have unequivocally held that a property owner may testify to the market value of one’s property without qualifying as an expert witness.53 The law is not as clear in the Tenth Circuit, which has not considered the question of property owner valuation in the context of eminent domain cases arising under Colorado law. Fed. R. Evid. 601 provides that the competency of a witness to testify as to a state law claim or defense is an issue of state law. Nevertheless, the Tenth Circuit has made conflicting statements on the standards applicable to landowner testimony in diversity jurisdiction cases involving other types of state law claims. For example, in James River Insurance Co. v. Rapid Funding LLC, the court noted that “the Federal Rules of Evidence generally consider landowner testimony concerning the value of the land to be expert opinion,” but also noted that such testimony may, with proper foundation, constitute lay testimony.54 However, in Hornick v. Boyce, the court held that landowner testimony concerning the value of property was expert testimony even where the landowner did not possess any relevant expertise.55 Although the court noted that whether a sufficient factual foundation for the testimony had been established was a substantive issue governed by Colorado law, it also noted that there were “threshold evidentiary issues concerning the admissibility” of the opinion.56

Considering this murky case law, it is unclear how a federal district court would resolve the interplay of Rules 601 and 702, and Colorado law concerning property owner testimony in an inverse condemnation suit. There are certainly colorable arguments to be made on either side.

The trier of fact. The second potential conflict between state and federal law concerns the appropriate trier of fact for the valuation portion of the trial. There is no federal right to a jury trial in inverse condemnation cases, while in Colorado a landowner is entitled to either a trial by a jury of freeholders or a panel of three commissioners who are also freeholders.57 The Tenth Circuit has not categorically ruled whether the right to a jury trial is substantive or procedural, but has noted that a state-provided right to a jury trial can plausibly advance substantive rights.58 There are persuasive arguments to be made that the right that Colorado has afforded property owners to a trial by either a jury or commissioner panel of freeholders is substantive in light of the special nature of eminent domain proceedings, the fact that the Colorado Supreme Court has upheld the right to demand a jury specifically of freeholders,59 and the fact that the federal rules applicable to traditional condemnation cases defer to state law regarding whether a claim may be tried by jury or commission or both.60

Attorney fees and costs. Finally, there is a potential discrepancy between state and federal law concerning the entitlement to attorney fees and costs. With respect to a Fifth Amendment takings claim, a federal court may, in its discretion, award attorney fees and costs to the prevailing party.61 For an inverse condemnation claim brought under the Colorado Constitution, a property owner is entitled to attorney fees and costs if the court enters judgment in favor of the plaintiff and federal financial assistance is available for the project or program for which the property was taken.62

For takings that do not involve federal financial assistance, there is no clear Colorado law concerning the entitlement to attorney fees and costs. In a traditional condemnation case, CRS § 38-1-122(1.5) mandates an attorney fees and costs award to property owners who obtain an award that equals or exceeds 130% of the last written offer made before the filing of the condemnation suit. Yet there is no authority regarding whether a property owner in an inverse condemnation case is similarly entitled to attorney fees and costs.

Whether a prevailing property owner in an inverse condemnation suit is entitled to attorney fees and costs could be subject to certification if it becomes relevant in a suit brought in federal court. To the extent that a federal court exercises its discretion to award attorney fees and costs pursuant to 42 USC § 1988, the question would obviously be irrelevant. However, the question will become extremely important if a federal court declines to award attorney fees and costs, because CRS § 38-1-122(1.5) is mandatory if it applies. If a state court were to clarify that CRS § 38-1-122(1.5) applies in inverse condemnation suits, a federal court would likely apply it, because the Tenth Circuit has previously held that attorney fees and costs are a substantive matter that is controlled by state law.63


Litigating inverse condemnation suits in federal court is an intriguing option for plaintiffs who were previously forced to litigate their claims in state court. Nevertheless, practitioners should carefully consider the potential advantages and disadvantages of litigating these suits in federal district court, particularly in light of the number of complex and unsettled choice-of-law issues that are likely to arise. This area of the law should rapidly develop in the coming years as federal district courts are faced with what is likely to be an increasing number of inverse condemnation claims.

Jennifer Lake is a civil litigator focusing on complex commercial litigation, eminent domain, and real estate related litigation. Most recently, she practiced with Waas Campbell Rivera Johnson & Velasquez LLP in Denver. Before that, Lake clerked for the Hon. Robert N. Scola Jr. of the US District Court for the Southern District of Florida. She also spent four years as a trial attorney at the US Department of Housing and Urban Development. Coordinating Editor: Christopher D. Bryan.

Related Topics


1. The US Constitution provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. The Colorado Constitution provides that “private property shall not be taken or damaged, for public or private use, without just compensation.” Colo. Const. art. II, § 15.

2. Knick v. Twp. of Scott, Penn., 139 S.Ct. 2162 (2019).

3. Williamson Cty. Reg’l Planning Comm’n, 473 U.S. 172 (1985).

4. Id. at 194 (internal quotations and citations omitted).

5. Id. at 194–97.

6. See, e.g., Wilkinson v. Pitkin Cty. Bd. of Cty. Comm’rs, 142 F.3d 1319, 1322–25 (10th Cir. 1998) (holding that “the Williamson ripeness requirement is insufficient to preclude application of res judicata and collateral estoppel principles,” id. at 1324, and concluding that the district court correctly dismissed the inverse condemnation claim that had already been litigated in state court).

7. See, e.g., Dodd v. Hood River Cty., 136 F.3d 1219, 1227–28 (9th Cir. 1998) (holding that plaintiffs were precluded from bringing an inverse condemnation claim in federal court after litigating the claim in state court, despite the fact that plaintiffs explicitly asked the state court to refrain from addressing the federal takings claim to preserve their right to a federal forum).

8. See, e.g., Rainey Bros. Constr. Co. v. Memphis and Shelby Cty. Bd. of Adjustment, 178 F.3d 1295 (6th Cir. 1999) (unpublished opinion) (holding that plaintiff was precluded from bringing an inverse condemnation claim in federal court due to previous state court litigation, even though the state court erroneously held that plaintiff’s inverse condemnation claim was barred by the state governmental immunity statute).

9. See, e.g., Dodd v. Hood River Cty., 59 F.3d 852, 860–61 (9th Cir. 1995) (“We disagree, however, with the suggestion that Williamson County is a thinly-veiled attempt by the Court to eliminate the federal forum for Fifth Amendment taking plaintiffs . . . .”). Id. at 861.

10. San Remo Hotel, L.P. v. City and Cty. of San Francisco, 545 U.S. 323 (2005).

11. Id. at 343–44 (“Unfortunately for petitioners, it is entirely unclear why their preference for a federal forum should matter for constitutional or statutory purposes.”) (emphasis in original).

12. Knick, 139 S.Ct. at 2167.

13. Id. at 2168–69.

14. Id. at 2169.

15. Id. at 2170.

16. Id. at 2179.

17. Id. at 2187.

18. Id. at 2181.

19. Id. at 2187–88.

20. See, e.g., Bear Crest Ltd. v. Idaho, 4:18-cv-00469-CWD, 2019 WL 3220575 at *4–5 (D. Idaho July 17, 2019) (denying motion to dismiss inverse condemnation claim against county); Mohit v. City of Haines City, 8:18-cv-1775-T-17JSS, 2019 WL 3465251 at *6–7 (M.D.Fla. July 9, 2019) (denying motion to dismiss inverse condemnation claim against city).

21. Providence City v. Thompson, 1:19-cv-88, 2019 WL 4932759 at *4 (D. Utah Oct. 7, 2019).

22. Williams v. Utah Dep’t of Corrs., 923 F.3d 1209, 1212–14 (10th Cir. 2019); Bay Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 456–57 (5th Cir. 2019).

23. See, e.g., Williams, 923 F.3d at 1213 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)).

24. Ryckman Jr., “Land Use Litigation, Federal Jurisdiction, and the Abstention Doctrines,” 69 Cal. L. Rev. 377, 378–79 (1981) (citing United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 150 (1965)).

25. See id. at 379.

26. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). See also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting that federal courts must apply state law to state claims properly before the court through supplemental jurisdiction); 12 Wright et al., Federal Practice and Procedure § 3055 (Westlaw Aug. 2019 update).

27. KLK, Inc. v. U.S. Dep’t of Interior, 35 F.3d 454, 457 (9th Cir. 1994) (citations omitted).

28. Warne v. Hall, 373 P.3d 588, 593 (Colo. 2016) (noting that “the Colorado Rules of Civil Procedure were modeled almost entirely after the corresponding federal rules, with the principal goal of establishing uniformity between state and federal judicial proceedings in this jurisdiction.”) (citations omitted).

29. Tegeler v. Schneider, 114 P. 288, 289 (Colo. 1911). See also Schneider v. Schneider, 86 P. 347, 348–49 (Colo. 1906).

30. See, e.g., Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 517 P.2d 845, 847 (Colo. 1974) (“Constitutional objections to the eminent domain proceedings should be raised in those proceedings and be determined by the court in limine and not by way of a collateral injunction proceeding.”); Ambrosio v. Baker Metro. Water and Sanitation Dist., 340 P.2d 872, 873 (Colo. 1959).

31. See, e.g., Thornton Dev. Auth. v. Upah, 640 F.Supp. 1071, 1080 (D.Colo. 1986).

32. See Colo. R. Evid. Preamble (“The [Colorado] Rules parallel the Federal Rules of Evidence . . . .”).

33. Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993).

34. People v. Shreck, 22 P.3d 68 (Colo. 2001).

35. See, e.g., Palizzi v. City of Brighton, 228 P.3d 957, 959 (Colo. 2010) (noting expansive evidentiary rules for property valuation in condemnation cases and holding that “all evidence relevant to the determination of the present market value of condemned property is admissible”); City of Englewood v. Denver Waste Transfer, L.L.C., 55 P.3d 191, 195 (Colo.App. 2002) (admissibility of evidence regarding property value is governed by an expansive, rather than restrictive, rule).

36. Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co., 179 P.3d 1, 5 (Colo.App. 2007), rev’d on other grounds, 185 P.3d 781 (Colo. 2008). See also 5 Nichols on Eminent Domain § 21.02[1][a] (Matthew Bender 3d ed. 2009) (“[I]f the properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony.”).

37. See, e.g., Bd. of Cty. Comm’rs v. Vail Assocs., 468 P.2d 842, 846–47 (Colo. 1970).

38. City of Westminster v. Jefferson Ctr. Assocs., 958 P.2d 495, 497–98 (Colo.App. 1997) (holding that sale of platted, partially finished parcel was admissible as comparable sale for unplatted, vacant land) (internal citations omitted).

39. Sch. Dist. No. 12, 179 P.3d 1, 5. See also 5 Nichols on Eminent Domain § 21.02[1][a] (“[I]f the properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony.”).

40. United States v. 8.11 Acres of Land More or Less in Cty. of Grand, Colo., No. 17-cv-01553-RM-SKC, 2019 WL 3425229 at *4 (D.Colo. July 30, 2019).

41. Id.

42. Id. at *1, *4.

43. Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 880–82 (10th Cir. 2006) (concluding that Oklahoma law generally barring admission of two types of expert reports was a procedural rule). However, this rule applies only to the original Federal Rules of Evidence. Amendments to the Federal Rules of Evidence have been adopted under the Rules Enabling Act, and the Tenth Circuit has held that amendments are governed by Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). James River Ins. Co. v. Rapid Funding LLC, 658 F.3d 1207, 1218 (10th Cir. 2011) (citations omitted). Pursuant to Shady Grove, a diversity court must first determine whether the federal rule and state law conflict. Id. If there is a conflict, then the court must decide whether application of the federal rule represents a valid exercise of authority under the Rules Enabling Act. Id.

44. Sims, 469 F.3d at 882–83 (citations omitted).

45. See supra note 1. See also City of Northglenn v. Grynberg, 846 P.2d 175, 179 (Colo. 1993); Mosher v. City of Boulder, 225 F.Supp. 32, 35 (D.Colo. 1964) (noting that “the Colorado Constitution affords an aggrieved property owner a greater measure of protection than does the Constitution of the United States. The United States Constitution requires compensation only where there has been an actual taking.”).

46. See Mosher, 225 F.Supp. at 35–36 (holding that the court did not have subject matter jurisdiction over plaintiff’s claim because the US Constitution does not afford protection for takings that do not involve a physical invasion of property).

47. Batten v. United States, 306 F.2d 580, 585 (10th Cir. 1962) (internal quotations and citations omitted).

48. See 12 Wright et al., supra note 26 at § 3055.

49. See, e.g., “Fifth Amendment—Takings Clause—State Litigation Requirement—Knick v. Township of Scott,” 133 Harv. L. Rev. 322, 330–31 (Nov. 8, 2019) (noting that given state courts’ recognized primacy in takings claims, “it is likely that federal courts will continue to depend on certification procedures . . . .”).

50. See Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 593–94 (1968).

51. La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28–29 (1959).

52. For example, currently pending before the Colorado Supreme Court is the question whether a restrictive covenant is a compensable property interest under the Colorado Constitution’s Takings Clause. Raymond Decker and Forest View Co. v. Town of Monument, Case No. 18SC793.

53.See, e.g., Bd. of Cty. Comm’rs of Weld Cty. v. Loyd Hodge & Sons, Inc., 534 P.2d 638, 639 (Colo.App. 1975).

54. James River Ins. Co., 658 F.3d at 1215, n.1.

55. Hornick v. Boyce, 280 Fed. Appx. 770, 774 (10th Cir. 2008) (citations omitted).

56. Id. at 774–75.

57. KLK, Inc., 35 F.3d at 458 (holding that a plaintiff is not entitled to a jury determination of just compensation in an inverse condemnation suit); 38 CRS § 38-1-105(1) (providing property owner the right to a trial by a jury of freeholders or a panel of three commissioners); Ossman v. Mountain States Tel. & Tel. Co., 520 P.2d 738, 742 (Colo. 1974) (holding that the right to demand a jury of freeholders should be afforded to landowners in inverse condemnation proceedings).

58. City of Aurora ex rel. Colo. v. Erwin, 706 F.2d 295, 299 (10th Cir. 1983).

59. See, e.g., East Denver Mun. Irrigation Dist. v. Altura Farms Co., 60 Colo. 452, 454 (1916); State Dep’t of Highways v. Ogden, 638 P.2d 832, 833 (Colo.App. 1981) (remanding for new trial where parties discovered after original trial that a juror was not a freeholder).

60. Fed. R. Civ. P. 71.1(k).

61. 42 USC § 1988(b).

62. CRS § 24-56-116.

63. See, e.g., Mooring Capital Fund, LLC v. Knight, 388 Fed. Appx. 814, 825 (10th Cir. 2010) (citing Combs v. Shelter Mut. Ins. Co., 551 F.3d 991, 1001 (10th Cir. 2008)).

The issue was resolved in mid-2019 when the Supreme Court held in Knick v. Township of Scott, Pennsylvania that a property owner may pursue an inverse condemnation claim in federal court regardless of whether the claim has first been litigated in state court.