March 2007

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high courtwill have to decide whether the 5th Amendment, like the 1st and the4th, protects citizens from unlawful retaliation for exercising apresumed right.

I’d say that’s just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It’s all right there in the Fifth Amendment, which provides “nor shall private property be taken for public use, without just compensation.”  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides “nor shall any…

Continue Reading ▪ More on Wilkie: Is Property A Personal Constitutional Right?

While there was much more attention devoted to today’s argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right? 

Whether “BONG HITS 4 JESUS” is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005’s infamous Kelo decision.  The transcript of the oral arguments is posted here.  The Solicitor General’s office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.

In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she…

Continue Reading ▪ Property Rights in the Supreme Court: Today’s Argument in Wilkie

That’s one of the three questions the US Supreme Court will consider on Monday, March 19 2007, when it hears arguments in Wilkie v. Robbins. 

The case involves a Wyoming rancher who sued officials of the federal Bureau of Land Management, claiming they began “a campaign of harassment and coercion designed to force [him] to give the Government a property interest in his landwithout just compensation.” 

The property owner sued the BLM officials under federal Racketeer Influenced and Corrupt Organizations (RICO) laws, asserting their attempts to coerce him to surrender an easement over his land was “extortion.”  Those efforts included filing false criminal and administrative charges against the property owner, harassing ranch guests, and cancelling the owner’s right-of-way across neighboring BLM land.  The BLM officials claimed they were immune from suit, arguing their behavior did not violate “clearly established” law.  Northwestern U’s School of Journalism has posted a summary…

Continue Reading ▪ Supreme Court Preview: Is There a Right to be Free From Government Retaliation For Defending Your Property Rights?

Recently, I was a guest on Jay Fidell’s ThinkTech program on Hawaii Public Radio, talking about legal issues that may arise when legislation is targeted at specific individuals or companies (what I refer to as “single victim legislation”). 

The issue raised its head when the Hawaii Legislature seemed ready to consider a proposal requiring one company — and one company only — to undertake an environmental impact statement before beginning its interisland ferry service.  Further background here and here. 

In short, whenever the government attempts to change the ground rules mid-stream, it raises several concerns:

  • Contracts Clause – the US Constitution prohibits a state from enacting a law “impairing the Obligation of Contracts.”  This prohibits a state legislature from altering the terms of a contract existing at the time of the law’s passage, especially when directed at specific parties.  A law is even more suspect when a state is

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Continue Reading ▪ Legal Issues in Single Victim Legislation

The Hawaii Supreme Court recently issued an opinion clarifying when a plaintiff may enforce a statute or ordinance by seeking a declaratory judgment.  Rees v. Carlisle(No. 26998, Mar. 12, 2007) considered the question of whether the Honolulu City Prosecutor mayuse public funds to advocate passage of an amendment to the HawaiiConstitution. 

The case had nothing whatsoever to do with land use.  Directly, that is.  The lastsection of the opinion (part E) is worth paying attention to for those who practice land use law, however, since it clarifies when a private party has aright to bring a lawsuit seeking a declaratory judgment under Haw. Rev. Stat. § 632-1.  Declaratory judgments are often the preferred remedy in land use litigation, and the opinion provides a good roadmap to the issues when that remedy is sought.

Statutes may define legal rights and obligations, but often contain no clear remedial provisions or…

Continue Reading ▪ Declaratory Judgments, Private Rights of Action, and Land Use Litigation

Ninth Circuit holds in San Francisco Baykeeper v. Cargill Salt Division (Nos. 04-17554, 05-15-51, Mar. 8, 2007):

We conclude that the district court improperly expanded the regulatory definition of “waters of the United States” when it held that bodies of water that are adjacent to navigable waters are subject to the CWA [federal Clean Water Act] by reason of that adjacency.  Our conclusion is based on the CWA, the regulations promulagated by the agencies responsible for administering it, and the decisions of the Supreme Court addressing the reach of the Act and its regulations.

More on the CWA here.

Continue Reading ▪ 9th Circuit Limits Clean Water Act Jurisdiction

Nollan/Dolan meet Don Corleone.  The Maui News reports on a homegrown version of the Wilkie v. Robbins issue, the case set for argument in the US Supreme Court on March 19, 2007.  The issue is whether government officials can be sued under federal “RICO” anti-racketeering laws.  Wlkie involves the federal Bureau of Land Management’s attempts to wrest an easement from a Wyoming rancher in return for land use permissions, and a report of the Maui case is here. Continue Reading ▪ RICO, Nollan/Dolan, and “Extortion”