2007

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”

Is the game over in the ninth inning, or is being ahead in the sixth good enough?

Federal civil rights law, 42 USC  § 1988, provides that the “prevailing party” in a lawsuit to vindicate federal civil rights is entitled to collect attorneys fees from the loser.  The right to own and make economically beneficial use of property is one of those federal civil rights, and land use and property issues are often litigated under 42 USC  § 1983, so attorneys fees may be available to the winning party. 

But what does it mean to be a “prevailing” party?  On April 17, 2007, the US Supreme Court will hear arguments in Struhs v. Wyner (No. 06-531) (docket listing here), a case that presents the issue of whether a party who wins a preliminary injunction — but ultimately loses the case — has “prevailed” within the meaning…

Continue Reading ▪ Attorneys Fees in Land Use Litigation

In Mt. San Jacinto Community College v. Superior Court, the California Supreme Court addressed two constitutional issues regarding the quick-take process:

First, does a statutory property valuation date that occurs at the time the condemner deposits the probable compensation in court under section 1263.110, et seq. deny the property owner just compensation under the California Constitution when litigation in the eminent domain action is not expected to end until several years after the deposit is made? 

Second, is the owner’s statutory waiver of rights after withdrawing the funds an unconstitutional condition on the statutorily required “prompt release” of the deposit?

“Quick-take” is the procedure under which condemnors obtain immediate possession of property upon a deposit of estimated compensation to the court.  (The quick-take procedures are codified under Hawaii eminent domain law at Haw. Rev. Stat. § 101-28, -29, and -30.)  The opinion details the history of…

Continue Reading ▪ Cal Supreme Court on “Quick Take” Procedures