June 2008

The New Mexico Commissioner of Public Lands has filed a brief amicus curiae urging the US Supreme Court to review the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008).  In that case, the State seeks U.S.Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.

The Commissioner is the officer charged with authority to control the lands granted in trust to New Mexico when it joined the Union.  The brief asserts:

The decision of the Hawaii Supreme Court imposes an unprecedented restriction…

Continue Reading Commissioner of Public Lands Supports Cert Petition in Ceded Lands Case

Keep an eye out on June 19, 2008: that’s the date the US Supreme Court will consider whether to grant review of the Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision I blogged about here.  The issue in that case, as posed by the petitioner is:

Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the fight to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

Clark County, Nevada imposes a height restriction on structures near McCarran Airport in Las Vegas, While the Ninth Circuit held there was no regulatory…

Continue Reading Cert Petition Asks: Is There A Federal Avigational Servitude?

The State of Washington and 28 other states and commonwealth have filed an amicus brief in support of the State of Hawaii’s petition for a writ of certiorari in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008).  In that case, the State seeks U.S. Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, the Hawaii Supreme Court, relying on the “Apology Resolution,” enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reached with Native Hawaiians about the status of that land.

The brief of the twenty-nine states asserts:

The Supreme Court of Hawaii misconstrued the 1993Apology Resolution…. Notwithstanding express language showing that…

Continue Reading Another Amicus Brief Supporting Cert in Ceded Lands Case

My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.”  It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the ocean), thus crowding onto the public beach.  The editorial rightly recognizes:

Sooner or later, vegetation and waves converge, preventing people frommoving laterally along public land, which law defines as the highestwash of waves at high tide during the highest surf season, “usuallyevidenced by the edge of vegetation or by the line of debris left bythe wash of the waves.”

As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are…

Continue Reading Shoreline Boundaries And Shoreline Setbacks

The County of Maui has filed its Answering Brief in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.

Our Opening Brief for MVRA is posted here, along with information about the issues in the case, which include what is necessary to plead a due process property interest, and what are elements of a claim for estoppel and vested rights under Hawaii law. Continue Reading County of Maui’s Brief in Ninth Circuit Vacation Rental Appeal

Attorneys forHilaria and Baldomero Muniz and another landowner have asked a panel ofjudges at the 5th U.S. Circuit Court of Appeals in New Orleans to voida federal judge’s order that they open their land to surveyors for theborder fence.

They argue that the district judge erred when he allowedgovernment officials to attempt to negotiate property access aftersuing. They say the law requires the government to try to strike a dealbefore &mdash…

Continue Reading Takings Round Up

Pacific Legal Foundation has filed a Brief Amicus Curiae in Support of Petitioners (the State of Hawaii and state officials) in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). 

In that case, the State seeks U.S. Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  The Honolulu Advertiser reported on the Hawaii Supreme Court’s decision in “Hawaii court bars state from selling ceded lands.”

PLF’s amicus briefs suggests the Court review two questions:

1.     Whether Congress by the Admission Act and the Apology Resolution, may, without violating the Fifth Amendment, require or permit the State of Hawaii, Trustee of the Federally-created Ceded Lands Trust, to discriminate between trust beneficiaries on the basis of race?

2.     Whether the State of Hawaii, Trustee of the Ceded Lands Trust, may, without violating the Fourteenth Amendment, discriminate between trust beneficiaries on the basis of race?

Download the brief here.

The State’s petition is posted here, and a Honolulu Star-Bulletin report about the petition is posted here.

The Supreme Court’s case docket is here.
Continue Reading PING: phen375 scamURL: http://phen375reviewsite.tumblr.com/IP: 91.121.209.46BLOG NAME: phen375 scamDATE: 02/07/2013 11:18:16 AMinversecondemnation.com: Amicus Brief Supporting Cert in Ceded Lands Case

Today, we filed the Reply Brief for the property owner in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  I won’t go into detail about the arguments and will let the brief speak for itself since I am part of thelegal team representing the appellant/property owner. 

The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefing is now complete. The appeal is before the Intermediate Court of Appeals of Hawaii, which…

Continue Reading Property Owner’s Reply Brief in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

right-of-way_land_condemnations

In “189 Hawaii properties in transit’s path,” the Honolulu Advertiser’s Sean Hao writes about the potential use of eminent domain to take private property along the path of Honolulu’s proposed $4B rail transit project:

Some landowners in the path of the new rail line, who may havelittle choice but to sell to the city, are not pleased with thepotential eviction and complain that the process so far has left themin the dark.

The city, which has budgeted $70 million to purchaseland needed to build the rail system, will offer property owners fairmarket value for their land based on an appraisal. That could provecontroversial as some owners challenge the appraised value.

The article notes that the City’s web site has listed these properties for more than a year, but the information is difficult to locate, so many of the owners were not aware their properties may be acquired.  The…

Continue Reading Honolulu Rail Takings