October 2008

Mr. McFarland’s property is surrounded by Glacier National Park in Montana.  The only way to get to the property in the winter is by Route 7 (the Park Service prohibits snowmobiles).  The Service closes the road to the public, but until 1999 allowed landowners limited winter access.  In 1999, however, the Service closed the road to everyone in the winter in order to protect wildlife and public recreational opportunities.  McFarland sued, asserting he was entitled to an easement over Route 7, and alternatively that the Service should have granted him an access permit. 

In McFarland v. Kempthorne, No. 06-36106 (Oct. 2, 2008), the Ninth Circuit rejected McFarland’s claims for an express or implied easement, and for an easement by necessity.  The court also held that the Service’s denial of his permit for an access permit was not arbitrary or capricious.  Continue Reading Ninth Circuit: Owner Has No Right of Access to Property From Federal Land

Latest Updates – March 31, 2009

  • The opinion of the unanimous court is posted here

Oral Argument posts


Summary of the Issues

The U.S. Supreme Court will be reviewing the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). The Court agreed to review the following Question Presented:

In…

Continue Reading Hawaii Ceded Lands Case

The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:

We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, “deprive[d] [plaintiffs’] land of all economically beneficial use.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [112 S. Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by “background principles of the State’s law of property and nuisance.” (Id. at p. 1029 [112 S. Ct. at p. 2900]; see id. at pp. 1031–1032 [112 S.Ct. at pp. 2901–2902].)

The city failed to meet its burden of justifying the moratorium — as applied to plaintiffs’ lots — through evidence showing a reasonable…

Continue Reading Cal. Court of Appeals: Development Moratorium a Taking Under Lucas

More on the U.S. Supreme Court’s decision to review Hawaii’s “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008):

  • The Honolulu Advertiser’s report.
  • The Star-Bulletin’s report is here.
  • Hawaii Attorney General’s press release: “I am pleased that the United States Supreme Court has granted certiorari in this important case,” Attorney General Mark Bennett said.  “We believe the Hawaii Supreme Court was incorrect in its holding that the Congress, in the Apology Resolution, barred the State of Hawaii from selling or transferring Ceded Lands, as the Congress had expressly granted Hawaii that right in the 1959 Hawaii Admission Act.  It is our hope that the United States Supreme Court will reverse the decision of the Hawaii Supreme Court.  Hawaii’s Ceded Lands are held by the State for the benefit of all of Hawaii’s citizens, and for a number of purposes, including

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Continue Reading Media Coverage of Supreme Court Ceded Lands Case Review

The U.S. Supreme Court has granted the State of Hawaii’s petition for a writ of certiorari to review the Hawaii Supreme Court’s decision in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008). The State of Hawaii asked the Court to review and overturn Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).

The Question Presented is:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all the land owned by the State-unless and untilit…

Continue Reading Hawaii Ceded Lands Case: U.S. Supreme Court Grants Cert Review