2008

The title for today’s editorial in the Honolulu Star Bulletin about the “ceded lands” case now before the U.S. Supreme Court says it all: “Court should reverse freeze on land sales.” 

The Lingle administration should be encouraged by the U.S. SupremeCourt’s decision to review an unconscionable state ruling thatprohibits the sale or transfer of virtually all state-owned land inHawaii. Overturning of the ruling would restore the successful formulafor devoting part of the land sales revenue to improving conditions fornative Hawaiians.

The complete editorial is posted here.  Visit our page which contains links to the briefs, the Hawaii Supreme Court decision, and media reports on the case. Continue Reading Honolulu Star Bulletin: Court Should Reverse Ceded Lands Case

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

…
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

In United States v. 4.85 Acres of Land, No. 07-35310 (Sep. 29, 2008), the US Court of Appeals for the Ninth Circuit held that the trial court should not have refused to admit evidence of sales at properties nearby the property taken, even though the sales occurred after the taking.

The federal government condemned land as a buffer zone for a fish hatchery, taking only a portion of the properties involved.  The landowners subdivided the portions not taken, and began developing these properties.  The subdivided lots were sold after the date of the taking.

The landowners offered evidence of these comparable sales into evidence, but the trial court categorically refused to allow evidence of post-taking sales.  During deliberations, the jury asked whether there had been any sales of the adjoining property, and whether it could consider these sales.  The trial court instructed the jury it could not consider such…

Continue Reading Ninth Circuit: Post-Taking Sales Admissible in Federal Condemnation

Here are the filed briefs in County of Hawaii v. Richards,No.28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The filed briefs are here:

          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

                Continue Reading Briefs in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

                The State of Hawaii has filed its Brief in Opposition in UFO Chuting of Hawaii, Inc. v. Thelen, No. 07-1427 (petition for cert. filed May 12, 2008).  The petition seeks review of the Ninth Circuit’s decision in UFO Chuting of Hawaii, Inc. v Smith, 508 F.3d 1189 (9th Cir. 2007), a case I blogged about here.  In UFO Chuting, the Ninth Circuit held:

                We hold that UFO’s right to operate vesselsunder its federal maritime coasting licenses does not preempt Hawaiilaw prohibiting parasailing off the coast of Maui during limitedportions of the year to protect mating humpback whales.

                Read the entire opinion here. The case is a challenge to the State of Hawaii’s regulationsrestricting parasailing in waters off Maui, because they intereferewith federal statutes and navigation rights.  My Damon Key colleague Mark Murakami analyzed the case onhis hawaiioceanlaw.com blog here.  We filed an amicus brief in…

                Continue Reading Brief in Opposition in Navigational Ban Case

                Monday is the first day of the U.S. Supreme Court’s new term, and it will decide whether to review a slew of cases, including the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State of Hawaii 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 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…

                Continue Reading Supreme Court to Decide Monday Whether to Review Ceded Lands Case