2008

To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

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Continue Reading Links From UH Historic Preservation Workshop

A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

“This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan

The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that the “public trust” is enforceable by the public against the government, and that wildlife is subject to the trust.

The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine.  The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action.  The court of appeals agreed, holding (1) birds and other wildlife are part of the “public trust,” (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.  

The court held…

Continue Reading Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach

Professor Kent Schooland has posted “Eminent Domain and the Eighth Commandment,” a piece with his thoughts about the morality of condemning property and the system of “just compensation.”

Given the realities of eminent domain, perhaps we should prepare our children with relevant civics lessons for the playground. Whena gang of kids wants to grab a pretty ring off the finger of a littlegirl, they can avoid annoying accusations of “theft” by following a fewsimple steps:

1) The gang must use the Latin words eminent domain, never “stealing.”

2) The gang must designate one of their members as leader—thus the “superior owner” of everything on the playground.

3)The gang leader must instruct his or her lieutenants to “tax” a fewcoins from other children on the playground in order to offer “justcompensation” to the girl when her ring is taken.

4)The gang leader must explain that his actions are for…

Continue Reading The Fifth Amendment and the Eighth Commandment

Three more amicus briefs have been filed in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

Arguments are scheduled for October.  Other briefs in the case, including the amicus brief we filed on behalfof nine retired Admirals and several service support groups, are postedhere.Continue Reading Further (Final?) Amicus Briefs in Navy Sonar Case

Some interesting items from around the land use law blogosphere:

  • A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates the dormant Commerce Clause.  This could be a very important case on the “big box” and “formula retail” issues. More from Georgia Zoning Blog.
  • Charley Foster has a series of posts about a reporter’s privilege to trespass on private property, and how it may relate to an ongoing controversy about the State of Hawaii Historical Preservation Division and native Hawaiian remains on a construction site on Kauai.  Start at Planet Kauai.

Continue Reading Land Use Law Round-up

The Ecological Society of America has filed a brief amicus curiae urging the Supreme Court to uphold the Ninth Circuit’s injunction in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

In the case below, the district court and the Ninth Circuit both determined that the U.S. Navy had likely violated the National Environmental Policy Act (NEPA) by failing to issue an environmental impact statement for its ongoing training exercises off the Southern California coast. The courts agreed with the Navy’s own environmental assessment that its use of mid-frequency active sonar would irreparably harm various whale species. On that basis, the district court issued—and the Ninth Circuit affirmed—a carefully tailored injunction that allowed the training exercises to continue using appropriate mitigation measures while the Navy conducted its environmental impact statement.

Continue Reading Ecological Society Amicus Brief in Navy Sonar Case