February 2009

The Supreme Court’s courtroom reporter has provided the raw transcript of today’s oral arguments in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008. 

The transcript is posted here. 

For a primer/FAQ on appellate oral arguments and what they entail, go here.

While we haven’t reviewed it in detail yet, a quick read shows that one of the more interesting parts is the federal government’s argument as amicus curiae supporting the state. The argument, presented by Assistant to the Solicitor General William Jay, begins on page 18 of the transcript. 

Three binding Federal laws make clear that the State of Hawaii has absolute fee title to the lands in the Federal trust and also has the power to sell those lands for the purposes Congress set out in the trust instrument.

CHIEF JUSTICE ROBERTS: What do you think on…

Continue Reading Oral Argument in “Ceded Lands” Case – Transcript And Summary

Thanks to Columbia lawprof Ronald Mann for forwarding his reply brief in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008). Responding to the arguments in the federal government’s brief in opposition, the reply argues:

The Government’s brief in opposition to the petition underscores the need for review by this Court. It declines to defend the reasoning of the court below. It offers a new rationale that is neither consistent with the reasoning of the lower court nor defensible on its own terms. Finally, despite the Government’s efforts to minimize the importance of the decision, it remains undisputed that the decision below grants the Federal Government a blank check to confiscate tangible property without any duty of compensation, from the only court in which such actions can be challenged.

Brief at 1. In AmeriSource, a pharmaceutical company whose legalprescription drugs were seizedas evidence…

Continue Reading Reply Brief In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?

For those not familiar with appellate oral arguments, here’s a short primer/FAQ:

Why oral argument? – Appellate oral argument has been described as the Court’s “conversationwith counsel” about the case and the law.  Oral argument can illuminatelegal or logical problems not evident from the briefs and which may nototherwise be discovered, distill arguments by testing them, and allowthe advocates to respond to the Court’s specific concerns. The U.S. Supreme Court hears oral arguments in nearly all cases it reviews.

What’s at issue? – The Supreme Court is a discretionary court, meaning it reviews only cases and issues it want to review.  In the course of answering the question presented, the Court may decide related issues. In the ceded lands case, the Court agreed to review the following Question Presented: 

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and…

Continue Reading SCOTUS Oral Argument Primer

We will be posting the transcript — perhaps with some analysis thrown in — of tomorrow’s Supreme Court oral arguments as soon as it becomes available, but in the meantime, here is the latest:

  • David Shapiro posts “Senate sends mixed signals on ceded lands” on his Volcanic Ash blog: “Given that neither the governor nor the Legislature plan to sell cededlands anytime soon, you  wonder why OHA didn’t pursue this kind ofpolitical agreement in the first place instead of pressing the issue incourt and exposing themselves to the unintended consequences they fearfrom an adverse ruling by the Supreme Court.” The old adage of “be careful of what you wish for…” seems to apply here, since many seem to forget or overlook the fact that OHA raised the issue now before the Supreme Court.

…
Continue Reading The Latest On The “Ceded Lands” Case

Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass’n v. California Coastal Comm’n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432 (2008). In that case, the California Court of Appeals held that the California Coastal Commission properly conditioned a permit to build a seawall to protect property from erosion on the landowner’s payment of a $5.3 million “mitigation fee.” The fee was to be used to purchase other beach property since Commission claimed the construction of the seawall would result in the loss of beach fronting the property. The property owner challenged the exaction under the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

A denial of a petition for writ of…

Continue Reading Cert Denied In California Nollan/Dolan $5.3 Million Seawall “Mitigation Fee” Case

U.S. Supreme Court cases — especially when they arise in your back yard — always garner a lot of attention, and the ceded lands case being argued on Wednesday, February 25 is no exception.  Here’s a run down of the latest:

  • The Sunday Star-Bulletin ran a front-page above-the-fold story, “Battle over ceded lands.” (“But native Hawaiian groups fear that the U.S.Supreme Court might go beyond whether the state can sell the lands anddeclare that the state has unfettered rights to the ceded lands thatwould undermine native Hawaiian claims to the property. NativeHawaiian groups also believe that if OHA prevails and the ban is leftintact, they would be in a better bargaining position for a settlementbecause the state would be hamstrung with the restriction on sales andtransfers.ClydeNamuo, OHA executive director, said such an outcome would give”leverage for the native Hawaiian community” and also preserve the landas a source for

…
Continue Reading Another “Ceded Lands” Case Round-Up

Eminent domain in the news:

It’s a stark contrast between new and old, progress and past. The tension between the two has landed the university in the middle of a lawsuit that could set a precedent for redevelopment projects under way in Virginia.
A year ago, Norfolk’s Redevelopment and Housing Authority moved to condemn the house and three other buildings to the south of ODU’s University Village, saying the land was in a blighted area and is needed for the university’s expansion.
The owners responded with a suit, saying the housing authority has no right to take their property, in part because the development of University Village in the past decade has cleaned up the blight.
The property owner’s lawyer is my Owner’s Counsel of America colleague Joseph Waldo.

Separately, [Carol] Browner [President Obama’s special advisor on climate change and energy] said the administration was also going to create an inter-agency task force to site a new national electricity transmission grid to meetboth growing demand and the President’s planned renewable energy expansion.Siting has been a major bottleneck to renewable growth, and lawmakers andadministration officials have said they’re likely to seek greater federal powersthat would give expanded eminent domain authorities.Continue Reading Eminent Domain Round-Up

Thanks to @georgettedeemer, the Communications Director of the Hawaii House of Representatives for getting word out that the Hawaii House has passed S.C.R. No. 40, a resolution “Urging the Governor and the Attorney General to withdraw the appeal to the United States Supreme Court of the Hawaii State Supreme Court decision, Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 117 Hawaii 174 (2008).”  It is being reported that the measure passed, but with 23 “with reservations” and two no votes.

This of course involves the “ceded lands” case. [Disclosure: we filed an amicus brief in the case, supporting the State’s arguments.]  This resolution is symbolic, since the Lingle Administration has never appeared to possess any inclination to withdraw the state’s request for SCOTUS review, especially after expending a huge amount of legal capital to get the Court to consider the case…

Continue Reading Hawaii House Passes Resolution Urging “Withdrawal” Of The “Ceded Lands” Case

It’s easy to blog a case when you or your colleagues win it, and we’ve had plenty to talk about lately in that department in eminent domain and zoning law.

On the other hand, it’s not so easy to write about a case when you don’t prevail. Today is one of those days. The U.S. Supreme Court declined to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (the California court’s slip opinion available here). The Supreme Court’s Order List denying review is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We (and others) filed amicus briefs, urging the Court to review the case. Our brief is posted here. The two Questions Presented…

Continue Reading Cert Denied In Ripeness And Penn Central Case