2009

The Solicitor General has filed the United States’ Brief in Opposition in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008).

In that case, a pharmaceutical company whose legal prescription drugs were seizedas evidence against a third party by the federal government which thenlet the expiration date pass rendering the drugs worthless, sought compensation in the Court of Federal Claims. The petition presents a single Question Presented:

Whetherit is a taking compensable under the Fifth Amendment for the Government to seize (and not return) an innocent third party’s propertyfor use as evidence in a criminal prosecution, if the property is notitself contraband, is not the fruits of criminal activity, and has notbeen used in criminal activity.

The government’s brief frames the question slightly differently:

Whether the government’s seizure of personal property for use as evidence in a criminal matter effected a taking requiring just compensation under…

Continue Reading Federal Government’s Brief In Opposition In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?

In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held: 

Petitioner contends that the United States Supreme Court’s decision in Kelo v City of New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V [“nor shall private property be taken for public use, without just compensation”]). We need not, and do not, reach the issue whether petitioner’s interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was…

Continue Reading New York Court Of Appeals: No Need For A Comprehensive Taking Plan

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up

A very important decision by California’s Third District Court of Appeal, exposing the fantasy behind the Kelo majority’s conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning. In City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), the court invalidated an attempt to take property on public use grounds, holding that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.” Slip op. at 3. 

Recall that in  Kelo v. City of New London,545 U.S. 469 (2005), the majority took great pains to establish thatthe taking of Mrs. Kelo’s house was part of a “‘carefully considered’development plan,” and was therefore entitled to judicial deference.  Keloreviewed the decision to take…

Continue Reading Cal. Court of Appeal: No Public Use In “Case Of Condemn First, Decide What To Do With The Property Later”

In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held “in order for a fact finding body to ignore a regulation in calculating ‘just compensation’ for a given piece of property, the landowner must show that the primary purpose of the regulation was to depress the property value of land or that the ordinance was enacted with the specific intent of depressing property value for the purpose of later condemnation.” Slip op. at 1-2. The court also held that once a judge determines that regulation was not used to depress the value of the property pre-acquisition, evidence of improper use of regulation cannot be presented to the finder of fact.

The case involved the federal government’s efforts to condemn undeveloped land in the area east of the Everglades National Park…

Continue Reading Pretext In Compensation Determinations: 11th Circuit Holds Landowner’s Burden To Show Government Intent To Depress Value By Regulation

The Hawaii Federalist Society sponsored a debate today at the University of Hawaii Law School on issues in the ceded lands case, Hawaii v. Office of Hawaiian Affairs,No. 07-1372 (cert.granted Oct. 1, 2008). 

One one side, U.H. lawprof Carl Christensen, arguing that the Hawaii Supreme Court’s decision enjoining the State from doing anything with the ceded lands until such time that a political settlement is reached with Native Hawaiians is correct.  On the other, Ilya Shapiro, a Senior Fellow at the Cato Institute’s Center for ConstitutionalStudies and Editor-in-Chief of the Cato Supreme Court Review, arguing that the Apology Resolution was hortatory and had no legal effect. [Disclosure: we filed an amicus brief in the case, supporting the State’s argument; Mr. Shapiro and the Cato Institute joined our brief.]

U.H. lawprof David Callies moderated. The question presented:

TheHawaii Supreme Court blocked the sale of 1.2 million acres…

Continue Reading “Ceded Lands” Case Debate: Did The Hawaii Supreme Court Rewrite The Terms By Which Hawaii Became The 50th State?

Thanks to Damon Key colleague and fellow law blogger Mark Murakami for letting us know about the new RSS feed launched by the Hawaii appellate courts. The feed contains links to newly published opinions, memorandum opinions, summary disposition orders, grants and denials of cert, and other orders of the appellate courts (Supreme Court and Intermediate Court of Appeals).

This doesn’t mean you can stop following our companion blog Hawaii Appellate Opinions, mind you, since the new RSS feed does not contain summaries of the cases decided. Hawaii Appellate Opinions will continue to post short summaries of published opinions so you don’t have to download massive pdf files and read them, just to see if you may be interested in a case.Continue Reading Hawaii Appellate Courts – New RSS Feed

It looks the one of the landowners under the threat of eminent domain in New York City’s Manhattanville (aka West Harlem) neighborhood has a blog about his fight. Check out My Land is Mine, with posts by Nick Sprayregen, owner of Tuck-It-Away, a self storage facility threatened with condemnation to allow Columbia University to expand its Morningside Heights campus northward. The Empire State Development Corporation, the entity actually doing the taking, asserts the neighborhood is “blighted,” and Sprayregen and another property owner have sought court review.

I used to live in and frequent that neighborhood when I was attendingColumbia Law, and even rented a small locker at the BroadwayTuck-It-Away facility. The neighborhood did not fit a classic definitionof “blighted” then — nearly 16 years ago — and has appeared to become even more gentrified in the interim. The property owners contesting the blight designation claim that the designation is…

Continue Reading Property Owner’s Blog: My Land Is Mine

Head’s up on an interesting case from the Court of Federal Claims, Resource Investments, Inc. v. United States, No. 98-419L (Court of Federal Claims, Jan. 23, 2009), a massive opinion (84 single-spaced pages) with what at first glance seems to delve into just about every regulatory takings theory known: temporary takings, categorical takings, partial takings, parcel-as-a-whole, Mahon, Penn Central, First English, Lucas, Tahoe-Sierra, Seiber, delay, and ripeness. And those are just the subjects listed on the caption.

We’re not going to digest the entire opinion here, just hit some of the highlights. The short story is that the U.S. Army Corps of Engineers wrongfully asserted jurisdiction over property in Washington state proposed to be used for a landfill, and asserted that until the owner procured a section 404 Clean Water Act permit, it could not construct the landfill. The Ninth Circuit ultimately agreed…

Continue Reading CFC: Trial Needed On Whether Wrongful Assertion Of Clean Water Act Jurisdiction Is “Extraordinary Delay”