December 2011

Here’s the latest in the Casitas case from the U.S. Court of Federal Claims. Casitas Municipal Water Dist. v. United States, No 05-168L (Dec. 5, 2011). This case highlights the importance of identifying the “property” right alleged to have been taken in these type of cases:

This case is before the court following a trial held to determine the compensation, if any, owed to plaintiff under the Fifth Amendment to the United States Constitution for the taking of its property. In an earlier round of litigation in this case, the Court of Appeals for the Federal Circuit ruled that operating restrictions on plaintiff’s water project imposed by the National Marine Fisheries Service “NMFS”) pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–44 (2006), should be analyzed as a physical taking where plaintiff was required to reroute a portion of the water it had diverted for its own…

Continue Reading Court Of Federal Claims: Water Rights Takings Claim Not Ripe (Flashbacks To The Hawaii Water Rights Case)

Tomorrow, the U.S. Supreme Court will hear oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011), a case in which the Montana Supreme Court disregarded 100 years of private or federal ownership of the riverbeds under more than 500 miles of river, and held that the state owned them. The net result of the Montana court’s ruling was that the state was owed millions in back and future rent from the owners of hydropower facilities located on those riverbeds. Sound familiar?

We’ve been following the case, and have posted the merits and amicus briefs, and were all set to do a lengthy and detailed preview of the oral arguments. Really, we were just about to do that. But a worthier source than we, Professor Thomas Merrill, beat us to the punch, and posted his detailed preview of the case on SCOTUSblog here.

Continue Reading Montana Navigability Case Preview

Today’s post is by an old friend and colleague, Paul Schwind. He’s been following the federal litigation challenging the $4+ billion Honolulu rail project, and attended last week’s hearing. We asked him to write a guest post so the rest of us could come up to speed.

Update: December 13, 2011

In Honolulutraffic.com et al. v. Federal Transit Admin. et al., Judge Tashima issued his Order on December 12, denying Defendants’ Motion for Partial Judgment on the Pleadings. In essence, he followed the legal standard that requires that all doubts must be resolved in the light most favorable to the non-moving party (plaintiffs), where issues of material fact remain.  Therefore, the moving party (defendant) is not entitled to judgment as a matter of law. 

Judge Tashima pointed out that in this case, the full administrative record is not yet available to establish whether certain plaintiffs did not comment on…

Continue Reading Guest Post: The Federal Court Challenge To Honolulu Rail Project

In Joffe v. City of Huntington Park, No. B222880 (published Dec. 2, 2011), the California Court of Appeal affirmed the trial court’s dismissal (technically, the trial court “demurred” —  remember, this is California) of the plantiffs’ claim for inequitable precondemnation activities under Klopping v. City of Whittier, 8 Cal.3d 39 (1972). 

Plaintiff manufactures furniture at its property in Huntington Park, California, and

[b]eginning in 2002, the City defendants and the developer defendants repeatedly expressed the intent and desire to acquire and develop two adjacent 40 acre sites for the purpose of building and developing 920,000 square feet of buildings which would include numerous retailers, shops and restaurants. . . . It specifically included the property owned by Joffe, where Plycraft conducted its furniture manufacturing business. The project development was designated “El Centro de Huntington Park” (hereafter, the project).

During the period 2002 through 2008, plaintiffs were repeatedly…

Continue Reading If The City Wasn’t Taking Steps To Condemn The Property, What Was It Doing?

A couple of interesting stories have come our way today, offering a contrast and a case study in how property rights are, as Professor James Ely notes, “the guardian of every other right.”

First, Generations Of Housing Red Tape, a report about the difficulties in purchasing property on the Pine Ridge reservation in South Dakota. As takings lawyers are aware, land ownership on indian reservation are often “fractionalized” — owned by dozens, or more. This situation resulted in two well-known takings cases, Hodel v. Irving, 481 U.S. 704 (1987) and Babbitt v. Youpee, 519 U.S. 234 (1997). In Hodel, the Court struck down the federal law that escheated small interests to the tribe, and in Youpee, the Court invalidated the amended law, holding that Congress’ post-Hodel amendment did not cure the takings problem.

One couple moved back to the reservation from California…

Continue Reading A Tale Of Two

For those who tuned in to today’s webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

  • County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a “classic” use).

…
Continue Reading Links From Today’s Webinar “Eminent Domain: Redevelopment Challenges for Local Government”

From today’s Bloomberg, a report about the two recently-filed lawsuits alleging the federal government’s takeover of AIG in 2008 was unconstitutional. One suit was filed in federal court in New York against the Federal Reserve Bank of New York, the other, seeking $25 billion in just compensation, was filed in the U.S. Court of Federal Claims against the government itself. 

Both complaints were filed by attorney David Boies, who represented the U.S. in its Microsoft Inc. 1999 antitrust trial and Al Gore in the Florida presidential recount litigation in 2000.

“Any time David Boies is asking for $25 billion, I would say this is not a normal case,” said Robert H. Thomas of the Honolulu firm Damon Key Leong Kupchak Hasters.

“He takes cutting edge cases in unexplored areas of law,” said Thomas, who specializes in land-use and eminent domain. “It’s audacious. As someone who represents plaintiffs in…

Continue Reading Bloomberg Reports On Greenberg’s “Audacious” Takings Lawsuit