2011

ZPLR_11_2011Here’s an article I recently published in the Zoning and Planning Law Report, Recent Developments in Regulatory Takings Law: What Counts as “Property?”, 34 Zoning & Planning Law Report (Thomson | West 2011).

If you subscribe to ZPLR, look for it in the mail (and if you don’t, you should).

If you are not a subscriber (and again, you really should subscribe, ZPLR is one of the better ways, along with Gideon Kanner’s Just Compensation, to keep up with the latest goings-on), the good people at West provide this freebie, as authors are allowed to post their own articles on their web site. So here you go.

Thomas, Recent Developments in Regulatory Takings Law: What Counts as “Property?” 34 Zoning & Planning Law ……

Continue Reading New Article: What Counts As “Property” In Regulatory Takings Law?

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained “wetlands” under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

  • The amici brief filed by several states, including Hawaii, in support of the property owners.
  • Here are the cert stage briefs.

    Here‘s the Court’s docket report. We will post the…

    Continue Reading Podcast: Sackett v. EPA – SCOTUS Preview: Immediate Judicial Review, Or Death By A Thousand Days?

    Whenever a judge turns to rational-basis analysis, he’s basically saying, ‘You think two plus two equals five, and I don’t know how to add.’ –

    Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.

    Via Above the Law and Dwight Merriam. Continue Reading Epstein On Kelo’s Rational Basis Test: “You think two plus two equals five, and I don’t know how to add.”

    This has been a pretty good week for my St. Louis colleague Thor Hearne.

    First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC. 

    Rogers involves the appraisal standard applied in a partial takings case. As Thor writes:

    The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law…

    Continue Reading Another Good Decision From The Court Of Federal Claims

    A reminder: on Tuesday, November 1, 2011, from noon to 1:00 p.m., I’ll be making a presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. EPA, No. 10-1062 (cert. granted June 28, 2011).

    The venue is the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street. We’ll talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do.

    We may also discuss other pending cases of interest, if there’s time. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

    Also, for those who are…

    Continue Reading Tuesday State Bar Session On Sackett v. EPA

    Posted here. These are the exhibits attached to these pleadings.

    Exhibits Attached to governor’s Motion for Summary JudgmentContinue Reading Exhibits To Governor’s Motion For Summary Judgment And Opposition To The Star-Advertiser’s Motion For Summary Judgment In The JSC Case Case

    gilmartinWe’re not all that down with the “occupy movement.” It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

    But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month’s Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.

    An “innovative and tenacious builder” who has “left her mark” on the New York skyline, “she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets.”

    The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City…

    Continue Reading The Eminent Domain One-Percenter

    Governor Abercrombie filed his opposition to the Star-Advertiser‘s motion for summary judgment, and his own cross-motion for summary judgment in the case in which the Star-Advertiser seeks disclosure of the JSC list from the Governor. The exhibits attached to these documents are posted here. [Disclosure: we represent the Star-Advertiser.] The hearing on these motions is scheduled for November 14, 2011 at 9:30 a.m.

    Previously filed documents: the Complaint is posted herehereStar-Advertiser’s motion for summary judgment is posted here.

    Gov Abercrombie Opposition to Motion for Summary Judgment/Cross-Motion for Summary Judgment, Oahu Publicati…Continue Reading Gov Abercrombie’s Opposition And Cross-Motion For Summary Judgment In JSC List Case

    You remember the Hawaii Superferry, don’t you? In case your memory doesn’t go back that far, here are our posts on the Hawaii Supreme Court’s first opinion, and here are our thoughts on the second. What brings up this case now is then-Governor (and present U.S. Senate candidate) Linda Lingle’s recent statement, quoted by Honolulu Civil Beat:

    “I want to be clear on this point and on the record. And I want you to share this with everybody you talk to: Remember that nothing was done wrong with Superferry — nothing,” Lingle said. “Let me elaborate. Some people talk about an EIS when they talk about the Superferry. There was never an EIS required of any interisland vessel. Not before and not since, that I’m aware of.”

    Civil Beat followed up with a “fact check,” asking whether her statements were true or not. CB concluded:

    Lingle said “nothing was…

    Continue Reading Was Lingle “False” When She Said “Nothing Was Done Wrong with Superferry”?

    Here’s a worth-reading decision from the U.S. Court of Federal Claims (the court that has exclusive jurisdiction to hear major regulatory takings claims agains the federal government), litigated and won by colleague Mark (Thor) Hearne, II.

    In Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011), the CFC concluded the federal government granted the property owners’ summary judgment on their takings claim. Rail-to-trails cases are detailed (see Preasault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) and pages 2-3 of the CFC’s opinion for the legal framework), but the short story is that the railroad easment the property owners gave the federal government many years ago does not extend to its use as a recreational trail:

    The court finds that the railroad’s easements in these Plaintiffs’ properties in the northern segment were for railroad purposes and that, for the same reasons…

    Continue Reading Rail To Trail Fail: CFC Finds A Taking In A Railway Conversion