2012

Here are some thoughts about yesterday’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), in which a unanimous Supreme Court held that government-induced flooding could be a taking, even if temporary. 

Bad Puns and a “Flood” of Litigation

First, the temptation in flooding cases is to make bad puns (the same seems to hold true for beach cases (‘shifting sands,’ for example  … what is it about property cases that especially inspires these bad puns anyway?), and this one is no exception. Justice Ginsburg’s opinion dismissed the trope that holding in favor of the property owner would result in more litigation or a resistance on the part of government to take flood control measures:

The sky did not fall after [United States v.] Causby[, 329 U.S. 256 (1946)], and today’s modest decision augurs no deluge of takings liability.

Slip op.

Continue Reading More Thoughts On Flooding, Takings, And How To Read A Supreme Court Opinion

Here are some initial reports of today’s unanimous Supreme Court decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), which held that government induced flooding could be a taking, even if the inundation of the land is temporary. We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. 

    • Gideon Kanner: “Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was

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    Continue Reading SCOTUS Flood Takings Case Round-Up

    This just in: the Supreme Court has issued a unanimous opinion (authored by Justice Ginsburg) in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), holding that government induced flooding is a taking, even if temporary.

    The Court roundly rejected the Federal Circuit’s conclusion that flooding caused by the Corps of Engineers water releases from a dam did not result in a taking because it eventually stopped which “at most created tort liablity.”

    We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. Our brief pointed out a somewhat obscure case that sets forth this test (National Bd. of …

    Continue Reading Unanimous SCOTUS: Temporary Flooding Could Be A Taking

    Here are two more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

    That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief last week (posted here), and the other amicus briefs in support of the property owner/petitioner are here. 

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    Continue Reading More Amicus Briefs In Koontz

    Gideon Kanner recently asked “Whatever Happened to Condemnation of Underwater Mortgages?”

    Watch this November 23, 2012 interview with the chairman of Mortgage Resolution Partners for the views from the outfit that proposed the idea of using eminent domain to take underwater mortgages. He says the idea is “not dead at all … but it’s a fair characterization to say it’s moving slowly.” When asked whether there is any jurisdiction in which it will defintely happen, he responded that there are places where MRP is “actively working” with government, and he is “highly confident” that it will happen.

    In a classic case of burying the lede, be sure to pay attention at the 5:15 mark where he notes that “this is about economics … they own a piece of paper, it has a value. You might argue about what that value is or isn’t, but they [the bondholders]…

    Continue Reading Condemnation Of Underwater Mortgages Not Off The Table Yet

    Guess what? The Water Commission got it wrong again. The Hawaii Intermediate Court of Appeals held in this unpublished memorandum order that the Commission must hold a “contested case” hearing upon demand when the Commission sets “interim instream flow standards” under the Water Code (in other words, how much water should be allocated to whom and where for particular streams).

    The dispute in this appeal was whether the process to establish those standards is about setting policy — meaning the Commission need only hold a legislative-type public hearing — or determined particular parties’ rights — in which case a trial-like contested case is required. The ICA concluded it was the latter.  There are three instances when an agency must hold an adjudicatory hearing: when required by the agency’s own rules, when required by a statute, or when required by due process because the party asking for a contested case has…

    Continue Reading HAWICA: Water Commission Needs To Conduct Constested Case When Amending Instream Flow Standards

    Here are the relevant pleadings in the pending cross-motions for summary judgment in Kostick v. Nago, Cv. No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violatating the Equal Protection Clause (among other things). We represent the plaintiffs in that case.

    That case resulted from the State of Hawaii classifying its its residents into two categories — “permanentresidents,” and everyone else — and the resulting exclusion from thereapportionment population of 108,767 persons (military personnel, their families, and university students who do not qualify for resident tuition) deemed by the State to have not exhibitedthe intent to remain in Hawaii “permanently.” The plaintiffs argue that this classification does not survive closeconstitutional scrutiny, and that the State has not met its burden to show a”substantial and compelling reason” for excluding nearly 8% of its actualpopulation from equal representation in the Hawaii legislature. The state’s 2012 reapportionment Plan thus denies…

    Continue Reading Hawaii Reapportionment Equal Protection Challenge

    Here they are, more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

    That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief yesterday (posted here).

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    Continue Reading More Amicus Briefs In Koontz: Nollan/Dolan Apply To All Exactions

    In California, a property owner whose business suffers when the land is taken is entitled to goodwill under the state’s eminent domain code, and has the right to have a jury determine the amount of goodwill. But who makes the call when there’s a dispute about whether there’s any goodwill at all?

    According to the Court of Appeal in People ex rel. Dep’t of Transportation v. Dry Canyon Enterprises, No. B234198 (Nov. 28, 2012), it’s the judge’s decision, not the jury’s. According to the opinion, “no court has squarely addressed this question.” Slip op. at 1. Now one has. The court based its conclusion on the language of the statute, and because “it makes no sense to hold a jury trial on the amount of goodwill lost if there was no goodwill to lose.” Slip op. at 5 (emphasis original).

    The court also held that the trial court had…

    Continue Reading Cal App: Jury Determines The Amount Of Goodwill, Not Whether There Is Goodwill

    Today, on behalf of our colleagues at Owners’ Counsel of America, we filed this amicus brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests.

    Our brief argues:

    It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on…

    Continue Reading Amicus Brief: Exaction Not Subject To Lesser Standards Because Taking Measured In Dollars And Not Square Feet