April 2013

When the cert petition was filed in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), we wrote that the case seemed like a good vehicle for the U.S. Supreme Court to revisit the pretext-in-eminent-domain issue it teased us with in Kelo, especially the part about the taking being part of a “comprehensive” eminent domain plan.

The facts of the case were egregious. The Guam Supreme Court’s opinion reversed the trial court’s conclusion that the taking was unconstitutional. The Guam Government refused to appeal, leaving only the benefitted private party arguing the taking was valid. The petition was well done and highlighted the lower court split in authority. When the respondent waived a reponse, the Court requested one. The petition was supported with an amici brief authored by lawprof Ilya Somin, a noted scholar on public use issues and joined by other legal…

Continue Reading Sorry, Property Owners. Supreme Court Just Not That Into You

Earlier today, the Supreme Court considered whether to grant review in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

The City of Tombstone‘s cert petition asks whether the city “is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by … [impeding] restoration of essential municipal infrastructure during a State of Emergency.”

  • Here’s the amici brief we filed in support of the city.
  • Here’s the amicus brief by a coalition of Arizona/New Mexico counties. 

While we await next week’s order announcing whether the Court will hear the case, here’s the Federalist Society’s podcast of a recent debate on the issues in the case:

Tombstone, Arizona, calls itself “the town too tough to die,” but it’s gone to court to challenge the federal government’s restriction on access to nearby national forest land that the city…

Continue Reading Podcast On The Tombstone Federal Lands Access Case

Check out the opinion of the Indiana Supreme Court in Utility Center, Inc. v. City of Fort Wayne, No. 90S04-1208-PL-450 (Apr. 11, 2013. The issue is what the term “rehear … de novo” means in Indiana’s eminent domain code relating to condemnations by cities and towns, which provides for such review by trial courts on administrative appeal from a valuation assessment by a municipal works board. The city had the option to condemn the property either under that provision, or under the general eminent domain statute in which the landowner would be entitled to demand a jury.

The landowner objected to the board’s valuation, and demanded a jury trial. The trial court granted the city’s motion to strike the jury demand, concluding that “de novo” only required a limited review of the administrative record to insure that the valuation decision was made “in conformity with proper legal procedure.”

The…

Continue Reading Indiana S Ct: Meaning Of “De Novo” Rehearing In Eminent Domain Code Not Quite A “No Brainer”

Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court.

In “‘Let ‘Em Eat Cake’ Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article’s conclusion that “[i]f we don’t like the [environmental] laws anymore, we can elect officials to change them.” by writing:

Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment?

…

Moreover, under the “reasoning” of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

Read his entire commentary here. By the way, before you are tempted to dismiss Professor Kanner as an outlander (yes, Justice Scalia really did call out-of-staters “outlanders” in a recent oral argument), his ties to Hawaii and his knowledge of our ways go way, way back.
Continue Reading Strong Letter To Follow…

Here’s one that’s coming up for the Supreme Court’s consideration at its conference next week, but which we haven’t noted until now. A Texas property owner has filed this cert petition asking the Court to review the Texas Supreme Court’s decision in Hearts Bluff Game Ranch, Inc. v. State of Texas, 381 S.W.3d 486 (Tex. 2012). 

The Texas court held that the ranch did not make out an inverse condemnation claim against the State when it alleged that a state agency’s action resulted in a federal agency denying a federal permit. The petition contains a single Question Presented:

Whether state action that purposely prevents a permitted and beneficial use of land by its owner, but undertaken with the intent to reserve that land for a future beneficial State use, requires compensation under the takings clause of the Fifth Amendment.

The Texas Supreme Court held that “[i]t is not prudent…

Continue Reading Cert Petition: Texas Liable For A Taking Because It Caused The Feds To Deny A Permit

oral Several justices (Justice Acoba, Justice Pollock) appeared quite hostile to the DLNR’s position. Their questions went beyond the usual “devil’s advocate” type questions where the questioner is testing a theory, or speaking through counsel to the other justices.

The Judiciary’s web site summarized the issues argued:

On January 11, 2008, Respondents Craig Dobbin and Wagner Engineering Services, Inc. filed a shoreline certification application with the Department of Land and Natural Resources (the DLNR) to certify the shoreline location on property owned by Dobbin. The DLNR approved the shoreline, and Petitioners Caren Diamond and Beau Blair appealed the certification to Respondent Board of Land and Natural Resources (the BLNR). The BLNR subsequently denied Petitioners’ appeal and certified the shoreline. Petitioners appealed the certification to the circuit court of the fifth circuit. The court held in favor of Petitioners, and remanded the case to the BLNR with instructions to give due…

Continue Reading Hawaii Supreme Court Gets Into The Weeds On Shorelines

In “Why big development is so difficult in Hawaii,” Hawaii Business magazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-up interview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling” (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that concluded that “western concepts” of property law such as exclusivity are “not universally applicable in Hawaii.”)

Callies’ conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court’s environmental jurisprudence in an article on the grounds that it wasn’t so much focused on outcome, but on process.

Continue Reading Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use

Here’s the amici brief of the International Municipal Lawyers Association and the National League of Cities, which urges the U.S. Supreme Court to review the Ninth Circuit’s decision in Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012).

In that case, a 2-1 panel held that the city could not presume that property owned by homeless people in the Skid Row area of downtown was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

The city filed a cert petition, arguing that the panel decision resulted in an invasion of vermin and other public health hazards in the area. IMLA’s brief argues:

The Ninth Circuit’s Opinion distorts that balancing act and jeopardizes local governments’ ability to act for the benefit of all their citizens. Like other citizens, homeless individuals have a right to use and enjoy…

Continue Reading Amicus Brief In Ninth Circuit Homeless Property Case: No One Has Constitutional Right To Leave Unattended Property On The Street

You’d think the proposition in the title of this post, upheld today by the U.S. Court of Appeals for the Federal Circuit in Ladd v. United States, No. 2012-5086 (Apr. 9, 2013), would seem kind of obvious. That a landowner could not be charged with notice that a government act is a taking if the government admits to not even knowing about the event? But it wasn’t, and required a court of appeals’ opinion to lock it down. 

This case is the latest from our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a Court of Federal Claims case on that subject.

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case…

Continue Reading Federal Circuit: Statute Of Limitations In Tucker Act Doesn’t Start Running Until Govt Provides Notice Of The Taking

Here’s the amicus brief of the Coalition of Arizona/New Mexico Counties for Stable Economic Growth, supporting the petitioner City of Tombstone in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013). [Disclosure:we also filed an amici brief in the case in support of Tombstone.]

The case arose after the combination of a devastating forest fire and later heavy rains laid waste to Tombstone’s sources of muncipal water, deep in the Coronado National Forest. As the New York Times reported here:

Tombstone’s water system is as old as the city itself, and most of the parts that are functioning, which are few, were damaged last year by rocks and trees dragged downhill by runoff from the summer monsoons. The city set out to repair the system’s connections to three of the 25 springs to which it claims to have a right; connections to the…

Continue Reading Another Amicus Brief In Tombstone Case: Property Clause Does Not Trump City’s Right To Maintain Right-of-Way