May 2013

According to this story (“Eminent Domain and a Horse Slaugherhouse at Wounded Knee?“) the Oglala Lakota Nation has decided to condemn land on the reservation at Wounded Knee, South Dakota to prevent its sale by its current (non-Indian) owner to third parties. The Wounded Knee site is significant for at least two reasons, the infamous massacre by the U.S. 7th Cavalry in the 1800’s, and the 1970’s takeover and months-long armed standoff by AIM.

The case raises unsettled issues. Can the Nation to condemn land owned by non-members? According to an unnamed Indian law expert quoted in the story, it would be “very hard for me to see the tribe pull this off.” What’s the value of the land if it can be taken by eminent domain? The owner claimes to have offers from potential purchasers in the millions, while others claim that the land is worth…

Continue Reading Eminent Domain In Indian Country: Oglala Sioux To Condemn Land At Wounded Knee?

Hat tip to ABA State and Local Government Law colleague (and fellow U.H. Law School alum) Julie Tappendorf for the lead on a newly-published article: John M. Baker and Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, in the latest issue of the Zoning and Planning Law Report. Julie writes:

In the May 13, 2013 issue of West’s Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January…

Continue Reading Predicting The Koontz Case: Six Possible Outcomes

Update: Professor Ilya Somin, a leading eminent domain scholar and author of the definitive articles on post-Kelo reforms, adds his thoughts on the decision here. Here’s a report from the local paper.

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In the wake of Kelo v. New London, 545 U.S. 469 (2005), a majority of states adopted rules about what constitutes a “public use” in eminent domain. Missouri is one of the states that, by statute, now prohibits takings “solely” for “economic development” purposes:

1. No condemning authority shall acquire private propertythrough the process of eminent domain for solely economic developmentpurposes.

2. For the purposes of this section, “economic development” shall mean ause of a specific piece of property or properties which would provide anincrease in the tax base, tax revenues, employment, and general economichealth, and does not include the elimination of blighted, substandard, orunsanitary conditions, or conditions rendering the property or itssurrounding area…

Continue Reading Missouri S Ct Deconstructs Condemnor’s Stated Reasons, Finds Taking Is “Solely” For Economic Development

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

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When we originally posted about Drake’s Bay Oyster Co. v. Salazar, No. 13-15227, an appeal now awaiting the Ninth Circuit’s ruling (oral argument video here, key briefs here), we knew further research on the issue was in order, perhaps by making a site visit. Yesterday, we had the opportunity to do just that, and ascertain for ourselves whether there’s room in the environmental community for what appears to be a pretty “green” business. As some of you know, I’ve been waylaid for the past few weeks, and it was the first day in many that I felt up to taking a field trip.

So off to Drake’s Bay it was. Following are some photos, as well as a short video showing the processing line, and a longer video with background on the issues. 

Here is our initial post on the case with the complaint, and our follow…

Continue Reading A Visit To Drake’s Bay Oyster Farm, Epicenter Of A California Food Fight

Here’s one as cliché as beach cases from Hawaii: an opinion from a Texas court about the meaning of the term “crude petroleum” in the Texas Natural Resource Code. Oil that is. Black gold. Texas Tea. 

It’s also another pipeline case from the Texas Court of Appeals (Ninth District) — the same panel that on the same day held that TransCanada is a common carrier possessing the power of eminent domain. Except in this case, the court held that Crosstex, which held a permit from the Texas Railroad Commission to build a liquid natural gas pipeline is not a common carrier because a pipeline used to transport LNG is not the same as a pipeline used to transport crude petroleum. Crosstex NGL Pipeline, L.P. v. Reins Road Farms-1, Ltd., No. 09-12-00563 (May 23, 2013). 

The case was Crosstex’s appeal from the trial court’s denial of its…

Continue Reading One More Common Carrier Case From Texas: Pipeline Would Transport Liquid Natural Gas, Not “Texas Tea”

At a recent ABA conference, we suggested during our presentation that cases involving pipelines (petroleum, natural gas, etc.) would be “hot topics,” and here’s the latest: in In re Texas Rice Land Partners, Ltd., No. 09-12-00484-CV (May 23, 2013), the Texas Court of Appeals (Ninth District) held that TransCanada Keystone Pipeline, L.P. is a “common carrier” that has the power of eminent domain, and can condemn an easement for its pipeline.

The Keystone Pipeline is a 2,151 mile petroleum pipline from Hardisty, Alberta in Canada, to Port Arthur, Texas, via Illinois and Oklahoma. TransCanada instituted an eminent domain action to take an easement over land being used for rice farming, and the property owners objected, asserting that TransCanada did not have the condemnation power. The trial judge didn’t make a ruling on that issue, but granted immediate possession to TransCanada, concluding that resolution of its ability to take…

Continue Reading Tex App: TransCanada Keystone Pipeline Is Common Carrier With Eminent Domain Power

Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

Here are the latest (and last, presumably) briefs in the Arkansas Game & Fish Commission v. United States case, now in the Federal Circuit after remand by the U.S. Supreme Court. The Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking unless it was “permanent,” and remanded the case to the Federal Circuit for more.

The Federal Circuit ordered supplemental briefing, with each party filing a brief simultaneously (initial briefs posted here), and now these, their respective briefs responding to the initial briefs:

We’ll bring you more when and if the court schedules arguments, or when it issues a decision.

Response Brief on Remand of Plaintiff-Cross Appellant Arkansas Game & Fish Commission, Arkansas Game an...

Supplemental Response Brief of the United States, Arkansas Game and Fish Comm’n v. United States, No. 2009-…Continue Reading Final Briefs In Arkansas Game Remand (Flooding As A Taking)

HSBAappellate
Earlier this week, I spoke to the Hawaii State Bar Association’s Appellate Law Section about amicus briefing, along with Daniel Gluck, Senior Staff Attorney at ACLU Hawaii.

I appeared by videoconference, and we were able to record my remarks. The handout and links I mention are posted here.

Stream it here:

HSBA-appellate-amicus-briefing-thomas-5-2013

Or download it here (right-click, “save as” – 27 minutes, 12mb mp3)
Continue Reading Audio Of HSBA Appellate Section CLE On Amicus Briefing