2013

This just in. The Federal Circuit has issued an opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013), a case we’ve been following for a while.

The court affirmed the CFC’s dismissal of the case on ripeness grounds:

Casitas Municipal Water District (“Casitas”) operates the Ventura River Project (the “Project”). The Project, which is owned by the U.S. Bureau of Reclamation (“BOR”), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims…

Continue Reading Fed Cir: Water Rights Takings Claim Not Ripe

Here the first briefs filed in which the parties attempt tofigure out what the Supreme Court meant inArkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012)

Once the Supreme Court rejected that per se rule of no liability, the Court of Federal Claims in Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of the case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion on the case.

Recall that the Supreme Court’s unanimous opinion held that courts must “weigh carefully the relevant factors and circumstances” presented in a flooding case: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking”
  • Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the

…
Continue Reading First Briefs On Impact Of SCOTUS’ Arkansas Game Opinion

Here are the links to the materials and briefs from the Supreme Court’s three taking cases which we are discussing at today’s teleconference sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his “what’s next” talk about Arkansas Game. Update: here are the Big Oak briefs.Continue Reading Links And Materials From Today’s ABA Takings Teleconference

On Tuesday, February 26, 2013, the Judiciary and Labor Committee of the Hawaii State Senate will be conducting a public hearing and taking testimony on S.B. 286, a measure which amends a state statute to define “permanent resident” as used in state reapportionment and redistricting as “any person counted as a usual resident of the state of Hawaii in the lastpreceding United States census.”

Currently, under the Hawaii Supreme Court’s decision in Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012), “permanent resident” is defined as “domiciliary,” which means that to be considered a permanent resident of Hawaii, a person must have a physical presence plus have exhibited an “intent to remain.”

As you may well know, we represent the plaintiffs in Kostick v. Nago, No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violating the Equal Protection Clause (among other things). That case…

Continue Reading Testimony On Defining “Permanent Residents” For Hawaii Reapportionment As Census Count

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon – 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.
Continue Reading Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

DK_greenbag_1Here’s the latest in an issue we’ve been following, just because if the plastic bag ban hasn’t reached your jurisdiction yet, it certainly will (it has been adopted across Hawaii’s counties except for the City and County of Honolulu, for example).So it’s worthwhile to keep up with developments.

In Schmeer v. County of Los Angeles, No. B240592 (Feb. 22, 2013), the California Court of Appeal concluded that L.A. County’s ban in unincorporated parts of the county on plastic bags in retail stores (and a 10 cent charge for paper bags) was not a “tax” that needed to be approved by the voters.

The ordinance states that the money received for recyclable paper bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or…

Continue Reading Cal App: Plastic Bag Ban Not A “Tax” Subject To Voter Approval

Having recently attended the 7th International Conference of the Academic Association on Planning, Law, and Property Rights in Portland, Oregon, we offer this irreverent view of that city’s culture, “Insufferable Portland,” by Mark Hemingway at the Weekly Standard. The landscape he portrays should be familiar to anyone who knows Portland, Berkeley, the Upper West Side, Santa Monica, Boulder, Chapel Hill, or Ann Arbor. Some highlights:

Case in point: One of the most commented-on sketches from the show [Portlandia] is a scene from the first episode in which Armisen and Brownstein are sitting in a restaurant. After asking their waitress a series of absurd questions about whether the chicken they are about to eat is local​—​”the chicken is a heritage breed, woodland raised chicken that’s been fed a diet of sheep’s milk, soy, and hazelnuts. .  .  . His name was Colin, here are his papers”​—​the couple ends…

Continue Reading Portland: Planning Utopia Or Hipster Paradise?

Update January 20, 2015: here are links to the most recent reports and the cert-stage briefs in the second go-round for the case: Horne II “The World’s Most Outdated Law” Crahses Headlong Into Takings. 

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It’s not really the “Sun-Maid Girl,” but rather the organization the trademark now represents, Sun-Maid Growers of California., who filed this amicus brief supporting the U.S.D.A. in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012).

The brief makes one main point: the Hornes, as raisin “handlers” cannot assert a takings defense because they didn’t have title to the raisins they claimed were taken, and thus lack standing:

Petitioners indisputably have no standing to assert a Takings defense to avoid civil liability, as handlers, for failing to set aside as reserve tonnage the raisins produced by other producers, because as handlers petitioners never took title…

Continue Reading “Sun Maid Girl” Files Amicus Brief In California Raisin Takings Case

Here’s a case that illustrates the weird results that can occur in takings cases where a property owner can be deemed to be too late (the statute of limitations) or too early (ripeness), take your pick.

In 1996, Mr. Smith got disbarred by the Tenth Circuit and a few other federal courts, and in 1999 by the Colorado Supreme Court as a reciprocal matter. In 2007, he was reinstated in all but the Colorado courts. Because the Colorado court did not reinstate him, however, the U.S. District Court for the District of Colorado reversed itself and denied reinstatement, and in 2010, the Tenth Circuit affirmed. Smith then sued in the Court of Federal Claims under the Tucker Act, seeking  damages for due process, equal protection, and — you guessed it — a taking. A judicial taking. Smith claimed that his law license was property taken by the federal court.

Now…

Continue Reading Federal Circuit Discusses Judicial Takings … In A Disbarment Case?

Update: Gideon Kanner’s thoughts on the case here.

As we mentioned in this post about earlier proceedings in the case, when the plaintiff/property owner’s name is “Jerry McGuire” and he is asserting a claim for compensation, it’s inevitable that we all make reference to the “show me the money” catchphrase from Jerry Maguire, the 1996 Cameron Crowe film. So we have.

With that out of the way, let’s get to the Federal Circuit’s opinion in Maguire v. United States, No. 2012-5073 (Feb. 20, 2013), in which the court held that McGuire’s takings claim was not ripe and he had no “property” that was taken.

First, the facts. McGuire leased farmland from an Arizona indian tribe, administered by the Bureau of Indian Affairs. The BIA removed a bridge that connected two of the parcels over a canal, which effectively landlocked one of the parcels. The bridge…

Continue Reading Fed Cir Doesn’t Show Jerry McGuire The Money: Property Owner Required To Pursue “Ambiguous and Informal” Permit Procedure