2013

Most federal takings claims against state and local government do not get heard in federal court (except to dismiss them on res judicata grounds), under the one-two punch of Williamson County and San Remo Hotel.  

Williamson County forces property owners into state court because a claim under the Fifth Amendment is not ripe until the state has denied compensation, which includes pursuit of a state law takings claim in state court, while San Remo Hotel penalizes a property owner for pursuing a state law claim in state court by concluding that she will unwillingly litigate her federal takings claim in the course of litigating her state law takings claim, thus, when her federal claim has been ripened by the visit to state court, the preclusion doctrines kick in to prevent her from raising it in federal court.

All of this presumes that the state law of whatever jurisdiction…

Continue Reading Alabama Guys: Gear Up For Federal Court. Your Supreme Court Concluded That Alabama Law Does Not Recognize Regulatory Takings

“The Castle,” the comic tale of Darryl Kerrigan and his efforts to protect the family home at “3 Highwview Crescent, Coolaroo” from “compulsory acquisition” (Australia’s version of eminent domain), has made it to Netflix‘s streaming service.

This is Miramax’s U.S. edit which contains a few differences from the original (several noncritical scenes trimmed, cultural references translated, and minor changes to the soundtrack), but nothing that will detract from enjoyment of the film and its story, and it’s still a must-see. Here’s our review.

We screened the Australian version at last year’s law film series, so in case you missed it, here’s your chance. Highly recommended.Continue Reading Australia’s Eminent Domain Comedy “The Castle” Now Streaming On Netflix

This post has nothing to do with our usual menu of takings, property, and other issues. But we just had to point out to you two articles which feature comments by our Damon Key colleague Bethany Ace, adding her thoughts about the “Steven Tyler Act” (yes, that Steven Tyler), a bill now pending in the Hawaii Legislature.

The Act purports to protect celebrities from being offended by invasive photographers by creating a new tort called — get this — “constructive invasion of privacy.” For some lighthearted reading on this Friday, check out the recitals:

The legislature finds that Hawai‘i is home to manycelebrities, particularly on Maui, who are subjected to harassment fromphotographers and reporters seeking photographs and news stories. The privacyof these celebrities endure unwarranted invasion into their personal lives.Although their celebrity status may justify a lower expectation of privacy, thelegislature finds that sometimes the paparazzi…

Continue Reading Celebrity Incentive To Move To Hawaii: We’ll Give You An “Inoffensive” Space

Did you know that as a Hawaii landowner you own all unmarked or unbranded cattle, horses, mules, donkeys, sheep, goats, and swine, over twelve monthsof age, which may be running wild on your land? Yeah, we knew that.

We also knew that you are going to love any opinion that starts out with “[t]he dispute between the parties arises from [the Department of Hawaiian Home Lands]’s roundup and sale of roughly 115 head of Nobriga’s cattle.” Our mind immediately hears the twang of Frankie Laine’s rendition of the Rawhide theme as we dive into the case. So you’ve really got to check out the opinion of the Hawaii Intermediate Court of Appeals in Freddy Nobriga Ent. Inc. v. State of Hawaii Dep’t of Hawaiian Home Lands, No. 28805 (Jan. 30, 2013), a fact pattern straight out of the Old West (and your Property 101 casebook).

Nobriga grazed his herd…

Continue Reading Some Days You Get The Bull, Some Days The Bull Gets You

Here’s the Federal Circuit’s Order for additional briefing in the Arkansas Game & Fish Comm’n v. United States case. As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking because it was not “permanent, ” and remanded the case to the Federal Circuit for more.

Now that the Supreme Court has rejected that per se rule of no liability, the Federal Circuit must “weigh carefully the relevant factors and circumstances” in the case (to quote the Supreme Court describing the task) and determine whether the flood damage that occurred was a taking under the new, multi-factor test set out in the Court’s opinion:

  • “[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 invasion is intended or

…
Continue Reading Fed Cir: More Briefing On Arkansas Game & Fish

The speed of the internet: we were all set to summarize our thoughts on the South Carolina Supreme Court’s opinion in Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (Jan. 9, 2013), a case involving equal protection, substantive due process, and takings claims, when Dean Patty Salkin at the Law of the Land blog beat us to it. See “SC Supreme Court Finds No Takings After Council Denies Rezoning for Golf Club Property” for the details.

This one thing caught our eye in the opinion. The court held that the “substantially advance a legitimate state interest” test, which the U.S. Supreme Court in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005) held was a test of substantive due process and not one of takings law, was the same thing as the “rational/conceivable basis” test. In other words, the term “substantially advance” is…

Continue Reading S. Carolina: “Substantially Advance” Means “Not Arbitrary And Capricious”

Here’s the inevitable reaction to U. Hawaii law Professor David Callies’ recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling,” so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court’s defense.

In “Hawaii Court Upholds Public Responsibility In Environmental Cases,” an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are…

Continue Reading The Empire Strikes Back: Reaction To UH Lawprof’s Study Of Success Rates In Hawaii Supreme Court Cases

We’re sensing a trend here: takings cases where the property owners/plaintiffs are dead by the time their cases get considered by the Supreme Court. The week before last, the Court heard arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), a case where the original landowner has passed on to his final reward after arguing for decades that his property was taken. Yet the District argues a taking hasn’t even occured yet.

Now comes a cert petition, recently filed, seeking review of a similiar situation, the Federal Circuit’s decision in Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012). In that case, the court held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might…

Continue Reading New Cert Petition: Is Interference With Use Of Vested Water Right A Per Se Or Penn Central Taking?

The Hawaii Intermediate Court of Appeals, in a unanimous panel opinion authored by Judge Foley, held that a “zoning verification” by the Director of the City and County’s Department of Planning and Permitting is not a “decision of the Director” which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals. Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013). The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review.

We represent the property owner/plaintiff/appellant in the case, so we’re not going to analyze the issue in detail, and leave it up to you to read the opinion. Needless to say, we think it is a correct and well-reasoned decision.

Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013)


Continue Reading HAWICA Clarifies What Actions By Planning Dept Trigger Administrative Zoning Appeals

43_ELR_10189_Page_01Thanks to the folks at the Environmental Law Institute, who have allowed us to reprint an article from a recent Environmental Law Reporter which brings some clarity to the subject of the “denominator” issue in regulatory takings.

In Temporary Takings, Tahoe Sierra, and the Denominator Problem, William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee), writes:

Hundreds of briefs, decisions, and journal articles debating “how much loss is enough” should be sufficient proof that the Keystone Bituminous “taking fraction” provides poor guidance to decisionmaking in partial regulatory takings. The Penn Central court intended to measure the severity of economic impact by interference with distinct investment-backed expectations. Where lost income from use of the property is at stake, standard economics requires the denominator in the “taking fraction” to be the owner’s investment in the property. Instead, too many judicial decisions have…

Continue Reading Temporary Takings, Tahoe Sierra, and the Denominator Problem