March 2014

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the legal challenge to the Honolulu rail project in the United States District Court for the District of Hawaii. We last reported on the status of this litigation on February 18, 2014, when the Ninth Circuit issued its opinion dismissing plaintiffs’ appeal of the judgment and partial injunction in Honolulutraffic.com v. Federal Transit Administration, No. 11-0307 (D. Haw. Dec. 27, 2012).

To our mild surprise, the Ninth Circuit concluded it had appelalte jurisdiction, even though there was a colorable argument that the judgment and partial injunction entered by the District Court was not an appealable order, since at the time of the appeal (May 2013) and oral argument (August 2013), the defendants still had not yet reported their compliance with the judgment, the plaintiffs had not, as a consequence, had time to…

Continue Reading Guest Post: District Court’s Rail Compliance Order in Honolulu Rail Case – A Slam Dunk

Here are some reports and commentary on the Supreme Court’s opinion in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014).

Continue Reading Brandt Round-Up

As noted on the LegalPlanet blog, law professor Joseph L. Sax has died (“In Memoriam: Joseph L. Sax, Gentleman, Scholar, Giant of Environmental Law“). Although we came at the issues from utterly different positions, there’s no question that he will be missed.

I recently had the opportunity to give a presentation on the takings issue with Professor Sax, and he was never less than engaging, staying on after our panel concluded to discuss our differences (and where we agreed). More on Professor Sax here. See also this post from Pace Law School with more, and this post from the Volokh Conspiracy. Continue Reading Lawprof Joseph Sax Passes

As we predicted it would after oral argument, today the U.S. Supreme Court ruled in the property owner’s favor in Marvin M. Brandt Revocable Trust v. United States, No.12-1173 (Mar. 10, 2014). Chief Justice Roberts wrote for the entire Court less Justice Sotomayor, who filed a solo dissent. SCOUTSblog posts a summary of the opinon here (“Victory – and money – for landowners“). 

As you might recall, the issue in the case was whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the right of way, and that it did not revert to the property…

Continue Reading SCOTUS Benchslap: Railroad Right Of Way Is An Easement, Just Like We Said A Long Time Ago

Here’s another one we’ve been meaning to post for a while. In Ex parte Alabama Dep’t of Transportation, No.1101439 (Dec. 6, 2013), the Alabama Supreme Court concluded that inverse condemnation is the right cause of action when the government causes contaminated water to enter an owner’s property, resulting in (alleged) damage. 

The plaintiff alleged that ALDOT used a chemical solvent or degreaser that was poured into sewers and eventually found its way into the groundwater which it pumped onto the plaintiff’s property. It sued ALDOT and Cooper (ALDOT’s director) for trespass and inverse condemnation, and later added a claim for fraud and bad faith. The owner asserted that if ALDOT wanted to use its property as a storage for its contaminated water, it should have condemned a drainage easement first. The defendants asserted they were immune, and when the trial court refused to dismiss the case, they sought a writ…

Continue Reading Alabama: Recovering Compensation When The Govt Floods Your Land With Contaminated Water Is Just What Inverse Condemnation Is For

Our old U. Hawaii Wills & Trusts lawprof Randy Roth was the legal advisor to The Descendants, the 2011 George Clooney movie about a Honolulu lawyer (our review here). Professor Roth has published an article about his experience, which also details the legal cases that were the stories-behind-the-story. Here’s the summary:

The Descendants, an award winning film, depicts real controversies involving old Hawaiian Trusts while highlighting the modern debate of whether Hawai‘i is overdeveloped. This Article, using the film as its basis, gives further insight into the real stories echoed in the film in light of the legal issues that influenced the outcome of each story—that is, the Rule Against Perpetuities and a trustee’s duty to the trust and its beneficiaries. This Article artfully places the reader in the center of the disputes, begging the question of whether Hawai‘i should continue “paving paradise.”

The article, “Deconstructing The…

Continue Reading The Real Stories Behind “The Descendants”

Zipler Since this is the season for self-congratulatory industry awards, we can’t overlook one of our industry’s highest honors, the Zoning and Planning Law Report Land Use Decision Awards (aka the “ZiPLeRs”). For those of you who do not subscribe to the Zoning and Planning Law Report, the “strangest, or at least more dramatic” land use cases each year are eligible for nomination for a ZiPLeR. 

Our Owners’ Counsel and ABA colleage Dwight Merriam recently announced the 2013 Awards in the December 2013 issue of ZPLR, but before he got to his tongue-in-cheek detailing of such winners as the “You Can’t Pigeonhole These Pets As An Accessory Use Award,” the “Don’t Be An Ass Award,” and “The Grinch Who Stole The Treehouse Award,” he started off with “The Koontz Corner,” a few pages on the goings-on surrounding one our favorite decisions last year, Koontz v. St. Johns Water Management District…

Continue Reading Paging Dr. Merriam, Stat: One Case Of “Koontz Catatonia”

Making the rounds today, a SCOTUS amicus brief filed by Ilya Shapiro (and no one else, Your Honors) at the Cato Institute, on behalf of Cato and satirist P.J. O’Rourke. 

The issue in the case is “[c]an a state government criminalize political statements that are less than 100% truthful,” and the brief not only lists a bunch of statements by politicians over the years that do not meet the standard for “truthiness,” but cheekily is filled with arguments and footnotes that illustrate its point. We won’t detail them here, since others have already labeled this the “Best Amicus Brief Ever” (another example of exaggeration?), and the brief is a short, enjoyable read. Don’t drink coffee while you read it, unless you want to go buy a new keyboard. 

But we will say this: until now, the purported pinnacle for SCOTUS briefs has been the so-called Brandeis Brief, or…

Continue Reading “Brandeis Brief?” Fuggedaboutit. The New Standard Is The Ilya Brief

Here’s one that we meant to post earlier, but slipped through the cracks.

In Oklahoma eminent domain actions, the issue of valuation is first presented to a board of three commissioners (“disinterested landowners”) from the county in which the condemned property is located. The commissioners report to the court, and if one party doesn’t care for the recommended compensation, the party may demand a jury trial. 

In Independent School District v Taylor, No.110,709 (Nov. 27, 2013), the Oklahoma Court of Appeals held that a jury in such a case is entitled to hear evidence regarding value, even if the commissioners did not consider it. In that case, the commissioners recommended a value, but after a trial, the jury came back in with a higher award after the owner introduced evidence about the value of a billboard lease which had not been presented to the commissioners. The trial court granted the…

Continue Reading Nichols On Eminent Domain: Oklahoma Appeals Court Upholds Jury Rights In Condemnation

Yesterday, according to the coconut wireless, was the official last day on the Hawaii Supreme Court for Associate Justice Simeon Acoba. State court justices and judges face mandatory retirement at age 70, and Justice Acoba’s birthday is coming up in March.

While time marched on, so did the process for selecting his successor on the court. Governor Abercrombie has nominated a circuit court (trial) judge, and the Senate Judiciary has scheduled a hearing on the confirmation for next week. Le roi est mort, vive le roi.

While his body of work is large, we didn’t want to let this moment pass without singling out three opinions authored by Justice Acoba: the first a 3-2 majority opinion in favor of property owners, the other a 2-justice dissent in a case involving a municipality’s power to sue itself, and a final stand-alone dissent. The first two, as you may already…

Continue Reading Aloha, Justice Acoba