2014

For the second day running, we’re posting a trial court ruling. This time, it’s from a Kentucky state circuit court, and although it does not have precedential value, we’re guessing it will go further up the food chain to an appellate court, so it’s worth paying attention to the issue now.

In Kentuckians United to Restrain Eminent Domain, Inc., v. Bluegrass Pipeline Co., LLC, No. 13-CI-1402 (Mar. 25, 2014), the court granted summary judgment to a group of Kentucky residents who oppose the Bluegrass Pipeline, a 1,100+ mile private pipeline that would deliver natural gas from the Marcellus and Utica shale formations to the Gulf Coast. The pipeline is planned to run through 13 Kentucky counties. 

Kentucky’s eminent domain statutes allow certain private entities to exercise the power of eminent domain:

Any corporation or partnership organized for the purpose of … operating oil or gas wells or pipeline…

Continue Reading Kentucky Judge: Private Pipeline Lacks Eminent Domain Power – Not “In Public Service” Because It Is Transporting Through Kentucky, Not To Kentucky

Remember the Lost Tree case? That’s the one where the Federal Circuit concluded that a single parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers’ denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus “scattered wetlands in the vicinity” also owned by the same owner. 

The case got remanded to the CFC, which now has issued its opinion determining the loss of economic value caused by the denial of the 404 permit. The CFC concluded that the “after” value was $27,500, and the “before” value was $4,245,388, a diminiution in value of a whopping 99.4%. Lost Tree Corp. v. United States, No. 08-117L (Fed. Cl. Mar. 14, 2014).

The court held that…

Continue Reading CFC: Denial Of Wetlands Dredge And Fill § 404 Permit = Taking = $4.2M Just Compensation

Here’s an interesting case upcoming on the Hawaii Supreme Court’s oral argument calendar that is worth following. (April 29, 2014, at 10:00 a.m. – the court is taking the show on the road, and the arguments will be at the gym at Kealakehe High School, in Kailua-Kona, on the Big Island.)

In Molfino v. Yuen, No. SCWC-10-150 (cert. app. filed Dec. 9, 2013), the petitioner asks whether a county government has any obligation to maintain accurate and complete records. Your first reaction may be “well, duh.” But like many other things in the legal business, it isn’t necessarily as simple as all that. Indeed, the Intermediate Court of Appeals concluded in a Summary Disposition Order (Aug. 28, 2014) that government does not have an obligation to keep its own records accurately. The ICA relied on a 1986 Hawaii Supreme Court case which held:

Without a reasonable and proper limitation of…

Continue Reading HAWSCT Considering Whether A County Has A Duty To Maintain Accurate Public Records

This comes our way from Virginia colleague Elaine Mittleman, who sends along a link to a story in yesterday’s Wall Street Journal, “NCAA Tournament: Why Won’t College-Basketball Coaches Stay Off the Court?” 

The story is about how some college basketball coaches are “regular offenders” and routinely ignore the rule that they should not step foot on the court:

Michigan State’s Tom Izzo regularly roams the playing floor. In the final seconds of a loss to Oklahoma last season, Baylor’s Scott Drew leapt onto the court, then fell backward as the Bears missed their last-gasp shot. In a game against Louisiana State this season, Kentucky’s John Calipari—a prolific wanderer—lunged onto the court and shoved one of his players into position.

The rules require every coach to stay within a 28-foot roaming area behind the sideline and on his end of the court. Stepping outside the box can…

Continue Reading March Madness And Eminent Domain. Yes, Eminent Domain.

It’s Friday, so we’re slacking a bit on the blogging. But our colleagues at the Nossaman firm have given us a couple of good pieces for our reading enjoyment.

  • First is “9th Circ. Simplifies Enviro Process For Transit Projects,” by Robert D. Thornton. If his name sounds familiar, it’s because he’s the lawyer who represented the City and County of Honolulu in its succcessful defense of a federal lawsuit. The Ninth Circuit and the District Court recently sided with the City on the project (see our summary of the Ninth Circuit and the District Court rulings), and the plaintiffs have stated that they are not going to seek further review. In other words, this is probably the final substantive chapter in the major legal challenges to the Honolulu rail project. Mr. Thornton notes that the decision is one “of national importance for transit and highway projects” because

…
Continue Reading Worth Reading – The Last Word On Honolulu Rail, And 2013 Eminent Domain Year In Review

Professor Richard Epstein shares his insight about the U.S. Supreme Court’s recent 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014).

The issue in the case was whether the federal government retained an “implied reversionary interest” when it issued railroad patents to private landowners, or whether these grants were subject only to a railroad easement. The Court concluded they were easements, which means that they were extinguished when the railroad ceased using them as railroads. 

Professor Epstein joined an amicus brief filed in support of the property owners in the case, which argued that a contrary ruling would violate “the special need for certainty and predictability where land titles are concerned.” 

Listen to the podcast here. Or go to this page and follow the link from there. 

Related articles
SCOTUS Benchslap: Railroad Right Of Way Is An Easement, Just Like We Said A Long

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Continue Reading Professor Epstein On SCOTUS Rails-To-Trails Decision

This is a longer post, but we think it’s worthy of your time. That’s because even though there’s a lot going on in the opinion by the California Court of Appeal in Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), it cuts through much of the unnecessary doctrinal fog surrounding takings law, especially the U.S. Supreme Court’s bizarre ripeness requirement first enunciated in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

The Bottom Line

Although the entire thing is worth reading (44 pages of majority opinion, followed by 46 pages of dissent), if we had to pick out one passage as the takeaway, here it is: 

Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result…

Continue Reading Cal App States The Inconvenient Truth: There’s No Substitute For Eminent Domain – Gov’t Must Condemn First If It Wants To Enter Land

In addition to the initial media coverage of and commentary about the Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014) rendered earlier this week, there has been more, mostly focused on the final lines of Justice Sotomayor’s solo dissent:

By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.

Dissent at 8 (emphasis added).

What she was getting at, of course, was the fact — not stated anywhere in the majority opinion but made clear by the amicus briefs — that by holding that the interest granted was only an easement and did not revert to the United States…

Continue Reading Brandt: No Free Ride For Rails-To-Trails

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