2015

An interesting decision with an international flavor from the Court of Appeals for the D.C. Circuit, Helmerich & Payne Int. Drilling Co. v. Bolivarian Republic of Venezuela, No. 13-7169 (May 1, 2015).

We suppose that if you are a U.S. oil exploration company operating in Hugo Chavez’ Venezuela, you get used to entertaining a certain amount of risk. But for more than 50 years prior, Helmerich “successfully operated an oil-drilling business in Venezuela through a series of subsidiaries.” Slip op. at 3. But in 2008, after PDVSA, the state-owned oil corporation fell behind in its rig lease payments to Helmerich’s subsidiary and the subsidiary “disassembled its drilling rigs and stacked the equipment in its yards,” the Venezuelan government decided to do something about it:

[O]n June 12, 2010, PDVSA employees, assisted by armed soldiers of the Venezuelan National Guard, blockaded H&P-V’s premises in western Venezuela, and then did the…

Continue Reading Public Use, Venezuelan Style: Nationalization Of Oil Rigs Could Be A “Discriminatory Taking”

California law requires a condemnor to present to the property owner a final pre-trial settlement offer 20 days before trial, and for the property owner to make a final demand. If a court later determines that the condemnor’s final offer was unreasonable and the property owner’s final demand was reasonable, the property owner is entitled to litigation expenses. 

In City and County of San Francisco v. PCF Acquisitionco, LLC, No. A139836 (May 26, 2015), the court concluded that the offer by the city, which “was expressly made ‘contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board]’,” was unreasonable as a matter of law because it wasn’t a “final offer.” Thus, the trial court wrongly denied the property owner’s request for fees and costs. 

The court held that the…

Continue Reading Cal App: Condemnor’s “Final” Pretrial Offer, Contingent On Approvals From Other Agencies, Isn’t Really Final, Is It?

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we’ve done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we’ve been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment’s Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states…

Continue Reading SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

BfB Full from rumur on Vimeo.

Those of you who have followed the blog for a while know that we’re big fans of the documentary film about the Atlantic Yards eminent domain fight in New York, “Battle for Brooklyn.” See our review here, for example.

If you haven’t had a chance to see it, or just want to see it again, the filmmakers have made it available for streaming.

No spoiler alert because you already know the result of that case. But as we wrote in our review on why the film is very worthwhile, “Battle For Brooklyn explains why property owners fight the taking of their homes and businesses, even when that fight is uphill.” 

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To But Not Through: Bluegrass Pipeline Must Be PUC-Regulated For The Benefit Of Kentucky Consumers To Use Eminent Domain
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Continue Reading Eminent Domain Docfilm “Battle For Brooklyn” Now Streaming

For those of you who might ever have contemplated pulling up stakes and relocating your law practice to the last major inhabited time zone on Planet Earth, check out “A Tale of Two Cities: Honolulu and San Francisco,” by Nick Kacprowski, a lawyer at a “large” Honolulu law firm who recently transplanted from San Francisco BigLaw, and wrote about his perception of the differences for the ABA Section of Litigation. 

Although he’s newer to the Hawaii scene and therefore hasn’t had the time to appreciate some of the layers and contexts of practicing in our smaller jurisdiction, there is much truth in what he writes. A sample:

One difference that immediately struck me was the level of experience and age of my colleagues at the top firms in Hawaii. I graduated law school in 2004, and when I left Kirkland I considered myself one of the more…

Continue Reading Big Law vs. Honolulu’s Not-So-Big Law

As the Star-Advertiser reports here (“State pays newspaper for nominees battle“), Hawaii Governor David Ige has signed a bill which appropriates funds for the State to pay a portion of the legal fees and costs incurred by the Star-Advertiser during its lawsuit which compelled former Governor Neil Abercrombie to stop keeping secret the list of judicial nominees which the Judicial Selection Commission presents to the governor. 

We represented the Star-Advertiser in that case, which took several years to fully resolve because of a collateral appeal — ultimately decided in the Star-Advertiser‘s favor by the Hawaii Supreme Court — involving the attorneys’ fees and costs which are required under Hawaii’s public records statute: 

Although the newspaper quickly won on the merits of the case, the long dispute over fees raises new concerns “because most individuals do not have the time and/or money to pursue a case like this…

Continue Reading Final Chapter In Judicial Selection Commission List Public Records Case

In a case we’ve been following, the Kentucky Court of Appeals has affirmed a trial court ruling which held that a pipeline company could not exercise the power of eminent domain. 

The Bluegrass Pipeline is a 1,100+ mile private pipeline that would deliver natural gas from the Marcellus and Utica shale formations to the Gulf Coast. It is planned to run through 13 Kentucky counties, although there are no “offramps” for the natural gas actually in Kentucky. 

In Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain Eminent Domain, No. 2014-CA-000517 (May 22, 2015), the Court of Appeals concluded that the pipeline company did not have eminent domain power because it was not regulated by the Public Service Commission, and therefore was not “in public service” as required by Kentucky eminent domain statutes. See Ky. Rev. Stat. § 278.502 (“Any corporation or partnership organized for the purpose of ……

Continue Reading To But Not Through: Bluegrass Pipeline Must Be PUC-Regulated For The Benefit Of Kentucky Consumers To Use Eminent Domain

Not much new in the Federal Circuit’s opinion in Resource Investments, Inc. v. United States, No. 14-5069 (May 12, 2015), which upheld the dismissal of a Court of Federal Claims takings complaint for lack of jurisdiction under of 28 U.S.C. § 1500. 

That statute, as federal takings mavens know (and as the Supreme Court recently held in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011)), deprives the CFC of subject matter jurisdiction if there’s a claim based on the same operative facts “pending in any other court any suit or process.” In this takings case, the property owner filed its CFC complaint — which alleged that the feds’ denial of a Clean Water Act permit was a taking — while its lawsuit challenging the permit denial under the Administrative Procedures Act was still pending in the Ninth Circuit. Same underling facts and a pending…

Continue Reading Protip: File Your CFC Complaint First, And Then File Your District Court Action – Even If It Makes No Sense

The powers-that-be planned on building a major freeway interchange, part of which was going to be on the property owned by Jefferson Street Ventures. Problem was, Jefferson Street also had plans for its property — a shopping center — and when it came time for it to apply to the City of Indio for permits to build, the city said yes, but only if Jefferson Street left open and didn’t build on the 11 acres on which the interchange was envisioned.

We’re going to buy it eventually said the city, but the complex federal and state process for studying, evaluating, and funding the project takes a long time, and if you build on it now, it’s going to cost us more in the future to take the developed property and relocate all of the tenants.

In Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (filed Apr. 21…

Continue Reading Cal App: “Temporary No-Build Area” While City (Maybe) Gets Around To Condemnation Is A Taking

From the Iowa heartland, we offer the headline of the week: “Iowa landowner claims he was offered prostitute by oil pipeline company rep.“

And you’re not going to beat this lede any time soon: “A southeast Iowa landowner claims he was offered the services of a prostitute in exchange for allowing a crude oil pipeline to go through his property.” Oh my. 

He says he has the proof, recordings of the alleged multiple offers. “He said his lawyer recommended he not play the recording for the media because it may be used in possible future litigation. He said he would be willing to give them to state investigators if subpoenaed.”

From the steps of the Iowa Capitol he proclaimed, “‘I don’t care if it’s a highway to heaven paved in gold, I don’t want it on our property,’ Tweedy said. ‘And here we go. They came to…

Continue Reading Just “Compensation” Just Took On A Whole New Meaning In Iowa Pipeline Dispute