2016

After the usual preliminaries — certification of a 253-member class, subclass certifications, discovery, and motions and cross-motions for summary judgment — the parties in a rails-to-trails takings case in the Court of Federal Claims mediated the dispute and ended up agreeing to $110 million plus interest as just comp for the property taken, and slightly more than $2 million in statutory attorney fees and costs under the Uniform Relocation Act. Many of the class consented to this deal.

Class counsel and the government filed a joint motion for court approval, but a day later, class counsel sought additional fees under the “common-fund” doctrine in the neighborhood of $35 million, based on its contingency fee agreement with some members of the class which entitled them to a percentage of the total award. The CFC did some calculating:

As to whether class counsel’s request for thirty percent of the common fund was…

Continue Reading Fed Circuit On Rails-To-Trails Class Action Attorneys Fees, The Uniform Relocation Act, And A Possible Circuit Split

Appellate decisions reversing a grant of summary judgment because there are disputed factual questions are not 100% satisfying. Yes, if you are the plaintiff/appellant, you live to fight another day instead of facing the exit door. But you haven’t won yet either, and the hard part — proving that you should win, and not merely that you shouldn’t lose — is still to come.   

But that’s not the reason why we don’t quite get the Washington Court of Appeals’ opinion in a takings case, TT Properties, LLC v. City of Tacoma, No. 46803-4-II (Jan. 12, 2016). It reversed in part a grant of summary judgment to the city, so we can’t dislike the ruling. Yet at the same time, we can’t understand why the court reached this result.

A project by the regional transit authority on a city-owned right-of-way ended up impacting two separate parcels owned by TT.

Continue Reading In A Takings Case, Jury Decides Whether There’s Been A Substantial Impairment Of Access

A case that we’ve been following with some mild amusement has reached the Hawaii Supreme Court, where it was argued last week.

Our amusement stems from the fact that shoreline and beachfront property in Hawaii — especially when that property is in the fabled “Gold Coast” of Waikiki at the foot of Diamond Head — is usually fought over by those wanting to own it. But this one is different, because in this case, everybody wants the other guy to own it, because it involves a seawall that needs upkeep. And seawall upkeep don’t come cheap.

We posted the trial court’s decision concluding that the State of Hawaii owns it, here. The Intermediate Court of Appeals affirmed, and the State sought, and the Supreme Court granted, certiorari.

You can listen to the oral arguments — the issues are the language of a statute, prescriptive easements, and implied dedication —…

Continue Reading HAWSCT Oral Arguments In Seawall Hot Potato Case

ALI-CLE-2016-masthead

We know we’ve been doing the hard sell lately, with multiple posts on the details of the upcoming 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, which runs from January 28-30, 2016, in Austin, Texas. And this will be our last pre-conference post, we promise.

But me and my co-planning chairs, Joe Waldo, Jack Sperber, and Andrew Brigham, think we’re put together a very good program that covers a lot of ground, and we really want you to come. This is also the first time the conference has been to Austin, and we’re in a brand new (as in just opened) hotel, so we’re looking forward to this perhaps more than usual.

The full agenda is posted here, but here are highlights:

…
Continue Reading Final Post: More Reasons To Attend The ALI-CLE Eminent Domain Conference

In a segment called “Are the Courts Crazy?,” (their title, not ours!), Kelii Akina and I chat about the recent decisions in the Thirty Meter Telescope case, the pig hunting as a traditional and customary native Hawaiian practice case, Hawaii’s new Environmental Court, and the challenge to the Hawaiians-only election which is currently being considered by the U.S. Supreme Court (the one in which Dr. Akina is the lead plaintiff). 

And rest assured: we concluded that no, the courts are not crazy. 

Related articles
The Eminent Domain Angle In Today’s Not-Eminent-Domain Supreme Court Decision
Hawaii Business Magazine Asks: “How Much Will Rail Cost Us In the End?” Our Answer: As Much As It Takes
SCOTUS Requests Response To § 1500 Petition

Continue Reading Lawtalk: Thirty Meter Telescope, Putting The “Puaa” Back In Ahupuaa, And Oprah Elections

ALI-CLE-2016-masthead

We’re now only a bit more than two weeks away from the 2016 Eminent Domain and Land Valuation Litigation – Condemnation 101 Conference, which runs from January 28-30, 2016, in Austin, Texas. 

As we’ve noted here earlier, we think that this is going to be a fantastic conference that will cover a lot of ground, and the hot topics of the day. Here’s the full agenda for the program. If you are not familiar with the conference or have not attended recently, we’ve undergone some formatting changes lately, but are still bringing the best faculty and topics to bear. Here’s a summary of last year’s San Francisco conference, to give you an idea of how we’ve updated the programs, while keeping the best elements and traditions unchanged.  

This is the first time the conference has been held in Austin, and thus far, the registration figures are doing exceedingly…

Continue Reading ALI-CLE Eminent Domain Conference, Austin, TX – Nearly Here, But There’s Still Time To Register

When people think of “Hawaii,” many of them, me included, think of sugar. Those of us of a certain vintage who were raised in the islands, and whose families were tied to the sugar plantations once so ubiquitous (my mother’s family was from the Halawa Plantation and lived on what is now the site of Aloha Stadium), share a certain nostalgia for those days.

But things inevitably change, and most of the sugar and pineapple plantations (ask me about my pre-law days working at “the cannery,” a now-defunct summertime ritual for many local kids) are long-gone, save one, Hawaiian Commercial and Sugar’s Puunene plantation on Maui.

Earlier this week the other shoe dropped, and HSC’s parent company, Alexander and Baldwin, announced that at the end of the year, Hawaii’s sole remaining sugar plantation will be closed. There are a lot of reasons — labor costs…

Continue Reading Lawsuits Have Consequences: Aloha To Hawaii Sugar

Nai Aupuni and the Akamai Foundation, the proponents and organizers of the Native Hawaiians-only “Oprah” election for delegates to a convention to organize a new Hawaiian government, have responded to the election objectors’ SCOTUS motion for contempt.

The Motion for Civil Contempt asked the Supreme Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court’s earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit. After the Court’s order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention. 

The contempt motion argued that this was too clever by half, and asserted that …

Continue Reading Latest On The Hawaiians-Only Oprah Election: Nai Aupuni’s Response To SCOTUS Contempt Motion

We’ve been tied up with other things the past few days, so haven’t had a chance to do much posting, but here’s something to tide you over, a piece from Florida colleague Jacob Cremer, “Why Exactions Law Should Bring Property Rights Advocates Cheer in the New Year.” 

Land use and takings mavens, rejoice. 

Related articles
Fla App: Quick Take Deposit Only Vests Owner’s Right To Compensation, Not To Specific Funds
BIO In Riparian Rights Due Process Case
More On Florida’s Post-Koontz Legislation

Continue Reading Exactions, Again

If you want a crash course in Hawaii’s unique (some would say weird) water law, you can’t do better than this video from Think Tech Hawaii, an interview with an old water hand, lawyer William Tam. 

While he definitely has a perspective (one that, in our view, downplays the role of private property and private rights), you can’t get a better insider primer on the history of the legal battles over Hawaii water that have taken place over the years, and the current state of the law. 

One question we’ve always had about the public trust doctrine as applied to Hawaii water resources: if all water is publicly owned, why aren’t people who use catchment systems to capture and store rainwater for their own use getting hit up for wrongly appropriating public water? 

Related articles
NJ Court: There’s No Substitute For The Eminent Domain Process, Even On The

…
Continue Reading Hawaii Water Law, In A Nutshell