2021

Some news: as of today, February 1, 2021, I am joining my long-time friends at Pacific Legal Foundation, and as I noted in this post (“Announcement, pt. 1: Let’s Just Kiss And Say Goodbye“), have retired from the private practice of law and my firm, Damon Key Leong Kupchak Hastert.

What’s going to change now that I’m entering public-interest lawyering? Not this blog, which will continue in the same format. And I’ll still be working with outstanding lawyers (just a different lineup card). But some things will be new: I won’t be representing private clients and will go all-in on pro bono representation in cases that both help clients, and shape the law. I won’t be focused mostly on Hawaii (and California), but will pick up PLF’s national perspective. And you may find me at a different address.

Why now, after more than three decades in…

Continue Reading Announcement, pt. 2: Goodbye, Hello

Some news: as of yesterday, January 31, 2021, I have retired from the private practice of law, and from my long-time spot as a Director (partner) in Damon Key Leong Kupchak Hastert.

I’m not leaving the practice of law (this blog will continue in the same format) it’s just that I will not be in private practice – more on that here – and will not continue on under the same roof as I have since 1987 (and even earlier; I was a summer associate at Damon Key during law school).

Before I let you know about the new gig, let me say that I love the lawyers with whom I have practiced literally since I was first called to the Bar over three decades ago. Were I remaining in private practice, there’s nowhere else but Damon Key I would do it. Over the years, I have…

Continue Reading Announcement, pt. 1: Let’s Just Kiss And Say Goodbye

Carrie_nation_1910-460

If we were to ask you for your best guess whether a state’s ban of “bump-fire” stocks (a topic we’ve covered before) effects a regulatory taking, requiring compensation, what might you predict as the result knowing nothing else about the case?

As we noted here, it doesn’t take a rocket scientist (or even a legal scholar) to figure out that a court is going to be hard-pressed to order compensation, especially where the ban isn’t an outright confiscation requiring the owner to turn over the item to the government for the government’s use. This is not so much a legal conclusion, but one based on the fact that few judges want to be highlighted in tomorrow’s paper as having “approved” of a device that can turn a semi-auto rifle into a dreaded sturmgewehr. Especially in a state like Florida where judges are elected.

A Florida federal…

Continue Reading Florida Court: No Regulatory Takings Claim For Personal Property, Unless Govt Actually Seizes It

Goofus-gallant

Yes, it starts tomorrow, Thursday, January 28, 2021, but we’re “remote” this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the “big one” where the nation’s best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE’s page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher’s Eminent Domain Podcast, where we preview the Conference). Here’s your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We’re seeing a lot of first-time registrations, and this is a great opportunity…

Continue Reading Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

No surprises in the latest in a case we’ve been following.

After the Hawaii Supreme Court’s decision concluding that the statute of limitations for Hawaii-law takings claims is six years (not the shorter limitations period argued by the State), the Ninth Circuit, as expected, today concluded in this short (3-page) unpublished memorandum opinion that the plaintiff’s Hawaii-law takings claim was not raised too late, and also that the corresponding federal takings claim is also timely.

The court concluded that “there is no federal statute of limitations for federal takings claims against a state,” but that the “analogous cause of action would be an inverse condemnation action under state law.” That, as noted above, is six years.

In short, both the state and federal law takings claims were timely filed. The district court’s judgment is reversed, case remanded for the merits.

DW Aina Lea Dev., LLC v. State of Hawaii Land …

Continue Reading CA9: Property Owner’s Hawaii-And-Federal-Law Takings Claims Are Timely

Here’s the latest complaint in a long train of complaints alleging that a COVID-related shutdown or moratorium is a taking or damaging of private property for public use.

This time, it’s from Northern California wine country (Napa County Superior Court, to be specific), and the taking claims (skip to page 19 if you want to cut to the takings chase) only seeks relief under the California Constitution (“Private property may be taken or damaged for public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”).

The complaint alleges:

91.    Coalition members have property interests in their respective outdoor-service restaurants, wineries, and related businesses. Prohibiting them from reopening for outdoor service while allowing similarly-situated businesses to reopen for indoor customer service, and without recourse or protection from arbitrary enforcement, constitutes a taking of their property under the California…

Continue Reading New Complaint: Shutdown Is A (California) Taking Or Damaging Of Wine Country Restaurants

25 Years of PASH_Schedule

Mention the term “PASH” to any dirt lawyer in the 50th State, and they’ll nod in understanding. It’s an 808 shibboleth — a kind of local property password — that signals that you’ve been around the block and know your stuff.

On one hand, it is simply an acronym for Public Access Shoreline Hawaii, the plaintiff/petitioner in the (in)famous case Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm’n, 903 P.2d 1246 (Haw. 1995). On the other, however, it has evolved into shorthand for a number of things: from the technically accurate – native Hawaiian customary and traditional rights and practices under the Hawaii Constitution (“I was chasing a pua’a on private property, so I cannot be convicted of trespass because I was exercising my PASH rights”); to generically and cheekily – the ability to access the beach and shoreline (“Surf’s up today, let’s go practice some PASH rights!”)…

Continue Reading PASH Bash: U. Hawaii Law Review Symposium – “25 Years of PASH” (Feb. 5, 2021)

Another invasion-by-sewage claim, another opportunity for bad punning.

What do you do when a municipality’s wastewater system malfunctions and “strew[s] [your] yard with condoms, toilet paper, raw sewage, and feminine hygiene products and force[s] [you] to endure ‘horrendous odors.'””

According to the U.S. Court of Appeals for the Fifth Circuit in Stringer v. Town of Jonesboro, No.20-30192 (Jan. 18, 2020), you don’t “seek help from the Town and its Mayor,” you sue for inverse condemnation. Don’t wait, go to court now.

All this started back in 2013, and continued until 2019, when Stringer sued in federal court for a taking (42 U.S.C. § 1983), and a citizen suit for violations of the Clean Water Act. The District Court dismissed the takings claim for being raised after the one-year statute of limitations, and the CWA claim because the Louisiana Department of Health had commenced enforcement of the state’s Sanitary…

Continue Reading CA5: Property Owner SOL For Sewage Takings Claim: Continuous Invasion Becomes Constitutional Simply Because The Govt Does It For A Long Time

There are two main rationales supporting the Pennsylvania Commonwealth Court’s opinion in Pileggi v. Newton Township, No. 1279 CD 2019 (Jan. 5, 2021), holding that the Township’s denial of a permit was not a taking. The first, in our view, is simply wrong. The second is perhaps more supportable, but still troubling.

This is a case about a gong. No, not the brass instrument gong, but the other type. Pennsylvania law requires the Township to have a waste plan. Under the plan, a landowner can make proposals for how she can develop in accordance with the plan, or if she can show that the plan doesn’t meet the property’s needs she may submit a private request to the state’s Department of Environmental Protection, or in some circumstances an owner may request a permit to build a sewage disposal facility on site.

Starting back in 2003, the property owners…

Continue Reading The PA Gong Show: No Taking When Gov’t Exercising Police Power (Say What?)