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Here’s a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court’s record on property rights “appalling.” Download the article here.

Today’s Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don’t have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

  • “Callies says he isn’t against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated.”
  • “QUESTION: A recent

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Continue Reading More From U.H. Lawprof On 1993-2010 HAWSCT’s “Appalling” Record On Property Rights

Here’s the petitioners’ merits brief in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).

That’s the case in which the Court is reviewing Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011), in which the Ninth Circuit concluded a takings claim raised as a defense by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. For the 2003 and 2004 crop years, the USDA government brought an enforcement action against the farmers, seeking to recover the monetary value of raisins they did not turn over to the government.

The Ninth Circuit dismissed the takings claim for lack of jurisdiction, effectively telling the…

Continue Reading Can A Property Owner Raise A Takings Defense? – Petitioners’ Brief In California Raisin Case

You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of thestate’s most important property and related environmental and Native Hawaiianrights cases in favor of the various non-governmental organizations bringingthem (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the NativeHawaiian Legal Corporation) approximately eighty-two percent of the time,sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).Third, the court increasingly rendered lengthy opinions, many triple the…

Continue Reading U.H. Lawprof: HAWSCT’s 1993-2010 Record On Private Property Rights “Appalling”

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

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Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

We’ve talked California raisins before, but the latest is about oysters. Specifically, an oyster farm in a Marin County National Seashore, the Drakes Bay Oyster Company.

Interior Secretary Ken Salazar visited the place a couple of weeks ago to see if he would be willing to extend the farm’s existing license, which has been in place for decades. No deal, he concluded, despite lobbying efforts on the owner’s behalf by powerful U.S. Senator Dianne Feinstein. He ordered the farm to shut down in 90 days. 

When that failed, the next step was federal court, and earlier this week the oyster farmer sued in U.S. District Court in San Francisco. Here’s the complaint, if you want to read the details. The claims center on federal environmental laws and the Administrative Procedures Act, but yes, there’s the obligatory takings claim, alleging that the order to cease operations was a taking…

Continue Reading What’s The Beef In California Oyster Dispute?

This just in: the Supreme Court has issued a unanimous opinion (authored by Justice Ginsburg) in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), holding that government induced flooding is a taking, even if temporary.

The Court roundly rejected the Federal Circuit’s conclusion that flooding caused by the Corps of Engineers water releases from a dam did not result in a taking because it eventually stopped which “at most created tort liablity.”

We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. Our brief pointed out a somewhat obscure case that sets forth this test (National Bd. of …

Continue Reading Unanimous SCOTUS: Temporary Flooding Could Be A Taking

It looks like our crystal balls are working.

Wait, that didn’t come out the way we quite intended, so let’s rephrase. Recently, we and others suggested paying attention to the property rights cases on the Supreme Court’s cert docket, paying particular attention to a case out of the Ninth Circuit, Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011).

In Horne, the Ninth Circuit concluded that the defensive takings claim raised by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. The court dismissed the case for lack of jurisdiction. That opinion replaced an earlier opinion holding that the reserve requirement was not a taking because the…

Continue Reading SCOTUS Grants Cert In California Raisins Takings Case

13.LULHIIt’s back! Time once again for the bi-annual Hawaii Land Use Law Conference, to be held January 17 and 18, 2013 (Thursday and Friday) at the Downtown YWCA (a very convenient venue).

Planning co-chairs Professor David Callies and Ben Kudo have once again assembled a stellar faculty and put together an agenda that covers most topics of interest.

We’ll be moderating a panel on “Development Through Exemptions – The Evolution of Reclassifications, Permitting, Land Use &Development in Hawaii: The Unintended Consequences ofan Increasingly Complex System of Regulations,” featuring panelists Linda L.W. Chow (Deputy Attorney General State of Hawaii), Oswald K. Stender (Office of Hawaiian Affairs), and Kali Watson (Hawaiian Community Development).

Two highlights of the conference:

First, Mike Berger will give the keynote presentation on our favorite topic, regulatory takings: “Taking a Critical Look at 30 Years of the Supreme Court’s Taking Jurisprudence.” Mike has taken the lead in…

Continue Reading Mark Your Calendars: 10th Hawaii Land Use Law Conference (Jan. 17-18, 2013)