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Update: here’s more Horne talk, in addition to our own initial thoughts in the above video and this post (“Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy“):

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Continue Reading Raisin Round-Up

Here’s the podcast of our recent talk to the American Bar Association’s Section of State and Local Government Law about the (then) upcoming decision in Horne v. Dep’t of Agriculture, No. 14-275. Transcript here, if you’d prefer to read it.

This is a preview of the decision. But since we made some predictions — several of which bore fruit in today’s opinions — we thought we’d post it while we digest the Court’s opinions. 

As you may know, the Court today issued its opinions, with eight justices concluding that the raisin marketing order is a physical taking of property, rejecting the Ninth Circuit’s holding that the physical takings rules do not apply when personal property is involved.

We’ll have more analysis shortly, including a round-up of how other commentators view the case. Stay tuned. 

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Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All

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Continue Reading Podcast: Leviathan Shrugged? The Supreme Court’s Raisin Takings Case

A new article worthy of your time from The Urban Lawyer, the law review published by the ABA Section of State and Local Government Law: “The Power of Eminent Domain in the Aftermath of Hurricane Katrina: Should Common Interest Communities Be Compensated for the Loss of Asssments,” by James R. Conde.

The article (rightly, we think) criticizes the Fifth Circuit’s decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), a case we wrote up here. The Supreme Court denied review, 

Here’s the abstract of the article:

In 2005, Hurricane Katrina flooded New Orleans and destroyed approximately 80% of the city’s housing stock. The New Orleans flood generated a corresponding flood of litigation against the Army Corps of Engineers (the “Corps”). After the storm, Congress took steps to repair the Corps’ impaired reputation and to provide disaster relief to…

Continue Reading New Article: “Eminent Domain in The Aftermath of Hurricane Katrina”

Third time around for Lost Tree’s takings case against the federal government on this blog.

The first was the Federal Circuit’s decision concluding that a single Florida 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. 

Second was the Court of Federal Claims, which on remand held that there was a taking, and that, after applying either the Lucas total wipeout or the Penn Central ad hoc test (the diminution in value caused by the denial of the permit was 99.4%), the just compensation owed to Lost Tree was in the neighborhood…

Continue Reading Fed Cir: “Economically Beneficial Use” Means More Than Someone Might Buy The Property

Here’s the latest in a case we’ve been following, a takings claim against the federal government which was dismissed by the Federal Circuit under 28 U.S.C. § 1500, the statute which deprives the Court of Federal Claims of jurisdiction over a case if a related case is pending in another court at the time the CFC complaint is filed.

The core issue is one we’ve dealt with extensively before, and which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), namely, whether § 1500’s jurisdictional bar operates in takings claims, which are required to be split between the CFC and the district courts (aka the “Tucker Act Shuffle”). We filed an amicus brief in that case, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they may be required…

Continue Reading New Cert Petition: Revisiting Tohono And § 1500 In Federal Takings Claims

Last week, the Hawaii Supreme Court heard oral arguments in Sierra Club v. Castle and Cooke Homes Hawaii, Inc., No. SCAP-13-0000765, a case involving a challenge by the usual suspects to a State Land Use  Commission “boundary amendment” (aka state “rezoning” to those of you not familiar with Hawaii’s top-heavy state land use planning scheme). 

According to the Judiciary web site summary of the case, here are the issues:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state…

Continue Reading Guest Post: HAWSCT Oral Arguments In Koa Ridge – Is The State Prohibited From Rezoning “Potential” Important Ag Land?

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

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here’s the short version:

In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A…

Continue Reading CFC: Katrina Flooding Is A Taking

We like dictionaries. A couple of them have treasured spots on our bookshelf. But we’re not all that keen on courts relying upon dictionaries to define statutory terms, because our experience is that one word could have many meanings, and just because one dictionary defines a word a certain way doesn’t rule out other meanings. And it doesn’t provide much help about what a legislature meant when it used the word. 

So we read a recent opinion issued by the California Court of Appeal, Friends of Oceano Dunes, Inc. v. San Luis Obispo Cnty. Air Pollution Control District, No. B248814 (Apr. 6, 2015) with some interest, even though the case was about California’s version of the Clean Air Act, a topic that we must confess doesn’t exactly float our boat. We liked the opinion because the court held that the trial court should not have relied on one…

Continue Reading Cal App: Never Mind What The Dictionary Says, A State Park With Sand Dunes Is Not A Man-Made “Contrivance”