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Here are some thoughts about the Federal Circuit’s recent opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013). It’s a long opinion, and we haven’t had a chance to digest it in detail, so these thoughts are not ours but are informative nonetheless. We offer this link to “The US wins the latest round in the Casitas saga” form environmental lawprof Holly Doremus at Legal Planet. She writes:

The Court of Claims ruled for the government, dismissing Casitas’s claim as not ripe on the grounds that the District had not shown any such interference [with Casitas’ water rights], at least not yet.

…

In one sense this latest decision leaves the dispute hanging. The case was dismissed without prejudice, meaning that Casitas is free to file again if and when it can prove that the fish ladder has actually prevented it…

Continue Reading More On Casitas Water Rights Takings Case: “[T]he touchstone for takings cases is whether the property owner is being treated unfairly”

(We’re not sure who captured and posted the above video — wasn’t us — but to whomever did so, thank you.)

Earlier this week, our colleague Mark M. Murakami spoke at the University of Hawaii Law School on a panel about “The PLDC and Property Rights in Hawaii.” PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it.

Joining Mark on the panel were Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

In the event you don’t want to view the entire session, we’ve put Mark’s remarks and his responses to audience questions in a separate (high-quality) audio file, which you can steam or…

Continue Reading Podcast And Video: The PLDC And Property Rights In Hawaii – A Panel Discussion

This just in. The Federal Circuit has issued an opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013), a case we’ve been following for a while.

The court affirmed the CFC’s dismissal of the case on ripeness grounds:

Casitas Municipal Water District (“Casitas”) operates the Ventura River Project (the “Project”). The Project, which is owned by the U.S. Bureau of Reclamation (“BOR”), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims…

Continue Reading Fed Cir: Water Rights Takings Claim Not Ripe

Here are the links to the materials and briefs from the Supreme Court’s three taking cases which we are discussing at today’s teleconference sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his “what’s next” talk about Arkansas Game. Update: here are the Big Oak briefs.Continue Reading Links And Materials From Today’s ABA Takings Teleconference

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA’s Section on Litigation’s Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon – 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.
Continue Reading Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

DK_greenbag_1Here’s the latest in an issue we’ve been following, just because if the plastic bag ban hasn’t reached your jurisdiction yet, it certainly will (it has been adopted across Hawaii’s counties except for the City and County of Honolulu, for example).So it’s worthwhile to keep up with developments.

In Schmeer v. County of Los Angeles, No. B240592 (Feb. 22, 2013), the California Court of Appeal concluded that L.A. County’s ban in unincorporated parts of the county on plastic bags in retail stores (and a 10 cent charge for paper bags) was not a “tax” that needed to be approved by the voters.

The ordinance states that the money received for recyclable paper bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or…

Continue Reading Cal App: Plastic Bag Ban Not A “Tax” Subject To Voter Approval

Having recently attended the 7th International Conference of the Academic Association on Planning, Law, and Property Rights in Portland, Oregon, we offer this irreverent view of that city’s culture, “Insufferable Portland,” by Mark Hemingway at the Weekly Standard. The landscape he portrays should be familiar to anyone who knows Portland, Berkeley, the Upper West Side, Santa Monica, Boulder, Chapel Hill, or Ann Arbor. Some highlights:

Case in point: One of the most commented-on sketches from the show [Portlandia] is a scene from the first episode in which Armisen and Brownstein are sitting in a restaurant. After asking their waitress a series of absurd questions about whether the chicken they are about to eat is local​—​”the chicken is a heritage breed, woodland raised chicken that’s been fed a diet of sheep’s milk, soy, and hazelnuts. .  .  . His name was Colin, here are his papers”​—​the couple ends…

Continue Reading Portland: Planning Utopia Or Hipster Paradise?

On Tuesday, February 26, 2013 from 7:15 – 8:309 p.m. in Classroom #2, the University of Hawaii Law School is sponsoring a talk about “The PLDC and Property Rights in Hawaii,” which will feature our Damon Key colleague Mark M. Murakami.

PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. As Honolulu Civil Beat‘s information page on PLDC notes:

The corporation has broad powers for entering into private partnerships and establishing its own governing objectives and policies. It also is tasked with identifying state lands under DLNR that are suitable for development. The Board of Land and Natural Resources must approve all land transfers.

The corporation, with the approval of the governor, can also issue revenue bonds for constructing, acquiring and renovating public facilities, as well as for the acquisition…

Continue Reading Upcoming Event: The PLDC and Property Rights in Hawaii

Mark your calendars: on Thursday, February 21, 2013, James Burling, director of the Pacific LegalFoundation and principal attorney at PLF’s Property Rights practice group and U. Hawaii lawprof Maxine Burkett willdiscuss “Do Property Rights Matter When The Environment IsGoing To Hell In A Handbasket?“

The forum — presented by the EnvironmentalLaw Program and the Federalist Society — will beginat 12:15 p.m. in CR1. Light refreshments will be served. Please RSVP to elp@hawaii.edu.

More below.

Do Property Rights Matter When the Environment is Going to Hell in a Handbasket?


Continue Reading PLF’s Jim Burling To Discuss Property Rights And The Environment At U.H. Law School

In a recently-published law review article, U. Hawaii lawprof David Callies found that “the Moon Court [1993-2010] 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,” a result he concluded was “appalling.”

Well here’s the counterpoint, a paean to the Moon Court from another U.H. lawprof, who asserts that the court’s environmental jurisprudence wasn’t so much focused on outcome, but rather on process. Yes, plaintiffs won a whole lot, but don’t be fooled the results, she writes, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine:

At first blush, the Hawai‘i Supreme Court’s environmental review jurisprudence under…

Continue Reading A Partial Rebuttal To Professor Callies: 1993-2010 HAWSCT Environmental Record Most Concerned With Public Participation