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Here are some initial reports of today’s unanimous Supreme Court decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), which held that government induced flooding could be a taking, even if the inundation of the land is temporary. 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. 

    • Gideon Kanner: “Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was

    …
    Continue Reading SCOTUS Flood Takings Case Round-Up

    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

    Here they are, more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

    That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief yesterday (posted here).

    …
    Continue Reading More Amicus Briefs In Koontz: Nollan/Dolan Apply To All Exactions

    Water is aprecious resource said to be held in the “public trust.”  The Hawaii Constitution provides that “theState has an obligation to protect, control and regulate the use of Hawaii’swater resources for the benefit of its people.”   To this end, the State evaluates andregulates the use of these resources through its Commission of Water ResourceManagement.  Often landowners and usershave competing needs to the same water source, particularly when the lands arebeing used for agriculture.  The Commissionmust balance these needs with those of the environment and ecosystem and, attimes, with the needs of those entitled to traditional and customary practicesinvolving or using the water resource.

    The HawaiiSupreme Court recently took issue with a decision by the Commission on how tomarshal certain water resources, in that case a system of streams.  The case illustrates the difficulties indevising plans to account for these competing interests and what must be consideredin making that plan. …

    Continue Reading Guest Post: Hawaii Supreme Court’s Latest Water Law Ruling

    Check out this story, Excelaron filed $6.24 billion lawsuit against SLO county, and the filing below.

    $6.24 billion? According to the story, “[c]ounty Supervisor Adam Hill said the amount being sought makes this one of the largest, if not the largest lawsuit in San Luis Obispo County’s history.” 

    We’d certainly hope so.

    ead more here: http://www.sanluisobispo.com/2012/11/21/2303534/excelaron-lawsuit-huasna-valley.html#storylink=cpy

    Petition for Writ of Mandate; Complaint, Excelaron, LLC v. County of San Luis Obispo, No. CV 120675 (Nov. 19, 2012)Continue Reading Wow, That’s A Lot Of Just Compensation

    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)

    Check out “Property rights take center stage in disputes over wetlands, flooding,” by Greenwire‘s Lawrence Hurley, asking whether the U.S. Supreme Court’s recent “flurry of activity” in property cases augurs a renewed interest in these issues by the Court, or is, as lawprof John Echeverria is quoted as suggesting, “serendipity.”

    So far this Term, the Court has agreed to review two major property rights cases, Arkansas Game & Fish Comm’n (is government-caused flooding a taking) and Koontz (do the Nollan/Dolan limitations for land exactions apply to government demands for cash), and could grant cert in others. Lawprof Jonathan Adler suggesting this might not be a new trend, but simply “a return to the norm.”

    One of the views noted in the article is ours:

    In analyzing why property rights is making a comeback at the high court, some court-watchers point to an active and ideologically driven…

    Continue Reading Supreme Court Again Focused On Property Cases?

    Will the multi-billion dollar Honolulu rail project be halted by a federal court over a failure to adequately study the project’s possible effects on Chinatown and an old urban park/playground, or a failure to articulate the reasons why a tunnel under a major city street was rejected?

    It might, but not just yet.

    Today’s Order on Cross-Motions for Summary Judgment in Honolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Nov. 1, 2012) gave some clues about whether the court would conclusively halt the project, but deferred a ruling until December.

    Ninth Circuit Judge A. Wallace Tashima is hearing the case because the entire Hawaii district court bench is recused (see page 39 of the slip opinion for the reason why). In today’s order, he rejected most of the plaintiffs’ challenges to the project under three federal statutes (the Transportation Act, the Natonal Environmental Policy Act, and the National…

    Continue Reading Honolulu Rail: Set Phasers On Stun

    The U.S. District Court for the District of Hawaii (Circuit Judge A. Wallace Tashima sitting by designation, because the entire Hawaii district court bench is recused) has issued an Order on Cross-Motions for Summary Judgment in the federal challenge to the Honolulu rail project. 

    More to follow after a chance to read it.

    Our past posts on the Honolulu Rail Project: start here.

    Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AW…Continue Reading Fed Court: City Failed To Consider Alternatives To Rail

    You can take the Justice out of the Court, but you apparently can’t take the Court out of the Justice. Retired Justice John Paul Stevens has added the “ninth vote” (his words, not ours) in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the case is which the other eight Justices all agreed that the Florida Supreme Court had not changed the law, so there had been no “judicial taking.” Four Justices, however, opined that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause.

    Justice Stevens sat that one out, recusing himself because news stories had noted his wife owned a beachfront condo in Ft. Lauderdale. But the lure of adding his reaction to Justice Scalia’s opinion has proven too much to…

    Continue Reading Justice Stevens, Recused In The “Stop The Beach Renourishment” Case, Weighs In On The “Stop The Beach Renourishment” Case