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Check this out: Vermont lawprof John Echeverria has launched a blog about “Takings Litigation.” Which, given the predilections of the author (organizer of the anti-takings conference, and recently presented with the Koontz Catatonia Award), probably should be called “Takings Defense” or the “No Takings Blog,” but who are we to say? 

Samples of recent posts:

  • “Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?), the Florida Court of Appeals has issued a decision in the Koontz case on remand.”
  • “Importantly, the decision [Sherman v. Town of Chester] does not cast doubt on the general rule that when a litigant initially files a takings claim in federal court, the government defendant can raise Williamson County and insist that the takings claim be litigated in state court.”
  • “One thing seems clear about this case [

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Continue Reading New Takings Blog – “Takings Litigation”

Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this…

Continue Reading Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification

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ALI-CLE, the good folks who put on the annual programs on Eminent Domain and Land Valuation, and Condemnation 101: How to Prepare and Present an Eminent Domain Case, have announced the dates and venue for the 2015 conferences:

Thursday – Saturday, February 5-7, 2015 

Hotel Nikko, in San Francisco.

Those of you who have attended or taught at these conferences in the past know they are the premier programs on this topic, and feature exciting presentations and excellent faculty.

I’ve been honored to be asked to serve as the Planning Co-chair of the 32d annual Eminent Domain and Land Valuation Litigation program, stepping into the able shoes of Leslie Fields, who retired last year. Joe Waldo is continuing as Planning Co-Chair. Joe and I are currently putting together the agenda and faculty for the program, and we will have more on that soon. Andrew…

Continue Reading Mark Your Calendars: 2015 ALI-CLE Eminent Domain and Land Valuation, and Condemnation 101 – February 5-7, 2015, San Francisco

A federal court authorized court-appointed counsel in a criminal prosecution to retain Marcum for forensic accounting and litigation support services. There’s a federal statute which allows for payment for these services, and if the cost exceeds $2,400, the chief judge of the regional circuit must approve. The work Marcum performed went over that amount. By a lot. As in hundreds of thousands. The submitted budget was $4.5 million. Marcum didn’t get the Fifth Circuit’s chief judge’s sign off.

When Marcum received payment of some (but not all) of its invoices from the court, it sued in the Court of Federal Claims for a taking under the Tucker Act for the difference. 

No deal, held the Federal Circuit. In Marcum LLP v. United States, No. 14-5001 (June 13, 2014), the court held that the CFC Tucker Act lawsuit was a collateral attack on the Fifth Circuit’s determination of the fees …

Continue Reading Federal Circuit: No Tucker Act Takings Claim For Court-Appointed Counsel Fees

Our thanks to Jacob Cremer for the heads-up on the Florida Court of Appeals’ decision in Ocean Palm Golf Club Partnership v. City of Flagler Beach, No. 5D12-4274 (May 30, 2014). Jacob did not post any analysis (undertstandable because his law firm is involved in the case) so we’ll add our two cents.  

Here’s the BLUF: the city’s refusal to change the zoning on a 9-hole golf course and a surrounding parcel to allow residential development did not deprive the parcels of their value, and were not a taking. 

Here’s the longer story. The case involved two parcels, one the golf course, and the other, a vacant parcel. At one time, they were a single parcel owned by a single owner, but by the time of the litigation, they had been subdivided and separately owned by two separate but related entities. Back in the day, the city…

Continue Reading Fla App: Because A Golf Course That Eventually Went Broke (And Was Later Bought By The City) Was “Profitable,” City Not Liable For A Taking

Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.  

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now…

Continue Reading HAWSCT Briefs In Bridge Aina Lea: Takings, State Land Reclassification, And Orders To Show Cause

The final words in most appellate oral arguments by the jurists are usually something along the lines of “we’ll let you know.” In Hawaii state courts, the Chief Justice signals you’re done with “we’ll take the case under advisement,” while in many federal courts, the presiding judge informs you “the case is submitted.” Or words to that effect. 

It was no different in the Ninth Circuit oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued earlier this week before the Ninth Circuit at its session in Honolulu. The case was “submitted for decision.” Listen yourself at the end of the oral argument recording.

Today, however, the panel issued this order withdrawing the submission, in anticipation of the upcoming Hawaii Supreme Court oral arguments in the related state litigation, scheduled for June 25, 2014. The NInth Circuit judges were keenly interested in the Hawaii…

Continue Reading 9th Cir Says “Let’s Wait” On Hawaii Supreme Court To Rule In Bridge Aina Lea

For those of you who follow the issue, here’s the latest in the “genetically modified organisms” issue, yet another one where Hawaii is apparently the epicenter. As we posted earlier, the County of Kauai adopted an ordinance regulating GMO’s which was immediately challenged in Federal District Court in Honolulu, while the County of Hawaii (Big Island) also adopted an ordinance that was challenged in state court by a farmer. 

The Big Island ordinance is now being challenged in Federal Court on a number of grounds (preemption, Commerce Clause, and takings). Read the complaint for yourself, below. 

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Links From Today’s Session On GMO Issues
Western Australia Supreme Court: GMO “Contamination?” No Worries, Mate
The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court
GMO Chapter 2 – Big Island Farmer:

Continue Reading Latest Federal Court Salvo In The GMO Front

For you rails-to-trails fans, here’s the latest from the Federal Circuit. In Biery v . United States, No. 13-5082 (June 2, 2014), the court held that interests which certain Kansas property owners conveyed to railroads back in the day were grants in fee simple, and some were grants of an easement.  

The issue was dispositive because if the grants were in fee simple, then when the railroad abandoned railroad operations, the land could be converted to public recreational trail use without triggering a taking, but if the grants were easements, then upon abandonment, the owners should have got the land back, and are owed compensation. 

As noted, in 2004, the stretch of rail corridor at issue was converted to a public trail pursuant to the Trails Act. If, prior to the conversion, the BNSF held fee-simple title to the land underlying the corridor, then, for their part, plaintiffs-appellants possess no compensable property interests.

Continue Reading The Latest Takings Decision From The Federal Circuit On Railway “Rights Of Way”

It’s been our experience that when a court of appeals — particularly when it’s the Ninth Circuit, and it’s the eve of oral argument — raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges’ minds. They’re the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we’re paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things…

Continue Reading Ninth Circuit Sua Sponte Raises Williamson County Ripeness, Asks For Briefing, Gets Some