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Here’s what we’re reading today (in addition to the four unanimous Supreme Court decisions issued this morning):

Continue Reading Thursday Round-Up: A SCOTUS Losing Streak, Prune Yard II Denied, Mortgage Seizures

Here’s the cert petition filed last week which asks the Supreme Court to review the Federal Circuit’s unpublished opinion in Mehaffy v. United States (Dec. 10, 2012). In that case, the court affirmed the Court of Federal Claims’ grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.

The Questions Presented give some additional background:

In 1970, the U.S. Army Corps of Engineers (“Corps”) entered into an agreement that gave the Petitioner‘s predecessor in interest, Nomikano, Inc., the right to fill certain wetlands on its property. In exchange, the government obtained a flowage easement over a portion of the property. Petitioner was Secretary-Treasurer of Nomikano and involved in those negotiations. In 2000, Petitioner obtained the property. Subsequently, in 2006, he sought a permit from the Corps…

Continue Reading New Cert Petition: Do Pre-Purchase Regulations Negate A Property Owner’s Expectations?

Having now had a chance to review in detail the U.S. Supreme Court’s unanimous opinion in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), we were struck by how at least one of the reactions to the decision painted it as a “narrow, specialized ruling” that’s more of a one-off, than a case with lasting impact. Maybe this is a natural result of the case being argued last of the three takings cases the Court considered this term. Or because it involves what Justice Kagan characterized at oral arguments as possibly “the world’s most outdated law.” Or because there are several very high-profile cases on the Court’s docket that everyone’s anticipating. Or maybe just because it’s about raisins.

California raisins. 

But we respectfully dissent from the viewpoint that sees Horne as the least important and interesting of the 2013 Takings trilogy, or…

Continue Reading Unanimous SCOTUS: There’s More To The Takings Clause Than Just “Just Compensation”

We haven’t had time to write up our thoughts about today’s unanimous Supreme Court opinion in Horne v. U.S. Dep’t of Agriculture, No. 12-123, but to tide you over until then, here are the initial reports on the case:

      …
      Continue Reading Raisin Round-Up: Initial Reports On Horne v. USDA

      Looks like the Supreme Court tackled the easier of the two remaining takings cases first. This morning, the Court issued a unanimous opinion, authored by Justice Thomas, reversing the Ninth Circuit and holding that federal courts have jurisdiction to hear a property owner’s defense in a case where the agency has imposed or seeks to impose a fine, that doing so would be a taking. Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013).

      Yes, this is the California raisin case, for those of you who have been following along. The Court held that the takings defense was properly raised by the Hornes in their capacity as raisin “handlers.”

      We’re reviewing the opinion now, and will have some further thoughts once we do. We predicted the Court would overturn the Ninth Circuit, but it looks like we were off the mark when we guessed that it might…

      Continue Reading SCOTUS: Property Owner Can Raise(in) A Takings Defense

      Here’s the Reply Brief, filed by the petitioner/property owner in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

      That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. 

      The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims awarded $4.2 million in just compensation for the taking of Hage’s water rights. But the Federal Circuit reversed because the case was not ripe.

      Here is the cert petition, here’s the federal government’s BIO, and here are the amicus briefs…

      Continue Reading Final Brief In Western Water Rights Takings Case

      Congratulations: if you understood that headline (much less are eager to read this post), you are officially a takings geek.

      As we noted earlier, after the Supreme Court issued its decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), the Court of Federal Claimsin Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of that case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion.

      The property owner in Big Oak Farms is seeking compensation for the 2011 flooding of its  land after the U.S. Army Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff’s words, “sacrifice Plaintiffs’ land to superimposed water, sand, and gravel in order to benefit the public diverting high…

      Continue Reading One Free Flood: CFC Declines To Reconsider Dismissal Of Takings Case After Arkansas Game

      Hat tip to ABA State and Local Government Law colleague (and fellow U.H. Law School alum) Julie Tappendorf for the lead on a newly-published article: John M. Baker and Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, in the latest issue of the Zoning and Planning Law Report. Julie writes:

      In the May 13, 2013 issue of West’s Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January…

      Continue Reading Predicting The Koontz Case: Six Possible Outcomes

      What we’re reading today:

      • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

      Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

      Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

      We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

      These topics will also be covered:

      • Contractor Licensing Update
      • Planning Update – Development Near the Right of Way
      • Uniform Relocation Act Benefits
      • Rail Development and Property Valuation
      • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

      More information here. Download the brochure here, or below.

      Hope you can join us for another great program.

      2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)