Land use law

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That’s one of the three questions the US Supreme Court will consider on Monday, March 19 2007, when it hears arguments in Wilkie v. Robbins. 

The case involves a Wyoming rancher who sued officials of the federal Bureau of Land Management, claiming they began “a campaign of harassment and coercion designed to force [him] to give the Government a property interest in his landwithout just compensation.” 

The property owner sued the BLM officials under federal Racketeer Influenced and Corrupt Organizations (RICO) laws, asserting their attempts to coerce him to surrender an easement over his land was “extortion.”  Those efforts included filing false criminal and administrative charges against the property owner, harassing ranch guests, and cancelling the owner’s right-of-way across neighboring BLM land.  The BLM officials claimed they were immune from suit, arguing their behavior did not violate “clearly established” law.  Northwestern U’s School of Journalism has posted a summary…

Continue Reading ▪ Supreme Court Preview: Is There a Right to be Free From Government Retaliation For Defending Your Property Rights?

The Hawaii Supreme Court recently issued an opinion clarifying when a plaintiff may enforce a statute or ordinance by seeking a declaratory judgment.  Rees v. Carlisle(No. 26998, Mar. 12, 2007) considered the question of whether the Honolulu City Prosecutor mayuse public funds to advocate passage of an amendment to the HawaiiConstitution. 

The case had nothing whatsoever to do with land use.  Directly, that is.  The lastsection of the opinion (part E) is worth paying attention to for those who practice land use law, however, since it clarifies when a private party has aright to bring a lawsuit seeking a declaratory judgment under Haw. Rev. Stat. § 632-1.  Declaratory judgments are often the preferred remedy in land use litigation, and the opinion provides a good roadmap to the issues when that remedy is sought.

Statutes may define legal rights and obligations, but often contain no clear remedial provisions or…

Continue Reading ▪ Declaratory Judgments, Private Rights of Action, and Land Use Litigation

Nollan/Dolan meet Don Corleone.  The Maui News reports on a homegrown version of the Wilkie v. Robbins issue, the case set for argument in the US Supreme Court on March 19, 2007.  The issue is whether government officials can be sued under federal “RICO” anti-racketeering laws.  Wlkie involves the federal Bureau of Land Management’s attempts to wrest an easement from a Wyoming rancher in return for land use permissions, and a report of the Maui case is here. Continue Reading ▪ RICO, Nollan/Dolan, and “Extortion”

Is the game over in the ninth inning, or is being ahead in the sixth good enough?

Federal civil rights law, 42 USC  § 1988, provides that the “prevailing party” in a lawsuit to vindicate federal civil rights is entitled to collect attorneys fees from the loser.  The right to own and make economically beneficial use of property is one of those federal civil rights, and land use and property issues are often litigated under 42 USC  § 1983, so attorneys fees may be available to the winning party. 

But what does it mean to be a “prevailing” party?  On April 17, 2007, the US Supreme Court will hear arguments in Struhs v. Wyner (No. 06-531) (docket listing here), a case that presents the issue of whether a party who wins a preliminary injunction — but ultimately loses the case — has “prevailed” within the meaning…

Continue Reading ▪ Attorneys Fees in Land Use Litigation

I was at the University of Hawaii Law School today for an informal discussion with students about opportunities to practice property-related law.  There are many, and Hawaii has always been a hotbed of cutting edge issues in land use, regulatory takings, and eminent domain law. 

For example, the current Kelo-eque nearly-anything-goes approach to “public use” questions had its beginning in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984), the case challenging Hawaii’s Land Reform Act.  The “property rights” revolution arguably began with  Kaiser Aetna v. United States, 444 U.S. 164 (1979), which involved Oahu’s Kuapa Pond, and issues of uncompensated public access.  In 2005, the Supreme Court analyzed Hawaii’s gas station rent control statute under the Takings and Due Process Clauses in Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528 (2005). Undoubtedly, there will be more.

Also, here are some of the resources I mentioned (and…

Continue Reading ▪ Careers in Property Law

SCOTUSblog posts the brief for the landowner in Wilkie v. Robbins, a land use case to be heard by the US Supreme Court on March 19.  The appeal arose after federal officials used their regulatory power to coerce a Wyoming rancher to give the government an easement without just compensation.  Among other claims, the rancher sued the government officials in their individual capacities for extortion under “RICO” laws.

The Court accepted review of these questions (from the cert petition):

1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.

2. Whether respondent’s Bivens claim based on the exercise of…

Continue Reading ▪ Property Owner Brief in Land Use Extortion Case

Professor Paul Boudreaux at Land Use Prof Blog asks Should government land use science be easier to challenge?  He details a Utah proposal to allow a developer to introduce evidence demonstrating that the science supporting a zoning restriction is faulty, and compel binding arbitration if the government rejects the evidence.

Interesting concept.  One might think, under Euclidean norms, that the comprehensiveness of the process would produce a scientifically-valid outcome, but anyone who plays the land use game knows that is not necessarily the case, and the data used to support land use regulation often reminds me of a certain kind of science….Weird Science.

    
Continue Reading ▪ Land Use Regulation and “Science”

We all know that in Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held:

Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.

The court also noted that “western concepts” of property include a certain bundle of rights:

The western doctrine of “property” has traditionally implied certain rights. Among these are the right to the use of the property, the right to exclude others[,] and the right to transfer the property with the consent of the “owner”.

In 2000, the Hawaii Legislature amended the state’s environmental assessment/impact statement law, Haw. Rev. Stat. ch. 343 to require examination of cultural practices as well as environmental policies, economic welfare, and social welfare:

“Significant effect” means the sum of effects on the quality…

Continue Reading ▪ Are Constitutional Property Rights “Cultural Practices” That Should be Considered?