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Ninth_circuit

Update 2/19/14: the Honolulu Star-Advertiser has this report (“The appellate court decision was an ‘overwhelming victory for the city from an ideologically diverse panel, said Robert Thomas, a Hono­lulu-and San Francisco-based attorney who attended the hearing in August. The panel comprised Judges Stephen Rein­hardt, Mary Schroe­der and Andrew Hur­witz. ‘All three of them agreed. They made pretty short work of the challengers’ arguments on the merits’ while spending much of the decision on the panel’s jurisdiction concerns, Thomas said.”). The Star-Advertiser also reported that the one issue remaining before the District Court was also (coincidentially) resolved yesterday against the challengers. Here is the court’s order (we will have a report on that issue shortly). 

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Okay, we’ve got the obligatory “rail” pun out of the way with the title. On to the opinion, which we posted earlier today, which we’ve now had a chance to review it in more…

Continue Reading 9th Cir: Honolulu Rail Project On Track

fracknow

Here’s the Verified Petition and Complaint, filed last week, in which a coalition of New York landowners sued the governor, claiming that the state is dragging its heels in its environmental review of fracking. We’re interested because a bad on fracking may lead to takings problems, although this lawsuit does not raise such issues, but seeks an order forcing the state to stop delaying and allow drilling to go forward. Here’s the Memorandum of Law supporting the petition, which details the legal basis for the claims.

According to the plaintiffs’ press release, the lawsuit seeks the following:

  • An order compelling the New York state Department of Environmental Conservation to finalize the “Supplemental Generic Environmental Impact Statement.” 
  • A determination that the DEC referral of the SGEIS to the Department of Health was arbitrary and capricious, an abuse of discretion and an improper delegation of the DEC’s Lead Agency

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Continue Reading Frack Now: NY Property Owners Sue To Halt Delays

Property

There’s not much doubt that the now-notorious large-scale unpermitted upland grading and grubbing by a Kauai property owner on its private land caused the runoff that catastrophically damaged the adjacent beach and the reef offshore. The damage was pretty bad, and resulted in the “largest storm water settlement [with the federal EPA] in the United States for violations at a single site by a single landowner.” See also the photo above (much larger version here).

The state also pursued the owner, and after a contested case, the Board of Land and Natural Resources assessed approximately $4 million in damages, and $70k for administrative costs. To reach this assessment, It did not apply a preexisting damage formula, but used a method it crafted for the case:

The value of Pilaa beach, bay and reef includes use value, option value, commodity value, existence value, bequest value, cultural values, including…

Continue Reading HAWSCT: Damage To Unique Property Subject To Unique Rules

Looks like eminent domain and Hawaii are in the news today. Here’s what we’re reading:

Related articles
Scalia predicts Kelo will fall, but Korematsu would stand

Continue Reading Tuesday Round-Up: Hawaii In The Eminent Domain Spotlight

BadspockReading the Alabama Supreme Court’s decision in City of Alabaster v. Shelby Land Partners, LLC, No.1120677 (Jan. 24, 2014), we are reminded of that episode of Star Trek where the gang accidentally ends up in a parallel universe, where things are all backwards. That’s the episode that probably started the meme that in order to portray someone as “evil,” just give ’em a Van Dyke, like mirror Mr. Spock. Well, to an outside observer like us, nearly every party in the City of Alabaster case may need a beard, because the situation, with the exception of the final result, seemed so backwards from the situation that we’re used to in zoning cases.

Here, the developer wanted to make less intensive use of its property — it asked for a downzoning to allow a senior residence in a commercial district — and asked the City for a change in designation…

Continue Reading The “Alternate Universe” Of Alabama Land Use

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Here are the links from today’s session on “They’ll Take My Big Gulp From My Cold Dead Hands – Public Health, the Police Power, and the Nanny State” at the ABA Midyear meeting in Chicago.

Joining me was Sarah Conly, Professor of Philosophy at Bowdoin College, author of “Against Autonomy: Justifying Coercive Paternalism;” Alderman George Cardenas, who represents Chicago’s 12th Ward; and Walter Olson, Senior Fellow at the Cato Institute’s Center for Constitutional Studies, and guru of the “Overlawyered” blog. 

And was it cold out today, you ask? Affirmative.

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Continue Reading Three Cheers For Our ABA Program On “Coercive Paternalism” And The Nanny State

Mich Ave 2-6-2014

We’re at the ABA Midyear meeting in sunny Chicago, so we have our to-read links posted today instead of a new case digest. Our fingers are too frozen to post anything more:

  • No well. No way (from The Garden Island, Kauai’s daily newspaper, a story that just sums up how some decisions get made in one little corner of paradise).

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Continue Reading Things To Read In Chicago When You’re Freezing

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Next Thursday, February 6, 2014, we’ll be in Chicago to moderate an American Bar Association discussion/debate on a topic that’s not our usual takings-eminent domain-land use stuff, but is still one of the hotter topics around. “They’ll Take My Big Gulp From My Cold Dead Hands” is an hour-and-a-half with three experts in “Public Health, the Police Power, and the Nanny State,” to quote our subtitle. (Yes, we realize that New York City’s ban actually exempted Big Gulps® but hey, it’s a catchy title.)

Joining me for the discussion:

  • Walter Olson, Senior Fellow at the Cato Institute’s Center for Constitutional Studies. While his list of accomplishments is long, we lawyers perhaps love him best for his “Overlawyered” blog. 
  • Sarah Conly, Professor of Philosophy at Bowdoin College. Author of “Against Autonomy:  Justifying Coercive Paternalism,” forthcoming from Cambridge University Press.
  • Alderman George

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Continue Reading Upcoming Program: “They’ll Take My Big Gulp From My Cold, Dead Hands – Public Health, the Police Power, and the Nanny State”

We often jokingly suggest that in eminent domain, “it’s good to be the King!” quoting that eminent eminent domain scholar Mel Brooks. We think this catchphrase aptly describes the “most awesome grant of power,” City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 155 (Cal. App. 1985), under which the condemnor has a very nearly unfettered ability to take property.

But in recent decision from the Missouri Court of Appeals it was good to be the landowner — the owner of a Burger King restaurant — because it had the good sense to hire Robert Denlow, our Owners’ Counsel colleague (and occasional Sunday golf partner) (that’s Bob in the above video, a 2013 interview). In City of North Kansas City v. K.C. Beaton Holding Co., No. WD76068 (Jan. 14, 2014), the Missouri Court of Appeals, Western District, held that the city, a …

Continue Reading Sometimes, It’s Good To Be The (Burger) King: General Power Of Eminent Domain Does Not Include Blight Elimination

Coy Koontz, Jr., the prevailing property owner in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) joined our Pacific Legal Foundation colleague Jim Burling for an interview on Fox and Friends.

Kudos to Jim and Mr. Koontz for getting down to the studio in the wee hours of the morning — we shared dinner last night (Mr. Koontz has joined us to accept the 2014 Crystal Eagle award from Owners’ Counsel of America on Saturday), and even after all that a New Orleans meal involves, they were able to drag themselves to the studio and look remarkably fresh. Good work, guys.Continue Reading Coy Koontz, Prevailing Property Owner In SCOTUS Victory, Interviewed