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In a case that’s highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine’s requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine’s “free care laws” effected a taking because “Maine’s free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute.” Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient.

Continue Reading First Circuit: Requiring Hospital To Provide “Free” Medical Services Not A Taking

The US Court of Appeals has reversed the Court of Federal Claims’ dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084 (June 16, 2009), the property owner claimed a designation of its property (Site 28) by the U.S. Fish and Wildlife Service as a critical habitat for the Mississippi Sandhill Crane — which required it to purchase another parcel as a mitigation measure before it could sell Site 28 to the Navy — was a taking.

The property owner sought just compensation in an inverse condemnation action in the CFC, which entered summary judgment for the government because the owner failed to assert a property right. The CFC characterized the interest claimed as “the right to sell its property to the government, withoutconditions imposed, in this instance to meet regulatory…

Continue Reading Federal Circuit: Plaintiff Alleged Property Right To Develop Land

Economist Bill Wade offers his thoughts on the recent (and latest) Rose Acre decision by the Federal Circuit, a case we summarized here.
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Of shoes and ships, eggs and farms; Or, Penn Central through the Looking Glass

by William W. Wade, Ph.D.

Fans of arcane takings decisions will not find a more economically confused record and decision than Rose Acre Farms VI.  (Rose Acre Farms, Inc., v. United States, United States Court of Appeals for the Federal Circuit , 2007-5169, March 12, 2009.)  Whether the case was about eggs or farms, gross revenues or net profits, lost income or lost value, marginal costs or average costs apparently eluded the judges, the instant parties and experts.  In 15 years of writing about the economic underpinnings of regulatory takings case decisions, I have to award both the expert testimony and judicial interpretations in this case some sort…

Continue Reading Guest Post: Of Shoes and Ships, Eggs and Farms; Or, Penn Central Through the Looking Glass

Okay, we’ve decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they’re out of our system in the beginning. After that, no more yolks. We promise.

In Rose Acre Farms, Inc. v. United States,No. 2007-5169 (Mar. 12, 2009), the U.S. Court of Appeals for theFederal Circuit held that a regulation restricting the sale of eggs was not ataking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation “was not severe” and the character of the government action “strongly favored” the government.

Rose Acre Farms owns egg-laying chickens.  A lot of them: “eight layer-hen farms with millions of hens.” The USDA first promulgated temporary, then final regulations that restricted the interstate sale and transportation of eggs determined to be contaminated with salmonella. After illness outbreaks were traced to three…

Continue Reading Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation

It’s easy to blog a case when you or your colleagues win it, and we’ve had plenty to talk about lately in that department in eminent domain and zoning law.

On the other hand, it’s not so easy to write about a case when you don’t prevail. Today is one of those days. The U.S. Supreme Court declined to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (the California court’s slip opinion available here). The Supreme Court’s Order List denying review is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We (and others) filed amicus briefs, urging the Court to review the case. Our brief is posted here. The two Questions Presented…

Continue Reading Cert Denied In Ripeness And Penn Central Case

Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.

Continue Reading Materials From 2/20/2009 Land Use Seminar

Head’s up on an interesting case from the Court of Federal Claims, Resource Investments, Inc. v. United States, No. 98-419L (Court of Federal Claims, Jan. 23, 2009), a massive opinion (84 single-spaced pages) with what at first glance seems to delve into just about every regulatory takings theory known: temporary takings, categorical takings, partial takings, parcel-as-a-whole, Mahon, Penn Central, First English, Lucas, Tahoe-Sierra, Seiber, delay, and ripeness. And those are just the subjects listed on the caption.

We’re not going to digest the entire opinion here, just hit some of the highlights. The short story is that the U.S. Army Corps of Engineers wrongfully asserted jurisdiction over property in Washington state proposed to be used for a landfill, and asserted that until the owner procured a section 404 Clean Water Act permit, it could not construct the landfill. The Ninth Circuit ultimately agreed…

Continue Reading CFC: Trial Needed On Whether Wrongful Assertion Of Clean Water Act Jurisdiction Is “Extraordinary Delay”

The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal’s opinion reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008), available here.

The issues presented in the case involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule. The Reply brief argues:

The Brief in Opposition is liberally salted with Respondent California Coastal Commission’s assertions of what it refers to as the “facts” (e.g., pp. 5, 11) as well as disparagement of the presentation in the Petition as having “no evidence” (e.g., pp. 7, 11) behind it.

The Brief in opposition thus highlights the problem that call for…

Continue Reading Reply In Support Of Petition In Pratt v. Cal. Coastal Comm’n – Penn Central And Williamson County

In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government’s denial of a ministerial permit did not amount to a regulatory taking.

The opinion sets forth a long factual and procedural history of the case, so we won’t repeat it here. The discussion of takings begins on page 34 of the slip opinion, with a good short summary of regulatory takings law, and the various situations when the regulation of land will be deemed to have gone “too far” and requires the payment of just compensation. See slip op. at 34-39. Footnote 39 is particularly interesting, as it correctly notes that Lingle did not wipe out the Agins substantially advance test, but merely relocated it to due process:

The court’s holding [in Lingle…

Continue Reading Cal. Court of Appeals Revisits (Sort of) Landgate: Of Regulatory Takings, Means-End Analysis, and Due Process

The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here).  The California Court of Appeal’s opinion, reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) is available here). 

The issues presented involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule.

We filed an amicus brief in the case, available here. The cert petition and the other amici briefs supporting it are posted here.Continue Reading California Coastal Commission’s Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)