Regulatory takings

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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:

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      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

      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)

      Here are the latest (and last, presumably) briefs in the Arkansas Game & Fish Commission v. United States case, now in the Federal Circuit after remand by the U.S. Supreme Court. The Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking unless it was “permanent,” and remanded the case to the Federal Circuit for more.

      The Federal Circuit ordered supplemental briefing, with each party filing a brief simultaneously (initial briefs posted here), and now these, their respective briefs responding to the initial briefs:

      We’ll bring you more when and if the court schedules arguments, or when it issues a decision.

      Response Brief on Remand of Plaintiff-Cross Appellant Arkansas Game & Fish Commission, Arkansas Game an...

      Supplemental Response Brief of the United States, Arkansas Game and Fish Comm’n v. United States, No. 2009-…Continue Reading Final Briefs In Arkansas Game Remand (Flooding As A Taking)

      Here’s the BIO recently filed by the United States in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013). This brief responds to the cert petition which seeks Supreme Court review of Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012).

      In that case, 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 had awarded $4.2 million in just compensation for the taking of Hage’s water rights.

      The BIO reformulates…

      Continue Reading USA’s BIO In Western Water Rights Takings Case

      If you haven’t figured out by now, we like takings claims. We really do. But here’s one where we think the Third Circuit reached the right result when it concluded that there was no compensable taking. National Amusements, Inc. v. Borough of Palmyra, No. 12-1630 (May 9, 2013).

      Why? Because when there may be an unexploded artillery shell on the property, and as a result the government seals off the property and temporarily closes the business conducted thereon, we don’t think the Takings Clause requires compensation, that’s why. The property owner thought otherwise, and in response to the Borough’s order to shut down after someone discovered that a flea market site was also former WWII-era muntions magazine and testing area, and that there was still some of that stuff left over, it objected:

      The gist of the Complaint is that Palmyra overstated the danger posed by the unexploded munitions…

      Continue Reading Third Circuit: Closing A Business To Remove Unexploded Munitions Is Not A Taking

      Here’s the opinion of the California Court of Appeal (1st District) in an appeal we’ve been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

      The entire opinion is worth reviewing, but here’s the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing “minimum development” if the prohibition would deprive…

      Continue Reading Cal App Affirms Penn Central Temporary Regulatory Taking