For those who tuned in to today’s webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

  • County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a “classic” use).


Continue Reading Links From Today’s Webinar “Eminent Domain: Redevelopment Challenges for Local Government”

This is a post for those who decided they wanted to visit a law blog today instead of (a) filling their bellies with the usual Thanksgiving fare; (b) watching football on TV; (c) gearing up for the insanity of the day-after shopping; or (d) pretty much anything else.

Seriously, what are you doing reading a law blog this day?

Anyhow, here’s the deal if you are: On Thursday, December 1, 2011 at 1:00pm-2:30pm EST (10:00am-11:30am PST, 8:00am – 9:30am HST) we’ll be presenting the on-line webinar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use (click the link for more information), and if you’d like to join us with the $250 registration fee waived (yes: free, gratis, no charge, free-ninety-free), and you are one of the first three people

Continue Reading T-Day Door Prize. Second Prize Is A Set Of Steak Knives.

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up. Continue Reading Brigham-Kanner Conference: The Video

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained “wetlands” under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

  • The amici brief filed by several states, including Hawaii, in support of the property owners.
  • Here are the cert stage briefs.

    Here‘s the Court’s docket report. We will post the

    Continue Reading Podcast: Sackett v. EPA – SCOTUS Preview: Immediate Judicial Review, Or Death By A Thousand Days?

    A reminder: on Tuesday, November 1, 2011, from noon to 1:00 p.m., I’ll be making a presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. EPA, No. 10-1062 (cert. granted June 28, 2011).

    The venue is the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street. We’ll talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do.

    We may also discuss other pending cases of interest, if there’s time. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

    Also, for those who are

    Continue Reading Tuesday State Bar Session On Sackett v. EPA

    IMG_6999

    “Yosemite,” according to California Place Names, Erwin Gudde’s seminal work on the origins of (surprise) California place names, means “they are killers.” It was “[e]vidently a name given to the Indians of the valley by those outside it.”

    I raise this historical tidbit because I must admit to feeling a little like “those outside it” when I was invited to speak about regulatory takings at the California State Bar’s Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn’t going to be an echo chamber and that they were at least open to hearing competing ideas.

    It turns out that my prediction about “they are killers” was not accurate — the audience, while not exactly

    Continue Reading Yosemite Seminar Summary – Regulatory Takings: Looking Back And Looking Forward

    The Natural Resources Section of the Hawaii State Bar Association has kindly asked me to speak to its members at their monthly lunch meeting, next Tuesday, November 1, 2011, from noon to 1:00 p.m. at the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street.

    I’ll be discussing the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

    The issue now before the Court is whether the Ninth Circuit correctly concluded that property owners who contested the EPA’s Clean Water Act jurisdiction could do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA’s authority. Sackett v. EPA, 622

    Continue Reading Upcoming Hawaii State Bar Association Presentation: Sackett v. EPA – Immediate Judicial Review Or Death By A Thousand Days?

    Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He’s summarized his thoughts and insights in “Going Red on Property Rights,” posted at the Hoover Institute’s site. He writes:

    Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

    The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I’m writing my wrap-up of the Conference and will post it shortly.

    In the meantime, I offer this little story.

    A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

    A few seconds later, a car comes up behind them.

    In Beijing, pedestrians decidedly do not have the right of way.

    “Get out of the road!” we call out.

    Epstein slowly turns around, looks at the car, looks at us, and says with a smile, “sidewalks are for mere mortals.”

    (But he does get out of the road.)
    Continue Reading Brigham-Kanner Property Rights Conference – “Mere Mortal” Professor Richard Epstein on “Going Red on Property Rights”

    Yosemite_conference Here are the links to the cases and other items discussed today at the session Regulatory Takings – Looking Back and Looking Forward at the Cal State Bar’s Environmental Law Section’s Environmental Law Conference at Yosemite.

    These cases are also in your written materials.


    Continue Reading Links From “Regulatory Takings: Looking Back And Looking Forward” (Cal. State Bar Yosemite Conference)

    Save the date: on Thursday, December 1, 2011 (1:00pm-2:30pm EST, 10:00am-11:30am PST) we’ll be presenting the on-line seminar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use.

    Joining me are colleagues Anthony Della Pelle (McKirdy & Riskin – New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose – Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman – California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert – Hawaii).

    Each member of the faculty should be well-known to our readers: Tony publishes the New Jersey Condemnation Law blog and is a frequent speaker at the annual ALI-ABA eminent domain program. Casey is with the Owners’ Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section’s Condemnation, Land Use, and Zoning Law Committee. Rick and Brad produce

    Continue Reading Upcoming National Webinar – Eminent Domain: Redevelopment Challenges for Local Government