Following on the filing of the parties’ briefs on the remand in Arkansas Game from the Supreme Court, is this amici brief filed last week by the the Pacific Legal Foundation, the Cato Institute, the National Federation of Independent Business Small Business Legal Center, and the National Association of Home Builders in support of the Game and Fish Commission.

The brief argues that the Supreme Court “did not modify or overturn the well-settled test for adjudicating physical takings claims,” and refutes the government’s argument that the Court implicitly overruled all past takings cases in favor of a multi-factor test applicable whether or not the taking is the result of a physical invasion or a regulation.Br. at 4-5. The brief also argues that the Federal Circuit does not need to adopt a “new test” to take into account the “factors” the Court’s opinion set out because “the well-established test for adjudicating …

Continue Reading Amici Brief: Arkansas Game Did Not Overturn Well-Settled Test For Physical Takings

A most interesting case has been briefed and is awating argument in the Hawaii Intermediate Court of Appeals. But first, some background.

In Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held “[o]ur 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.” Among those “western concepts” was the fee simple absolute under which an owner has the right to exclude the public. In PASH, the court concluded that the
legitimate and reasonable practice of customary and traditional rights” by native Hawaiians (small “n”)Continue Reading Is Pig Hunting A “Traditional And Customary” Native Hawaiian Practice?

Here are the opinions, briefs, and links from the three Supreme Court cases involving Fifth Amendment takings this term, Arkansas Game & Fish (flooding), Koontz (monetary exactions), and Horne (takings as a defense):

Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012)

• Opinion of the Court (unanimous decision holding that government-induced flooding could be a taking, even if temporary).

• Our thoughts about the decision. 

• The Federal Circuit’s order on remand from the Supreme Court, asking the parties for additional briefing. 

• The petitioner’s merits brief is here. The federal government’s merits brief here. Petitioner’s reply brief here. Amicus brief of Owners’ Counsel of America here. IMLA’s amicus brief here.

• The Federal Circuit’s original opinion.

• The Court of Federal Claims’ original decision.

Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012)

• Oral

…
Continue Reading Takings Three: Briefs And Links From The Supreme Court’s 2013 Takings Trilogy

In available here (U.C. Press) and here (Amazon.com),
texContinue Reading Book Review – California Place Names, 40th Anniversary Edition

Continue Reading Yule Log III (Director’s Commentary)

Earlier, we wrote about what Hawaii law requires when one of its U.S. Senate seats becomes vacant: the remainder of the term is eventually filled by the vote of the people, but unitl the election is held, the Governor makes a temporary appointment to fill the seat and must appoint from a list provided by the political party of the Senator who caused the vacancy.

But how did Hawaii’s statute — a minority rule, but not a complete outlier — come to be? And is a rule that cabins a governor’s discretion by limiting the picks for a temporary appointee to those selected by a political party even constitutional, or democratic? (For more on the latter issue — do the Hawaii Democratic Party’s rules allow for a transparent selection process — see here.)

In “Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties,”…

Continue Reading Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties

Our Damon Key colleague and fellow blogger Tred Eyerly has marked the fifth anniversary of his blog, Insurance Law Hawaii.

Doing a law blog for any length of time — as any blogger can tell you — is a second job, and Tred keeps at it with regular posts on the latest developments in coverage and bad faith issues. We realize that insurance may not be the most, you know, exciting issue (some might say the same thing about takings law, so hush your mouth!), but come on, doesn’t everyone need to know about insurance these days? The questions of proximate causation in Palsgraf were fun and all, but weren’t the real issues who was paying for the lawyers and who would pay if the Long Island Railroad were held liable? Tred covers them all (pun intended), nationwide. A Lexis-Nexis Top Blog year-after-year, and our one-stop shop for all…

Continue Reading Congratulations To Insurance Law Hawaii On A Blogging Milestone

If it’s hard to remember a time when the State of Hawaii was not represented in Washington, D.C. by Daniel Inouye, the state’s senior Senator who died earlier today, that’s because until today, there has never been a time since statehood that Hawaii hasn’t been represented by Inouye, first as a Congressman, and then as a Senator. For the first time in its history as a state, Hawaii faces a future without Dan Inouye. This is a radically different political landscape.

Tributes are pouring in, and I haven’t the requisite chess skills to play the political guessing game, but I thought I’d share this one memory for whatever it’s worth.

Back in the day, when I was growing up, Inouye and Sparky Matsunaga (when Matsunaga was a Congressman, before he became Hawaii’s second Senator), used to come by theDisabled American Veterans’ hall at Keehi Lagoon to visit their old100th…

Continue Reading A Small Lesson In Perspective