Vested rights

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Congratulations: if you understood that headline (much less are eager to read this post), you are officially a takings geek.

As we noted earlier, after the Supreme Court issued its decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), the Court of Federal Claimsin Big Oak Farms, Inc. v. United States said it would reconsider its dismissal of that case (which was based on the now-vacated Federal Circuit decision in Arkansas Game), and asked the parties to brief the effect of the Supreme Court’s opinion.

The property owner in Big Oak Farms is seeking compensation for the 2011 flooding of its  land after the U.S. Army Corps of Engineers blew up a levee on the Mississippi River in order to, in the plaintiff’s words, “sacrifice Plaintiffs’ land to superimposed water, sand, and gravel in order to benefit the public diverting high…

Continue Reading One Free Flood: CFC Declines To Reconsider Dismissal Of Takings Case After Arkansas Game

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

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

Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone‘s cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city’s sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit…

Continue Reading Amici Brief: The Tenth Amendment, The Property Clause, And The “Town Too Tough To Die”

Our state courts may be closed on this Good Friday, but the courts of most other states’ are not, Texas courts included. So here’s an opinion issued today by the Texas Supreme Court, El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013).

[Update: more on the case here from the Supreme Court of Texas Blog, including links to the briefs and the oral arguments.]

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back.

Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was…

Continue Reading Texas: A Future Interest Is A Property Interest

Before the title of this post causes you to flee, please bear with us.

Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate…

Continue Reading HAWICA Appeal: Is A Mineral Right An Inherent Servitude, Or Must It Be Reflected In Torrens Title?

Here are two amicus briefs supporting the cert petition 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.

First up is the brief of Pacific Legal Foundation and the U.S. Cattlemen’s Association which argues that the property owner “has a protected property interest in the right to access and perform ordinary maintenance on ditches that carry his water on vested rights-of-way over federal lands.” The…

Continue Reading Amicus Briefs In Western Water Rights Takings Case

A quick one. An op-ed from yesterday’s Honolulu Star-Advertiser by the newly-appointed Director of Honolulu’s Department of Planning and Permitting. In “City followed law in issuing Hao Street development permit,” he makes some good points in this piece about building permits for two single-family homes in east Honolulu, points we don’t usually see being made by government officials. Unfortunately, its mostly behind a firewall (come on, you should subscribe to Hawaii’s paper of record), but here are the most interesting bits:

Building and grading permits are ministerial, meaning the city cannot lawfully deny them if the plans meet applicable codes. Residents may object to new homes being built in their neighborhood, but the owner is allowed by right to do so under the law.

For example, assume your lifetime dream is to build a family home. You then purchase a property zoned for residential use; however, your neighbors…

Continue Reading HNL Planning Director: “Public, Along With Private Property Rights, Are Our Top Priority” In Building Permit Review

Here’s the inevitable reaction to U. Hawaii law Professor David Callies’ recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling,” so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court’s defense.

In “Hawaii Court Upholds Public Responsibility In Environmental Cases,” an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are…

Continue Reading The Empire Strikes Back: Reaction To UH Lawprof’s Study Of Success Rates In Hawaii Supreme Court Cases

We’re sensing a trend here: takings cases where the property owners/plaintiffs are dead by the time their cases get considered by the Supreme Court. The week before last, the Court heard arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), a case where the original landowner has passed on to his final reward after arguing for decades that his property was taken. Yet the District argues a taking hasn’t even occured yet.

Now comes a cert petition, recently filed, seeking review of a similiar situation, the Federal Circuit’s decision in Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012). In that case, the court 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…

Continue Reading New Cert Petition: Is Interference With Use Of Vested Water Right A Per Se Or Penn Central Taking?