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On Thursday, December 17, 2009, at 9:00 a.m. Hawaii time, the Hawaii Supreme Court will hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu. Note: Justice Recktenwald is recused and Circuit Judge Derrick Chan will be taking his place. 

This post will review the issues in the case, and provide links to the parties’ and the amici briefs. In part II, we will summarize the arguments made by the various parties.

My colleague Mark Murakami, who blogs over at hawaiioceanlaw.com will be live blogging the arguments here (mirrored here). Tune in a few minutes before 9:00 when he goes live. I will also be commenting.

[Disclosure: although I have not participated in this case, two of my Damon Key colleagues — Mark, and Greg Kugle — have. They represented a party in the circuit court; Greg filed an amicus brief in the…

Continue Reading Oral Argument Preview, Part I: Hawaii Supreme Court Considers Whether A Change In “Context,” But Not The Project, Triggers A Supplemental EIS

Here’s a collection of some of the commentary about yesterday’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

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Continue Reading Stop The Beach Renourishment (Judicial Takings Case) Post-Oral Argument Round Up

We’re continuing our summary of today’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

The property owners’ argument summary is posted here, and the State’s argument is here.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

U.S.: No Need For Judicial Takings Here

Deputy Solicitor General Edwin S. Kneedler argued for the Obama Administration, which  appeared as amicus curiae in support of the State. Chief Justice Roberts characterized his initial argument — that this is a “conventional” takings case where the Legislature is alleged to have taken property — as a “clever ploy,” asserting “We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did. That changes the whole ball game.”…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part III)

We’re continuing our summary of the oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law. Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

The transcript is available here, and the property owners’ opening argument summary is here.

A Matter of Inches?

Scott D. Makar, the Florida Solicitor General, argued for the State. He began by distinguishing artificial avulsion and accretion. Tr. at 27-28. He characterized the renourishment as an avulsion, meaning the state would own the new beach under common law:

CHIEF JUSTICE ROBERTS: Well, is your view whenever the State does it, it’s an avulsion?

MR. MAKAR: If…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part II)

Today, the U.S. Supreme Court heard oral argument in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law.

The transcript is available here. Justice Stevens did not participate.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

New Law Or Old Hat?

Florida attorney D. Kent  Safriet, attorney for the property owners, started off by reminding that the basic premise in regulatory takings is that all branches of state government, including the judiciary, are bound by the Takings Clause. Tr. at 3-4.

Justice Ginsburg, as one might expect, seemed skeptical, suggesting that if beach restoration (“renourishment,” as they call it in Florida) was…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part I)

On Wednesday, December 2, 2009, the U.S. Supreme Court will hear oral arguments in the biggest takings case of the year, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This is the case in which the Court is considering the theory of “judicial takings” and whether state courts are bound by the Fifth Amendment when they consider state property law. 

The case has been pitched as a contest between littoral property owners’ rights to have beach-front property (as opposed to beach-view property), and a state judiciary’s ability to adopt and shape a state’s common law.

The merits briefs, the 21 amicus briefs, and the decisions of the Florida state courts are available on our resource page. Disclosure: we filed an amicus brief in the case, supporting the property owners, available here.

The Court is considering…

Continue Reading Oral Arguments In Judicial Takings Case: Are State Courts Bound By The Takings Clause?

The Cato Institute’s Ilya Shapiro discusses Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case being argued in the U.S. Supreme Court on Wednesday.

We will post a preview of the arguments, but in the meantime, check out our resource page here (includes merits and amici briefs, and the decisions of the courts below).Continue Reading Cato Institute Podcast On Stop The Beach Renourishment (Judicial Takings) Case

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

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Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)

Here’s the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County’s Answering Brief (posted here).

In Leone, the trial court refused to consider the owner’s claim that statelaw and local regulations resulted in a regulatory taking of beachfrontproperty on the south shore of Maui. Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision…

Continue Reading Reply Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?