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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

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

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

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

Here’s the video of today’s Ninth Circuit oral arguments in Drake’s Bay Oyster Co. v. Jewell, the case about an oyster farm in Marin County’s Point Reyes National Seashore, and Interior Secretary Ken Salazar’s decision to not renew its license. The Ninth Circuit has posted the briefs of the parties and amici here.

Here’s our initial post on the case, and here’s our follow up (about one of the amicus briefs).

Here’s a plain language preview of the issues and the arguments. 

Predictions? It seems to us that two of the judges are skeptical of the farm’s arguments, and one may be inclined to agree, but there was nothing we saw on the video that would lead us to think the outcome is obvious. Continue Reading Oral Argument Video In Ninth Circuit Oyster Beef

Here’s one that’s coming up for the Supreme Court’s consideration at its conference next week, but which we haven’t noted until now. A Texas property owner has filed this cert petition asking the Court to review the Texas Supreme Court’s decision in Hearts Bluff Game Ranch, Inc. v. State of Texas, 381 S.W.3d 486 (Tex. 2012). 

The Texas court held that the ranch did not make out an inverse condemnation claim against the State when it alleged that a state agency’s action resulted in a federal agency denying a federal permit. The petition contains a single Question Presented:

Whether state action that purposely prevents a permitted and beneficial use of land by its owner, but undertaken with the intent to reserve that land for a future beneficial State use, requires compensation under the takings clause of the Fifth Amendment.

The Texas Supreme Court held that “[i]t is not prudent…

Continue Reading Cert Petition: Texas Liable For A Taking Because It Caused The Feds To Deny A Permit

In “Why big development is so difficult in Hawaii,” Hawaii Business magazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-up interview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling” (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that concluded that “western concepts” of property law such as exclusivity are “not universally applicable in Hawaii.”)

Callies’ conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court’s environmental jurisprudence in an article on the grounds that it wasn’t so much focused on outcome, but on process.

Continue Reading Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use

Here’s the amicus brief of the Coalition of Arizona/New Mexico Counties for Stable Economic Growth, supporting the petitioner City of Tombstone in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013). [Disclosure:we also filed an amici brief in the case in support of Tombstone.]

The case arose after the combination of a devastating forest fire and later heavy rains laid waste to Tombstone’s sources of muncipal water, deep in the Coronado National Forest. As the New York Times reported here:

Tombstone’s water system is as old as the city itself, and most of the parts that are functioning, which are few, were damaged last year by rocks and trees dragged downhill by runoff from the summer monsoons. The city set out to repair the system’s connections to three of the 25 springs to which it claims to have a right; connections to the…

Continue Reading Another Amicus Brief In Tombstone Case: Property Clause Does Not Trump City’s Right To Maintain Right-of-Way