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As you know, the U.S. Supreme 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.

Although the Federal Circuit indicated it would have preferred to avoid trying to deal with the issue (its order establishing a briefing schedule on remand invited the parties “to consider mediation of the issues remaining in the case following the Supreme Court’s remand”), it looks like that’s not what is happening, because the parties have filed their briefs. 

The briefs appy the multi-factor Penn Central-ish “factors and circumstances” set out by the Supreme Court: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking” Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the invasion is

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Continue Reading Arkansas Game On Remand From SCOTUS – First Briefs

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”

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?

If this article — Christie tells beachfront owners to sign easement for dunes or face ridicule — accurately relays the entire context of the situation, then something is seriously off here.

The article quotes New Jersey Governor Chris Christie as declaring that if shoreline property owners do not voluntarily surrender easements and allow the construction of sand dunes on their land (presumably without compensation) very soon, then he’s going to “call them out” and publicly name them:

“We’re going to start calling these folks out in the next few weeks if they haven’t signed the easements to let us build the dunes because they need to be called out and they need to be told that there is something more important than their own self interests,” he said during a town hall-style event in Middlesex Borough.

He followed that up with his reasoning:

“I’m not going to put up with…

Continue Reading Tail Gunner Christie: What’s Next, The Pillory And The Stock?

Undercutting the trope that the lawsuit by a Marin County, California oyster farm to keep operating is all a right-wing plot (see also this story), famed Berkeley chef and food guru Alice Waters has asked the Ninth Circuit to file an amicus brief in support of Drakes Bay Oyster Company in its appeal of the District Court’s denial of its request for a preliminary injunction. As we noted here, the Secretary of the Interior denied the Company’s efforts to renew its license for its decades-old farming operation in the Point Reyes National Seashore. The Ninth Circuit has issued an injunction pending appeal, and ordered expedited calendaring.

Joining Waters on the brief is another nearby oyster farmer (located on private land), a San Francisco restaurant, the California Farm Bureau and two county farm bureaus, and “Food Democracy Now,” “Marin Organic,” and the “Alliance For Local Sustainable Agriculture.”…

Continue Reading Food Fight: Environmentalist Top Chef Supports Oyster Farmer Against Other Enviros In Ninth Circuit

Here’s one more amicus brief (Public Lands Council, National Cattlemen’s Beef Association, Oregon Cattlemen’s Association, Washington Cattlemen’s Association, and Nevada Cattlemen’s Association) supporting the cert petition in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

Estate of Hage is 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.

Earlier, we posted two other amicus briefs supporting the granting of cert:

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Continue Reading One More Amicus Brief In Western Water Rights Takings Case

This one is not about takings, but this cert petition does relate to land and water, and come on, when the case involves Tombstone, Arizona calling out the federal government to a showdown — not at High Noon, but in the High Court — do you think we could have passed up the opportunity to post it? No way, hombre.

Here are the Questions Presented. It’s one of those QP’s with a short introduction which lays out the facts, so we won’t repeat them here:

Most fundamentally, this petition asks whether a state has any right to exist under the Tenth Amendment. Under the authority of a State of Emergency declared by the Governor of Arizona, the historic City of Tombstone sought to freely restore its municipal water supply infrastructure inholdings, located within Arizona’s Coronado National Forest, after they were destroyed by a natural disaster. Even though the City faced…

Continue Reading New Cert Petition: Tombstone v. United States

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

Here are some thoughts about the Federal Circuit’s recent opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013). It’s a long opinion, and we haven’t had a chance to digest it in detail, so these thoughts are not ours but are informative nonetheless. We offer this link to “The US wins the latest round in the Casitas saga” form environmental lawprof Holly Doremus at Legal Planet. She writes:

The Court of Claims ruled for the government, dismissing Casitas’s claim as not ripe on the grounds that the District had not shown any such interference [with Casitas’ water rights], at least not yet.

…

In one sense this latest decision leaves the dispute hanging. The case was dismissed without prejudice, meaning that Casitas is free to file again if and when it can prove that the fish ladder has actually prevented it…

Continue Reading More On Casitas Water Rights Takings Case: “[T]he touchstone for takings cases is whether the property owner is being treated unfairly”

(We’re not sure who captured and posted the above video — wasn’t us — but to whomever did so, thank you.)

Earlier this week, our colleague Mark M. Murakami spoke at the University of Hawaii Law School on a panel about “The PLDC and Property Rights in Hawaii.” PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it.

Joining Mark on the panel were Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

In the event you don’t want to view the entire session, we’ve put Mark’s remarks and his responses to audience questions in a separate (high-quality) audio file, which you can steam or…

Continue Reading Podcast And Video: The PLDC And Property Rights In Hawaii – A Panel Discussion