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Final Briefs In Arkansas Game Remand (Flooding As A Taking)

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:

• Plaintiff's Response Brief
  

• Response Brief of the United States

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-...

Oral Argument Video In Ninth Circuit Oyster Beef

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.

HAWSCT's Latest On The "Private Attorney General" Fee-Shifting Doctrine

Here's the latest decision from the Hawaii Supreme Court applying the "private attorney general" doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys' fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

• Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.

• The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable when compared to other jurisdictions (see p. 39-40).

• The "lodestar" method (reasonable rate times reasonable time) is the default, and the court isn't going to allow "enhancement" in cases not involving a fee-shifting statute (the private attorney general is a judge-made doctrine), and not involving a contingency fee. The goal of the private attorney general fee-shifting doctrine is to allow reasonable compensation to the prevailing lawyer, not to reward plaintiffs or their attorneys, especially those who ask for a 100% enhancement (i.e, a doubling of the presumptively reasonable lodestar amount).

If this sort of thing is your bag, check it out.

Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013)

Materials From Today's Virginia Eminent Domain Conference

For those of you attending the Virginia Eminent Domain Conference, here's the expanded papers on "Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings" and Public Use issues.

Use the password provided at the conference to open the pdf's. It's the same p/w for both. If you forgot the password, email me.

• Regulatory Takings

• Public Use

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y'all are going to have to wait for a bit -- after a decent interval to allow the attendees to get their money's worth, we'll remove the password.

For more about the cases and books we discussed yesterday during my presentation on "Virginia's Place in National Eminent Domain Trends, check these out:

• More about Crenshaw v. Slate River Co., 27 Va. 245 (1828).

• Arlington National Cemetery and the Takings Clause.

• Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (private takings, Public Use Clause).

• Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the "substantially advance" test as a takings test).

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) (navigable waters, regulatory takings).

• Livingston v. Virginia Dep’t of Transportation, 726 S.E.2d 264 (Va. 2012) (flooding and taking liability).

• James Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (1998) (read this book!).

 

Podcast On The Tombstone Federal Lands Access Case

Earlier today, the Supreme Court considered whether to grant review in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

The City of Tombstone's cert petition asks whether the city "is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by ... [impeding] restoration of essential municipal infrastructure during a State of Emergency."

• Here's the amici brief we filed in support of the city.

• Here's the amicus brief by a coalition of Arizona/New Mexico counties. 

While we await next week's order announcing whether the Court will hear the case, here's the Federalist Society's podcast of a recent debate on the issues in the case:

Tombstone, Arizona, calls itself "the town too tough to die," but it’s gone to court to challenge the federal government’s restriction on access to nearby national forest land that the city claims bars it from repairing necessary water supply lines. Without repairing these lines—damaged by recent storms—the city claims it faces the threat of destruction by fire during the state’s long, hot summers. In its lawsuit, which has received national attention, Tombstone claims that the Tenth Amendment prohibits the federal government from using its power over national forest land in ways that would threaten destruction of cities and infringe on ordinary state powers. The Ninth Circuit Court of Appeals ruled against the city in December, but it refused to answer whether "the Tenth Amendment constrains the Forest Service’s authority to regulate Tombstone’s activities under the Property Clause." The Goldwater Institute’s Nick Dranias, who represents the City, and Professor Peter Appel of the University of Georgia School of Law discuss the case on this previously recorded conference call.

Tune in, and stay tuned.

Strong Letter To Follow...

Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court.

In "'Let 'Em Eat Cake' Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article's conclusion that "[i]f we don't like the [environmental] laws anymore, we can elect officials to change them." by writing:

Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment?

...

Moreover, under the "reasoning" of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

Read his entire commentary here. By the way, before you are tempted to dismiss Professor Kanner as an outlander (yes, Justice Scalia really did call out-of-staters "outlanders" in a recent oral argument), his ties to Hawaii and his knowledge of our ways go way, way back.

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

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. Yes, plaintiffs happened to win a whole lot, but don't be fooled by the results, she wrote, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine. Callies' article also got a less measured response from two beneficiaries of the court's rulings who upped the ante by calling Callies a liar ("a lie told often enough [that it] becomes the truth") and a sell-out (listing all of the "bad" clients he's represented). Callies responded with a spirited defense of constitutional property rights: 

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens.

The Hawaii Business article rehashes that territory and contains comments by Callies, Antolini, and Sierra Club Hawaii Chapter Director Robert Harris, as well as a mini-debate on whether the State Land Use Commission remains necessary. The article concludes:

There’s another way to look at this. Maybe our regulatory system is working just as it was designed to work. Instead of complaining about our complicated land-use laws, or overzealous environmentalists, or policy-making by the state Supreme Court, we should look inward. These are laws, after all, that were written by elected officials: state legislators, county councilors and constitutional convention delegates. If we don’t like the laws anymore, we can elect officials to change them.

The laws’ main obstacle to development may not be that they’re too restrictive, it may be that they’re too democratic. Callies complains that the Moon Court vastly extended the concept of ‘standing,’ which defines who can bring a case to court. Extensive public participation and access to information is hard to revoke, especially in an arena as contentious as land use.

While an interesting read, the article unfortunately missed the opportunity to address the biggest looming issue: if, as Professor Antolini and Harris argue, the way things are is truly the way the system is supposed to work and is just a reflection of the codified popular sentiment, then where are you going to put people? Is it simply a matter of "I got mine" so the heck with those who come after me? Others can live in Hong Kong-style apartments so I can enjoy my place in the country? But that's a very closed viewpoint, because, after all, very few people in Hawaii live in homes that were not built by a "developer" on land that was at one time pristine, so very few of us are not tainted with that brush. If you make development -- especially residential development -- too painful, should you be surprised that the median price of a single-family Oahu residence is 600 grand, that "you would need 2.4 full-time jobs at the mean renter wage to afford a two-bedroom place in Hawaii," or that Hawaii leads the nation in the highest numbers of multi-generation households? Or are we just counting on people to vote with their feet by seeking greener pastures in places where home ownership isn't some distant dream, where the public schools are decent and the cost of living not as crushing, thus making the environment better for those who have the means to remain in Hawaii?

We don't know how to answer these questions. But it can't be that more of the same is what we need, because if we just keep doing what we're doing, the present situation surely is not "sustainable" to use the current terminology, and Hawaii will end up as Fiji writ large.

One final comment: expansion of the judicial standing doctrine is not "democratic." Since when is a panel of unelected judges deciding that public policy is better served by making it easier to file lawsuits "democratic?" The Moon Court, after all, was the court that expanded the standing doctrine to give government officials standing to sue other government officials to overturn a popularly-enacted county charter provisions the officials didn't like. Throwing open the courthouse doors to certain plaintiffs may be a good thing, or it may not be. But sorry, it's not "democracy" either way you cut it.

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

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 other springs are inoperable or nonexistent.

Local officials were under the impression that a state of emergency declared because of a wildfire that came before the rains would make things easy. But after weighing the city’s predicament and the precarious state of the forest and its wildlife, Jim M. Upchurch, the forest supervisor at Coronado, issued a split decision: bulldozers and tractors would be allowed in the lowest of the damaged areas to move truck-size boulders that had crashed onto the pipe, but they could not be used elsewhere.

In other words, the U.S. Forest Service ruled that repairs "would have to be done by hand."

The Arizona/New Mexico Counties' amicus brief argues that the Ninth Circuit's decision in this case created a split in authority between it and the Tenth Circuit over the scope of the rights-of-ways granted under an 1866 federal statute which encouraged Americans to settle the West and build and develop the necessary infrastructure to do so such as Tombstone's water supply. The Ninth Circuit in this case held that the federal government, as the fee owner of the National Forest, has vitually unlimited rights to limit Tombstone's repair efforts pursuant to the Property Clause. The Tenth Circuit, on the other hand, treats the federal government in these circumstances as a "normal proprietor under state law, affording the [federal] government the same rights as any servient estate owner in that state." Br. at 15 (citing Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 748 (10th Cir. 2005)). The brief also argues that in the Tenth Circuit, the Property Clause is never invoked.

The SG has waived the federal government's right to respond, and the case is set for the Court's conference on April 12, 2013. More to follow.

Brief of Coalition of Arizona/New Mexico Counties for Stable Economic Growth, as Amicus Curiae Supporting P...

Arkansas Game On Remand From SCOTUS - First Briefs

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 property owner's brief

• The government's brief

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 intended or is the foreseeable result of authorized government action.

• "The character of the land at issue and the owner’s 'reasonable investment-backed expectations' regarding the land’s use - had the area been flooded before, and if so, was the flooding comparable to the government-caused flooding?

• The "severity of the interference," and whether the flooding was a single act, or part of a series (a "sufficient number and for a sufficient time may prove [a taking]").

Supplemental Brief on Remand of Plaintiff - Cross Appellant Arkansas Game & Fish Commission, Arkansas G...

Supplemental Brief for the United States, Arkansas Game and Fish Comm'n v. United States, No. 2009-5121 (Ma...

Amici Brief: The Tenth Amendment, The Property Clause, And The "Town Too Tough To Die"

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 affirmed, agreeing with the District Court that the federal government had not "comandeered state property or improperly regulated the State."

Here's the summary of our brief's argument:

If the states have the power to regulate private uses of federal land to further "environmental" goals -- as this Court held in California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987) -- then surely under the powers reserved to them by the Tenth Amendment, states also possess the right to access and use federal land to respond to emergencies to protect the lives and properties of their residents, without undue interference from federal bureaucrats. The national government’s expansive authority to regulate federal property is thus not exclusive, particularly when states act under their emergency powers to protect life and property. Without clear guidelines delimiting the scope of the federal government’s authority in such cases,  states and municipalities will be left wandering the virtual desert, relying on the sufferance of federal administrators alone for their continued existence.

This brief addresses a single issue: whether the City of Tombstone is likely to succeed on its claim that its ability to access and repair the sources of its municipal water located on federal land is not trumped by the federal government’s authority under the Property Clause, but rather is a traditional government function reserved to the states. Amici respectfully argue that it is, so this Court should review the important issues raised in Tombstone’s petition.

The case is scheduled for the Supreme Court's conference of April 12, 2013.

Here's more from Ilya Shapiro at Cato.

Brief of the Cato Institute, the Rio Grande Foundation, the Montana Policy Institute, the Idaho Freedom Fou... b

Tail Gunner Christie: What's Next, The Pillory And The Stock?

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 people that decide their view of the Atlantic Ocean is more important than the lives and the properties of their neighbors," he said.

Well, let's assume that the science behind his statement is correct, that the building of dunes would prevent or lessen hurricane damage in the future and protect "the lives and properties of their neighbors" (and, presumably, the economic engine that is the Jersey Shore, the protection of which benefits every New Jerseyite). We have no reason to doubt that it would. If that's the case, Governor Christie is actually making the case for compensation, not donation. Because the building of dunes protects everyone -- even those living away from the shoreline -- then the shoreline property should not be forced to shoulder the entire economic burden of this public benefit. As the Supreme Court has repeatedly reminded us, the Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40 (1960).

Govenor Christie acknowledges that he might have to use eminent domain, but would prefer not to: "'Every dollar that I spend to do that, in rewarding homeowners who are being selfish, is money I can’t spend on victims who have been harmed and so I’m very reluctant to do that,' Christie said." But the same could be true in most every other situation where the public might benefit if only it could get the land it needs for free, no? A highway is coming and you don't donate your land? Selfish! Susette Kelo and her neighbors didn't donate their homes so that all New London could thrive? The nerve!

The whole vibe of this seems off to us, especially the part about holding property owners up to public ridicule and shaming if they don't "volunteer" to impress their land into public service. That seems so ... medieval, so McCarthy-esque. Is this really the state of things, where property owners are subject to Soprano-like "suggestions," and public disfavor if they don't cave in? We had hoped for better.

For more on this issue -- particularly the details of New Jersey law -- you can't do better than the blog of our colleague Tony Della Pelle, New Jersey Condemnation Law. There are lessons there for every jurisdiction with a shoreline.

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

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."

The point of the brief is to repudiate the notion expressed by what the brief calls "traditional conservationists and wilderness advocates" that a human or commercial presence in the area is repugnant. A fine example of that appears in a quote in this story on the case from the San Francisco Chronicle: 

Conservation groups were pleased [with Interior's decision to shut down the farm]. The ruling "affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans' wilderness," said Neal Desai of the National Parks Conservation Association.

We're not sure how an operation that has been there since the 1930's -- well before the existence of the National Seashore -- can be considered "hijacking" of wilderness or a "privatization scheme," but there you have a reflection of a certain mindset in a tidy little quote. As a reminder we provide the above video, a classic bit from The Matrix wherein the bad guy expresses this thoughts on humans and the environment.

Waters' amicus brief begins:

There is no single voice that can speak for the "public interest" in keeping the Drakes Bay Oyster Company [Oyster Farm or DBOC] open until the Secretary of the Department of the Interior’s [DOI] Order to close can be reviewed.

Closing the Oyster Farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade. Closing down the oyster farm in Drakes Estero, which has existed since the early 1930s, would be inconsistent with the best thinking of the modern environmental movement and further tear at the fabric of an historic rural community that the Point Reyes National Seashore [Seashore] was created to help preserve.

On the other hand, the sounds of motorcycles racing by Drakes Estero on the adjacent highway will not cease if the Oyster Farm is closed. The ranches that surround Drakes Estero will remain in the area zoned "pastoral" right up to its shoreline. California’s retained fishing and mineral rights in Drakes Estero will still exist. Closing down the Oyster Farm would simply be a mark in the “win column” for the National Park Service [NPS] and other traditional conservationists, wilderness advocates stuck in an archaic and discredited preservationist paradigm, whose apparent aim is to convert Drakes Estero to titular wilderness status at any cost.

Br. at 1-2 (emphasis original). Pages 10-14 detail how "the environmental movement is evolving ... to become more 'people friendly and to deal with 'working landscapes,' including fisheries." The brief is also worth reading for its history of shellfish farming in California and the impacts, vel non, of oyster cultivation on the environment.

[Proposed] Amici Curiae Brief of Alice Waters, et al., Drakes Bay Oyster Company v. Salazar, No. 13-15227 (...

More On Federal Circuit's "Relevant Parcel" Decision

Here's more about the Federal Circuit's decision in Lost Tree Village, a case we covered here: US Army Corps Denies A § 404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only? from Abbott & Kindermann's Land Use Blog.

60 Minutes On China's (Possible) Housing Bubble

Update: we removed the embedded video that was posted above, since CBS kept replacing it with other clips. Here's a direct link to the video.

As our readers know, we follow with keen interest events in the People's Republic of China (does anyone call it that, anymore?), especially those issues related to property and a budding system of private rights. Here's the latest from CBS's venerable 60 Minutes, about the housing and real estate markets there. If true, it's scary stuff, especially when you consider we live in a global economy, with so much of our goods supplied by the PRC.

China has been nothing short of a financial miracle. In just 30 years, this state-controlled economy became the world's second largest, deftly managed by government policies and decrees.

One sector the authorities concentrated on was real estate and construction. But that may have created the largest housing bubble in human history. If you go to China, it's easy to see why there's all the talk of a bubble. We discovered that the most populated nation on earth is building houses, districts and cities with no one in them.

Here's the full text of the story if you prefer not to sit through the video (but you really should, some of it is eye-opening). But we're not so sure China is bound for the same trouble that the U.S.and European housing markets are enduring. Unlike those economies, China's is primarily built on cash and savings, not credit and leverage. There are a few banks and their deposits are high. People there purchase property for different reasons than people here. China's massive population creates huge demand. Debt is internal, not external.

Will those factors make a difference? We'll see. 

Enviro Lawyers Off Target With Criticism Of Callies, Says Callies

The other shoe has dropped, and in "Environmental Lawyers Off Target With Criticism Of Callies," U. Hawaii lawprof David Callies responds to and rebuts an earlier op-ed by the Director of the Sierra Club and an Earthjustice lawyer which criticized Professor Callies' recently-published law review article (and follow-up interview) detailing the stunning success rates certain parties such as the Sierra Club and Earthjustice enjoyed in the Hawaii Supreme Court from 1993-2010.

In that article, Callies labeled the record of the court on property issues "appalling" (80% overall success rate, 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 held "western concepts" of property law such as exclusivity "is not universally applicable in Hawaii.")

The responsive op-ed by the environmental lawyers upped the ante by calling Callies a liar ("a lie told often enough [that it] becomes the truth"), and a sell-out (listing all of the "bad" clients he's represented).

We believed the response in the law review to Callies by his U.H. Law colleague Professor Denise Antolini that defended the Supreme Court's record on an opinion-by-opinion basis was a more effective comeback than ad hominems, but what do we know.

Given the attack, it shouldn't be surprising that Callies has offered up an response, writing in Honolulu Civil Beat:

There they go again, vilifying and attacking the messenger rather than sticking to the issues. In response:

I have never ever suggested that the Hawaii Supreme Court is corrupt, as Harris and Moriwake clearly imply. Previously biased, yes. Consistently ruling in favor of the Sierra Club, Native Hawaiian Legal Corporation and Earth Justice and similar NGO interest groups and against property owners and government nearly 90 percent of the time speaks for itself.

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens. That does not mean any landowner can develop at any level or density anywhere, and for Harris and Moriwake to suggest otherwise is a gross mischaracterization of my position, as I expect they know.

Read Callies' entire rebuttal here.

Will this prompt a sur-reply? We doubt it, since, as we noted earlier, perhaps the best response when you have a 90% Supreme Court success rate is no response at all. But we were wrong before, so maybe this is one of those "stay tuned" stories.

New Cert Petition: Tombstone v. United States

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 a serious public health and safety emergency consisting of the loss of adequate water for public consumption and fire suppression, the Forest Service refused to allow the City to restore its essential infrastructure without first obtaining special use authorizations. The specific questions presented for review are:

1. Whether the City of Tombstone is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by directly regulating the City in such a way as to impede restoration of essential municipal infrastructure during a State of Emergency, and thereby threaten the continued existence of a political subdivision of the State of Arizona.

2.  Whether the City of Tombstone is likely to succeed on the merits of the claim that this Court has implicitly overturned Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and that, under the traditional governmental functions test applied in National League of Cities v. Usery, 426 U.S. 833 (1976), the U.S. Forest Service violated the Tenth Amendment by preventing the City from freely restoring its essential municipal infrastructure during a State of Emergency.

3.  Whether the City of Tombstone is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by preventing the City from freely restoring its essential municipal infrastructure during a State of Emergency because the Property Clause, like all other delegated powers of the federal government, is limited by the principle of state sovereignty.

When the Tenth Amendment is involved, who knows what is in the cards, and we'll leave it up to others who can more accurately predict what the Court will do with this petition.

Will Tombstone continue to be "The Town Too Tough to Die?" Stay tuned.

Petition for a Writ of Certiorari, City of Tombstone v. United States, No. 12-1069 (Feb. 27, 2013) 

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

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 from using its water rights.

But that isn’t going to be an easy showing for Casitas to make, because the court soundly rejected Casitas’s extremely broad characterization of its property rights. ... Unless and until Casitas can show that mandated fish ladder flows have actually reduced deliveries for those uses, it won’t have a takings claim. So far, the trial court found, Casitas has not made that showing.

This decision strikes me as correct, both in its reading of California water law, and in its outcome. Ultimately, the touchstone for takings cases is whether the property owner is being treated unfairly. Casitas wants the U.S. to pay for water that has to flow through the fish ladder. That would give Casitas a windfall. If there were no fish ladder, Casitas could not have sold that water to its customers; it was already selling them as much as it had the right to sell. If required fish flows ever do actually reduce Casitas’s delivery, then it will be time to raise a takings claim. That sounds fair to me.

More to follow.

Podcast And Video: The PLDC And Property Rights In Hawaii - A Panel Discussion

(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 download here (59 minute/28mb mp3): 

The PLDC and Property Rights in Hawaii 2-26-2013

To save on your local drive, right click on the above and choose "Save link as" or similar.

Thursday's Worth Reading List

Here's what we're reading today:

• Remember Lavan v. City of Los Angeles, No. 11-56253 (Sep. 5, 2012), a 2-1 decision from a Ninth Circuit panel holding that the City of Los Angeles could not presume that property owned by homeless people in the Skid Row area was abandoned, and prohibited the City from seizing and destroying it when the owner was "momentarily away" from it? Looks like the City is going to seek SCOTUS review. The LA Times reports, "L.A. to ask high court to overturn ruling on homeless belongings."

• In the same vein, check out "Property Rights Help the Poor" by Professor Burt Folsom.

• "Critical habitats proposal raises concerns" - from the Maui News, about a U.S. Fish and Wildlife proposal to designate "271,062 acres of privately owned and state, county and federal land in Maui County as critical habitat. ... Federal officials said Monday that "generally" there will be no impacts to private landowners who may be subject to federal restrictions only if their properties and businesses have federal funding or permitting issues. But the nine council members on the committee, led by its Chairman Riki Hokama, were skeptical."

• "Regulatory Takings and 'Lochnerism': An Observation" - from lawprof Jonathan H. Adler at Volokh. 

• "Judge Upholds LUC Ruling on Koa Ridge" -  a post at Civil Beat about Sierra Club, Hawaii Chapter v. Castle & Cooke Homes Hawaii, a recently-decided case about agricultural lands (we posted on the case here).

Fed Cir: Water Rights Takings Claim Not Ripe

This just in. The Federal Circuit has issued an opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013), a case we've been following for a while.

The court affirmed the CFC's dismissal of the case on ripeness grounds:

Casitas Municipal Water District ("Casitas") operates the Ventura River Project (the “Project”). The Project, which is owned by the U.S. Bureau of Reclamation (“BOR”), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims dismissed Casitas’s complaint without prejudice, on the ground that Casitas’s takings claim was not ripe. In dismissing the complaint, the court held that Casitas’s claim was not ripe because Casitas had failed to demonstrate that the operating criteria had as yet caused it to deliver less water to its customers than it otherwise would have delivered. Casitas Mun. Water Dist. v. United States, 102 Fed. Cl. 443 (2011) ("Casitas V"). Casitas now appeals the dismissal of its complaint. For the reasons set forth below, we affirm.

Slip op. at 2-3 (emphasis original).

Casitas Municipal Water District v. United States, No. 2012-5033 (Fed. Cir. Feb. 27, 2013)

Links And Materials From Today's ABA Takings Teleconference

Here are the links to the materials and briefs from the Supreme Court's three taking cases which we are discussing at today's teleconference sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his "what's next" talk about Arkansas Game. Update: here are the Big Oak briefs.

Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon - 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.

Cal App: Plastic Bag Ban Not A "Tax" Subject To Voter Approval

Here's the latest in an issue we've been following, just because if the plastic bag ban hasn't reached your jurisdiction yet, it certainly will (it has been adopted across Hawaii's counties except for the City and County of Honolulu, for example).So it's worthwhile to keep up with developments.

In Schmeer v. County of Los Angeles, No. B240592 (Feb. 22, 2013), the California Court of Appeal concluded that L.A. County's ban in unincorporated parts of the county on plastic bags in retail stores (and a 10 cent charge for paper bags) was not a "tax" that needed to be approved by the voters.

The ordinance states that the money received for recyclable paper bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or other costs of promoting the use of reusable bags.

Slip op. at 4. Several people who had to pay the paper bag fee challenged it as a tax under article XIII of the Califonria Constitution, which requires any new general or special taxes imposed by local governments to be approved by the voters. The court of appeal undertook a long analysis of what qualifies as a "tax," but ultimately concluded that the bag ban/fee was not one because customers pay the fee to the store and not the county. Slip op. at 23. A "tax" after all, is something we pay to the government, usually designed to raise revenue for the government. Id. at 28.

Here's the tie-in to the photo above. So you will follow this issue (like we said, the ban is coming your way, trust us), we are offering for a limited time to our readers our firm's reuseable, 100%-from-recycled-materials-big-enough-to-carry-two-bags-of-groceries EnviroBag (from another angle here). These blue bags are not your typical cheap recycle bags, but are made of a sturdy woven fiber and have a built-in floor piece. They are quite strong and will hold a ton of stuff.

To get yours, simply send us an email with your address, and we'll post one to you forthwith. So we're not giving these away for the indefinite future, this offer closes at 11:59 p.m. Hawaii time on Thursday, February 28, 2013. 

Admin note: Our firm's servers have very aggressive spam filters, so if you do not get an email response from me ("Bag on they way" or similar) within a reasonable amount of time after your request, please ping me again. Sometimes, valid messages get caught up and I only clear my junk mail folder occasionally. Don't want to miss anyone.

Schmeer v. County of Los Angeles, No. B240592 (Cal. App. Feb. 22, 2013) 

Portland: Planning Utopia Or Hipster Paradise?

Having recently attended the 7th International Conference of the Academic Association on Planning, Law, and Property Rights in Portland, Oregon, we offer this irreverent view of that city's culture, "Insufferable Portland," by Mark Hemingway at the Weekly Standard. The landscape he portrays should be familiar to anyone who knows Portland, Berkeley, the Upper West Side, Santa Monica, Boulder, Chapel Hill, or Ann Arbor. Some highlights:

Case in point: One of the most commented-on sketches from the show [Portlandia] is a scene from the first episode in which Armisen and Brownstein are sitting in a restaurant. After asking their waitress a series of absurd questions about whether the chicken they are about to eat is local​—​"the chicken is a heritage breed, woodland raised chicken that’s been fed a diet of sheep’s milk, soy, and hazelnuts. .  .  . His name was Colin, here are his papers"​—​the couple ends up leaving the restaurant and driving to the farm to see the environment where the chicken was raised in order to assuage their guilt about eating it.

Hemingway's piece is not limited to skewering Portland's culture, but includes a look at the city's (and the state's) vaunted land use planning:

Things began to unravel in 1973, when the Oregon legislature required cities in the state to set development boundaries with the goal of preserving farmland from "leapfrog development"​—​that is, new subdivisions not adjacent to established developments. Portland became the first major city with an "urban growth boundary."

This fact opened up a world of possibilities that are still being inflicted upon us. "Urban planners have long believed in a land-use-transportation connection that would allow them to manipulate one through the other," writes Cato Institute senior fellow Randal O’Toole in a damning policy paper on the failure of Portland’s growth policies. "So Portland plans land uses to try to reduce the amount of driving people do while it plans transportation to try to slow the conversion of rural land to urban purposes."

In the same vein, at the conference, John Charles from the Cascade Policy Institute gave an eye-opening presentation on "Transit-Oriented Development as a Growth Management Tool in Portland: Comparing the Vision with Reality," about whether TOD has lived up to its promise. We won't attempt to paraphrase his findings, but let's just say that in some cases it has not, and "TOD" and "smart growth" are not the be-all-end-all solution to traffic and population issues.

For a view less tongue-in-cheek's than Hemingway's of Oregon's land use planning program, see The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 John Marshall L. Rev. 357 (2012), authored by our ABA colleague Edward Sullivan.

Upcoming Event: The PLDC and Property Rights in Hawaii

On Tuesday, February 26, 2013 from 7:15 - 8:309 p.m. in Classroom #2, the University of Hawaii Law School is sponsoring a talk about "The PLDC and Property Rights in Hawaii," which will feature our Damon Key colleague Mark M. Murakami.

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. As Honolulu Civil Beat's information page on PLDC notes:

The corporation has broad powers for entering into private partnerships and establishing its own governing objectives and policies. It also is tasked with identifying state lands under DLNR that are suitable for development. The Board of Land and Natural Resources must approve all land transfers.

The corporation, with the approval of the governor, can also issue revenue bonds for constructing, acquiring and renovating public facilities, as well as for the acquisition of non-public lands.

Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it. We moderated a panel on the issue at the Hawaii Land Use Conference in January, so the U.H. program will be a good update. 

The panel will discuss three issues: the different perspectives on the PLDC issue itself, how the controversy over the PLDC reflects the tensions underlying the property rights regime in Hawaii, and (in an unrelated but pressing subject for law students) the speakers' views on how to thrive in law school and the legal job opportunities after graduation.

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

For more details on how to attend download the flyer, contact Mark, or RSVP here.

Public Land Development Corporation and Property Law in Hawaii 

PLF's Jim Burling To Discuss Property Rights And The Environment At U.H. Law School

Mark your calendars: on Thursday, February 21, 2013, James Burling, director of the Pacific Legal Foundation and principal attorney at PLF's Property Rights practice group and U. Hawaii lawprof Maxine Burkett will discuss "Do Property Rights Matter When The Environment Is Going To Hell In A Handbasket?"

The forum -- presented by the Environmental Law Program and the Federalist Society -- will begin at 12:15 p.m. in CR1. Light refreshments will be served. Please RSVP to elp@hawaii.edu.

More below.

Do Property Rights Matter When the Environment is Going to Hell in a Handbasket?

A Partial Rebuttal To Professor Callies: 1993-2010 HAWSCT Environmental Record Most Concerned With Public Participation

In a recently-published law review article, U. Hawaii lawprof David Callies found that "the Moon Court [1993-2010] decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals," a result he concluded was "appalling."

Well here's the counterpoint, a paean to the Moon Court from another U.H. lawprof, who asserts that the court's environmental jurisprudence wasn't so much focused on outcome, but rather on process. Yes, plaintiffs won a whole lot, but don't be fooled the results, she writes, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine:

At first blush, the Hawai‘i Supreme Court’s environmental review jurisprudence under the leadership of Chief Justice Ronald T.Y. Moon—twelve major decisions from 1993 until 2010—appears "pro-environmental" in terms of the classic "environment versus development" paradigm. In eight of those decisions, the citizens challenging state or county agencies for evading the public review process required by Hawai‘i Revised Statutes (H.R.S.) chapter 343 won major, sometimes stunning, victories. On deeper examination of all twelve cases, however, the environmental review jurisprudence of the Moon Court appears to be concerned less with substantive results than with process, focusing on the likely benefits to agencies and all stakeholders of more robust public participation, a core value of chapter 343. In its vigorous enforcement of chapter 343, the court has identified sensible boundaries to the law, while implicitly rejecting objections from the losing agencies (and the private developers) about the short-term economic implications of its rulings. The court has stayed true to the original intent of the law even when that meant squaring off against other branches of state government. Despite the criticism, the Hawai‘i Supreme Court, under the leadership of Chief Justice Moon, maintained its judicial independence and bravely protected public participation in the environmental review process.

Denise E. Antolini, The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation, 33 U. Haw. L. Rev. 581, 582 (2011) (footnotes omitted).

We commented on the Hawaii court's loose environmental standing rules in this post, which Professor Antolini cited as us "criticiz[ing] [the doctrine] as 'throwing open the barn door after the horses have been let out.'" Id. at 607 & n. 190. We stand by that assessment, since in Hawaii environment cases, plaintiff standing is pretty much an exercise in clever pleading and not a realistic check on the courts becoming entwined in policy disputes.  And it's been that way for a while. 

The article is a quick and enjoyable read, and even contains a few "locals only" touches that we appreciate, including this passage:

The story of the Superferry itself after Justice Duffy’s blockbuster decision is a legal, political, economic, and social tale almost beyond belief. The controversy included protests in the water and on land, heated and over-heated debates in high circles, a circuit court injunction against Superferry operations, painful legislative arm-twisting, a gubernatorial power-grab, a dissolved injunction, headlines galore, and neighbors arguing with neighbors in Longs Drugs.

Id. at 608. You know you're from Hawaii if you get the Longs reference. 

The article concludes with a reference to the court's opinion in County of Hawaii v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010), suggesting that because it was authored by current Chief Justice Mark Recktenwald, the "judicial generosity toward citizen participation" so pronounced in the Moon era will continue "for the foreseeable future." Id. at 634.

They're Getting Positively Medieval On Holdout "Nail Houses"

According to "Moats dug around Chinese villagers' houses to drive them out," they're now resorting siege tactics to deal with holdout "nail houses" in southern China:

Forced evictions and land disputes are a major cause of social unrest in China, where there are tens of thousands of mass incidents each year.

This week, Chinese internet users weighed in on the unusual tactics being used to force Yangji's remaining families from their homes.

"The property developer is really smart," wrote one micro-blogger.

"The idea of natural moats is shockingly unprecedented. Really clever!"

Actually, the idea of a moat is very precedented. It appears that the situation we're familiar with, where they merely build roads around holdouts, is devolving. What's next, siege engines and cauldrons of boiling oil?

Epstein's Podcast On Koontz: "The Vexed Doctrine Of Unconstitutional Conditions"

Worth listening: a 17-minute podcast by Professor Richard Epstein, with his thoughts -- apparently without a script and seemingly in a single breath -- on the oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). 

Download the mp3 here. If that doesn't work, go here.

Wednesday Round-Up: Grand Central, Oysters No More, And Originalist Takings

What we're reading today:

• Grand Central Station and The Takings Clause - from the Constitutional Law Prof Blog, a link to a WNYC/NPR podcast about Grand Central Terminal and the Penn Central takings case. Worth listening, if only to hear the money quote near the end: "you see New Yorkers all the time staking claim in this building, pointing up at cerulean blue sky saying 'hey, this belongs to us.'" Yes, we guess it does. And you know what? You didn't pay for it.

• Another one about the 100th anniversary of Grand Central: Gideon Kanner writes Calling All Grand Central Junkies!, linking to the NY Times's republication of its 1913 special celebrating the opening of the terminal.

• In that vein, a snarky commentary about the wonders of Pennsylvania Station. Who needs a cerulean blue sky?

• In what reads more like a redeveloper's press release, the Washington Post reports about the Skyland Shopping Center project -- a series of cases that generated more heat than light -- in Skyland Shopping Center re-development will come at a price. The narrative of the story is those darn property owners made it really difficult for the D.C. mayor's pet project to evict the existing property owners and tenants from the site and put in a Wal-Mart. "Skyland's developers, selected in May 2002, have spent $3 million of their own money[.]" The horror!

• Remember that case we posted about a few weeks ago about an oyster farming operation in a Marin County, California National Seashore? Well, the other shoe has dropped. The court has denied the company's request for a preliminary injunction allowing the farm to remain open while the issues are litigated. See this story from the San Francisco Chronicle, and this story from the Santa Rosa Press Democrat for more, including this quote from a spokesman for the "National Parks Conservation Association," that the decision "affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans' wilderness." We're not sure how an operation that was there prior to the existence of the National Seashore can be considered "hijacking" of wilderness or a "privatization scheme," but there you have a reflection of a certain mindset in a tidy little quote.

• "Screwed by the Town" - When land use codes kill free speech - from J. David Breemer at PLF's Liberty Blog. In the Fourth Circuit, painting a motto on your house could be a violation of local sign and zoning ordinances, the First Amendment notwithstanding.

• From the Legal Planet blog, If the Constitution is Dead, where does that leave Takings? A critique of the originalist theory of construction.

Fed Cir: More Briefing On Arkansas Game & Fish

Here's the Federal Circuit's Order for additional briefing in the Arkansas Game & Fish Comm'n v. United States case. As you know, the U.S. Supreme Court earlier reversed the Federal Circuit's conclusion that government-induced flooding could not be a taking because it was not "permanent, " and remanded the case to the Federal Circuit for more.

Now that the Supreme Court has rejected that per se rule of no liability, the Federal Circuit must "weigh carefully the relevant factors and circumstances" in the case (to quote the Supreme Court describing the task) and determine whether the flood damage that occurred was a taking under the new, multi-factor test set out in the Court's opinion:

• "[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 intended or is the foreseeable result of authorized government action."

• The character of the land at issue and the owner’s 'reasonable investment-backed expectations' regarding the land’s use - had the area been flooded before, and if so, was the flooding comparable to the government-caused flooding?

• The "severity of the interference," and whether the flooding was a single act, or part of a series (a "sufficient number and for a sufficient time may prove [a taking]"). 

Although it seems to us that the Court of Federal Claims' decision addressed most or all of these factors, maybe the Federal Circuit would prefer to avoid trying to apply them if this final passage in the Order is any indication: "The parties are invited to consider mediation of the issues remaining in the case following the Supreme Court’s remand."

Order, Arkansas Game & Fish Comm'n v. United States, No. 09-5121 (Fed. Cir. Jan. 29, 2013) 

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

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 a well-established requirement under the law, and the Court correctly rejected his argument that an EIS is valid forever, no matter how much circumstances change.

Fundamentally, Callies’s bone of contention stems from the mistaken belief that property owners should be entitled to build when and where they want to. On the contrary, developers have no God-given "right" to build large urban sprawl projects on land set aside for agriculture or conservation. Hawaii wisely distinguishes between industrial/urban, where development is generally free to occur, and conservation/agricultural, where land more closely regulated. We created this careful management process because of our experiences in the 1960s, when development ran amok and people realized the need for some restraint.

This sounds like "infill" and "smart growth," and the notion that "we" should live in the urban core, even though many people would prefer not to raise their families in Hong Kong-style apartment buildings. But to us, the question is not so much whether "developers" have a "God-given 'right' to build large urban sprawl projects" (indeed, when you frame the issue thusly, will you accept any answer but a negative one, especially in a jurisdiction where the Supreme Court holds that the "western concept of exclusivity is not universally applicable"?), but whether other property owners are subject to the authors' same assumption: that their constitutional rights to make reasonable use of their land are not "rights" at all, but mere privileges doled out by the state. We think you know our answer to that one.

The piece is definitely worth a read, even though we're not sure the Hawaii Supreme Court needs defending, and often the best strategy when you are ahead is to keep running rather than look backwards and call your former professor a liar (the piece starts off painting Callies' conclusion as "a lie told often enough [that it] becomes the truth"). Or is this a case of the lady doth protesting too much?

We Can Try To Understand The New York Times' Effect On Man (When It Opines On Eminent Domain Law)

Does the editorial board of the New York Times really have the stones to start off its latest editorial about the Takings Clause, "Where Is the Taking?", with this:

When a city condemns private property to make way for a public highway, that is a classic "taking" for which government must provide “just compensation” under the Constitution’s Fifth Amendment.

Seriously, Times? How about when it's not a "classic" taking, and the city condemns an entire block of urban private property to make way for the 52-story office headquarters of a large corporation ... say, for example, a newspaper with the initials "NYT?" Would it be a "classic" exercise of power to use emient domain to take property so that:

A high rise office tower would be built at Site 8 South providing the Times with a new headquarters, as well as providing 700,000 square feet of space for other office tenants. The tower would additionally include condominiums, a new subway entrance, mandatory ground-floor public amenities, a 350-seat auditorium, a gallery and retail space. Witnesses at a public hearing conducted by ESDC in 2001 testified that this project would keep the Times headquartered in Times Square, add needed office space, create employment, increase retail revenue, attract further economic improvement to the larger area, and address a critical shortage of commercial space.

In West 41st Street Realty L.L.C. v. New York State Urb. Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002), the court rejected the property owners' claims the taking for the benefit of the Times lacked public use:

Petitioners argue that the proposed taking should be barred because the benefit inures to a private party, viz. The New York Times. They also allege a taking in violation of due process protections of the state and federal constitutions on the ground that the UDC itself created any "blight" which justifies condemnation since the UDC made it impossible for the owners to reap the value of their land during the last twenty years.

In other words, the paper was "too big to fail," and keeping the Times in New York quallified as a public use supporting a taking.

What this tells us is that when the Times waxes poetic about Fifth Amendment issues -- invariably in favor of the government and against the property owner -- you've got to take its opinion in context and understand that with its history as a private beneficiary of eminent domain, it invariably gets the issue dead wrong. See its editorial regarding Arkansas Game & Fish, for a recent example. We're not suggesting the Times shut up on the subject, only that it needs to remind its readers that it has a dog in the hunt. A very big dog.

The Times' latest is about last week's oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). This one is about regulatory takings, not direct appropriation, but the editorial board still doesn't get it right. We filed an amicus brief in Koontz in support of the property owner/petitioner. But, unlike the Times, at least we disclose our bias.

Following the lead paragraph quoted above, the editorial wrongly paints the regulatory takings doctrine as a creation of a "divided Supreme Court" "[o]ver the last few decades:

Over the last few decades, a divided Supreme Court has extended property rights at the expense of community interests by expanding the “takings” concept to include regulatory actions that are “functionally equivalent” to direct appropriation. These might include actions that render the property essentially worthless, undermine an owner’s right to keep it private, or greatly limit its use.

Metamessage alert: in other words, the regulatory takings doctrine is a recent ideological product of those nasty conservative activist judges that we all know and dislike. But can a doctine that was recognized nearly a century ago by an 8-1 Court (as far as we can tell, only Justice Brandeis dissented from Holmes' opinion in Mahon) be accurately described as arising "over the last few decades" by a "divided" Court? 

But even assuming what the editors really meant to refer to was the muddle that regulatory takings doctrine has become in the years since Mahon, and the divided courts in Nollan and Dolan, is it really that obvious that Koontz is a slam-dunk "why are we even in this case" situation, as the editorial suggests in the remaining paragraphs? According to the Times, Koontz's cardinal sin is that he only offered to mitigate the impact his proposed development would have on wetlands (which would affect only his privately-owned wetlands as far as we can tell) by offering to preserve the remaining wetlands that he also owned, and not donate to the effort to preserve other wetlands owned by the public:

This kind of mitigation under environmental law is common in cases involving statutes protecting clean water and endangered species. The family offered to preserve 11 acres that it owned, but the water management district rightly said that preserving what already existed was not mitigation.

As Professor Epstein pointed out, this reveals the only way that the denial of the permit on the basis that Koontz did not offer to preserve wetlands owned by the public cannot be deemed a taking is for the court to say that the state has a preexisting "environmental easement" over all private property such as Koontz's. The Times' editorial concludes:

The Koontz family sought monetary compensation, but as the justices noted, the district has not condemned an iota of the land and has not required the family to do anything to its property. It simply denied the family a permit for development.

That was the gist of the Florida Supreme Court’s ruling in favor of the district. The United States Supreme Court should uphold that decision, blocking efforts by the family and its ideological allies to stretch the notion of a regulatory taking far beyond any defensible limits.

The jury is still out, and we can only hope that the board is as wrong about Koontz as it was about Arkansas Game & Fish. The Bee Gees can try to understand the Times, but we sure can't.

Upcoming TeleBriefing On Takings Issues After Arkansas Game & Fish

Mark your calendars for next Friday, January 25, 2013 from noon to 1:00 p.m. Pacific for "Arkansas Game & Fish Commission v. United States: Practical Implications Of The Supreme Court's Decision," presented by Law Seminars International.

It's a discussion of Arkansas Game, the decision in which the Supreme Court held that the federal government was not immune from liability for a taking when it was responsible for flooding, even if the flooding is temporary. They've assembled a great faculty, which includes arguing counsel for the prevailing petitioner James Goodhart. Also speaking will be takings litigator Nancie Marzulla and Washington Legal Foundation Chief Counsel Richard Samp. Here's a description of the one-hour program:

On December 4, 2012, the U.S. Supreme Court issued a unanimous opinion in Arkansas Game & Fish Commission v. United States, holding that when the federal government floods property, even temporarily, the Fifth Amendment may require the government to pay just compensation to the landowner.

The Court's decision eliminates a carve-out from takings liability for government actions resulting in episodic or temporary flooding of land: "No decision of [the Supreme Court] authorizes a blanket temporary-flooding exception" to takings jurisprudence. This means that landowners are now eligible to establish that their land has been inversely condemned by government actions resulting in temporary flooding, under the same standards as any other takings plaintiff.

Consequently, water management actions that could result in flooding should be carefully scrutinized to take preventative steps to avoid flooding and reduce potential takings liability. Likewise, attorneys whose clients experience episodic or periodic flooding of their land should carefully evaluate whether a takings claim is a possibility.

In this one-hour TeleBriefing, three experienced litigators -- including the attorney who argued in the Supreme Court for the Arkansas Game & Fish Commission -- will discuss how this case changes the rules for inverse condemnations involving flooding.

More information, including registration here. With a relatively modest registration fee, this is a great deal to hear the thoughts of some very high-level thinkers in our area of law.

The Good, The Bad, And The Scalia: Koontz Oral Argument Round-Up

In addition to our summary of and reaction to yesterday's oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), here is the leading commentary from other sources:

• Lyle Denniston at SCOTUSblog: "The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk. Credit lawyers for a state agency and the federal government for deepening this anxiety."

• Greenwire's Lawrence Hurley: Supreme court: Justices weigh Fla. property rights dispute: "Rather than focus on the two Supreme Court precedents on permitting conditions, some justices seemed to agree with the Obama administration that, if Koontz did have a claim, it would be in the form of a 'regulatory takings' argument that concerns regulations that are so burdensome they can constitute a taking."

• Jonathan Adler at Volokh: scroll down to a comment by "JHW27," who writes: "If Scalia maintains his lonely and bizarre position, the most likely outcome seems to me to be a 5-4 ruling in favor of the government, with an opinion by the four liberals arguing that there is no taking because the regulatory requirement merely required the expenditure of money, a concurring opinion by Scalia arguing that there is no taking because the permit was denied, and a dissenting opinion from the other four conservatives arguing that the distinctions drawn by the five justices in the majority are arbitrary and untenable. But even that would probably not end in a long-term loss for property owners in similar circumstances to Koontz here; the argument would have to be reformulated to win back Scalia, but that would then give them five votes, and it's not clear there would be much shift in substance necessary to accomplish that."

• Gideon Kanner: What Was the Koontz Oral Argument All About? - "Our overall view of this event suggests to us that the Justices are again out of it — e.g. Justice Scalia thought that in Nollan a permit was issued before Nollan sued (it wasn’t — Pat Nollan took his chances and built without city approval and won). Justice Kennedy was still beating his drum in favor of substantive due process with no clue as to whether he also means to relax the forbidding difficulties in winning a regulatory due process case."

• Damon Root at Reason: Scalia Gives the Government a Suprise Boost in Property Rights Case - "But the most surprising resistance came from conservative Justice Antonin Scalia, who questioned whether Koontz had suffered any injury at all under the Takings Clause. 'What has been taken?' Scalia asked Beard. 'The permit’s been denied. I can’t see where there’s a taking here. Nothing’s been taken.' Those words may spell doom for Koontz’s challenge. Scalia is the author of a key 1987 decision by the Supreme Court striking down a California regulatory agency’s imposition of a similarly problematic condition on a building permit. Until his comments in the courtroom on Tuesday morning, Scalia was seen as a solid vote in Koontz’s favor. Now he appears to be the single biggest threat. Without Scalia, Koontz is unlikely to reach the five-justice threshold needed to win."

We'll add others if they are worth reading.

Federal Circuit: Denial Of Permit To Fill Wetlands Might Be A Taking

Okay, all you "relevant parcel" mavens, here's another decision for you (once again involving land in Florida, although, unlike the other case which came out of the Florida court of appeals, this one is out of the U.S. Court of Appeals for the Federal Circuit) .

These decisions provide a measure of sanity to the issue of how much of the property owned by the plaintiff is included when determining whether value has been wiped out under Lucas, or the extent of the economic impact of the regulation on the claimant under Penn Central. These tests require an analysis of the impact of the regulatory action on the "parcel as a whole," and since Penn Central first made the inquiry relevant, the courts an litigants have been trying to figure out the "denominator" -- is it everything the plaintiff owns? Everything nearby? Everything it once owned? The discrete parcel by itself?

In Lost Tree Village Corp. v. United States, No. 2012-5008 (Fed. Cir. Jan. 10, 2013), the Federal Circuit held that a single parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers' denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus "scattered wetlands in the vicinity" also owned by the same owner. The CFC had rejected the Corps' even broader argument which asserted that the relevant parcel was the entirely of the 1,300-acre gated community which the plaintiff had started to build in 1968, part of its ownership of 2,750 acres on islands near Vero Beach, Florida. Count us as surprised that the government didn't try for the whole shebang and argue that the denominator was all 2,750 acres, just to see if the court would bite. For more on the parcels, see the map embedded on page 6 of the Federal Circuit's opinion. The CFC held that the denial of the permit resulted in a 59% loss of value of the "relevant parcel," which was not enough to support a Penn Central takings claim.

The Federal Circuit concluded that despite the plaintiff's long-term ownership and development of nearby properties, the single parcel was really a stand-alone piece, and that the landowner's "economic expectations" regarding this parcel were not tied to its ownership of the others:

Here, Lost Tree did not treat Plat 57 as part of the same economic unit as other land it developed into the John’s Island community. The trial court correctly found that Lost Tree did not include Plat 57 in its formal or informal development plans for the community. Lost Tree, 100 Fed. Cl. at 431–32. The only proposal that ever addressed Plat 57 was the unapproved 1980 Permit Application. While the 1980 application proposed dedicating Plat 57 as a wildlife preserve to mitigate other development, Lost Tree withdrew that application. Thus, when the Corps eventually granted Lost Tree’s permit application, Plat 57 had no designated use.

Slip op. at 12. The court concluded with this:

The Court of Federal Claims erred by aggregating Plat 57, Plat 55, and the scattered wetlands as the relevant parcel. The only links between the two plats identified by the trial court are: 1) they are connected by the 323 foot strip of land owned by Lost Tree and therefore "undoubtedly contiguous," and 2) both currently are held with the "usage objective[ ] . . . to sell for profit the lots" on each plat. Id. at 434. Similarly, the scattered wetlands are only linked to Plat 57 by their geographic location within the gated community of John’s Island. Here, the mere fact that the properties are commonly owned and located in the same vicinity is an insufficient basis on which to find they constitute a single parcel for purposes of the takings analysis. 

Slip op. at 14. The court remanded to the CFC with instructions to determine the impact of the permit denial on the single parcel, and then measure whether this amounts to a taking.

Lost Tree Village Corp. v. United States, No. 2012-5008 (Jan. 10, 2013)

SCOTUS Arguments In Monetary Exactions Case: (Sliced) Bread And Circuses

When you are a property owner making a takings argument and Justice Scalia gives you a hard time at oral argument, you would be safe in thinking that you've got an uphill battle.

That was the situation today during the oral argument (transcript here) in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), the case in which the Court is considering whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Justice Scalia, author of the Nollan opinion, did not seem all that concerned with the second Question Presented (whether only exactions of real property are subject to Nollan/Dolan), but more on whether a takings claim can be based on an excessive exaction attached to a permit when the property owner declined to accept the permit with the exaction:

JUSTICE SCALIA: Yes, that's fine. That -- that would enable you to challenge the denial of the permit, saying it's based upon an unconstitutional condition. But how does it -- how does it enable you to say there's been a taking? What has been taken?

MR. BEARD: What has been -- what has been taken in effect is his funds that have to be put now to a public use, the enhancement of 50 acres of public wetlands. And there is nothing in the takings clause, nothing --

JUSTICE SCALIA: It hasn't -- it hasn't been taken. I mean, he turned it down.

MR. BEARD: Nothing was taken in Nollan and Dolan, either. What was proposed there, though, was a threat of a taking.

JUSTICE SCALIA: The -- the -- the permit was granted in Nollan and Dolan. And -- and the condition attached to the permit, therefore, took effect; namely, that you had to dedicate this easement over your -- over your beach whereas -- as my colleague pointed out, anybody could walk back and forth barefooted.

(Laughter.)

MR. BEARD: Justice Scalia, in Nollan and Dolan, there was approval -- approval with conditions. There were no permits issued, and that's -- that is an important distinction to make that most agencies, including this one, you approve a permit with a -- with conditions, which means, We will give you your permits as soon as you comply; which is substantively the same as saying, We won't give you your permits until you say yes to our conditions.

Tr. at 16-18.

The other Justices echoed Justice Scalia's concerns. Their questions focused on the timing: whether it is critical to the takings question that the permit-with-conditions was turned down by the property owner, and not accepted and then challenged. That seems to be the bigger hurdle for the petitioner because it doesn't appear that the Justices are all that concerned with whether a cash exaction would fall within the Nollan/Dolan requirements were this case in the same posture as Nollan and Dolan, cases in which the Justices seem to think that the property owners were granted a permit with the condition, and then challenged the condition as a taking (an assumption the petitioner's counsel pointed out is not correct).

We're not offering a prediction on the outcome, not only because we filed an amicus brief in support of the property owner/petitioner so have a stake in the the case, but because the Justices seemed to press all three arguing counsel, and it is therefore hard to read the tea leaves with any certainty (with the exception of Justice Sotomayor, who we can safely count in the "no taking" camp, with Justice Breyer likely joining). At some points in the argument it seemed a free-for-all, with questions and comments being fired at arguing counsel without much let up.

Here's our take on what each Justice said; the highlights (or lowlights, depending on your perspective):

Justice Scalia: Turning down an extortionate demand isn't a "taking" (p. 18), but under the District's theory, a demand for cash is "magic" (p. 33).

Justice Breyer: Sliced bread: not good (p. 19). He raised this in the context of a question to petitioner's counsel about whether this is a taking, and if so, if Penn Central doesn't supply the analytical framework, because the excessive demand "goes too far," as Justice Holmes said in that case.

Justice Ginsburg: Here, the District didn't say "take it or leave it" (about the condition) (p. 7).

Justice Sotomayor: Stopping landowners from developing their property is interfering with "lost profits." (p. 17).

Justice Kennedy: Due Process, man, Due Process! (p. 26).

Chief Justice Roberts: Is there no constitutional limit on what an agency can demand, as long as it does so prior to issuing a permit? (pp. 30-31).

Justice Alito: Owners' Counsel of America, I read your brief! (He asks the hypothetical we pose at page 12 of our brief) (p.33).

Justice Kagan: I might have a problem here if District is shifting burden to the property owner to propose mitigation measures, and not inform the owner what the District wants (p. 11).

Justice Thomas: This would be a taking, but only if the planner has a Yale J.D. (we're kidding, he didn't say this - or anything else).

In a clever sleight-of-word, the District's counsel hit upon the government's core theory: that the Fifth Amendment doesn't really have a "Takings" Clause, but only a "Just Compensation" Clause:

And in Lingle, this Court reiterated that the Takings Clause is not a substantive limitation on the government's power to regulate.

The Takings Clause -- or as I should call it, the Just Compensation Clause -- is a requirement that if -- that the government will pay you just compensation for any property or property interest it has seized from you. It does not -- it does not itelf impose a -- a requirement that the government substantively justify its regulation.

Tr. at 42. This issue will likely be more squarely addressed in the remaining takings case the Court is considering this term, Horne v. United States Dep't of Agriculture, No. No. 12-122 (cert. granted. Nov. 20, 2012). In that case, the Court is considering whether a property owner can assert a takings defense to the imposition of a fine levied for violating a federal regulation, or whether the owner must pay the fine and then bring a takings case for just compensation in the Court of Federal Claims. That case is in the briefing stage, and is scheduled to be argued on March 20, 2013.

So for now, we'll have to be content with the transcript in Koontz.

SCOTUS Transcript In Koontz

For those of us who were far, far away, and thus not able to be in D.C. for today's oral arguments in person, here is the transcript in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

Here's the first recap of the arguments, from Greenwire's Lawrence Hurley, "Supreme court: Justices weigh Fla. property rights dispute."

More, after a chance to digest the transcript.

Transcript of oral arguments, Koontz v. St John's River Water Mgmt Dist., No. 11-1447 (Jan. 15, 2013) 

Exactions Flashback - Our Visit To The Dolan Site

With the oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) at last here, we thought we'd go back and revisit our write-up of our visit to the Dolan site, complete with photos: Regulatory Takings Pilgrimage Part II.

Koontz, as you know, is about whether the Nollan nexus test, and Dolan's requirement of "rough proportionality" apply only to land exactions, or is a generally-applicable test for all exactions.

LII Preview: Koontz "has the potential to drastically modify takings jurisprudence with regard to exactions"

Here's the Legal Information Institute's preview of tomorrow's U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case in which the Court will be addressing whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case in support of the property owner/petitioner. The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner's reply brief is here.

The LII's preview has a good "he said she said" account of the case and the arguments, and concludes with this:

The Supreme Court’s ruling in this case will decide whether the constitutional standard set out in Nollan and Dolan apply so that the government can be held liable for an improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a condition to dedicate money, services, labor, or any other type of personal property to a public use. If the Court adopts Koontz’s position, the standards will apply to cases where the government refused to issue a land use permit and to cases involving non-real property exactions. Koontz believes that these standards will protect landowners and developers from government corruption without hindering the government’s decision-making process. If the Court adopts St. Johns’ position, the standards will not apply to this case or similar cases but will continue to apply to cases where the government actually took real property from the landowner. St. Johns believes that these standards are not necessary because there are other safeguards in place to protect landowners and developers from government corruption and instead, these standards would be a detriment to the government and every community. The Supreme Court should consider Environmental Law concerns while making this decision.

As to the quote in the headline of this post, the preview starts with this:

Koontz argues that the constitutional standards set out in Nollan and Dolan should apply to this case and similar cases so that the government can be held liable for improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a financial or public service condition. St. Johns River Water Management District argues that the constitutional standards set out in Nollan and Dolan should not apply to this case and similar cases where the government did not actually take any property from the landowner. This decision has the potential to drastically modify takings jurisprudence with regard to exactions. 

While yes, the case has the potential to "drastically modify" takings law, as our brief pointed out, it's not necessary for the Court to do so in order to reverse the Florida Supreme Court's decision. Several state jurisdictions (California and Texas, for example) already apply the nexus and rough proportionality requirements to all exactions. As these and other examples show, the sky will not fall should the Supreme Court apply what are relatively modest transparency requirements to the entire exaction process, and not artificially limit the test to demands for land. Nollan and Dolan do not prohibit exactions, they merely require the government to explain why an exaction is related to the use approval the property owner seeks.

To entertain yourself while we await for the release of tomorrow's transcript, revisit the recording of the oral arguments in Nollan, posted here. Listening to it, it struck us as how little the government's argument has changed in 27 years. Reading the Koontz briefs, it struck us as how little the government's argument changed in reaction to Nollan.

More, after tomorrow's oral arguments.

7th Cir: If At First You Don't Succeed...

When we first read the Seventh Circuit's opinion in Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012), a case involving takings, due process, and other* challenges to a county zoning ordinance making it easier to build a wind farm, our first thought was "that case sounds familiar."

It was. In this case, the same court ruled pretty much the same way, in a case about wind farms, against what appears to be the same plaintiff.

The recent opinion was covered in detail in Dean Patty Salkin's Law of the Land blog here, so we won't repeat it.

------------------------

*the opinion referred to the suit as "a blunderbuss of federal and state claims" 

Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012) 

More From U.H. Lawprof On 1993-2010 HAWSCT's "Appalling" Record On Property Rights

Here's a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court's record on property rights "appalling." Download the article here.

Today's Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don't have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

• "Callies says he isn't against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated."

• "QUESTION: A recent law review article of yours came to the strongly worded conclusion that, overall, the Hawaii Supreme Court's record on preserving private property rights guaranteed in the U.S. Constitution has been "appalling." Why did you come to that conclusion? ANSWER: It struck me sort of anecdotally that the cases seem to be largely favoring groups like the Sierra Club, Earthjustice, Hawaii's Thousand Friends and so forth that generally sue when development permits are granted almost anywhere. So I asked a couple of my research assistants to do a survey, and they came out with the figures that over 80 percent of the cases that the state Supreme Court decides find against either the county or the state or the landowner -- whomever the decision-maker is and who owns the property. And in a substantial number of those cases -- I think in the neighborhood of 70 percent -- it overturned the Intermediate Court of Appeals."

• "Q: Why is that a disturbing trend? A: Well, the U.S. Constitution protects the right to use property unless there are police-power reasons not to. And in Hawaii sometimes we get the impression that it's the other way around. But it's not. The right to use property is a right that the Supreme Court has held to be virtually co-terminus with other rights, a civil right. So if you can't ground it in police power, then you can't regulate it. Development of land is not a privilege, it's a right. And so, if that's the case, for the (Hawaii) Supreme Court to find -- over and over again -- that the right does not seem to exist, that strikes me as a lopsided view."

• "Hawaii also goes overboard in the percentage of low- or moderate-income housing it requires. Maui for several years required a 50 percent mandatory workforce housing set-aside, and the state has often been in the 25, 30, 35 percent category. ... But much over 30 percent, it doesn't pencil out. You can't do it."

• "Q: You've written about Hawaii's many layers of land-use controls. How many layers are there? A: Ooooh, there's a bunch -- about eight or nine."

For real entertainment, check out the reader comments at the end of the interview. Which, like many comment sections on the internet, range from reasonable to bizarre to downright racist ("Callies is a Caucasian, Chicago born and raised foreigner who can go back to the land of overbuilt skyscrapers, ghettos and murder capital of America. Why is he even here?"). Oh my. Another comment argues that the delays in development common in Hawaii are not signs that the laws are failing as Professor Callies suggests, but the reverse: that development delay is indication is that Hawaii's laws are working exactly as intended. On that point, the commenter may be right.

Koontz Preview: Request For Exaction Is Not A "Suggestion," But A "Velvet-Covered Hammer"

Here's the preview of next week's U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case in which the Court will be addressing whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

In Wetlands regulation at heart of Fla. property rights dispute, Greenwire's Lawrence Hurley writes:

In late 1993 and early 1994, Coy Koontz Sr. applied for two permits from a Florida agency as he sought to build on wetlands he owned just east of Orlando.

Today, Koontz has been dead for 13 years, his family no longer owns the property and the permits have long been approved. And yet a legal dispute about the permitting process is about to be argued at the Supreme Court.

As the story notes, we filed an amicus brief in the case in support of the property owner/petitioner.

In addition to the property owner's counsel Paul Beard ("the district was attempting to 'bargain its way around the takings clause'"), the Water District's lawyer Paul Wolfson ("a property owner cannot seek compensation 'for property that was never taken'"), lawprof John Echeverria ("It's a major case"), and Mike Berger (the "sky will not fall" if the Court subjects all exactions to Nollan/Dolan), the story quotes our response to the arguments made in the amici briefs supporting the Water District, that the property owner was not forced to give up anything, but merely was given "suggestions" about what he could do to get the agency to grant him permission to develop his land:

Robert Thomas, a Hawaii-based lawyer who filed a brief on behalf of the Owners' Counsel of America and represents property owners seeking permits, said his clients often accept stringent conditions on a regular basis simply so they can pursue their projects in a timely manner.

"They are willing to live with what might be unconstitutional requirements," Thomas said.

Government agency proposals are not mere "suggestions," as pro-government lawyers have argued, Thomas added. "It's a velvet-covered hammer," he said.

The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner's reply brief is here.

First Circuit: Inverse Condemnation Claim In State Court An "Adequate Procedural Pathway" To Compensation

How, as an appellant, do you know you are in trouble? When an opinion starts like this, that's how:

Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff's complaint and the district court's order of dismissal, we lay the ghost to rest.

The remainder of the opinion in Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)  deals with whether a property owner suffered a taking when the State of Rhode Island and other parties granted a permit and approved construction by a neighboring owner of a road that allegedly encroached on the plaintiff's land.

Among other arguments (as far as we can tell), the plaintiff raised a takings claim in federal court after first pursuing an administrative appeal of the permit grant (dismissed for lack of standing), and an appeal to state court that he eventually dismissed (during which time the neighbor sold the property to another developer who allowed the development permit to expire; in the words of the First Circuit, the road project was a "dead letter"). But he didn't file an inverse condemnation action in state court to recover compensation.

Uh oh, you know what that means.   

The federal district court thus dismissed a civil rights lawsuit on Williamson County ripeness grounds. The First Circuit agreed, holding that while the plaintiff had secured a final decision applying the regulations to his property, he had not sought and been denied compensation in the courts of Rhode Island, which recognize a cause of action for inverse condemnation. To those versed in ripeness law, you know that this is a fatal defect. The First Circuit rejected the plaintiff's claims that to do so would be futile because the state remedy is "inadequate," holding that "[w]e have previously held that this inverse condemnation remedy constitutes and adequate procedural pathway to just compensation." Slip op. at 7 (citing Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16 (1st Cir. 2011)).

The opinion ends as badly as it began:

The plaintiff's brief hints at other arguments. These arguments, however, lack both coherence and development. Rather than guessing at what these arguments may or may not portend, we fall back upon the prudential rule that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."

Slip op. at 11 (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

Affirmed.

Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)

U.H. Lawprof: HAWSCT's 1993-2010 Record On Private Property Rights "Appalling"

You know how we're always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court's opinions:

Second, the Moon Court decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals (ICA). Third, the court increasingly rendered lengthy opinions, many triple the length of those from the Lum Court and often describing the context in which the case arose procedurally even when the process was not an issue. That said, the court certainly set a high bar for thoroughness and explanatory analysis. For example, its decision in Save Sunset Beach Coalition v. City & County of Honolulu is a model of clarity and organization reminiscent of the style of opinions written by retired ICA Judge Walter Heen and retired ICA Chief Judge James Burns.

David L. Callies, Emily Klatt, and Andrew Nelson, The Moon Court, Land Use, and Property: A Survey of Hawai‘i Case Law 1993-2010, 33 U. Haw. L. Rev. 635, 636-37 (2011).

While we recommend you read the entire article, if you don't have time, here's the Conclusion, which shows these statistics have real-world consequences:

In sum, the Moon Court has made many useful contributions to the law of property in Hawai‘i. It has taken care to preserve the rights of landowners to freely use property in the face of private restrictive covenants limiting that use if such covenants are the least bit vague or poorly defined. It has amplified and extended basic principles in the areas of coastal zone management,  condominium, easement, and leasehold law. Its record on preserving private property rights guaranteed by the U.S. Constitution’s Fifth and Fourteenth Amendments in the face of regulatory challenges is, on the other hand, appalling, particularly given the increasing emphasis on preserving such rights in our nation’s highest court. In case after case, the Moon Court has strained to apply general and often vague goals pursued by select interest groups and factions regardless of statutory law to the contrary. The result, coupled with Hawai‘i’s increasingly well-known penchant for lengthy, often decade-long land use permitting processes, is a climate that increasingly discourages both local and foreign investment in land development, because it is widely perceived as too risky for the private sector to undertake. In particular, the effect on the availability of housing that is affordable at any but the most astronomical levels has been great. In short, the Moon Court has made a considerable negative impression on the land development aspect of property law, virtually converting the use of land into a privilege rather than a constitutional right subject only to regulation for the health, safety and welfare of all. Whether that impression becomes indelible is a matter that the Recktenwald Court should address at the earliest opportunity.

Id. at 667-68. Is this part of the reason why Hawaii is the most expensive housing market in the nation?

Reply Brief In Koontz: Money Is Property

Here's petitioner's reply brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), which responds to the Water Management District's merits brief.

In that case, the U.S. Supreme Court will address whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Among other things, the reply addresses the argument made by the District and its amici that Nollan and Dolan aren't really "takings" cases, but involve due process or equal protection:

Due process and equal protection claims are also inapt. A due process claim questions whether the exaction serves some legitimate purpose, and an equal protection claim asks whether the exaction is applied equally to similarly situated individuals. But neither claim addresses whether a particular individual has been targeted to bear a public burden that should be borne by the general public, or whether he should be required to give up a constitutional right in exchange for the ability to use his land. Again, only Nollan and Dolan can answer these constitutional concerns.

Br. at 23.

This is the final brief in the case. Oral arguments are scheduled for next week, January 15, 2013. We'll bring you more as the date approaches.

We filed an amicus brief in the case in support of the property owner/petitioner. The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here.

Petitioner's Reply Brief, Koontz v. St. John's River Water Management Dist., No. 11-1447 (Dec. 8, 2013)

Blink And You'll Miss...

...the Supreme Court's opinion, isssued today, in Los Angeles County Flood Control Dist. v. NRDC, No. 11-460 (Jan. 8, 2013), in which the Court held that "the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the [Clean Water Act]"

We'd summarize the case, but that would take longer than you reading the five-page opinion.

More here from Greenwire's Lawrence Hurley.

Guest Post: Regulatory Takings, Texas Groundwater, And Hydrofracking

William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee) is a frequent author and speaker on the topic of regulatory takings and is familiar to readers of this blog. (His next gig is a talk on Penn Central and inverse condemnation at the 12th Annual Texas Eminent Domain SuperConference February 11-12, 2013, in Austin.)

Bill fills us in on the Texas Supreme Court's decision in Edwards Aquifer Authority v. Day, 274 SW.3d 742, (Tex. 2012). The court issued the opinion in February 2012, but recently denied a motion to rehear the case, thus making it final. 

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Regulatory Takings, Texas Groundwater, and Hydrofracking

by William W. Wade, Ph.D.

Texas may have created the takings and condemnation lawyer full-employment act. 

The Texas Supreme Court in February 2012 reversed a hundred years of water law, changing groundwater ownership rights from a "rule of capture" to ownership of "groundwater in place."  (Edwards Aquifer Authority v. Day, 274 SW.3d 742, (Tex. Feb. 23, 2012, "Day")) The decision equated groundwater ownership to oil and gas and concluded that differentiating "between groundwater and oil and gas in their importance to modern life would be difficult." Ownership of the surface provides ownership of the water regardless of capture.  

Day sets-up a conflict between value of the owner’s groundwater in place and management of the larger aquifer for public benefit. Texas Water Lawyer, Drew Miller, who represented Edwards in the litigation, reported that “[t]he . . .  immediate result of the Day decision is that landowners may assert regulatory takings claims against . . .  governmental entities in response to regulation that limits or prohibits access to, or production of, groundwater.” (November 8, 2012.) The Day decision invoked SCOTUS legal theories that might govern compensation--Loretto, Lucas and Penn Central--and remanded Day "to the district court for further proceedings" to sort them out.

Here’s the rub: water is scarce in Texas and about 2/3 of human consumption is groundwater. Drought is upon the land in 2013 and expected to become increasingly recurrent. Groundwater Conservation Districts (GCDs) regulate usage of groundwater within most Texas counties. Now that title to the water in place resides with the landowner, GCD management of the larger aquifer for the public good runs the risk of a takings claim seeking compensation. 

Suppose you are the GCD for part of an aquifer within a Texas County. Assume that the aquifer provides the municipal water supply for a town of 200,000. For decades, surrounding ranchers have relied on the aquifer to provide a few hundred acre-feet of water for their livestock and a few homes. Now, assume that the county overlies a large shale oil and gas resource and several of the ranchers have leased their land and water rights to an oil company that plans to produce (an unknown but maybe) thousands of acre-feet of groundwater for hydrofracking wells for years to come.

The ranchers, the oil company, the GCD and the municipal water users are about to find out exactly how much the water is worth and whether the produced oil and gas or the life-sustaining water is more valuable. Besides working out what might be the terms of exchange between the ranchers and the oil company for the water, I can think of a number of engineering, hydrologic, environmental and other economic issues that must be sorted out to even consider litigating a regulatory taking case.

If Penn Central were the governing legal theory, I can imagine a number of empirical hurdles to surmount to establish severity of economic impact and frustration of distinct investment backed expectations. Penn Central’s average reciprocity of advantage might invoke careful scrutiny of the benefits and burdens at issue. In short, "further proceedings" for the Penn Central test invoke myriad challenges those who follow the arcane nuances of regulatory takings – well-beyond multiplying some water price times a quantity to claim damages!

Epstein On Koontz: "Grand Theft Real Estate?"

In "When Government Takes You Hostage," lawprof Richard Epstein weighs in on the issues in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). In that case, the U.S. Supreme Court will address whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Professor Epstein writes:

The situation that is now before the Supreme Court in Koontz shows the folly of the current law, which rejects the long-established common law baselines between neighbors. No longer does the state have to take (and pay just compensation) to satisfy its environmental goals. Rather, the entire mitigation doctrine amounts to nothing more than a form of grand theft larceny by which the state first claims for nothing a state-wide environmental easement, which it will then sell back to the landowner for the (mitigation) price that it regards as acceptable by its own standards. It is, quite literally, no better than allowing the state to confiscate land for nothing, which it then duly sells back to its original owner for a price. Ransom money involves the same dubious strategy.

We filed an amicus brief in the case in support of the property owner/petitioner. The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here.

Oral arguments are scheduled for January 15, 2013.

Guest Post: Honolulu Rail Remedy - Phasers On Minimal

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul's most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday's short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?

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Honolulu Rail Remedy - Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been only minimally stunned by the U.S. District Court for the District of Hawaii for its failure to adequately study the project’s possible effects on Chinatown and Mother Waldron Park (an old urban park/playground), and for its failure to articulate the reasons why a tunnel under Beretania Street (a major city arterial) was rejected.

Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Dec. 27, 2012). In keeping with Ninth Circuit Judge A. Wallace Tashima’s previous ruling that "[e]ven assuming the issuance of an injunction is appropriate, it must be carefully tailored to provide a balanced remedy,” the court did just that: it issued a very carefully tailored injunction. See Order on Cross-Motions for Summary Judgment (D. Haw. Nov. 1, 2012), slip op. at 44-45 (emphasis added). (Judge Tashima is sitting by designation because the entire U.S. District Court bench recused itself from considering this case.)

As previously reported , Judge Tashima found in that order that the defendants failed to (1) complete a full study of above-ground "traditional cultural properties" (TCP) in the Chinatown area; (2) analyze noise impacts on Mother Waldron Park and mitigate other negative impacts on the park’s historic and artistic features; and (3) include a full analysis in the final environmental impact statement (FEIS) to support the conclusion that a tunnel under Beretania Street was not a feasible and prudent alternative to the elevated route selected.  As also reported here, Judge Tashima heard argument on December 12, 2012 regarding the appropriate remedy for these failures.

In yesterday’s judgment, Judge Tashima truly tempered justice with mercy. In entering his partial permanent injunction, he considered the well-recognized equitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010), and found that its four-factor test [(1) irreparable injury; (2) the inadequacy of monetary relief; (3) the balance of hardships; and (4) the public interest] favors the plaintiffs, but only to the extent that the defendants’ actions are actually enjoined.

The injunction against the defendants’ actions is in fact quite limited. In essence, it provides only that the defendants are

enjoined from conducting any construction activities and real estate acquisition activities in Phase 4 of [the rail project]. ... This injunction shall not prohibit, and [d]efendants may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other preconstruction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order. This injunction shall not apply to Phases 1 through 3 of [the project].

The Phase 4 area encompasses the downtown area and its immediate environs, including Chinatown, Mother Waldron Park, and Beretania Street. The defendants are required to file periodic status reports on their compliance with the judgment, and the injunction shall terminate 30 days after defendants file a notice of final compliance, unless the plaintiffs object within that period.

Most importantly from the defendants perspective, Judge Tashima remanded the case to the Federal Transit Administration (FTA) without vacatur (setting aside) of the Record of Decision (ROD), which means that the Full Funding Grant Agreement (FFGA) to the City and County of Honolulu for $1.55 billion, executed on December 19, 2012 can now go forward without further obstruction.

That is, unless the plaintiffs decide to appeal Judge Tashima’s final judgment to the Ninth Circuit Court of Appeals. Stay tuned – we may not quite be done with this yet!

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*voluntarily inactive member of the Hawaii Bar

Judgment and Partial Injunction, Honolulutraffic.com v. Federal Transit Admin., No. 11-0307 AWT (Dec. 27,...