June 2008

I’ve finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court’s decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), “Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins.” 

The essay explores the incentives createdby Wilkie v. Robbins for intentional circumvention of the Takings andJust Compensation Clauses by federal agents and addresses the dangersthereby created for any meaningful protection of private propertysought by the Federal Government, as well as the dangers created forthe meaningful protection of other constitutional rights againstdeliberate erosion by federal agents.

I posted a summary of the case here, and published an op–ed in the Honolulu Advertiser about the decision.Continue Reading Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

This is only tangentially related to the usual topics of this blog, but given the first sentence in the Ninth Circuit’s opinion in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., No. 05-17066 (June 26, 2008), I could not resist:

This appeal presents the single, seemingly straightforward questionwhether the word “is” really means “is,” at least as that word isemployed in 25 U.S.C. § 81.

Slip op. at 7515.  The decision does involve the definition of the term “Indian lands” under federal law, so it is fair game here:

At the core of the present dispute, that statute requires the Secretary of the Department of the Interior (“Secretary”) to approve any “contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years” before such a contract can be considered valid. Section 81(a) defines the term “Indian lands” in part as “lands the…

Continue Reading Calling Bill Clinton: the Ninth Circuit Has Your Answer About What The Meaning of “Is” Is

In the buzz generated by the Exxon Valdez punitive damages decision and the Second Amendment ruling by the U.S. Supreme Court in the last few days of the term, little attention was paid to a very interesting decision regarding the power of Indian tribal courts to adjudicate disputes involving non-Indians.? In Plains Commerce Bank v. Long Family Land and Cattle Co., No 07-411 (June 25, 2008), the Court held that a South Dakota Indian court did not have jurisdiction to adjudicate a discrimination claims concerning a non-Indian bank’s sale of land it owned. Continue Reading SCOTUS: Tribal Court Has No Jurisdiction Over Discrimination Claim Against Non-Indian

Get ready for this year’s Land Use Institute conference on “Planning, Regulation, Litigation, Eminent Domain, and Compensation,” to be held in Boston on August 13-16, 2008.  I can’t attend this year, but have in the past, and like all ALI-ABA land use conferences, it looks like it will be well worth going if you can.  The faculty is first-rate and includes professor-bloggers Gideon Kanner (Gideon’s Trumpet) and Patricia Salkin (Law of the Land) and other notables from our practice area. 

The keynote address will be presented by Harvard Law School Professor Charles M. Haar, revisiting his seminal 1955 law review article on land use planning “In Accordance With a Comprehensive Plan” (is there a single land use lawyer who hasn’t read this article at least once?).  The agenda for the conference, and other information is posted here.Continue Reading Seminar: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)

In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking lacked congressional authorization and was not for public use.  The most interesting part of the decision begins on page 7269 of the slip opinion and the court’s discussion of private benefit takings.  Continue Reading Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid

Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.

I won’t go into the details, since the Reply Brief spells out the arguments.  It responds to the arguments in the County of Maui’s Answering Brief, posted here.  MVRA’s Opening Brief, as well as links to media coverage of the case and issue, is posted here.Continue Reading Reply Brief in Ninth Circuit Maui Vacation Rental Appeal

If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we’re going to do whatever we can to avoid filing it so it gets considered on June 23. 

Today’s the third anniversary of Kelo v. City of New London, and also the day the Court denied review to a case which is the logical follow-up to Kelo, Goldstein v. Pataki.

[A follow up from a reader’s comment: June 23 is “Kelo Day” – read more here.]

Continue Reading Note to Self: Avoid June 23 at the Supreme Court

The US Supreme Court today denied review to three cases we’ve been following:

  • Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) – Justice Alito would have granted the petition.  Justice Alito had not been appointed to the Court at the time of Kelo, so this may signal another vote for property owners if this issue ever makes it back up.

Here’s the Order. Continue Reading Cert Denied in Three Cases

In “Blogs are not just for venting anymore,” Erika Engle’s “TheBuzz” column features four Damon Key attorneys who blog about the law: Mark Murakami, Robert Harris, Tred Eyerly, and me.  Our firm is pretty “bloggish,” and between the four of us, we publish three law blogs.  In addition to the blog you are now reading, we produce:

Read the Star-Bulletin story, follow the links above, or download our firm’s latest Legal Alert which contains a full profile of each blog and our lawyer-authors. 
Continue Reading Honolulu Star-Bulletin Features Damon Key Law Blogs

The speed of information on the internet sure is fast.  I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States,No. 91-1470L (May 6, 2008), which awarded Nevadaproperty owners several million dollars in just compensation for the taking of theirvested water rights by the federal government, but Professor Gideon Kanner and the Real Estate and Construction Law Blog both beat me to the punch.

Kanner’s commentary on the case, “Posthumous Victory for Hage” is posted here. “Federal Claims Court Awards $4.2M to Ranchers’ Estate for Taking of Water Rights” is posted here.

Read the CFC’s opinion here.Continue Reading Court of Federal Claims Awards Compensation for Taking of Vested Water Rights