June 2008

The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States,No. 07-1521 (Fed. Cir. May 1, 2008). 

In that case, the Federal Circuit held that when an innocent party’sproperty is seized for use in a criminal prosecution but never used as evidence, no FifthAmendment taking has occurred even though the property was rendered valueless during the time the government possessed it.  The government seized a largequantity of legal prescription drugs in its investigationof a pharmacy but never used the drugs as evidence.  Although the drugs were eventually returned to the owner, they had expired in the interim.

The Federal Circuit agreed with the government’s argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated.  Yes, paying for property seized as evidence may force the government to think…

Continue Reading Federal Circuit En Banc Petition in AmeriSource

Several items today with a common theme of eminent domain and public use –

  • PropertyProf Blog posts a link to Professor Richard Epstein’s latest article, “Public Use in a Post-Kelo World.”  I agree with Professor Barros’ recommendation: “Given the author, obviously a must-read for anyone interested in public use issues.”
  • The Honolulu Advertiser’s Sean Hao details the issues when takings for Honolulu’s proposed +$4B rail transit project runs into a unique “old Hawaii” neighborhood in “Pearl City’s Banana Patch at risk.”  A neighborhood without city water, street lights, or sidewalks (but a community nonetheless) is slated for removal for a “park and ride.”

…
Continue Reading Public Use/Kelo Round Up

Kauaisprings2 Yesterday, we filed the Reply Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

For more information about the case, here are some links to earlier media coverage:

  • A May 2006 story about the case from the Honolulu Star-Bulletin
  • A storyfrom the Kauai newspaper about the TRO that halted the County’s attemptto shut the business down while the appeal was being considered.
  • Another story about the preliminary injunction that allowed Kauai Springs to stay open.

The Opening Brief is posted here.  The Kauai Planning Commission’s Answering Brief is posted here. Continue Reading PING: Private servants VisaURL: http://vitagate.itn.liu.se/GAV/booklets/wiki/index.php?title=Discovering-The-Ideal-Immigration-Immigration-Lawyer—Items-To-Bear-in-mindIP: 220.135.129.22BLOG NAME: Private servants VisaDATE: 02/03/2013 10:27:35 PMinversecondemnation.com: Kauai Springs Zoning Permit Appeal: Reply Brief

Today my Damon Key colleagues Mark Murakami, Christi-Anne Kudo Chock, and I filed for the Ocean Tourism Coalition a brief amicus curiae (88kb pdf) in the US Supreme Court supporting the petition for writ of certiorari filed in UFO Chuting of Hawaii, Inc. v. Smith, No. 07-1427 (petition for cert. filed May 12, 2008). 

The petition seeks review of the Ninth Circuit’s decision in UFO Chuting of Hawaii, Inc. v Smith, 508 F.3d 1189 (9th Cir. 2007), a case I blogged about here.  In UFO Chuting, the Ninth Circuit held:

We hold that UFO’s right to operate vesselsunder its federal maritime coasting licenses does not preempt Hawaiilaw prohibiting parasailing off the coast of Maui during limitedportions of the year to protect mating humpback whales.

Read the entire opinion here.  The case is a challenge to the State of Hawaii’s regulations restricting parasailing in waters…

Continue Reading Amicus Brief: A State May Not Ban Navigation For Five Months Without Interfering With Federal Navigation Rights

A little shameless self-promotion, as well as well-deserved recognition for my fellow Damon Key law bloggers Mark Murakami, Robert Harris and Tred Eyerly:  Ryan Ozawa has posted a summary of our firm’s adventures in law blogging on his Hawaii Blog in the post “Hawaii Firm Spotlights Legal Blogs” —

Firm director Thomas is one of Hawaii’s first law bloggers, and writes at inversecondemnation.com on land use law, eminent domain, and property rights. Fellow director Murakami writes about maritime and ocean law at hawaiioceanlaw.com. And associates Harris and Eyerly blog at insurancelawhawaii.com about… well, you know.

In its quarterly newsletter Legal Alert, the firm explainedthat a law blog is where “an attorney posts articles about his or herarea of expertise and interest — these articles may provide in-depthsummaries and analysis of recent cases or legislation, or may containpractical insight and commentary.”

. . .

Noting…

Continue Reading Hawaii Blog: Hawaii Firm Spotlights Legal Blogs

Today’s editorial in the Honolulu Star Bulletin is about the “ceded lands” case:

Hawaii’s Supreme Court ruled in January that a 1993 joint resolutionby Congress apologizing for the overthrow of the monarchy a centuryearlier requires that ceded lands be “preserved” until “a properfoundation for reconciliation between the United States and the nativeHawaiian people” is achieved.

The Apology Resolution does not exactly say that, but that was the state high court’s interpretation.

Read the complete editorial here.  More on the case, including links to all briefs in the case (so far) here.Continue Reading Honolulu Paper on Ceded Lands Case: “Hawaii Supreme Court ruling tampers with federalism”

Today’s Honolulu Advertiser posts a story, “Bennett receives support on ceded lands,” about the amicus brief of 29 states supporting Hawaii’s request for US Supreme Court review of the “ceded lands” decision, Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  More on the case, including links to all briefs in the case (so far) here.

Also on the same topic, Advertiser columnist Jerry Burris writes “Nothing is simple in land case,” which starts off:

Pity the legal eagles working for the state of Hawai’i these days.

On one side, they defend Gov. Linda Lingle’s position that Hawaiians are owed a fair settlement for the use of ceded lands, those 1.2 million to 1.6 million acres of former crown and government lands ceded in trust to the state in 1959.

On the other…

Continue Reading More on Ceded Lands Cert Petition and Amicus Briefs

Today’s Honolulu Star-Bulletin reports “29 other state oppose ruling on ceded lands,” about the amicus brief filed by the State of Washington and 28 other states urging the US Supreme Court to review the decision of the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, theHawaii Supreme Court, relying on Congress’ “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.

More about the case here (including links to the cert petition and other amicus briefs).Continue Reading More on Amicus Brief of 29 States in Ceded Lands Case

The Institute for Justice, the attorneys who represented Susette Kelo in Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the US Supreme Court held that economic development takings were not per se invalid, has filed a brief amicus curiae supporting the request for review in Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008), the Second Circuit decision I blogged about here.  The brief asserts:

In affirming the dismissal of Petitioners’ complaint, the Second Circuit held that taking property from A just to transfer it to B is constitutional — as long as the government refuses to admit what it is doing.

Brief at 2.  More on the issues in the case here.  The petition and other briefs are posted here.

Update: here is a story from the New York Sun about the brief (hat tip Continue Reading Amicus Brief in Goldstein v. Pataki Eminent Domain Pretext Case