September 2008

In United States v. 4.85 Acres of Land, No. 07-35310 (Sep. 29, 2008), the US Court of Appeals for the Ninth Circuit held that the trial court should not have refused to admit evidence of sales at properties nearby the property taken, even though the sales occurred after the taking.

The federal government condemned land as a buffer zone for a fish hatchery, taking only a portion of the properties involved.  The landowners subdivided the portions not taken, and began developing these properties.  The subdivided lots were sold after the date of the taking.

The landowners offered evidence of these comparable sales into evidence, but the trial court categorically refused to allow evidence of post-taking sales.  During deliberations, the jury asked whether there had been any sales of the adjoining property, and whether it could consider these sales.  The trial court instructed the jury it could not consider such…

Continue Reading Ninth Circuit: Post-Taking Sales Admissible in Federal Condemnation

Here are the filed briefs in County of Hawaii v. Richards,No.28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The filed briefs are here:

          The issues in the case include:

          • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
          • whether the government may concurrently prosecute more than one condemnation lawsuit at the same time
          • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

                Continue Reading Briefs in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

                The State of Hawaii has filed its Brief in Opposition in UFO Chuting of Hawaii, Inc. v. Thelen, 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 regulationsrestricting parasailing in waters off Maui, because they intereferewith federal statutes and navigation rights.  My Damon Key colleague Mark Murakami analyzed the case onhis hawaiioceanlaw.com blog here.  We filed an amicus brief in…

                Continue Reading Brief in Opposition in Navigational Ban Case

                Monday is the first day of the U.S. Supreme Court’s new term, and it will decide whether to review a slew of cases, including the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State of Hawaii seeks U.S. Supreme Court review of the decision by 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). The Question Presented is:

                In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all…

                Continue Reading Supreme Court to Decide Monday Whether to Review Ceded Lands Case

                To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

                • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

                …
                Continue Reading Links From UH Historic Preservation Workshop

                A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

                More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

                “This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

                McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan

                The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that the “public trust” is enforceable by the public against the government, and that wildlife is subject to the trust.

                The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine.  The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action.  The court of appeals agreed, holding (1) birds and other wildlife are part of the “public trust,” (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.  

                The court held…

                Continue Reading Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach