March 2009

Here’s a collection of the reports and commentary beginning to come in about the U.S. Supreme Court’s unanimous opinion in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009):

  • Supreme Court backs Hawaii in land dispute – The New York Times weighs in with a short summary of the case.  The only oddity: “Hawaii Attorney General Mark Bennett (R) asked the U.S. Supreme Court to hear the case.”  Yes, Bennett serves in a Republican administration, but Hawaii’s Attorney General is not an elected position, so it’s strange to see the use of party designation usually reserved for elected officials.

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Continue Reading Spinning The Ceded Lands Decision

What to make of the U.S. Supreme Court’s unanimous opinion in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009), beyond the narrow holding that the Apology Resolution had no legal effect?  Think about these points, if you will:

  • You can’t unwind statehood – Here’s the heart of the brief opinion (unanimous opinions usually are short): “the Apology Resolution [does not] reveal any evidence that Congress intended subsilentio to ‘cloud’ the title that the United States held in ‘absolutefee’ and transferred to the State in 1959.”  Slip op. at 11. This case challenged the State’s title to the ceded lands because the federal government’s title, which it transferred to the state at statehood was somehow less than absolute.  That argument has now been put to rest: the federal government had “absolute fee” title to the lands ceded to it by the Republic of

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Continue Reading Three Takeaway Points From The “Ceded Lands” Decision

The U.S. Supreme Court held that a Congressional resolution apologizing for the United States’ role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by Justice Alito, the Court held:

The Supreme Court of Hawaii erred in reading § 3 [of the apology Resolution] as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750)and conveyed to the State of Hawaii at statehood.

Slip op. at 10.

Jurisdiction

The opinion first made short work of the claim by the Office of Hawaiian Affairs that the Supreme Court had no jurisdiction. OHA asserted that the Hawaii Supreme Court’s opinion (117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), available here) was not based upon federal law (the Apology Resolution) but was based upon Hawaii trust law.  The Court…

Continue Reading Sorry Seems To Be The Hardest Word: U.S. Had “Absolute Fee Simple” Title To Ceded Lands, Apology Resolution Had No Legal Effect

A unanimous Supreme Court, in an opinion authored by Justice Alito has reversed and remanded the Hawaii Supreme Court in the “ceded lands” case.  The opinion is posted here.

More to follow after a chance to read the opinion, but here’s the short story:

  • The Court has jurisdiction under Michigan v. Long, 463, U.S. 1032 (1983).
  • The Apology Resolution did not strip the state of its sovereign authority to alienate the lands the United States held in “absolute fee simple” and which were granted to the state upon its admission to the Union.

Disclosure: I helped author an amicus brief supporting the state’s argument.  More background at our “ceded lands” case page.Continue Reading Unanimous SCOTUS: Apology Resolution No Legal Effect

Our thanks to Robert S. Poliner, the Connecticut Ombudsman for Property Rights for permitting us to republish his review of Jeff Benedict’s Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here), the recently published book about the infamous U.S. Supreme Court eminent domain case Kelo v. City of New London, 545 U.S. 469 (2005).

Little Pink House, Eminent Domain
Time to Change the Law

The question that Wes Horton, the City of New London’s appellate counsel, answered regarding eminent domain that Tom Londregan, New London’s City Attorney, didn’t want asked or answered was where to draw the line between public and private use?  Horton answered U. S. Supreme Court Justice Sandra Day O’Connor that he would not draw one and it would be okay if a city takes a Motel 6 that pays lower taxes and…

Continue Reading Book Review: Little Pink House, Eminent Domain – Time To Change The Law

Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000:

  • James v. United States, No. 01-2911L (Mar. 5, 2009) – subject matter jurisdiction, ownership of parcel in question; “scrivener’s error.”
  • Biery v. United States, Nos. 07-693L, 07-675L (Feb. 27, 2009) – more rails-to-trails takings – certifying questions of abandonment under Kansas law to the Kansas Supreme Court.

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Continue Reading Court Of Federal Claims Round-Up

The U.S. Supreme Court has denied review to Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008), another case asking the Court to overrule Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the decision that gave us the weird ripeness rules in regulatory takings. The order is available here.

The briefs and the 11th Circuit’s opinion are available here.  This is the second petition asking the Court to overrule Williamson County that has been denied this Term.

Continue Reading Cert Denied In Agripost (Williamson County)

There’s still time to register for two teleconferences that are a part of the ABA State and Local Government Section’s “Virtual Spring Meeting.”  I hope you can join us for at least one of the programs.

  • Wednesday, April 1, 2:00 – 3:30 pm, EDT: Condemnation Hot Topics – The program will examine new and important condemnation cases andtrends, and also review eminent domain as a backdrop for land useregulation. I will leading the session on pretext and public use in eminent domain cases. Also on the faculty are Robert Freilich, Mary Lynn Huett, and Edward Sullivan. The moderator is Professor Steven Eagle. More here.
  • Thursday, April 2, Noon – 1:30 pm, EDT: Hot Topics in Land Use Law 2009 – The 2009 version of this popular annual program will cover the latestdevelopments in several areas of the law related to land useregulation.  Among the expected topics are the ability of town

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Continue Reading Upcoming ABA Condemnation, Land Use Teleconferences

In 1999, without asking the owner’s permission, the federal government constructed a 35,000 square foot “borrow pit” on a parcel in a remote corner of Texas. The owner did not learn about the government’s activities until 2004, when a migrant worker who had crossed the property to access the Rio Grande told him about it. The owner visited the property in late 2004 and for the first time discovered the borrow pit.

In 2006, the owner filed an inverse condemnation claim against the United States in the Court of Federal Claims.  Over the owner’s objection that he was unaware of the taking until the migrant worker told him about it in 2004, the CFC dismissed the claim because it was filed outside the six-year statute of limitations.

The Federal Circuit affirmed. The claim accrued on the date of the taking — April 1999 — but the owner asserted the accrual…

Continue Reading Federal Circuit: 35k SF Government Borrow Pit On Your Property Not “Inherently Unknowable”

“Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted.”

Sierra Club v. Dep’t of Transportation, No. 29035 slip op. at 36 (March 16, 2009) (emphasis added)

If you take away nothing else from the 124 pages of majority and concurring and dissenting opinions in the second “Hawaii Superferry” case, remember that sentence.  It’s the key to the case and understanding the Hawaii Supreme Court’s recent willingness to put teeth into judicial review of legislation. In Superferry II, the court faced an interesting jurisprudential issue: whether Act 2, a statute most everyone who was paying attention just knew was designed to cover a single private entity was nonetheless a “general” law under the provision which requires that legislative power over state and county lands…

Continue Reading Hawaii Superferry II: Rooting Out Pretext In Legislative Actions