October 2011

A reminder: on Tuesday, November 1, 2011, from noon to 1:00 p.m., I’ll be making a presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. EPA, No. 10-1062 (cert. granted June 28, 2011).

The venue is the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street. We’ll talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do.

We may also discuss other pending cases of interest, if there’s time. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

Also, for those who are…

Continue Reading Tuesday State Bar Session On Sackett v. EPA

Posted here. These are the exhibits attached to these pleadings.

Exhibits Attached to governor’s Motion for Summary JudgmentContinue Reading Exhibits To Governor’s Motion For Summary Judgment And Opposition To The Star-Advertiser’s Motion For Summary Judgment In The JSC Case Case

gilmartinWe’re not all that down with the “occupy movement.” It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month’s Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.

An “innovative and tenacious builder” who has “left her mark” on the New York skyline, “she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets.”

The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City…

Continue Reading The Eminent Domain One-Percenter

Governor Abercrombie filed his opposition to the Star-Advertiser‘s motion for summary judgment, and his own cross-motion for summary judgment in the case in which the Star-Advertiser seeks disclosure of the JSC list from the Governor. The exhibits attached to these documents are posted here. [Disclosure: we represent the Star-Advertiser.] The hearing on these motions is scheduled for November 14, 2011 at 9:30 a.m.

Previously filed documents: the Complaint is posted herehereStar-Advertiser’s motion for summary judgment is posted here.

Gov Abercrombie Opposition to Motion for Summary Judgment/Cross-Motion for Summary Judgment, Oahu Publicati…Continue Reading Gov Abercrombie’s Opposition And Cross-Motion For Summary Judgment In JSC List Case

You remember the Hawaii Superferry, don’t you? In case your memory doesn’t go back that far, here are our posts on the Hawaii Supreme Court’s first opinion, and here are our thoughts on the second. What brings up this case now is then-Governor (and present U.S. Senate candidate) Linda Lingle’s recent statement, quoted by Honolulu Civil Beat:

“I want to be clear on this point and on the record. And I want you to share this with everybody you talk to: Remember that nothing was done wrong with Superferry — nothing,” Lingle said. “Let me elaborate. Some people talk about an EIS when they talk about the Superferry. There was never an EIS required of any interisland vessel. Not before and not since, that I’m aware of.”

Civil Beat followed up with a “fact check,” asking whether her statements were true or not. CB concluded:

Lingle said “nothing was…

Continue Reading Was Lingle “False” When She Said “Nothing Was Done Wrong with Superferry”?

Here’s a worth-reading decision from the U.S. Court of Federal Claims (the court that has exclusive jurisdiction to hear major regulatory takings claims agains the federal government), litigated and won by colleague Mark (Thor) Hearne, II.

In Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011), the CFC concluded the federal government granted the property owners’ summary judgment on their takings claim. Rail-to-trails cases are detailed (see Preasault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) and pages 2-3 of the CFC’s opinion for the legal framework), but the short story is that the railroad easment the property owners gave the federal government many years ago does not extend to its use as a recreational trail:

The court finds that the railroad’s easements in these Plaintiffs’ properties in the northern segment were for railroad purposes and that, for the same reasons…

Continue Reading Rail To Trail Fail: CFC Finds A Taking In A Railway Conversion

IMG_6999

“Yosemite,” according to California Place Names, Erwin Gudde’s seminal work on the origins of (surprise) California place names, means “they are killers.” It was “[e]vidently a name given to the Indians of the valley by those outside it.”

I raise this historical tidbit because I must admit to feeling a little like “those outside it” when I was invited to speak about regulatory takings at the California State Bar’s Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn’t going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about “they are killers” was not accurate — the audience, while not exactly…

Continue Reading Yosemite Seminar Summary – Regulatory Takings: Looking Back And Looking Forward

The City of Hayward, California, was concerned that residential rentals within its borders were “decent, safe, and sanitary,” and by ordinance required the owners or tenants of such units to allow city officials to inspect them. If an owner or tenant refused, the “Enforcement Official” was authorized to procure an “inspection warrant” and levy a monetary fine on the property owner.

An association of rental owners sought a writ of mandate, challenging the ordinance because it violated the Fourth Amendment, among other reasons. The trial court granted the writ and held the ordinance facially invalid because it compels a property owner to provide access to a tenant’s residence without tenant consent, and violates the substantive due process rights of the property owners because it levies a monetary penalty on a property owner even when the tenant is the one refusing to allow inspection.The court enjoined enforcement of the ordinance.

The…

Continue Reading Cal App: City May Enter Rental Property To Make Inspections

The Natural Resources Section of the Hawaii State Bar Association has kindly asked me to speak to its members at their monthly lunch meeting, next Tuesday, November 1, 2011, from noon to 1:00 p.m. at the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street.

I’ll be discussing the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

The issue now before the Court is whether the Ninth Circuit correctly concluded that property owners who contested the EPA’s Clean Water Act jurisdiction could do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA’s authority. Sackett v. EPA, 622…

Continue Reading Upcoming Hawaii State Bar Association Presentation: Sackett v. EPA – Immediate Judicial Review Or Death By A Thousand Days?

Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He’s summarized his thoughts and insights in “Going Red on Property Rights,” posted at the Hoover Institute’s site. He writes:

Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I’m writing my wrap-up of the Conference and will post it shortly.

In the meantime, I offer this little story.

A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

A few seconds later, a car comes up behind them.

In Beijing, pedestrians decidedly do not have the right of way.

“Get out of the road!” we call out.

Epstein slowly turns around, looks at the car, looks at us, and says with a smile, “sidewalks are for mere mortals.”

(But he does get out of the road.)
Continue Reading Brigham-Kanner Property Rights Conference – “Mere Mortal” Professor Richard Epstein on “Going Red on Property Rights”