May 2012

The federal government has filed its invitation brief in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the cert petition asking the U.S. Supreme Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptons conferred on lessees of Hawaiian Homesteads.

Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions. The petitioners are not “native Hawaiians” and thus are not lessees, and paid their property taxes under protest. When they sought refunds in the Hawaii Tax Appeals Court and argued that they should also be exempt, that court concluded that “native Hawaiian” was not a racial classification and did not review the tax exemption with strict scrutiny. Instead, the court upheld the exemption under rational basis review. The Hawaii Supreme Court vacated the Tax Court decision…

Continue Reading Obama Administration’s Amicus Brief: Deny Cert To Case Challenging Property Tax Exemptions For Hawaiian Homestead Lessees

Earlier today, the Hawaii Supreme Court heard oral argument in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)

As we wrote earlier today in our post-argument summary, it does not look good for the City and the State.

If you want to listen to the arguments, stream the recording here:

Or you can download it here.

Hawaii law requires that the government must undertake a survey and consult with persons who are descendants of “iwi kupuna” (Native Hawaiian buried remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be …

Continue Reading HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review?

As of 10:00 a.m., the $4+ billion Honolulu rail project is officially in jeopardy.

Update: full report on the oral arguments here.

The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and it does not look good for the City and the State. The court’s majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to “segment” or “phase” it, and thereby put off evaluation of the entire project’s possible impact of burials. 

In the film “The Descendants,” George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title. Hawaii law requires that the government consult with…

Continue Reading The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger

In Johnson v. Des Moines Metropolitan Wastewater Reclamation Authority, No. 11-0444 (May 18, 2012), the Iowa Supreme Court held that two separate condemnation cases should not have been consolidated even though each case involved the taking of part of the same parent tract of land from the same landowner. The court concluded that these facts alone were not enough, and that other considerations demonstrated that the cases should be heard separately:

  • different condemnors were taking the parcels – the court rejected the owner’s claim that the taking authorities were “similar”
  • the takings were instituted four months apart
  • different reasons supported each condemnation (one was for a street relocation and to support a nearby airport, while the other was for a sewer connection)

The court rejected the trial court’s determination that the fact the property owner was using the same expert witnesses in both cases created “common issues of fact…

Continue Reading Iowa: Close Relationship Needed For Consolidating Eminent Domain Actions

UtahblogCheck this out: my Owners’ Counsel of America colleague Kevin E. Anderson has a blog on eminent domain and related issues, forcusing on decisions from the Utah state and federal courts, Eminent Domain Review.

It’s not a new blog (Kevin has been posting since at least 2011), but it’s new to us, so we though we would pass it along to you.

Among the categories he covers are the latest cases from the Utah Supreme Court, just compensation issues, and regulatory takings.

We’re subscribing, and so should you.Continue Reading New(er) Eminent Domain Law Blog Worth Following

In a big development project such as the $4+ billion Honolulu rail, must environmental review under state law be undertaken taking into account the entire project, or can it be done on a segment-by-segment basis?

That’s the question the Hawaii Supreme Court will consider this Thursday, May 24, 2012, when it hears oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611. The circuit court didn’t think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the environmental reviews (the alleged impact of the the project on archaeological sites, including burials).

Here’s the short description from the Judiciary web site:

Kaleikini argues that the Honolulu High-Capacity Transit Corridor Project should be enjoined because the Programmatic Agreement and Final Environmental Impact Statement for the project permitted a “phased approach” to the required archeological inventory survey (AIS), rather than requiring that an…

Continue Reading Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?

In Larson v. Sinclair Transp. Co., No 09SC966 (May 21, 2012), the Colorado Supreme Court held that a state statute does not grant a company such as Sinclair the ability to take property for the construction of petroleum pipelines.

The statute, Colorado Rev. Stat § 38-5-105, is not exactly elegant in its wording:

Such telegraph, telephone, electric light power, gas, or pipeline company or such city or town is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof. Whenever such company or such city or town is unable to secure by deed, contract, or agreement such rights-of-way for such purposes over, under, across, and upon the lands, property, privileges, rights-of-way, or easements of persons or corporations, it shall be lawful for such telegraph, telephone, electric light power…

Continue Reading Colorado: Company Lacks Eminent Domain Power To Construct Gas Pipeline

We couldn’t post much last week due to a pressing engagement on Friday before a three-judge federal district court (the case challenging Hawaii’s latest state reapportionment plan on Equal Protection grounds in which we represent the plaintiffs — more here). But the court took the matter under submission, so while we are awaiting a ruling we can clear off some of the backlog of items.

First, you will recall R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here, in which the Third Circuit held that a property owner did not actually or impliedly litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court.

Apparently, a property owner even having a chance of vindicating its federal constitutional rights…

Continue Reading Amicus Brief: Federal Takings Claims And State Law Claims … Ehh, What’s The Difference?