2013

If you were to try to predict the result in an appeal before the Ninth Circuit where the lead plaintiff is the “Alliance for Property Rights and Fiscal Responsibility,” the defendant is a municipality, and knowing nothing else, you’d probably have guessed wrong in this case.

In Alliance for Property Rights and Fiscal Responsibility v. City of Idaho Falls, No. 12-35800 (Dec. 31, 2013), the three-judge panel ruled unanimously in favor of the Alliance, holding that the city did not have the power to take property outside of its territory for the purpose of constructing electric transmission lines.

The panel (N.R. Smith, Schroeder, Thomas), held that the city lacked the power to take easements for power lines when state law did not delegate it the authority to act extraterritorially. The court started with the black-letter rule that munciipalities are creatures of state law, and cannot exercise powers not delegated…

Continue Reading 9th Cir: City Cannot Take Property Outside City Limits

We don’t usually hear much from the North Dakota Supreme Court. But here’s one that may have some interest. In Reep v. North Dakota, No. 20130110 (Dec. 26, 2013), the court held that the state owned the minerals up to the ordinary high water mark on navigable rivers, and always has, since statehood, under the Equal Footing Doctrine. The court also concluded that state statute did not give the state’s ownership interest in this property to private owners.

By itself, these rulings are not of particular interest. But read this article from the Bismarck Tribune (“State owns minerals to river high-water mark“), where one of the lawyers in the case is noted as saying, “Jan Conlin, the lead attorneyfor those individuals, said the ruling is disappointing and turns North Dakota’s own state law dating back to 1889 upside down.”

Now we don’t know anything about the state…

Continue Reading From North Dakota: The Next Judicial Takings Case?

Here’s the Brief Opposing Motion to Affirm, filed today (Dec. 26, 2013) in Kostick v. Nago, No. 13-456.

That’s the appeal currently pending in the Supreme Court challenging a ruling by a three-judge U.S. District Court upholding the 2012 Hawaii Reapportionment Plan against an Equal Protection challenge. The Plaintiffs assert that the 2012 Plan’s exclusion of 108,767 military, military families, and university students from Hawaii’s population count falls short of Equal Protection’s requirement of representational equality, and that the Plan’s 44% and 21% deviations from district population equality far exceed the Supreme Court’s 10% threshold for presumed unconstitutionality. Disclosure: we represent the Plaintiffs-Appellants.

The Brief in Opposition responds to the State of Hawaii’s Motion to Affirm, which, in turn was responding to our Jurisdictional Statement (remember, this is an appeal, not a cert petition):

“Nothing to see here folks, move along” is the State’s central theme in…

Continue Reading SCOTUS Brief In Hawaii Reapportionment Case: Exclusions From Population Are Not Reviewed Under “Rational Basis”

Check this out. In Patel v. City of Los Angeles, No. 08-56567 (Dec. 24, 2013), the en banc Ninth Circuit concluded that a city ordinance which requires hotel owners to open guest records for inspection to the LAPD without a warrant constitutes a “search,” and that doing so is a facial violation of the Fourth Amendment. As summarized by the court:

Plaintiffs, who are motel owners in Los Angeles, challenged the provision of § 41.49 authorizing warrantless, on-site inspections of hotel guest records by any police officer. The en banc court held that a police officer’s nonconsensual inspection of hotel guest records under § 41.49 constituted a Fourth Amendment “search.” The en banc court also held that even under the more lenient Fourth Amendment principles governing administrative record inspections, § 41.49 was facially invalid. The en banc court concluded that in order for the city to comply with the Fourth Amendment, it must afford hotel operators an opportunity to challenge…

Continue Reading En Banc 9th Cir: LA Ordinance Allowing Inspection Of Hotel Records Facially Invalid

The U.S. Supreme Court has declined to review an interesting case we’ve been following, about that big glass viewing platform over the Grand Canyon.

As we noted here, in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., 715 F.3d 1196 (9th Cir. Apr. 26, 2013), the issues mostly involve exhaustion, but there are some eminent domain questions that made the case worth following.  

The case involved the Hualapai Tribe’s efforts to condemn the rights of the non-Indian developer of the skywalk. A dispute arose between the developer and a corporation chartered by the tribe over a revenue-sharing contract, and while the corporation and the developer were arbitrating their disagreement, the tribe instituted an eminent domain action in tribal court to condemn the developer’s contractual rights.

The Ninth Circuit held that the developer would need to exhaust tribal remedies before the federal court could…

Continue Reading Interesting Cert Petition Denied: Can A Tribe Condemn Its Contract With A Nonmember?

Here’s one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisidictional ripeness.

In Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission’s subidivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken “final agency action” under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency’s approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county’s subdivision approval. 

The details of the case are set out at length in Chief Justice Recktenwald’s opinion, but here are the salient facts.

Continue Reading HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals

Here’s a short one for all you appellate procedure nerds.

We all know that under the Hawaii Rules of Appellate Procedure, the timely filing of a motion for reconsideration under Haw. R. Civ. P. 59 tolls the time when a notice of appeal must be filed to “until 30 days after entry of an order disposing of the motion.” Haw. R. App. P. 4. That same rule also provides that if the circuit court has not acted on the motion for reconsideration within 90 days after filing, the motion is deemed denied. So the question arose whether a party that wanted to appeal the circuit court’s ruling must have done so within 30 days of the “deemed denied” date, or it could wait until the court actually entered an order.

In Ass’n of Condominium Homeowners of Tropics at Waikele v. Sakuma, No. SCWC-12-0000870 (Dec. 17, 2013), the Hawaii Supreme…

Continue Reading HAWSCT: A Rule 59 Motion For Recon May Be Deemed Denied In 90 Days, But It’s Not Appealable Until An Order Is Entered

Here’s the Brief for the United States in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (filed Dec. 17, 2013).

That’s the case, set for argument on January 14, 2014, in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.

As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.

Brief for the United States, Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Dec. 17, 2013)…

Continue Reading Gov’t Merits Brief In Rails To Trails Case

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published an article which we wrote with our Damon Key colleagues Mark Murakami and Bethany Ace, Recent Developments in Eminent Domain: Public Use, 45 Urban Lawyer 809 (2013).

Here’s the Introduction to the article:

IN KELO V. CITY OF NEW LONDON, the United States Supreme Court held that a municipality’s exercise of eminent domain power supported only by claims that doing so would help the local economy was not a per se violation of the Public Use Clause of the Fifth Amendment. The Court’s majority—and especially Justice Anthony Kennedy’s concurring opinion, which provided the fifth vote to affirm—left open the possibility that some takings would not qualify. In the intervening time, however, the Court has not provided any guidance whatsoever about what takings it would consider unconstitutional private-to-private…

Continue Reading New Article: Recent Developments in Eminent Domain: Public Use