May 2015

For those of you who are members of the ABA Section of State and Local Government Law’s Land Use Committee (if you aren’t, you can become a member easily; just ask me how), please tune in on June 12, 2015 for our monthly teleconference.

Here’s the announcement:

Our third meeting is scheduled for Friday, June 12, 2015 at 2:00 pm EDT, and we will be featuring as our speaker, Robert Thomas, a land use lawyer and publisher of the law blog inversecondemnation.com (who is also the Chair of the Section’s Eminent Domain Committee) who will present a 20 minute program about the key takings case now awaiting decision by the U.S. Supreme Court, Horne v. United States Dep’t of Agriculture. 

FREE Teleconference Sponsored by the Land Use Committee
Friday, June 12, 2015
2:00 p.m. EDT
Dial-in 888-3967955
Passcode 797687#

Everything a Land Use Lawyer Needs To Know About …

Continue Reading Mark Your Calendars June 12, 2015: Free ABA Teleconference “Everything a Land Use Lawyer Needs To Know About Dancing California Raisins: A Report From the Oral Arguments in Horne v. USDA”

As we recognized earlier this week when the U.S. Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii’s current approach to state legislative reapportionment — under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population were expressly excluded from representation in the Hawaii Legislature) — seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.

The Wall St. Jounal Law Blog today posts “Hawaii Military Carve Out May Play Role in Voting District Case,” noting:

Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on…

Continue Reading WSJ Law Blog: “Hawaii Military Carve Out May Play Role in Voting District Case”

An interesting decision with an international flavor from the Court of Appeals for the D.C. Circuit, Helmerich & Payne Int. Drilling Co. v. Bolivarian Republic of Venezuela, No. 13-7169 (May 1, 2015).

We suppose that if you are a U.S. oil exploration company operating in Hugo Chavez’ Venezuela, you get used to entertaining a certain amount of risk. But for more than 50 years prior, Helmerich “successfully operated an oil-drilling business in Venezuela through a series of subsidiaries.” Slip op. at 3. But in 2008, after PDVSA, the state-owned oil corporation fell behind in its rig lease payments to Helmerich’s subsidiary and the subsidiary “disassembled its drilling rigs and stacked the equipment in its yards,” the Venezuelan government decided to do something about it:

[O]n June 12, 2010, PDVSA employees, assisted by armed soldiers of the Venezuelan National Guard, blockaded H&P-V’s premises in western Venezuela, and then did the…

Continue Reading Public Use, Venezuelan Style: Nationalization Of Oil Rigs Could Be A “Discriminatory Taking”

California law requires a condemnor to present to the property owner a final pre-trial settlement offer 20 days before trial, and for the property owner to make a final demand. If a court later determines that the condemnor’s final offer was unreasonable and the property owner’s final demand was reasonable, the property owner is entitled to litigation expenses. 

In City and County of San Francisco v. PCF Acquisitionco, LLC, No. A139836 (May 26, 2015), the court concluded that the offer by the city, which “was expressly made ‘contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board]’,” was unreasonable as a matter of law because it wasn’t a “final offer.” Thus, the trial court wrongly denied the property owner’s request for fees and costs. 

The court held that the…

Continue Reading Cal App: Condemnor’s “Final” Pretrial Offer, Contingent On Approvals From Other Agencies, Isn’t Really Final, Is It?

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we’ve done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we’ve been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment’s Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states…

Continue Reading SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

BfB Full from rumur on Vimeo.

Those of you who have followed the blog for a while know that we’re big fans of the documentary film about the Atlantic Yards eminent domain fight in New York, “Battle for Brooklyn.” See our review here, for example.

If you haven’t had a chance to see it, or just want to see it again, the filmmakers have made it available for streaming.

No spoiler alert because you already know the result of that case. But as we wrote in our review on why the film is very worthwhile, “Battle For Brooklyn explains why property owners fight the taking of their homes and businesses, even when that fight is uphill.” 

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To But Not Through: Bluegrass Pipeline Must Be PUC-Regulated For The Benefit Of Kentucky Consumers To Use Eminent Domain
Save The Date For Free ABA Program: “Municipal

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Continue Reading Eminent Domain Docfilm “Battle For Brooklyn” Now Streaming

For those of you who might ever have contemplated pulling up stakes and relocating your law practice to the last major inhabited time zone on Planet Earth, check out “A Tale of Two Cities: Honolulu and San Francisco,” by Nick Kacprowski, a lawyer at a “large” Honolulu law firm who recently transplanted from San Francisco BigLaw, and wrote about his perception of the differences for the ABA Section of Litigation. 

Although he’s newer to the Hawaii scene and therefore hasn’t had the time to appreciate some of the layers and contexts of practicing in our smaller jurisdiction, there is much truth in what he writes. A sample:

One difference that immediately struck me was the level of experience and age of my colleagues at the top firms in Hawaii. I graduated law school in 2004, and when I left Kirkland I considered myself one of the more…

Continue Reading Big Law vs. Honolulu’s Not-So-Big Law

As the Star-Advertiser reports here (“State pays newspaper for nominees battle“), Hawaii Governor David Ige has signed a bill which appropriates funds for the State to pay a portion of the legal fees and costs incurred by the Star-Advertiser during its lawsuit which compelled former Governor Neil Abercrombie to stop keeping secret the list of judicial nominees which the Judicial Selection Commission presents to the governor. 

We represented the Star-Advertiser in that case, which took several years to fully resolve because of a collateral appeal — ultimately decided in the Star-Advertiser‘s favor by the Hawaii Supreme Court — involving the attorneys’ fees and costs which are required under Hawaii’s public records statute: 

Although the newspaper quickly won on the merits of the case, the long dispute over fees raises new concerns “because most individuals do not have the time and/or money to pursue a case like this…

Continue Reading Final Chapter In Judicial Selection Commission List Public Records Case

In a case we’ve been following, the Kentucky Court of Appeals has affirmed a trial court ruling which held that a pipeline company could not exercise the power of eminent domain. 

The Bluegrass Pipeline is a 1,100+ mile private pipeline that would deliver natural gas from the Marcellus and Utica shale formations to the Gulf Coast. It is planned to run through 13 Kentucky counties, although there are no “offramps” for the natural gas actually in Kentucky. 

In Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain Eminent Domain, No. 2014-CA-000517 (May 22, 2015), the Court of Appeals concluded that the pipeline company did not have eminent domain power because it was not regulated by the Public Service Commission, and therefore was not “in public service” as required by Kentucky eminent domain statutes. See Ky. Rev. Stat. § 278.502 (“Any corporation or partnership organized for the purpose of ……

Continue Reading To But Not Through: Bluegrass Pipeline Must Be PUC-Regulated For The Benefit Of Kentucky Consumers To Use Eminent Domain

Not much new in the Federal Circuit’s opinion in Resource Investments, Inc. v. United States, No. 14-5069 (May 12, 2015), which upheld the dismissal of a Court of Federal Claims takings complaint for lack of jurisdiction under of 28 U.S.C. § 1500. 

That statute, as federal takings mavens know (and as the Supreme Court recently held in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011)), deprives the CFC of subject matter jurisdiction if there’s a claim based on the same operative facts “pending in any other court any suit or process.” In this takings case, the property owner filed its CFC complaint — which alleged that the feds’ denial of a Clean Water Act permit was a taking — while its lawsuit challenging the permit denial under the Administrative Procedures Act was still pending in the Ninth Circuit. Same underling facts and a pending…

Continue Reading Protip: File Your CFC Complaint First, And Then File Your District Court Action – Even If It Makes No Sense