2015

An op-ed piece in today’s Star-Advertiser by Judge (Ret.) Walter Heen and U. Hawaii lawprof Randy Roth asks “What is OHA?“

For those of you who don’t already know, “OHA” is the Office of Hawaiian Affairs, a governmental entity created by the 1978 amendments to the Hawaii Constitution. But what the acronym stands for is not the question they are asking. Rather, they ask whether OHA is a state agency, or is some kind of quasi-governmental trust:

The Hawaii State Constitution has established an Office of Hawaiian Affairs to own and manage property “in trust.” The Constitution further provides for an elected board of trustees.

In “Regulating Paradise,” University of Hawaii law professor David Callies has described OHA as “operating as a public trust.”

In “Who Owns the Crown Lands of Hawaii?“, the late Jon Van Dyke pointed out that OHA is “self-governing” and…

Continue Reading What Is The Office Of Hawaiian Affairs, Asks Op-Ed. Short Answer: A “Public Agency”

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Whatever you might celebrate at this time of year — Christmas, Chanukah, Kwanzaa, Festivus, or whatever (or even if you don’t celebrate anything except good cheer and gift giving) — here’s our suggestion for the gift for the takings nerd in your life: Professor Ilya Somin’s fantastic book, “The Grasping Hand: Kelo v. City of New London & The Limits Of Eminent Domain.”

It’s a book that is both scholarly and readable, and filled with details, history, and perspective. You can’t do better than this. Available as both an e-book and in hardback (for you luddites).

Highly recommended. 

Note: Professor Somin is one of the featured speakers at the upcoming ALI-CLE Eminent Domain and Land Valuation conference in Austin, Texas (January 28-30, 2016) where he will talk about the book and recent developments in our favorite area of law. 

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Kelo At 10: Still Stinks, And A

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Continue Reading Holiday Gift Suggestion For Takings Nerds: Lawprof Somin’s Kelo Book “The Grasping Hand: Kelo v. City of New London & The Limits Of Eminent Domain”

Here’s the latest on the now-cancelled “Nai Aupuni” Hawaiians-only poll/election, described by one local commentator as having “the integrity of a Costco membership,” and by Election law maven Rick Hasen as the “Oprah” theory of elections after the organization cancelled the extended vote and invited all candidates to come to the convention once the U.S. Supreme Court enjoined the counting of ballots and certification of the election (in other words, all candidates were elected):

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Continue Reading Latest On The Hawaiians-Only-Oprah/Costco-Everyone-Wins Election

One for all you Court of Federal Claims mavens: a new cert petition, filed On Wednesday, that once again puts front and center 28 U.S.C. § 1500, the statute which bars the CFC from hearing claims that are “pending in any other court” against the United States.  

The statute was last interpreted by the Supreme Court in United States v. Tohono O’Odham Nation, 563 U.S. 307 (2011), a case in which the Nation alleged in a District Court lawsuit that the federal government had breached trust duties it owed. Almost immediately thereafter, the Nation filed a claim in the CFC for money damages based on the same theory. The CFC’s limited jurisdiction does not allow it to hear claims for declaratory relief, and District Courts are without power to make the federal government pay significant money damages. Meaning that claims like the Nation’s (and takings claims…

Continue Reading New Cert Petition: Federal Circuit Expanded § 1500’s Jurisdictional Bar

We always enjoy reading the briefs filed by the Center for Constitutional Jurisprudence because they reference “first principles” and are usually heavy on the history. We like history. 

This amicus brief, filed by CCJ today in support of the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015), is no different. It argues that the “state procedures” prong of Williamson County should be overruled, or at least confirmed as a prudential (and not jurisdictional) requirement:

Apart from the procedural trap that Williamson County creates, Amicus Curiae urges this Court to reexamine the state litigation rule because the requirement is not firmly established in the text of the Takings Clause and it represents a significant departure from the original understanding of the right at issue. Stated succinctly, the Fifth Amendment requires that compensation be paid when the government takes property…

Continue Reading Amicus Brief: Williamson County’s State Procedures Requirement Is Ahistorical

Here’s one more amici brief supporting the the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). (Here is the first amicus brief filed today, and here’s the second.) 

This one — on behalf of the National Federation of Independent Business Small Business Legal Center, and lawprof Ilya Somin — we assisted on, with the heavy lifting being undertaken by NFIB’s Luke Wake. Our brief takes a slightly different approach than the others, although we too call for the Court to revisit Williamson County:

Thirty years ago, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), this Court pronounced a new and unfounded rule that a property owner must sue in state court in order to ripen a federal takings claim. This marked a radical departure from the historic practice. There…

Continue Reading One More Amici Brief (Ours): Time To Ditch Williamson County’s State Procedures Requirement

Here’s the second amicus curiae brief supporting the the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). (Here’s the first.) 

This brief was filed by the Institute for Justice, and authored by Supreme Court takings maven Michael Berger:

1. It is time for the Court to reconsider Williamson County’s state court litigation prong, which requires state court confirmation that there is no state remedy for a governmental taking of property. Only then will a 5th Amendment claim be “ripe” for federal court litigation. The premise of that rule goes beyond the plain language and meaning of the 5th Amendment. A municipality’s taking of private property without just compensation is complete when property is taken and compensation is not paid by the government. It does not require a judicial determination to complete, or ripen, the taking.

Continue Reading Amicus Brief: You Guessed It – Reconsider Williamson County

Here’s the first in a series of amicus briefs we’re going to post which urge the Supreme Court to grant the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). 

This amicus brief was filed by the Cato Institute, and like the petition, asks the Court to take the case in order to reconsider Williamson County‘s “state procedures” rule:

This case presents an opportunity for this Court to rectify a significant anomaly in its jurisprudence: the blanket exclusion from federal court of numerous constitutional rights cases arising under the Takings Clause of the Fifth Amendment. Under this Court’s decision in Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), a property owner’s claim that a state government has taken his property without paying “just compensation,” as required by the Takings…

Continue Reading Amicus Brief: Reconsider Williamson County’s “State Procedures” Requirement

Here’s the first in a series of posts we’re going to put up, with the cert petition and the supporting amici briefs (ours included) in Arrigoni, Ent., LLC v. Town of Durham, No. 150631 (petition filed Nov. 10, 2015).

In that case, the Second Circuit in a two-sentence ruling, summarily affirmed the District Court’s dismissal of Arrigoni’s regulatory takings claim under the “state procedures” prong of Williamson County, because the property owner “failed to ‘seek compensation through the procedures the State has provided for doing so.'” Slip op. at 2.

The petition poses these Questions Presented:

1. Whether the Court should reconsider, and then overrule or modify, the portion of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), barring property owners from filing a federal takings claim in federal court until they exhaust state court remedies, when this rule results…

Continue Reading Cert Petition: Overrule Williamson County!

Here’s a case we’ve been following for quite a while, waiting for the opinion to drop.

And now it has. In State v. Palama, No. CAAP-12-0000434 (Dec. 11, 2015), the Hawaii Intermediate Court of Appeals, in an unpublished memorandum opinion, upheld the trial court’s dismissal of criminal trespass charges against a fellow who asserted that his unpermitted entry on private property was privileged because he was exercising his traditional and customary native Hawaiian right to hunt feral pigs.

Pig hunting in this case involved dogs and a knife, not guns. For more on this practice, see this 2013 New York Times story (“Hunting Pesky Pigs in Paradise“). For more on the background of the case and the arguments, see the opinion, this post from the KauaiEclectic blog, or the briefs of the parties and amici filed in the ICA:

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Continue Reading Strategic Nonpublication By The Court Of Appeals: Pig Hunting Is A Traditional And Customary Hawaiian Practice (In This Case)