July 2016

Here’s what we’re reading today:

  • “Property Rights to Surf Breaks” – A topic near and dear, obviously. From the Property and Environment Research Center. (Yes, the article is from 2010. But it’s new to us.) “Overall, Kaffine finds that at higher quality surf breaks, locals engage in more attempts to restrict entry by nonlocals, resulting in more secure property rights at such locations. The possibility that the private creation of property rights would be more likely to emerge for more valuable resources was first suggested by Harold Demsetz (1967).” Check it out. 
  • “US economy less competitive, and it is the legal system’s fault: Expert” – From CNBC, a report concluding that “‘The quality of the legal system in the United States has declined in the sense that it no longer delivers the rule of law or protection of private property like it once did,’

…
Continue Reading Monday Reading List: Property Rights In Space, In The Surf, And Elsewhere

Civil procedure fans, rejoice. Here’s one to take you to the weekend.

We say that because although Laroe Estates, Inc. v. Town of Chester, No. 15-1086 (July 6, 2016), was a regulatory takings case, the issue — whether a third party could intervene — was not really dependent on the underlying Fifth Amendment claim. In that case, the U.S. Court of Appeals for the Second Circuit held that an intervenor need not show standing in order to intervene; it only needs to meet the requirements for as-of-right or permissive intervention under the federal rules of civil procedure. The rules that in order to intervene, an intervenor only have an interest at stake in the litigation, and need not have a vested “property interest” under the Fifth and Fourteenth Amendments.   

Sherman asserted a regulatory takings case against the town in federal court. After a visit to the Second circuit…

Continue Reading 2d Cir: Circuit Split? Meh. You Don’t Need Standing (Or A Property Interest) To Intervene In A Takings Case

We’re meeting some deadlines today, so we don’t have much time to digest in detail the closely split decision by the Pennsylvania Commonwealth Court in In re Condemnation by Sunoco Pipeline, L.P., No. 1979 C.D. 2015 (July 14, 2016). 

The short story is that the majority upheld the power of Sunoco to take private property for a natural gas pipeline against challenges that Sunoco lacked the power to condemn, was not a public PUC-regulated utility, and that the pipeline is interstate and not intrastate. 

The court rejected the property owners’ arguments that Sunoco’s pipeline is interstate, and because the Pa PUC can only regulate intrastate commerce, the pipeline takings are not for public use. Yes, the pipeline itself goes through Ohio and West Virginia, in addition to Pennsylvania, but originally, there were no Pennsylvania “offramps” on the pipeline, and Sunoco’s plans initially were for interstate service only. But after…

Continue Reading The Polar Vortex Made Us Do It: Pa Appeals Court Approves Pipeline Taking

We were all set to post our thoughts on the Illinois Supreme Court’s recent opinion in Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 (July 8, 2016), when we were beaten to the punch by Erin Baker, an associate of our colleague (and fellow U. Hawaii law alum) Julie Tappendorf. They posted “Illinois Supreme Court Addresses Takings Clause in Temporary Flooding Case” on their firm’s Municipal Minute blog.

She has all the details, and we recommend you read the post.

Short story is that land was flooded temporarily, allegedly by the Water District to avoid flooding at O’Hare airport, and the plaintiffs brought a claim for a taking under the Illinois Constitution. Since 1948, Illinois has had a judicially-created rule that temporary flooding cannot be a taking. But as we all know, the U.S. Supreme Court recently held that just because…

Continue Reading Illinois Supreme Court: Temporary Flooding Can Be A Taking, But There’s No Bright Lines In Flood Takings Cases

For those of you who have always wanted a career in appellate law, or who have mused about pulling up stakes and practicing law in the rarefied air of Hawaii’s appellate courtrooms, here’s your chance:

The Appellate Division of the Hawaii Department of the Attorney General seeks to fill two vacancies for Deputy Solicitors General. The position provides a unique opportunity to specialize in civil and criminal appeals, many involving constitutional issues. Applicants must be licensed in Hawaii and possess strong analytical, research, and writing skills. Please send resume (including law school GPA and rank), writing sample, and completed Application for Deputy Attorney General (download from http://ag.hawaii.gov/employment/), postmarked by July 15, 2016:

Department of the Attorney General
Appellate Division
425 Queen Street
Honolulu, Hawaii  96813
Tel: (808) 586-1360

Come on, live the dream!Continue Reading Live The Dream, Appellate Master: Job Opening

Arlington

Here’s the amici brief we filed today in a fascinating case we told you about recently. 

The core issue in Brott v. United States, No. 16-1466, which is currently being briefed in the Sixth Circuit, is whether plaintiffs who allege the United States took their property in a rails-to-trails case can only bring their lawsuit for just compensation in the Court of Federal Claims. They filed suit in a U.S. District Court, and the case was dismissed for lack of jurisdiction.  

Our brief, filed on behalf of the National Association of Reversionary Property Owners, the Property Rights Foundation of America, the Pioneer Institute, and Professor Shelley Ross Saxer, supports the property owners’ arguments that they are entitled to file the case in an Article III court. The owners’ brief covers the issues very well, and we didn’t repeat their arguments.

Rather, we covered a somewhat forgotten decision…

Continue Reading Amici Brief: “the hallmark of our American system is that we do not have kings lording over us who must first consent before they can be sued in their own courts.”