July 2018

Here’s the opinion in a case we’ve been following. In Berkley v. Mountain Valley Pipeline, LLC, No. 18-1042 (July 25, 2018), the U.S. Court of Appeals for the Fourth Circuit held that the federal Natural Gas Act allows the Federal Energy Regulatory Commission to delegate eminent domain authority to Mountain Valley, and that any challenges to that authority must be done via the NGA’s administrative review process.

Under the NGA, once FERC makes a finding of future public convenience and issues a certificate, a pipeline company like Mountain Valley which has been issued a certificate is automatically transferred the power to take private property as a plaintiff in a federal court condemnation action. The NGA provides for an administrative process to challenge the issuance of a certificate, which begins with the request for a rehearing in FERC. If FERC denies that, the next step is judicial review of the administrative record…

Continue Reading Fourth Circuit: Challenge To Natural Gas Act Delegation Of Eminent Domain Power Must Go Through Admin Process First

Stewart Yerton (a reporter who is also a lawyer) today published this report (“This Murky Law Could Give The Governor Broad New Powers“) in Honolulu Civil Beat about a new Hawaii statute that gives administrative agencies the power to adopt emergency rules to respond to court rulings. 

Is the statute innocuous, merely a new tool to make agencies more nimble and able to react more quickly to state and federal court rulings? Or is it something more, a way to bypass the usual rules about rules, provided there’s a real or perceived “emergency?”

Here’s how we responded when asked what we thought: 

Arsenic

(We wish we could take credit for that pithy line, but it’s a paraphrase of one of the (many) quotable lines from the Burt Lancaster/Tony Curtis classic noir Sweet Smell of Success.)

And that’s what this statute looks like to us — maybe harmless (as…

Continue Reading When An Agency Is Given Emergency Powers, Pretty Soon Everything Looks Like An “Emergency”

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Here’s the latest in a case we’ve been following, a regulatory takings dispute from the Big Island of Hawaii. 

Last we reported, the jury (after deliberating for a grand total of 15 minutes) held the State of Hawaii Land Use Commission liable for a regulatory taking. But unbeknownst to the jurors, the court had already entered summary judgment for the State that the most the owner could recover as just compensation was nominal damages of $1.

The State then renewed its (denied) motion for summary judgment on liability, or alternatively sought a new trial. In this order, however, the District Court denied the motion, concluding that Aina Lea’s property right was not a “limited” right even though by the time of the case it had sold some of its rights to another entity:

Even taking the State’s characterizations of the record at face value, they support, at…

Continue Reading No New Trial In Hawaii Regulatory Takings Case; Next Stop, Ninth Circuit

Here’s what we are reading (or listening to) this Tuesday:

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Continue Reading Tuesday Reading List – Flood Takings, Cuba Property, Beach Access, And … Space Aliens

Clare Trapasso has a Realtor.com piece on what a Justice Kavanaugh could mean for real estate, property, and land use issues, “What Supreme Court Nominee Brett Kavanaugh Could Mean for Real Estate,” where she correctly notes that “while commentators have been scrutinizing Kavanaugh’s record on hot-button topics like abortion and immigration, there’s been little discussion of what a more conservative court could mean for home buyers, sellers, and owners.”

She asked us for input, and here’s what we said:

“The Supreme Court has done some very interesting things on land use law that affect homeowners,” says Robert Thomas, a real estate attorney specializing in land use and eminent domain at the Honolulu-based law firm of Damon Key Leong Kupchak Hastert.

Thomas expects more property-related cases will make their way to the Supreme Court, brought by people hoping that the new bench will increase their odds of a…

Continue Reading What Might A Justice Kavanaugh Mean For Takings, Land Use, And Other Issues?

The City’s sewage pipe backed up into several residences. The City has known for decades that these pipes were “cracked, structurally unsound, and that they had significant root intrusion.” The City took measures, but apparently these were not enough, and after “an extremely intense rain and hail storm,” three million gallons of wastewater overflowed into adjacent streams, and backed up into the plaintiffs’ basements. 

They sued the City for negligence, trespass, and for physical takings. 

In Lorman v. City of Rutland, No. 17-158 (June 29, 2018), the court affirmed the dismissal of all of the claims. Slip to page 20 of the slip opinion for the takings analysis, where the court starts off by noting that the takings tests under the U.S. and Vermont Constitutions are “virtually the same,” and (unlike torts) the government is not immune. Slip op. at 20. For a loss of property to be compensable…

Continue Reading Vermont: Sewage Backup Wasn’t Permanent, Therefore No Taking

Here’s one that’s been a long time coming (or coming back, more accurately).

In this recently-filed cert petition, the issue is whether an “exaction” imposed by the legislature should be subject to the nexus and rough proportionality requirements of Nollan, Dolan, and Koontz, or is merely subject to rational basis review (i.e., no review at all). 

The last time this issue was presented to the U.S. Supreme Court after the California Supreme Court concluded that an exaction imposed by the City of San Jose wasn’t really and “Exaction,” and was only a land use regulation (as if the label matters), the U.S. Supreme Court declined to consider the issue. Now its back, by way of what looks like a very tight “vehicle” for the Court (the Maryland Court of Appeals decided the issue squarely under federal law). 

Here’s the single Question Presented by Dabbs v. Anne Arundel…

Continue Reading New Cert Petition: Legislatively-Imposed Exactions Subject To Nollan-Dolan-Koontz?

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Here are the cases and other items I either spoke about or mentioned at today’s Transportation Research Board‘s 57th Annual Workshop on Transportation Law in Cambridge, Massachusetts:

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Continue Reading Links And Materials From Today’s Transportation Research Board Session