August 2018

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You’ve known for a while that Palm Springs, California, specifically the Renaissance Palm Springs Hotel (a resort facility, but right in town, so you will have many options for “off campus” activities like art museums, the aerial tram, golf, and whatever suits your fancy, and close-in to the Palm Springs Airport), is the venue for our 2019 ALI-CLE Eminent Domain and Land Valuation Litigation, January 24 through 26, 2019.

Of course, you also knew that the programming would be the usual spread of topical and cutting-edge topics, presented by some of the nation’s experts. But we didn’t give you the details. So here are some of the programs we’re having: 

  • Keynote Address: “Property Rights: Foundation for a Free Society” – Taylor Revley, most recently the past President of the College of William and Mary, and also former law school Dean (as well as a

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Continue Reading ALI-CLE 2019 Eminent Domain And Land Valuation Litigation Conference, Palm Springs Agenda – Register Now!

A quick one today because we’re offline (more on that later). Pacific Legal Foundation (the folks who are representing the property owner in the pending case challenging the continuing viability of the Williamson County ripeness doctrine), has posted this entry on their blog, “This monkey got his day in court. Property owners still can’t.”

The post focuses on the brief we filed in the case on behalf of the Citizens’ Alliance for Property Rights Legal Fund, which notes the disparity between a monkey having standing to bring a suit in federal court to protect its (alleged) (intellectual) property rights, but human property owners like Ms. Knick having no right to do the same when asserting her plain old property rights. 

Our brief didn’t focus on the monkey background, so here it is:

In 2011, nature photographer David Slater set up camera equipment for a group of wild…

Continue Reading Monkey Selfies And Takings Ripeness

According to this story (“California moves closer to taking public pathway from billionaire Vinod Khosla“) in the Santa Cruz Sentinel, the State of California is considering exercising eminent domain to take an easement for public access over his San Mateo County property to access Martins Beach. 

This is the case that resulted in a cert petition after the California Court of Appeal ordered the owner to open up the route to the beach across private property which the previous owner had kept available to the public, but which Khosla closed. As we noted in this post (“Our Unfiled* Amicus In The California Beach Access Case“), the case involves an effort to open back up an access route to the beach across what is now Khosla’s land, simply because his predecessor allowed access (no good deed goes unpunished). After Khosla purchased and closed access, the Surfrider…

Continue Reading From The “Be Careful What You Wish For” Department: California May Take Beach Easement

Here’s a short but interesting one from the U.S. Court of Appeals for the Sixth Circuit. It isn’t exactly about the usual topics we cover, but is interesting enough that we thought we would post it. 

The case involves old deeds (dated between 1922 and 1957) in the Adams County, Ohio recorder’s office, which contain unenforceable racially restrictive covenants. (You remember back in law school where you learned that these things can’t be enforced because the Supreme Court in Shelley v. Kraemer, 334 U.S. 1 (1948) prohibited courts from doing so, even if the contracts were private.)

The plaintiffs in Mason v. Adams County Recorder, No. 17-3605 (Aug. 28, 2018) objected to the objectionable deed language remaining on public record in the recorder’s office:

Mason maintains that the practice of county recorders to permit documents with restrictive covenants in the chain of title to be recorded or…

Continue Reading Damnatio Memoriae Be Damned: “Feeling Unwelcome” By Old Deeds With Racially Restrictive Covenants Isn’t Enough For Article III Standing

Kearney had her property taken. The school district doing the taking said it wanted to put a septic system on the property, and so commissioned a percolation study. But then it decided that instead, it would connect to a sewer system. The state court jury believed neither side’s appraiser completely, rejecting both Kearney’s appraisal ($1.4 million), and the district’s ($850k), and instead settled on $953,000. 

After trial, Kearny learned about the percolation study. For whatever reason, the district hadn’t disclosed the results, something that Kearney apparently believes was critical to value. On that basis, she sought a new trial, and when the Superior Court denied it, sought and was denied relief in the Court of Appeal (that court essentially put the blame on her, noting “that Kearney should have more timely and thoroughly pursued discovering the test results before trial”).

Finding no relief in state court, she went across the street…

Continue Reading Ninth Circuit: New Trial Motion, Not Federal Lawsuit, Is Condemnee’s Only Chance To Show Suppressed Evidence Affected Compensation Award

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While the rest of my Damon Key colleagues are back home hunkering down due to the hurricane threat (we’re all fine, thank you to those who have inquired and sent good wishes), I am 6 time zones east about to begin the semester at William & Mary Law School, where I am teaching a course in the fall. Went to my new office space to get set up and found the above. Nice (and thank you Joe, for affording me this great honor).

A hurricane-related programming note: as a precaution, our Honolulu offices are closing at 12 noon today, and will reopen next week. In the interim, the hawaiilawyer.com email servers will also be taken offline as a security measure, and emails sent to me or my firm will not be delivered and may be returned to the sender. Continue Reading New Office Sign And Hurricane Lane Programming Notes

There’s a lot to digest in the Ninth Circuit’s opinion in Fowler v. Guerin, No. 16-35052 (Aug. 16, 2018). (We’ve been following the case, but the court’s issuance of the opinion slipped by — our thanks to a colleague for pointing it out).

The plaintiffs filed a class action alleging that state officials failed “to return interest that was allegedly skimmed from their state-managed retirement accounts.” The District Court denied class action status and granted the State summary judgment, concluding the case was “potentially unripe” because the State had not finished the process of administrative rulemaking, which might, in the court’s view, address the plaintiffs’ claims for interest. 

The Ninth Circuit reversed. The opinion is a worthy read, especially because it is coming out the Ninth Circuit, a court not known for being particularly property friendly. 

Here’s the rundown of the various issues the opinion analyzed:

  • Ripeness. The District

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Continue Reading Some Takings Musings From The Ninth Circuit: “Prudential” Williamson County Ripeness, Interest As Property, And Rooker-Feldman…Oh My!

Back in April, we posted the Florida District Court of Appeal’s opinion in a case where landowners sued the state fish and wildlife commission because “deer dog hunters and their dogs” who had hunting licenses trespassed on the plaintiffs’ lands. The court, over a single judge dissent, affirmed the dismissal of the takings claims, because the physical invasions by the hunters and their dogs were not caused by the commission. 

The property owners sought rehearing, and although the majority revisited and revised the opinion, it didn’t change the outcome, which stayed the same. In Florida Fish and Wildlife Conservation Comm’n v. Daws, No. 1D16-4839 (Aug. 16, 2018), the court amended the majority opinion to clarify its takings analysis. 

We won’t go into a page-by-page redline (for a direct comparison of the two opinions, go here), but the opinion’s biggest change was a section in which the majority…

Continue Reading Fla App: Takings Dog Still Doesn’t Hunt

Appeals from motions to dismiss can be very unsatisfying, even for the winner. Granted, from a doctrinal standpoint, they’re pretty good at clarifying the law. And from a practice standpoint, the courts’ opinions often help future lawyers and litigants figure out how to plead cases, and frame issues. And the party who wins the appeal can justifiably take back a trophy, often in the form of a published opinion. 

But for both the winning and losing litigant, an appeal from a dismissal without prejudice can get them nowhere fast (and in most cases, not for free). Because all that gets the parties in many cases is a do-over.   

The Federal Circuit’s opinion in Crow Creek Sioux Tribe v. United States, No. 17-2340 (Aug. 17, 2018) doesn’t contradict that sense. There, the court affirmed the dismissal by the Court of Federal Claims of the Crow Creek Sioux Tribe’s claim…

Continue Reading Fed Circuit: Tribe’s Claim For Taking Its Water Rights Didn’t Allege Injury

Challenging an ordinance that the court characterizes as an “even-handed” zoning regulation, even if it outlaws an existing conditional use, is going to be a tough one for a plaintiff. In theory, it need not be, given the right conditions. But any zoning lawyer will tell you that it is tough to overcome most courts’ presumption that these things are ok. That’s just the way it is. 

The Minnesota Court of Appeals’ opinion in Minnesota Sands, LLC v. County of Winona, No. A18-0090 (July 30, 3018), confirms that vibe. There, the county adopted an ordinance that banned all “industrial-mineral mining, including silica-sand mining.” Slip op. at 1. If that sounds oddly specific, the backstory is that this is the stuff used in fracking. 

Mr. Frick (and here you might think we’d try to work in both “Frick” and “frack” into this post’s title) owned leases to mine silica-sand on…

Continue Reading Ordinance Banning Industrial Mineral Mining Not A Regulatory Taking – But What About Palazzolo?