This morning, in this order, the U.S. Supreme Court declined to review the Colorado Supreme Court’s decision in the Carousel Farms case.
That’s it, that’s all we’ve got. Continue Reading Cert Denied In Carousel Farms
Emergencies, Police Power, Commandeering, And Compensation: Essential Readings
The current headlines — and a couple of inquiries from colleagues and clients — got us to thinking about government power in times of crisis and the tension between that power and property and other individual rights.
On one hand, court decisions going back over the centuries have told us that courts are reluctant to interfere with government power that the government asserts further the public “health, safety, and welfare” (what we in the U.S. call the “police power”). But at what point do such exercises of government power require compensation to a property owner who as a consequence of the limitation on their rights suffers a loss?
So we dusted off our law books and assembled a primer of what we thought were some of the more interesting and important decisions over the centuries on the question. This is not a comprehensive list, of course, and if you think
Continue Reading Emergencies, Police Power, Commandeering, And Compensation: Essential Readings
New Cert Petition: Seattle’s “First In Time” Tenant Rule Is A Taking And Due Processey
Here’s the cert petition we’ve been eagerly awaiting in a case we’ve been following about Seattle’s rewriting of the traditional lessor-lessee relationship.
The petition arose out of facial takings and due process challenges to Seattle’s “first in time” rule for residential leasing. The city adopted an ordinance requiring owners to rent to the first tenant who applies that meets the owner’s screening criteria.
The Washington Supreme Court tossed aside a long line of its own cases which held that the Washington Constitution’s takings clause is not interpreted by the same analysis the U.S. Supreme Court employs for the Fifth Amendment. Not so the Washington court held, we might in the future decide that the Washington Takings Clause provides greater protection, but for the time being we conclude that federal takings doctrine is so clear that we simply adopt it wholesale. (The court based this conclusion on Tahoe-Sierra. Really! Of
Williamson County’s “Final Decision” Rule Lives! CA9: You Still Need To Ask The Govt For An Exemption To The Rules
This just in. In Pakdel v. City and County of San Francisco, No. 17-17504 (Mar. 17, 2020), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a regulatory takings claim which the District Court threw out for not being ripe under Williamson County‘s “state procedures” requirement.
Wait, you say, didn’t the Supreme Court toss that requirement out in Knick? Yes, but it also did not disturb the separate requirement that the government charged with a taking have made the final decision applying the regulations to the property which is claimed to have been taken.
The panel thus affirmed on other grounds because the plaintiffs had not obtained an exemption from the regulation. Yes, this is the “variance” argument.
We’re reading the opinion in more detail, but wanted to push it out quickly so that others weigh in. We’ll have
Educate And Entertain Your Stay-Home Kids With Takings Law!
For those looking for ways to productively occupy your stay-home-from-school kids the next couple of weeks, We’re offering online CLE’s on takings. Don’t let their time go to waste, have ’em learn property and condemnation law!
We volunteer for the Penn Central module. Who’s with us?!Continue Reading Educate And Entertain Your Stay-Home Kids With Takings Law!
Dusting Off An Old(er) Law Teaching And Tech Article
All the law schools moving from in-person to “remote” instruction got us to remembering that way back in the day, in the early days of the internet and email (1995, so really way back*), we wrote an essay in the Journal of Legal Education about the potential effects — good and bad — that might come from teaching-by-technology.
Thinking it would be interesting to see how antiquated it might now appear, we dusted off our copy.
So here it is. We’ll leave it to you to determine for yourself whether it holds up.
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*The article is so old, it had to define “e-mail” for the reader.
Continue Reading Dusting Off An Old(er) Law Teaching And Tech Article
Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!
Missed out on the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference swag?
Well fear not: here’s your chance to get your high-class reminder — a kit of road warrior essentials — to save the Conference date on your calendar. We’re already underway with planning the agenda and faculty, so it’s never too soon to block it off (January 28-30, 2021, at the 4-Diamond DoubleTree Resort, Scottsdale, Arizona).
If you were not able to get your swag in Nashville, send us a note (rht@hawaiilawyer.com) and we shall gladly drop one or two in the mail to you.
While supplies last! Continue Reading Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!
#CoronavirusLaw: Is There A Difference Between “Commandeering” Property In An Emergency, And “Taking” It?
You remember the TV trope where Starsky, Hutch, or some other police officer is in hot pursuit of a dangerous criminal and flags down a motorist and “commandeers” their private vehicle and drives off?
We thought of that when we were reading the news reports about various governments invoking their emergency powers to respond to the coronavirus crisis.
So while we were on the telephone on hold (bailing out of every conference, event, and travel arrangement in the foreseeable future), we thought we would take a look at the recent Executive Order, issued by California Governor Gavin Newsom, which expressly mentioned the “power to commandeer [private] property” such as hotels and medical facilities and press them into public service, as needed:
The California Health and Human Services Agency and the Office of Emergency Services shall identify, and shall otherwise be prepared to make available-including through the execution of any
Wash Your Hands!
A minimum of twenty seconds, they say.
To help you do it right, here’s a mantra / mnemonic for you to say (silently, please) while you accomplish the task.
Keep healthy, everyone! Continue Reading Wash Your Hands!
Pennsylvania Coal Revisited: Outlawing Silica Mining Isn’t A Taking, Even Though Mining Rights Are “Property” Under State Law
Here’s the latest in a case we’ve been following that involves a local government prohibiting, via a zoning ordinance, the mining of silica (used as “frac sand”). Kind of like how Pennsylvania barred certain coal mining in our old friend, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
In Minnesota (where our story takes place) the right to subsurface minerals is separate from the rest of the land. Kind of like how Pennsylvania law recognized subsurface rights as a separate “stick” in Mahon. Here, the plaintiff owned several leases which allow it to mine silica. Sounds like a property interest, no?
Well, no. At least not to a majority of the Minnesota Supreme Court, which held in Minnesota Sands, LLC v. County of Winona, No. A18-0090 (Mar. 11, 2020) (affirming the court of appeals) that the right to mine silica was a property right, but