• McCandless v. United States, 298 U.S. 242 (1936) - an offer of proof that irrigation water could be transported to the land was not too "remote and speculative," and should have been allowed in support of the property owner's contention that the highest and best use of the land taken was to grow sugar cane.

• Damon v. Hawaii, 194 U.S. 154 (1904) - when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as "property."

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) - when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

• Hawaii Housing Authority v. Midkiff, 463 U.S. 1323 (1984) - "Public use" is "coterminous" with the police power. Eminent domain is just another land-planning tool.

• Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) - the "substantially advance" test is not one of regulatory takings, but of due process. 

• The Hawaii water law backstory to the "judicial takings" issue.

The statute "could be drafted with greater precision," and it doesn't expressly mention a denial of a request for a zoning change, only the adoption or amendment of a zoning ordinance.  Thus, after a city denied a developer's request for a zoning change and its petition for a writ of mandate was dismissed because it was filed 97 days later, the developer appealed, asserting that the statute required a 90-day challenge only when the city adopts or amends zoning. General Development Co., L.P. v. City of Santa Maria, No. B228631 (Jan. 25, 2012) ("Developer argues that if section 65009 was intended to apply to the denial of a zone change, the Legislature would have said so.").

Not so, held the California Court of Appeal. The court applied the rules of statutory construction to reject the argument, holding that the term "decision" includes a denial of rezoning, even if the statute doesn't expressly say so. The court held that the purpose of section 65009's short limitations period is to provide certainty, and to allow the government and property owners to go forward without worrying about future challenges. Slip op. at 2.

You can't get any closer to the border than San Diego's Otay Mesa neighborhood. The plaintiffs own several parcels abutting the border, and 20 years ago their predecessor-in-title granted the Border Patrol an easement along the border to allow it to, well, patrol the border.

The Border Patrol stepped up its activities after 2001, and began operating outside the easement footprint. Otay Mesa Properties and the other landowners sought just compensation in the Court of Federal Claims. Slip op. at 3 ("The suit alleged that the Border Patrol’s activities of patrolling outside the boundaries of the easement, assuming stationary positions on Otay Mesa’s land, creating new roads, constructing a permanent tented structure on Otay Mesa’s land, and installing underground motion-detecting sensors constituted a 'permanent and exclusive occupation' entitling the plaintiffs to just compensation under the Fifth Amendment’s Takings Clause.").

After trial, the CFC held (opinion here) that most of the owners' claims were barred by the statute of limitations. But on the remaining claim for the underground motion sensors which had been placed on the land pursuant to a stipulation between the parties, the CFC held the government is liable for $3 million-plus in just compensation for a temporary physical taking. The court based compensation for the temporary taking on the rental value of the land as a skydiving training area.

Both sides appealed: the feds asserted that compensation should have been calculated on the basis of a permanent taking, and that the correct measure was the "before and after" method; the property owner asserted on cross-appeal that the CFC mistakenly limited the scope of the taking to the parcels and the time period specified in the stipulation because the Border Patrol placed more than than the agreed-upon number of sensors on the land and placed them there earlier than it acknowledged.

The Federal Circuit agreed with the government that the stipulation by which the property owners allowed the Border Patrol to install motion sensors was a permanent physical taking because the stipulation did not set forth a specific date by which the sensors must be removed. Under the stipulation, the sensors are subject to removal if one of two conditions occurs, but those conditions might never occur "and most importantly, the easement has not terminated," slip op. at 12, and "in this case there is no potential termination of the sensor easement on the horizon." Id. at 15.

Thus, we disagree with the Court of Federal Claims and Otay Mesa that the parties’ respective abilities to terminate the sensor easement in this case renders the taking temporary. Just as the landowner in Loretto could have terminated the taking by discontinuing use of the property as a residential rental facility, so Otay Mesa could decide to develop the entirety of its property, thereby terminating the sensor easement. Further, read in its entirety, we agree that the stipulation defines a "perpetual" easement that reserves in the government the right to "redeploy" the sensors in the case of Otay Mesa’s development of the property.

Slip op. at 17. The court, as quoted above, acknowledged the easement could be terminated by the property owner. Which pretty much turns the notion of "permanent" on its head. It's one thing to conclude that a taking is "permanent" event though the government could decide to walk away (which it always can), and another to hold that a taking in which the landowner retains the right to unilaterally terminate is also "permanent." Since an inverse condemnation claim seeks compensation for the legal equivalent of an affirmative exercise of eminent domain (which is forced acquisition of property from an unwilling private owner) it seems odd that the property owner has control of how long the government may occupy the property, something that is plainly lacking in "permanent" exercises of eminent domain.

In the end, however, it didn't really matter whether the taking was "permanent" or "temporary," because the court remanded the case to the CFC for a recalculation of damages. However, the court did not endorse the "before and after" method of calculating compensation as the government urged:

The government has argued that, because the sensor easement is permanent, the compensation due Otay Mesa is much less than the compensation that would be due if the easement were temporary. We find this argument difficult to accept. It does not seem to us logical that Otay Mesa should receive less compensation for the taking of a permanent easement than it would for the taking of a temporary easement.

Slip op. at 17-18. But while the court held that the focus must remain on compensation for what has been taken, it concluded the only thing taken was an easement for the placement of sensors, and the CFC therefore should not have calculated compensation on the rental value of the land as a skydiving training area:

The sensor easement clearly differs from a lease to use land for those purposes. By exclusively applying a rental value methodology and looking to rents paid for the use of land for skydiving and parachute training, the court, we believe, overlooked exactly what has been taken by the Border Patrol – a minimally invasive permanent easement to use undeveloped land that is unilaterally terminable by Otay Mesa. Under the easement, each sensor must be located so as not to affect the functionality of the property. In addition, should Otay Mesa wish to develop any portion of the property, any affected sensor will be removed or redeployed upon 30 days written notice that a grading permit has been issued by the County of San Diego. Finally, upon removal of a sensor, the portion of the easement relating to that sensor terminates. In short, the court did not squarely address the just compensation appropriate to compensate Otay Mesa for the taking.

Slip op. at 18-19.

The court rejected the property owners' cross-appeal and concluded that the CFC did not abuse its discretion when it limited the scope of the taking. Finding no clear error, the court affirmed.  

Otay Mesa Property, L.P. v. United States, No. 11-5002 (Fed. Cir. Jan. 25, 2012)

There's still time to join us in person on via the webcast for the annual eminent domain law conferences (January 26-28, 2012) produced by the American Law Institute-American Bar Association. We're back in San Diego this year. 

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases" with Professor David Callies), so if you attend either course, please stop by and say hello.

San Diego is a very appropriate venue, given the city's persistent use of "redevelopment" and eminent domain, a process that the California Supreme Court recently ended (see video above - more here). This recent development will be one of the hot topics of discussion.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty.

These really are fantastic programs (one of the great benefits of being on the faculty is that I get to sit in on the other sessions), so please join us if you are able.

• Oakland budget cuts his zoo, Children's Fairyland - from the San Francisco Chronicle: "In all, more than $28 million will be sliced from the budget, mostly from the $388 million general fund. The cuts are due to the loss of redevelopment funds, which Oakland used to fund services and programs across the city. 'It's not clean and neat. We wish it were,' said Mayor Jean Quan. 'For California's older, larger cities, like Oakland, losing these redevelopment funds has been very, very tough.'"

• Redevelopment Agencies Facing Default - from Cal Watchdog: "The Legislation canceled the RDAs’ tax increment-financing, which served as their piggy-bank under the Community Redevelopment Law for the past 65 years.  The California Legislature and its crony capitalist allies will desperately try to resurrect new tax and economic incentives to reclaim their ability to interfere in the California real estate markets."

• Board members mourn ending of Santa Rosa's redevelopment agency - from the Santa Rosa Press Democrat: "'I think it's a real sad day for this community and other communities up and down the state of California,' said board member Steve Burke, the city's former director of redevelopment and housing. The final meeting of an agency whose operations were not well understood by the general public was, not surprisingly, sparsely attended. Board members were joined by a handful of staffers, one member of the media and a single member of the public, an affordable housing advocate named Gregory Fearon, who did not speak.Danielle O'Leary, the city's economic development director, said she was disappointed not to see any signs of support from the public. 'Given the magnitude of how those programs touch people, it was kind of hard not to see any champions in the audience,' O'Leary said."

• State of the State speech mostly about playing nice - from the Honolulu Star-Advertiser: "The state is moving on course, Abercrombie said in his 51-minute speech, because the public workers took pay cuts and reduced benefits. 'To all of you who came to work each day bearing the burden of cuts and slashes to your programs for the past three years, and to those of you who gave up furloughs because of your commitment to serving Hawaii's people, I thank you. 'Mahalo plenty to each and every one of you,' Abercrombie said. If there was a spare 'mahalo plenty' for the scores of businesses that saw their taxes rise, or the taxpayers who will soon start filling out tax forms without benefit of all those state deductions, Abercrombie did not drop that mahalo on the taxpaying masses. If you work for state government, yesterday's speech was all about you — but if you are in private business, you were mentioned tangentially, at best."

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government's home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by asserting its "home venue privilege." The trial court denied the motion and the County appealed.

The Court of Appeal concluded that an exception to the home venue rule with the ominous label "sword-wielder" applied, because the official act complained of was performed outside of the county's home turf, and:

whether the state is the initial sword-wielder in the matter, and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

Slip op. at 5 (quoting Dep't of Revenue v. First Federal Savings & Loan Ass'n of Fort Meyers, 256 So.2d 524, 526 (Fla. Dist. Ct. App. 1971)). Here, the County maintained its borrow pit in another jurisdiction and "[t]he unusual nature of Ms. Baldwin's claim for inverse condemnation is its extraterritorial aspect." Slip op. at 6. The court rejected the County's argument that it was not exercising government powers outside of its home venue, because it didn't matter in the end: the fact that the County was alleged to have taken the property without compensation was the act alleged to have triggered liability, and this qualified as the County's initial "thrust." The court thus suggested that the inverse condemnation claim was merely a shield.

We're not sure about the intricacies of Florida procedure, but this seems like this case could have been resolved in much the same manner on the basis that the County could hardly be heard to complain about venue when the res alleged to have been taken is in another county and the action that was alleged to have caused the taking was the County's borrow pit. But whatever the rationale, the result seems about right to us.

Back to Measure 49. That statute, as the Oregon Supreme Court held, "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new law? Measure 49 "exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had "a common law vested right . . . to complete and continue the use described in the waiver.' . . . Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determination generally either applied for a local decision or sued for a declaratory judgment." Bowers, slip op. at 245.

Property owners who had started the Measure 37 process but had not recovered compensation and were thus halted in their tracks, sued in federal court asserting a taking of their right under Measure 37 to compensation and other vested rights:

First, Bowers Plaintiffs alleged that there had been a "taking" of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were "statutory rights to monetary compensation," "vested and accrued claim[s] for compensation," "legal entitlements . . . in lieu" of monetary compensation, or "Measure 37 waivers and the entitlement to monetary compensation." Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.

Slip op. at 247. The Ninth Circuit rejected each of these arguments, and the bulk of the opinion is devoted to analysis of whether the plaintiffs possess rights that have "vested" and are thus protected "property" under the Takings Clause. Id. at 249 ("Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modifythe right without committing a constitutional taking.").

The court professed confusion as to what interest they asserted was the property right that had vested, id. at 250 ("we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled"), and rejected three possibilities: (1) "accrued causes of action" under Measure 37 were not vested property rights because they had not been reduced to final judgment, id. at 251; (2) the right to statutory compensation under Measure 37 was not vested because it was not an "express and unequivocal promise" to pay compensation, id. at 252-53; and (3) Measure 37 did not give the plaintiffs any rights to a particular land use. Id. at 253-54,

On the final claim the court analogized the Measure 37 rights to land use permits, and concluded those claims were not ripe under Williamson County.

More here from lawprof Jonathan Zasloff at Legal Planet blog. Thanks to colleague Dwight Merriam for the heads up on this decision.

Bowers v Whitman, No. 10-35966 (Jan. 12, 2012)

I'll be there to answer questions on the legal aspects of the film, as well as discuss its relevance to California, where redevelopment and eminent domain abuse are front page stories due to the California Supreme Court's recent decision upholding the Legislature's abolishment of the state's 400+ redevelopment agencies.

Also showing is "The Tragedy of Eminent Domain: The destruction and survival of a New York City neighborhood." This short tells the story of how a project called "Manhattantown" destroyed a historic African-American community on the Upper West Side in the 1950s. Manhattantown set the model for thousands of cases of eminent domain abuse that came later, from Poletown, to New London, to Atlantic Yards. Directed by Jim Epstein.

Here's more on Battle for Brooklyn:

• Our "long form" review of Battle for Brooklyn (more for legal wonks).

• Our short form review, published in the Honolulu Star-Advertiser.

• Norman Oder's blog on the issues: Atlantic Yards Report. A must-follow.

• Our commentary on the final settlement in the case: Was It "All About The Money?" Hardly.

• The Eminent Domain One-Percenter (commentary on a profile of one of the developer's key people)

• We live-blogged the Atlantic Yards oral arguments in the New York Court of Appeals shown in the film. View the live blog archive here.

• The Court of Appeals' 6-1 decision upholding the taking: Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009).

• Media and commentary links on the Court of Appeals' decision. 

• Unfrozen Caveman Judges "Frightened And Confused" By Blight - our commentary on the  Court of Appeals' decision.

• The legal briefing in that case.

If you are in the area, please come to the Roxie and join us.

Thanks to the Land Use Prof Blog for getting the word out about the new documentary "Urbanized." It's next up on our "to watch" list, and we will have a review when we've seen it. The New York Times had this to say:

The mingling of design and happenstance is, to some extent, the deep subject of “Urbanized,” Gary Hustwit’s fascinating, idea-packed new documentary. In this remarkably concise film — which could easily have sprawled to 15 hours on public television — Mr. Hustwit and his crew survey both the challenges and promises facing some of the world’s important cities. Their itinerary may not take them everywhere you want it to, but it also turns up some unexpected vistas along with familiar ones.

Read the full Times review here. More to follow.

We'll be focusing on more than just ethics for government attorneys, and we've built the program around our thoughts on the U.S. Supreme Court's decision in Nevada Commission on Ethics v. Carrigan, where the Court concluded that a city council member's vote was not first amendment "speech," and he was therefore subject to a Nevada statute thave prohibits elected officials from voting when they may appear to have conflicts of interest.

Joining me in the discussion will be Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers for the Nevada Commission on Ethics in the Supreme Court), J. Scott Rhodes (an expert in ethics and professional responsibility issues), and Professor Keith Swisher (Phoenix School of Law - his scholarship includes ethics and he produces the Judicial Ethics Forum blog). Michael Donaldson will moderate the discussion.

Here's a summary of the Carrigan case from the Fall 2011 edition of State & Local Law News. Please join us - we will follow the presentation with questions from the audience.

The Commission has now sought "clarification and/or reconsideration," first asking the court for more guidance on the method of "extracting" non-permanent residents from the population base and the procedure for preparing a new plan, and second arguing that the inability to separate resident and nonresident military personnel makes the court's requirement that the Commission do so unconstitutional under the equal protection clause. Motion at 10-11. The Commission notes that Alaksa and Kansas, when faced with similar difficulties avoided the constitutional problem by using the total U.S. Census population, or did not "extract" most military from the count.

More here, from Hawaii Reporter. (As the story notes, the motion was filed by a new team of deputies in the Attorney General's office, "because many members [of the Commission] do not believe the commission was fairly represented before the Hawaii Supreme Court either during oral arguments or in court filings.")

Respondents' Motion for Clarification and/or Reconsideration, Matsukawa v. State of Hawaii 2011 Reapportion...

But we already knew that, and if these are the only insights to be taken from You've Been Trumped (Montrose Pictures 2011), the new documentary by director Anthony Baxter, the film would add little to the conversation.

But at its core, You've Been Trumped demands more of its audience by posing an essential question: in the "supersized" consumerist culture epitomized by Mr. Trump, is "better" inherently preferable? The film highlights his belief that modest, traditional, and worn-at-the-heels should naturally give way to glitzy, contemporary, and grandiose.

The U.S. Supreme Court sided with Mr. Trump's philosophy in Kelo v. City of New London, the case where the Court's majority allowed the taking of modest homes because the government asserted that someone else might make a more economically intensive use of the property. As Justice Sandra Day O'Connor wrote in her Kelo dissent, "[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." That's what unfolds in You've Been Trumped. But instead of being replaced by a Ritz-Carlton, a shopping mall, or a factory, the modest homes and farms stand in the way of what Mr. Trump calls, with typical hype, "the greatest golf course anywhere in the world." And the venue is Aberdeenshire, Scotland (because, you know, Scotland has a critical shortage of golf courses, especially those on which the cheapest greens fee is £120.00 ($185)).

The property owners in the way of the golf course resist. After the local council fails to approve the project and the Trump organization threatens to take it elsewhere, along with its promised jobs and economic development, in an unprecedented move, the Scottish government removes consideration of the project from the local council, and the green light to build soon follows. Some thought is given to "compulsory purchase" (eminent domain), but that is rejected by the government as "inappropriate."

If this all sounds familiar, it is. In Local Hero, a fictional account of the objections of the quirky residents of a Scottish town to an oil tycoon's plans to turn their village into a refinery, the story is played for subtle laughs -- we tend to idealize eccentric locals with quaint accents -- and that film has, inevitably, a happy ending. But that was fiction, and the outcome depicted in You've Been Trumped is much less satisfying.

Eventually, Mr Trump decides to build around the objectors. Each in turn confronts difficulties: in a particularly uncomfortable sequence, the farmer is derided by Mr. Trump as living in a "pig-like atmosphere -- it's disgusting" and his water is cut off, perhaps accidentally, perhaps not; another neighbor is informed that a portion of his garage was built on Trump land and is going to be removed; and even the director ends up in trouble when he is arrested by the local police and his camera and footage is confiscated, simply for filming.

The objectors seem as much disturbed by the lack of respect paid them and their way of life as by Mr. Trump's heavy-handedness -- a familiar theme in these kind of films, the most recent example of which is Battle for Brooklyn, another documentary bearing witness to a property-owners-vs-developer fight. That film was the product of a tight edit -- the filmmakers shot over 500 hours of footage which they reduced to 93 minutes -- and You've Been Trumped would benefit from similar treatment, because the film plays out as a series of loosely-connected vignettes rather than a cohesive narrative. We're initially led to believe this is shaping up as a compulsory purchase fight when the issues shift to the destruction of sand dunes, and then back to the property rights issue. That may be the way the situation actually played out, but it would have helped the film if we were provided a clearer picture of where the battle lines had been drawn, and how the fight progressed.

Even with these minor imperfections, the film excels at contrasting Mr. Trump's greed-is-good ethos with the simple lives of his adversaries who seem to want nothing more than to continue on as they had been before his private jet landed and he set his designs on yet another edifice bearing the Trump name. There's no mistaking on which side the filmmaker thinks you should come down.

The danger with this type of documentary is that it fails to provide a fair overview of the subject or the situation, and indeed, Mr. Trump has claimed that the film is factually inaccurate. But just when you sense that Mr. Baxter, the filmmaker, may have crossed the line from directing a traditional documentary to a Michael Moore-ish attack piece, Mr. Trump's attitude and his own words dispel whatever discomfort you may have begun to feel:

• "When I look out in the ocean from the 18th hole of Trump International Golf Links, to be honest with you, I want to see the ocean, I don't want to see windmills."

• "I look at Mr. Forbes [one of the objectors] and his disgusting conditions in which he lives, and that people have to look at that. ... For people to have to look at this virtual slum is a disgrace. Mr. Forbes is not a man that people in Scotland should be proud of."

• "We've had tremendous support from the environmental groups ... I've received many environmental awards over the years. I think the greatest thing I've ever done for the environment is what I will be doing right here in Aberdeen."

• Mr. Trump claims he is building the resort "for the people of Scotland," and that it will be "done environmentally perfect."

One suspects that any injury his image may suffer as a result of this film is an entirely self-inflicted wound.

Often lacking finesse and decidedly one-sided, You've Been Trumped is anything but subtle. If the film's goal is to make you think Mr. Trump is a jerk, it succeeds wildly. But perhaps that was inevitable in a documentary with him as its chosen subject.

-------------------------------------------

You've Been Trumped: Hawaii premiere, Friday, January 13, 2012 at 7:30 p.m. at the Doris Duke Theater at the Honolulu Academy of Arts. There is a pre-screening reception from 6:00 - 7:30, so please come early. I will be introducing the film and leading a Q-and-A session after the screening along with the Sierra Club's Anthony Aalto (journalist, writer and Chair of The Capitol Watch - the Sierra Club’s lobbying arm).

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA's dismissal, and sent the appeal back to that court "for disposition" on the merits.

Under the Water Code, the ICA has appellate jurisdiction to review under section 91-14 of the APA a final decision of the Water Commission in a "contested case." The Hawaii Supreme Court has previously concluded that an order denying a request for a contested case is itself appealable from the "appeals from contested cases" provision in this statute.

The court concluded the ICA has appellate jurisdiction because the Acting Depty Director to the Chairperson of the Board of Land and Natural Resources certified the Water Commission minutes by signing them, and "[t]he decision, as reflected in the minutes of the Commission's October 18, 2010 meeting, is a final decision of the Commision for which judicial review may be sought pursuant to HRS § 91-14(a)." Order at 2.

In our view, the more interesting question to be resolved is whether the Water Commission's setting or amending interim instream flow standards under the Water Code must be accomplished by a "contested case" (a quasi-judicial administrative hearing). Under Haw. Rev. Stat. § 91-1, a "contested case" is an agency proceeding "in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." The issue of whether establishing the amount of water that must be in a stream in order to "protect the public interest in [that] particular stream" is one that determines the rights of specific parties and thus must be accomplished by litigation, or is more in the nature of a legislative determination, is one we will be following closely.

Disclosure: we represent the Hawaii Farm Bureau in this case, although we did not file a brief or take a position on the issue presented in the application for certiorari.

Amended Order Accepting Application for Writ of Certiorari, In re Petition to Amend Interim Instream Flow S...

• SCOTUSblog: A weak defense of EPA - "With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers."

• Volokh: Sackett Oral Argument - "Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court."

• RegBlog: The Need for a Judicial Check on Regulatory Compliance Orders - "Whether the Sacketts or EPA officials are correct is not the issue before the Court. The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action. EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court. The threat of huge penalties if EPA is correct often is enough to force compliance even if a defendant strongly believes that EPA is wrong. Recall Clint Eastwood’s challenge as Dirty Harry to various perpetrators: 'make my day,' he would say, leaving them to guess whether he had another bullet in his pistol."

• Legal Planet I: U.S. Supreme Court Justices Are on USEPA's Case - "There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed.  (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.)  The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue?"

• Legal Planet II: Can you stand to hear more about Sackett? - "And finally, the Sacketts and their allies may find this a Pyrrhic victory. Much of the argument today focused on the fact that EPA had sent the Sacketts a formal Compliance Order rather than just a warning. The US tried to argue that the compliance order had no more legal effect than a warning, but no one was buying that (not even me). But it seems clear that EPA could achieve much the same effect at no risk of the kind of litigation tangle described above by just taking the word “order” out of the letter it sends. As a practical matter, a letter simply expressing EPA’s view that a landowner is in violation of the law and describing the potential penalties is going to be just as coercive as the order the agency sent the Sacketts. Would you build your dream house under the threat that you might be forced to tear it down in the future? And would you laugh at $37,500 per day in potential liability but quail at $75,000?"

• Gideon's Trumpet: Sackett Oral Argument - "Naturally, today’s New York Times comes down editorially on the side of the oppressive government. But if the oral argument was indicative of what’s on the Justices’ minds, the Times got it wrong."

Disclosure: Pacific Legal Foundation represents the petitioners; I do PLF's work in Hawaii.

Oral argument is set for January 17, 2012.

Reply Brief for the Petitioner, Filarksy v. Delia, No. 10-1018