Sorry for the short notice, but I am a last-minute substitution since one of the original panelists, retired Hawaii Supreme Court Justice Steven Levinson, is under the weather and cannot attend. The other panelist is Daniel Gluck, a Senior Staff Attorney with ACLU Hawaii. Should be a fun and interesting discussion.

In my portion of the program, I'll be discussing the how's and why's, the do's and don't's of amicus participation in state and federal courts, with an emphasis on U.S. and Hawaii Supreme Court practice. We'll also be entertaining questions from the audience.

Because this is a late-hour pinch hit and I am on the road, I'll be appearing by video conference. Should make it even more interesting. For those of you who cannot attend in-person at the HSBA downtown Honolulu offices, we'll be using Gotomeeting, so maybe you can join in that way. Contact Appellate Law Section Chair Rebecca Copeland for more.

Our article, "Common Sense and Common Law - Who Does the Balancing of Social Utility?," framed the issues in light of the situation at Hawaii Volcanoes National Park where visitors had (and apparently still have) the ability to simply walk out among the flowing lava:

Hawaii Volcanoes National Park is located on the island of Hawaii, and true to its name, its central attraction is one of the world’s most spectacularly active volcanoes, Kilauea. At the end of Chain of Craters Road, visitors may walk out past where it was cut off by a flow to witness a fresh lava flow firsthand and very close up. It’s a thrilling and humbling experience to watch and feel 1000-degree liquified rock make its way to the ocean through cracks in the brittle crust just beneath your feet. A smattering of National Park Service rangers wander around reminding viewers to keep to the ill-defined trail, and several warning signs are posted where the road ends and visitors must continue on foot.

The signs are dire enough: “Extreme Danger Beyond This Point!” “Bad Gases,” “Red Lava,” and “Methane Explosion Risk is HIGH Today.” But the signs are treated by visitors less as warnings and more as centerpieces of funny photographs to show the folks back home (especially the one about “methane explosion risk”). The rangers and the signs hardly deter hundreds of visitors a day. The tourist and the scientist marvel at witnessing so closely the creation of new land, but the lawyer is instinctively aghast: this is a public space after all, and park management just allows people to walk out day and night, mostly unsupervised, into a fresh lava field surrounded by molten rock and poisonous sulfur dioxide? Do they realize the exposure, the chance of someone being injured and suing? Are they insane?

This essay is not about the dangers that may lurk at Volcanoes National Park,or an analysis of the legal efficacy of the warning signs. The Kilauea example is highlighted simply to demonstrate that even in the age of risk management and litigation, some activities are deemed to have such value – whether scientific or esoteric – it is worth the risk of injury and lawsuits to continue them. This essay is about who determines that value.

Check it out if you are interested. 

Common Sense and Common Law - Who Does the Balancing of Social Utility?

In that case, the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage's every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner's vested right to use water. The Court of Federal Claims had awarded $4.2 million in just compensation for the taking of Hage's water rights.

The BIO reformulates the Question Presented:

1. Whether the court of appeals correctly rejected petitioners' claim that the government effected a taking of their water rights, including their easements to operate and maintain certain ditches across federal lands, because petitioners never sought (and thus were not denied) the permit required to bring and operate heavy equipment on National Forest Service lands.

2. Whether the court of appeals correctly held that petitioners' claim that the government effected a taking of their stockwater rights failed because the trial record lacked evidence that petitioners were deprived of access to any water they could have put to beneficial use.

Several amicus briefs were filed in support of the petitioners:

• Brief of Pacific Legal Foundation and the U.S. Cattlemen's Association

• Brief of the Mountain States Legal Foundation

• Brief of Public Lands Council, National Cattlemen's Beef Association, Oregon Cattlemen's Association, Washington Cattlemen's Association, and Nevada Cattlemen's Association

Here is the Court's docket report if you'd like to follow along.

Brief for the United States in Opposition, Estate of Hage v. United States, No. 12-918 (May 13, 2013)

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

Here's a video snippet focusing on eminent domain and the Kelo decision, from PBS's ongoing series on the U.S. Constitution. It's a somewhat generic view of the issue complete with silly sound effects and graphics, but it does touch on the concept of property rights, and there's a tour of the former Fort Trumbull neighborhood in New London, currently an overgrown field.

The money quote is from former property owner Michael Cristofaro: "How could those justices in black robes steal our property rights from us? I feel like the Constitution failed me."

Professor Gideon Kanner adds his thoughts on the video here.

The Supreme Court accepted cert on May 1, 2013, just over two weeks ago. Here are the cert-stage briefs (hat tip to colleague Rebecca Copeland):

• Petitioner Scenic Hawaii, Inc.'s Application for a Writ of Certiorari

• Aloha Tower Development Corporations Opposition to Application for Writ of Certiorari

• Petitioner Scenic Hawaii, Inc.'s Reply to Aloha Tower Development Corporation's Opposition to Application for Writ of Certiorari Filed April 3, 2013

The cert application phrases the Question Presented as follows:

Whether the Intermediate Court of Appeals ("ICA") gravely erred in holding that the Land Court abused its discretion by awarding Scenic Hawai‘i its attorneys’ fees and costs under the Private Attorney General Doctrine ("PAGD"). The Land Court did not abuse its discretion because it followed the precedent established by this court in Sierra Club v. Dep’t of Transp. of State of Hawai‘i, 120 Hawai‘i 181, 202 P.3d 1226 (2009) ("Sierra Club II"), and it satisfied all three prongs of the Private Attorney General Doctrine ("PAGD"). The Land Court ruled properly especially in light of the actions of the State and its Attorney General in not only completely abandoning its duty under Haw. Rev. Stat. § 206J-6(c), to preserve Irwin Memorial Park, but in driving the Petition which would have destroyed the Park. But for Scenic Hawai‘i’s intervention, the success in vindicating the public interest would have been problematic.

Here's the description of the appeal from the Judiciary web site:

Respondent Aloha Tower Development Corporation filed a Petition to expunge certain restrictive covenants in the deed and trust agreement governing the use and maintenance of Irwin Park, which is located near Honolulu Harbor. Petitioner Scenic Hawai`i, Inc. intervened in the subsequent litigation in order to preserve Irwin Park as a public park, taking the position that the restrictive covenants should not be expunged. After a bench trial, the court denied the Petition.

At the conclusion of litigation, Scenic Hawaiʻi sought attorneys’ fees and costs for its involvement in the litigation, as against Aloha Tower Development Corporation. The court granted attorneys’ fees and costs to Scenic Hawai`i under the private attorney general doctrine. Aloha Tower Development Corporation appealed to the Intermediate Court of Appeals (ICA), arguing that Scenic Hawai`i was not entitled to attorneys’ fees and costs because the court had improperly applied the private attorney general doctrine.

The ICA overturned the court’s award of fees and costs, holding that Scenic Hawai`i had not satisfied all three of the relevant factors of the private attorney general doctrine. In its Application, Scenic Hawaiʻi asks whether the ICA erred in concluding that Scenic Hawai`i did not satisfy the doctrine because it was not advocating for the public interest in the underlying litigation, and that there was no necessity for private enforcement of the public interest in this case.

The issue in this case is slightly different than presented in the court's most recent ruling about the private attorney general doctrine, as this appeal only involves the first two of the three private attorney general factors, and involves appellate and not de novo review of a claim for fees (the other case involved a party who prevailed on appeal, and thus the court was evaluating the application for fees as a matter of first instance, and not, as here, the question of whether the ICA committed "grave error" when it held that the Land Court abused its discretion when it allowed fees). 

Why all of this interest by the court in the private attorney general doctrine lately? We don't know, but the more clarification about what the doctrine means and how to apply it, the better.

More, after the court issues a ruling.

The declaration of taking, however, was worded much more broadly, and in addition to the rebuilding, also gave the utility the power to "'construct, operate and maintain ... additional Electric Facilities of any type,'" as "'from time to time [may] be necessary for the convenient transaction of the business of [PPL],'  including the right to erect new facilities, including fiber optic lines, and 'the right to remove any buildings or structures from the property.'" Slip op. at 6. The utility countered that it only intended to rebuild the existing lines, and the language of the declaration did not conform to what it meant to accomplish.

Adhering to the usual rule that eminent domain statutes must be strictly construed against the condemnor, the Commonwealth Court concluded that the language of the declaration controlled over the utility's professed intent to limit the scope of the taking:

Although PPL argues that its present intentions are merely to maintain existing facilities, and not to run new wires or put up new poles, the Declaration is not so limited, but authorizes PPL to do more: to construct, operate, and "reconstruct overhead and underground distribution lines, including, but not limited to, such poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus above and below the ground."

Slip op. at 8.

Bottom line for condemnors: you draft these things, so if they're worded in such a way that triggers PUC approvals because they don't accurately reflect your intent, that's on you. Condemnation dismissed.

More, including a complete run-down here ("Commonwealth Court panel reverses trial court in eminent domain case involving PPL Electric"), from the Pennsylvania Record. 

In re: Condemnation by PPL Electric Utilities Corp., No. 1389 CD 2012 (May 8, 2013)

Here's our initial post on the case, and here's our follow up (about one of the amicus briefs).

Here's a plain language preview of the issues and the arguments. 

Predictions? It seems to us that two of the judges are skeptical of the farm's arguments, and one may be inclined to agree, but there was nothing we saw on the video that would lead us to think the outcome is obvious.

Why? Because when there may be an unexploded artillery shell on the property, and as a result the government seals off the property and temporarily closes the business conducted thereon, we don't think the Takings Clause requires compensation, that's why. The property owner thought otherwise, and in response to the Borough's order to shut down after someone discovered that a flea market site was also former WWII-era muntions magazine and testing area, and that there was still some of that stuff left over, it objected:

The gist of the Complaint is that Palmyra overstated the danger posed by the unexploded munitions as pretext to shut down NAI’s economic activity on property Palmyra had been eyeing for redevelopment. NAI contends that Palmyra’s failure to enact similar restrictions on adjacent property or adopt a less restrictive course of action that could have permitted the continued operation of the Market demonstrated this surreptitious intent.

Slip op. at 4. Yes, the Borough had sold the property to the flea market's predecessor in title. Yes, the Borough apparently was now targeting the area (sorry for the bad pun) for redevelopment. Yes, the Borough didn't shut down neighboring parcels. Yes, the Borough and the property owner entered into a consent order which allowed the market to open at certain times, presumably meaning the danger was not all that great. Yes, a five-month shutdown seems a bit much. And yes, the discovery by the Borough was, shall we say, conveniently timed. But as far as we can tell from the opinion, unexploded artillery shells were not found on other parcels, and the property owner introduced no evidence that the "we discovered unexploded artillery shells on your property" thing was just a pretext designed for leverage in the redevelopment acquisition. Unless there's more to this case than what the opinion reveals, we have to go with it-is-better-to-be-safe-than-sorry when dealing with old artillery rounds and a public venue.

Question: how desperate for a bargain does a shopper have to be to go to a flea market knowing that there are unexploded artillery shells on the premises? Not us, brother.

The takings issue came up in the context of a request for $200,000 in attorneys' fees, which the property owner sought following the entry of the consent order, claiming it was the prevailing party. The Third Circuit affirmed the District Court's denial of the motion for fees, concluding "[i]t is difficult to imagine an act closer to the heartland of a state's traditional police power [to abate nuisances] than abating the danger posed by unexploded artillery shells." Slip op. at 7.

Read the opinion. It's short. It makes sense.

National Amusements, Inc. v. Borough of Palmyra, No. 12-1630 (3d Cir. May 9, 2013)

Under the Gallenthin decision, New Jersey courts -- unlike the courts in many other states -- are not mere rubber stamps for a municipality's conclusion that an area is blighted, and thus ripe for condemnation. See this case, for an example. In 62-64 Main Street, the resolution declared that the properties lacked lighting and landscaping that led to the over-utlization of street parking, but did not conclude that there was a negative impact on the community. "Moreover, the Board did not address the fact that the owners had attempted to obtain approval to develop the properties, and that the proposals were denied." Slip op. at 7. The city must do more than issue a "bland recitation of applicable statutory criteria and a declaration that those criteria are met." Slip op. at 8. It didn't do so, and thus the taking failed. If only the courts in other jurisdictions would take what appears to us to be the right approach, like New Jersey's.

The reason we're watching this case is that, according to this story, the city is going to try and get the New Jersey Supreme Court to hear the case. If it does, we'll be following.

62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (May 3, 2013)

The entire opinion is worth reviewing, but here's the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing "minimum development" if the prohibition would deprive an owner of its statutory or constitutional rights. It also contained a provision exempting existing developments, and parcels that have received "all necessary discretionary County and other approvals and permits" (in other words, those developments that have "vested").

When Lockaway applied for a new CUP, the County denied it because Lockaway had not obtained a building permit and started construction prior to the effective date of the initiative ordinance. After exhausting administrative remedies, Lockaway sued in California state court for a writ of mandate allowing it to proceed with development, and for inverse condemnation and civil rights violations. The Superior Court issued the writ, because the development was "squarely under the protections" of the vested exemption even though a building permit had not issued, because a building permit is ministerial and not "discretionary." Thus, Lockaway was allowed to proceed with development. After a trial on the damages for the temporary taking, the court held that under Penn Central, the Superior Court held "the County's regulatory action had a 'substantial, negative economic impact' on Lockaway's use of the property, had 'materially interfered with Plaintiffs' distinct, investment-backed expectations,' and that its conduct could not be justified as a normal regulatory mistake." Slip op. at 8. The court issued a verdict for $504,175 in lost profits, $324,954 in increased construction costs due to the 30-month delay in construction, and prejudgment interest. It also awarded $703,760 in attorney fees plus a 1.25 multiplier for a total award of $879,700.

The Court of Appeal affirmed the entire judgment. The most interesting part of the opinion begins at page 20. The court reviewed the three-part Penn Central test, rejected the County's argument that the right test is Landgate Inc. v. California Coastal Comm'n, 17 Cal. 4th 1006 (1998), and held that although the initiative did not render Lockaway's property worthless, it did deprive it of a "return on investment that it 'reasonably expected from the intended use.'" Slip op. at 23. The court also affirmed the "investment-backed expectation" prong, because Lockaway "purchased the property only after the County expressly confirmed that Lockaway could rely on the 1999 CUP to develop a storage facility." Slip op. at 24. Finally, the County's "showstopping U-turn" (first working with Lockaway to further its development plans, and then doing an about-face) satisfied the "character of the government action" factor:

On appeal, the County contends there is insufficient evidence to support the trial court's findings regarding the character of its regulatory action. We disagree. The following pertinent facts are supported by substantial evidence. The County did not take any action to shut down the Lockaway project in December 2000 when Measure D went into effect. Instead, it encouraged Lockaway to continue its development efforts for 18 months. Then, in September 2002 the County changed its position and announced that the project had been doomed since December 2000 because Lockaway had not obtained all permits and commenced construction before Measure D‟s effective date. In taking this new stand, the County refused to even consider whether Section 22 exempted the Lockaway project.

Slip op. at 25. The court concluded the County's behavior was "manifestly unreasonable."

Read the entire opinion for the details. Congratulations to colleague Timothy Kassouni on the win. 

Lockaway Storage v. County of Alameda, No. A30874 (Cal. App. May 9, 2013)

Here are the draft papers presented:

• Recent Developments in Eminent Domain: Public Use (coauthored with Mark Murakami and Bethany Ace)

• Recent Developments in Regulatory Takings

For those of you who attended, you already have these articles in your materials.

Texas municipalities, like many of their parallel entities in other states, enjoy a limited immunity from tort lawsuits, but that immunity has been waived under the Texas Constitution's takings clause (and its parallels). That, of course, includes inverse condemnation, and "[t]o plead a valid inverse condemnation claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or destroying the plaintiff’s property (3) for public use." Slip op. at 9.

The city claimed it did not have the requisite intent, and its conduct revealed at most negligence. The court rejected that argument, holding that construing the complaint in the light most favorable to the plaintiff (remember, this was review of a denial of a motion to dismiss), the property owner alleged that the city acted intentionally because it was "aware or substantially certain" that its plans would have the noted results.

There's more, but it's probably more efficient for you to read the opinion yourself than for us to summarize it, since it's short and well written. Hat tip to our colleague Dwight Merriam for sending us this case. 

City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013)

Highlights:

• Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.

• The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable when compared to other jurisdictions (see p. 39-40).

• The "lodestar" method (reasonable rate times reasonable time) is the default, and the court isn't going to allow "enhancement" in cases not involving a fee-shifting statute (the private attorney general is a judge-made doctrine), and not involving a contingency fee. The goal of the private attorney general fee-shifting doctrine is to allow reasonable compensation to the prevailing lawyer, not to reward plaintiffs or their attorneys, especially those who ask for a 100% enhancement (i.e, a doubling of the presumptively reasonable lodestar amount).

If this sort of thing is your bag, check it out.

Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013)

This case raises important questions regarding the common law of property ownership and the certainty of titles in property.

. . . .

As fully set out in the Petition, the Tenth Circuit’s rule directly conflicts with decisions of this Court as well as decisions from the Federal Circuit, the Court of Federal Claims, and the Seventh Circuit. Pet. at 17-34. The split of authority regarding ownership of abandoned railroad rights-of-way has been growing for years, and is well-documented. See, e.g., Pet. Cert. App. at 5-6, 22-24 (discussing split of authority); Hash v. United States, 403 F.3d 1308, 1318 (Fed. Cir. 2005) (same); 11 Powell on Real Property § 78A (referring to the existing split of authority as a "mess [that] is not entirely fixed" and in need of "thorough analysis"); Roger Cunningham, et al., The Law of Property § 8.9, p. 460 (2d ed. 1993) (decisions concerning railroad rights-of-way "are in considerable disarray"). Amicus PLF urges the Court to grant the Petition to resolve this conflict, especially because the Tenth Circuit’s rule departs from ordinary understandings of property ownership.  ... If left unreviewed, the decision below will unsettle the rights and expectations of thousands of property owners within the Circuit and nationwide.

Br. at 2-3.

The brief by the Cato Institute and the National Association of Reversionary Property Owners is posted here, and the brief we filed on behalf of Owners' Counsel of America is here. The cert petition is posted here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petition for Writ of Certiorari, Marvin M. Br...

In that case, the Tenth Circuit's opinion held that the term railroad "right of way" as used in an 1875 federal statute was a grant of land to railroads in fee simple with an "implied reversionary interest" to the United States, and not merely an easement. The difference is that easements may be extinguished, while reversionary interests are not. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court claiming it and and not Brandt owned the right of way.

The amici brief argues:

This case is important to the Association because the Tenth Circuit’s decision unsettles long-established property interests and clouds the title of many landowners whose property is (or was) encumbered by a railroad right-of-way easement established under the General Railroad Right-of-Way Act of 1875, 43 U.S.C. 934-939 ("1875 Act"). And because the Tenth Circuit’s split from the holding of the Seventh and Federal Circuits, resolution of title disputes will be more costly and time-consuming.

We filed an amicus brief in the case also. Here's the cert petition.

More, including the BIO, when filed.

Brief for the Cato Institute and the National Association of Reversionary Property Owners as Amici Curiae i...