No Shortage Of Amicus Support For Takings Cert Petition

(Lucas and Penn Central!)

by Robert Thomas, InverseCondemnation, August 24, 2020

A short while ago, we featured the cert petition in a case from the Big Island that we've been following as various pieces of it went up and down through both the state and federal court systems. See "New (Mike Berger) Cert Petition: 'This case is the proverbial 'Exhibit A' of much that is wrong [with takings law].'"

Now, after the State of Hawaii waived its right to file a BIO, five briefs of amici curiae (including one in which we played a small part) have been filed in support of the petition, urging the Court to review the Ninth Circuit's opinion. We wrote about the case in a recent issue of the American Planning Association's magazine. The short story is that a federal jury concluded that the State of Hawaii Land Use Commission took the owner's property under both a Lucas and a Penn Central theory, but the district court reduced the verdict to $1. That was apparently too much for the Ninth Circuit, which wiped out that award of compensation. 

Here are the amici briefs:

• Brief Amicus Curiae of Pacific Legal Foundation, Cato Institute, New England Legal Foundation, Prof. Frank Schnidman, and David Collins, Esq.
• Brief of Four Takings Scholars (Carol N. Brown, David L. Callies, James W. Ely, Jr., and Dwight Merriam)
• Amici Curiae Brief of National Association of Homebuilders of the United States and California Building Industry Association
• Brief of Amici Curiae Owners' Counsel of America, National Association of Reversionary Property Owners, NFIB Small Business Legal Center, Reason Foundation, and Professor Shelley Ross Saxer (ours)
• Brief of Matteoni, O'Laughlin & Hechtman as Amici Curiae in Support of Petitioner

A lot of amici can be a good sign to the Court that yes, there is a lot of interest in a case, and that it has wide-ranging impacts.

Now we wait. The case up for consideration in a few days at the Court's conference. Let's see if the Court asks for a response or something else.

PDF: Brief of Amici Curiae Owners' Counsel of America, Nat'l Ass'n of Reversionary Prop. Owners, et al. in Support of Petitioner, Bridge Aina Lea, LLC v. State...