Regulating Paradise – Land Use Controls in Hawaii
Regulating Paradise – Land Use Controls in Hawaii
by David L. Callies
Introduction: A “Baker’s Dozen” Land Policy Agenda for the Fiftieth State
1. State Land Use Controls
2. Local Planning and Zoning
3. Subdivisions, Land Development Conditions, and Development Agreements
4. Public Lands in Hawai‘i: The Impact of State and Federal Ownership and Management
Article – Order Vacating Maritime Attachment Affirmed
Announcing Hawaii’s Newest BLAWG – Record on Appeal
Rounding out Damon Key's bloggers, please welcome Hawaii's latest law blog, www.recordonappeal.com, hosted by Damon Key attorney Rebecca A. Copeland (her bio here).
Rebecca's practice is litigation, with an emphasis on appeals. She came to Damon Key from Hawaii's Solicitor General's office where she appeared in state and federal appeals courts.
Rebecca is
New Filings in Indian Trust – Regulatory Takings Case
New Amicus briefs were filed in support of the Tribe in the case of United States v. Toohono O’odham Nation.
Colorado River Indian Tribes brief here.
Chamber of Commerce brief here.
Osage Nation brief here.
Our brief, filed on behalf of the National Association of Home Builders, is here.
Questions Presented:
Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.
Merits Briefs:
United States (Petitioner)’s Brief: here.
Tribe’s (Respondent)’s Brief: here.
Amicus Brief of Professor Sisk: here.
Other Briefs:
United States’ Petition for Certiorari: here. (courtesy of scotusblog.com)
Tribe’s Brief in Opposition to the Petition for a Writ of Certiorari: here.
United States’ Reply: here. (courtesy of scotusblog.com)
Decision below:
Federal Circuit’s decision: here.
Regulatory Takings Claims against Uncle Sam: Amicus Brief Filed in Indian Trust Case
We just filed an amicus curiae brief in the U.S. Supreme Court in an interesting case on a little-known jurisdictional statute that dramatically impacts two groups who have claims against the federal government: Indian tribes and property owners.
The statute (28 U.S.C. 1500) states:
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
The issue in this case is if there is a claim against the federal government pending in a district court, does the Court of Federal Claims have jurisdiction over a claim that arises from the same operative facts.
Our brief, filed on behalf of the National Association of Home Builders, is here.
Questions Presented:
Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.
Merits Briefs:
United States (Petitioner)’s Brief: here.
Tribe’s (Respondent)’s Brief: here.
Amicus Brief of Professor Sisk: here.
Other Briefs:
United States’ Petition for Certiorari: here. (courtesy of scotusblog.com)
Tribe’s Brief in Opposition to the Petition for a Writ of Certiorari: here.
United States’ Reply: here. (courtesy of scotusblog.com)
Decision below:
Federal Circuit’s decision: here.
Full confession: I had to google the Tohono O’odham Nation to find out where they were located: Arizona.
New Case from Fifth Circuit – Jowers v. Lincoln Elec. Co.
New case from the Fifth Circuit Courtof Appeals. Will review and commentlater, but the opinion in the case of Jowers v. Lincoln Elec. Co., 2010 U.S. App. LEXIS 17862 and can befound here.
New Admiralty Case from Fifth Circuit – Combo Mar., Inc. v. U.S. United Bulk Terminal, LLC
New admiralty case from the Fifth Circuit Court ofAppeals. Will review and comment later,but the opinion in the case of Combo Mar., Inc. v. U.S. United Bulk Terminal, LLC, 2010 U.S. App. LEXIS 17644 and can be found here.
New Admiralty Case from Eighth Circuit – In re Fitzgerald Marine & Repair
New maritime contract case from the Eighth Circuit Court of Appeals. The issue is contribution and indemnity provisions relating to the repair of vessels. The case is In re Fitzgerald Marine & Repair, 2010 U.S. App. LEXIS 17000 and the original opinion can be found here.
Facts: a marine repair company has a standing service agreement to repair a company’s tugboats and barges. One of its crews is called upon to aid a tugboat that was in danger of sinking. The tugboat eventually sinks. During the aid mission, an employee of the repair company was injured. He brought a claim against his employer and vessel owner for his injuries. The tug owner cross-claimed against the repair company for contribution and indemnity, citing the contract and common law. The injured worker’s claims were settled.
Analysis:
The maritime contract provided:
[Repairer] shall provide [Vessel Owner] the following services upon request:
(a) Repair of barges, towboats, and other vessels and any appurtenances, tackle, gear, or appliances of such vessels; and
(b) Such other services as may be agreed upon by the parties.All of such services shall be performed at the [Vessel Owner’s] facility in the vicinity of Columbus, Kentucky, including barge fleets operated in conjunction with the [Vessel Owner’s] operation on both sides of the river. [Vessel Owner] shall give [Repairer] at least 24 hours’ advance notice of its
service requirements.The service agreement indemnity provision provided:
[Repairer] shall indemnify, hold harmless, and defend [Vessel Owner] and its affiliated companies . . . and its and their employees, agents, and vessels, from and against (a) any and all claims, liabilities, penalties, and expenses based upon or arising in connection with injury to or death of the employees or agents of [Repairer] . . . , regardless of any negligence on the part of the party to be indemnified or the unseaworthiness of any vessel owned, chartered, operated, or controlled by such party, and (b) any other claims, liabilities, penalties, and expenses arising in connection with [Repairer]’s operations unless caused by the sole negligence of [Vessel Owner] or its affiliates, or its or their employees, agents, or other contractors or subcontractors.
The court found that this indemnity provision was intended to protect Vessel Owner from the claims of Repairer’s employees. So, if the feckless attempt to save the tugboat was performed pursuant to the service agreement, then Repairer had to indemnify Vessel Owner. Rejecting claims that it was a good samaritan or that the attempted repair was not a repair that was envisioned by the service agreement, the court found that the attempted rescue of the tugboat was indeed covered by the service agreement, thereby triggering the indemnity obligations of Repairer.
New Admiralty Case from Eleventh Circuit – Uralde v. United States
New admiralty case from the Eleventh Circuit Court ofAppeals. Will review and comment later,but the opinion in the case of Uralde v. United States, 2010 U.S. App. LEXIS 17283 and can be found here.