WAVY.com of December 12, 2012 reports that a Virginia jury awarded $3,7756,250 to Nova Plastics and its Owner Howard Everton for the taking their business. Andy Fox and Mila Mimica, Local Business Gets Nearly $4 million. Click here.

The taking was by the Norfolk Redevelopment & Housing Authority, for expansion of Old Dominion University. The original offer was $2,080,000 which was later increased to $2.4 million. The jury arrived at the $3,756,250 verdict after only 50 minutes of deliberation.

The on-line edition of Richmond  Times-Dispach (TimesDispatch.com, of December 10, 2012 (Randy Hallman, Henrico Loses Eminent Domain Dispute With Property Owner), reports that a Henrico County jury brought in a verdict of $236,75o, rejecting the county’s offer of $126,000. The owner, Emily Sterling successfully contended in court that the county’s taking of 1/5 acre out of the larger parcel of 1/2 acre rendered the remainder unsuitable for development.

The irony of this case lies in the fact that the owner offered the entire 1/2 acre parcel to the county for $253,000, but the county refused. So for about the same amount of money the county could have had the entire half-acre.

We just read a book review of Jim Sterba’s book “Nature Wars: The Incredible Story of How Wildlife Comeback Turned Backyards Into Battlegrounds,” and it seems to us that it belongs on our must-read list. It’s not that the book is so great, though it may well be. It’s that by reading this book review we were alerted to stuff we didn’t know. The book review is: Hector Tobar, Warning: People Ahead, L.A. Times, Dec. 9, 2012, at p. E9, and we better read the book.

Our perception of the conventional wisdom as far as land utilization goes, has been shaped (or at least influenced) by endless newspaper stories about the maw of development swallowing up fertile farmland and replacing it with — what else — sprawling development. We have no doubt that some of this is true, but now we learn that it ain’t necessarily so; it depends on where you are. In a lot of places, humans are looking after the local wildlife and habitat, making sure everything is healthy. For example, a tree service company might remove a diseased tree to help stop other trees nearby from becoming infected which could potentially stop a whole woodland area from dying out. In the same way, such services can also be used to prune trees for better growth. In addition to maintaining the size of trees, this practice allows better light penetration into their crowns, reduces disease conditions, encourages better blooming, enhances safety by removing dead and broken branches, and enhances the overall appearance of the said tree. This not only helps improve the health of the trees around it, but also increases the look of the landscape. No one wants a dead tree (or a nearly dying one!) near the other beautiful trees now, would they? A person from Greensboro can, for example, search for tree cutting Greensboro experts and find similar tree maintenance services near them that are willing to help them with any type of tree removal or pruning that they might need. On top of that, it turns out that there are lots of places where the opposite has been the case for a long time. In northern New England, for example, farms have been disappearing — taken over, not by development, but on the contrary, by the wilderness. And the same is happening in the Great Plains where entire small towns are being abandoned.

Beavers are coming back big time because people have stopped wearing beaver hats, and they (the beavers, not the people) are wreaking havoc on trees which they use to build beaver dams and lodges. I know a few locals have had to call the tree service company to come and remove some of the trees as they’ve become so weak and could collapse any minute! Wild turkeys have metamorphosed from national symbol, to a pest. We wondered about that a couple of years ago when visiting the Carmel Valley in Northern California and noticing flocks of them wandering along roads, showing no fear of people and cars. Modern wild geese have taken to inhabited lands and cozied up to people to such an extent that some of them have ceased migrating south for the winter. Then there are deer. Just try to put in some nice landscaping in some parts of New Jersey and before you can say “Nice Bambi,” the local white-tailed deer will reduce it to a few twigs sticking out of the ground. I suppose the answer to this is purchasing a deer feeder to try and encourage them to eat that, rather than what you have just planted. A quick search online led me to https://feedthatgame.com/best-deer-feeder/, which rates all of the best deer feeders. They aren’t cheap but are probably worth it to save your landscaping efforts.

But for us, the most important thing is the encroachment of wilderness into farmland, because that is contrary to conventional wisdom that is fed to us regularly by the media. We will likely have more to say about all this after we read this book. So stay tuned and while you wait strike a blow for nature by having some venison for dinner — the flora you save may be your own.

The other day we brought you a news dispatch concerning the most expensive housing in the country. It was not a story about posh digs that provide a place of repose to the nation’s nabobs, with which the press likes to dazzle the peasantry in Sunday real estate sections, but just housing across the board. Unsurprisingly, California had as many cities on that list as the rest of the country put together. No news there. Now it turns out that’s nothin’.

We now learn that the champion is — ta-da! — Hawaii. The average price of a home out there (we presume “out there” means Oahu) is — are you ready? — $742,551, with the priciest area being, not Diamond Head or Kahala, but rather Kailua on the windward side where the average tops a million. Who knew? We thought of the Kailua area as a homy sort of place where you go to enjoy empty beaches, get some da kine saimin, commune with the kama’ainas in their native habitat, and behold the glory of the Pali on the way. But reality is not to be denied. We learn from today’s news that President Obama is going on vacation in Hawaii, and will be staying in Kailua (his entourage, however, will be staying at Waikiki in the Moana Surfrider Hotel — our favorite.

We are not sure that the article we are referring to really means “average”  or “median.” “Median” — which is generally used in home price reports — means that one half of the homes in question are more expensive than that. Which is well and good if you happen to be one of the aforementioned nabobs, like those Hawaiian folks in the movie “The Descendants” whose big problem (apart from coping with personal tragedy and getting even with a philandering bounder) is how to beat the Rule Against Perpetuities, and who in spite of ownership of pristine Hawaii land measured in square miles, live rather modestly.

So the  question  is: where the hell do ordinary people live in Hawaii? And by that we mean middle class folks like office workers, lower and middle management types, young professionals, teachers, etc.  If you know the answer to that question, please let us know, but be warned that we are acquainted with the law of supply and demand, so it isn’t necessary to go into all that. We are also aware that living in Paradise is both attractive and pricy. But wages are not twice as high over there as in California (where they are not twice as high as in, say, Nebraska where the average house goes for $145,360). And if you’ll forgive a soupcon of boosterism on our part, our climate in California is not to be sneered at either. So how does the Hawaiian peasantry make ends meet while keeping a roof over its heads?

A mystery, that.

PS – And if you haven’t seen that movie, “The Descendants,” do. It’s a good story and you’ll see the best collection of Aloha shirts to be seen  anywhere. Besides, if you are into law, apart from the movie “Body Heat,” how many other movies are there in which the plot revolves around an application of the Rule Against Perpetuities?

From time to time, we follow the literary convention (or is it a cliche?) of referring to California as “la-la land.” It never disappoints in that regard, and here comes another wacko story that gives every appearance of being true. See Scott Gold and Matt Stevens, Malibu’s Great Blight Whale, L.A. Times. December 7, 2012, at p. A1 — yes, a front-page story this. http://www.latimes.com/news/local/la-me-beached-whale-20121207,0,4479393.story

It seems that the Pacific Ocean has washed up a dead whale onto the Malibu beach. A 40-foot, 40,000 pound fin whale carcass to be exact, that — at least when it washed up on shore — was in “really, really great condition,” according to a grand poo-bah of the California Wildlife Center. In a sane place, the next step would be to dispose of the carcass promptly before it became a serious public health problem. It says here that the preferred means of disposal would be to tow the carcass out to sea and let nature take its course, although since everything has a downside, there is a caveat: doing so might only cause the whale carcass to wash up on shore somewhere else. But the opportunity to do so went by as  nothing was done and the rotting carcass started decomposing, raising the risk that an attempt to tow it away would only cause it to disintegrate and render towing physically impossible. And according to the authorities, so it came to pass. By now, disposal by towing is no longer an option — attempting to do so would only make a big mess, says a spokesman for the California Department of Parks. Long story short, it turns out that this is happening because no government entity in California is willing to admit that it has jurisdiction over such things. You’d think that this is the first dead whale to wash up on a California beach. We do have a government department that monitors the procreative activities of kangaroo rats, but evidently none to attend to rotting whale carcases.

So the whale carcass in question has been lying out there among the Malibu grandees, doing what unattended carcasses are wont to do in a warm climate: decomposing and providing fodder for seagulls, crabs and other marine creatures that look upon this event as a fortuitous feast, and don’t seem to mind the fierce stench.

But what about the high-class locals? Aren’t their olfactory sensibilites offended? Aren’t they up in arms over this positively comedic instance of government ineptitude and nonfeasance with public health implications?  Not so that you can tell. “[D]ozens walked down the beach to pay their respects,” said the Times. “Pay their respects”? To a huge pile of rotting whale blubber? Evidently. See Gawkers Hold Noses, Trek to Rotting Whale Carcass in Malibu, latimes.com/news/local, Dec. 9, 2012. Welcome to California, folks, where whale worship is the official state religion, and  where the government can regulate anything and everything, but claims an inability to perform the most basic of sanitary functions.

Follow up. A follow up to gladden libertarian hearts. Today’s L.A. Times reports on line that evidently tired of this shameless display of government nonfeasance, a group of locals finally did something about the situation. A private group hired a tugboat and had the whale carcass towed 20 miles out to sea, whence it is unlikely to float back to shore. Whale Carcass Quietly Disposed of, latimes.com, Dec. 12, 20012, http://latimesblogs.latimes.com/lanow/2012/12/malibu-residents-move-whale-carcass-ignoring-red-tape.html. And as for the bureaucrats, as of Thursday, “a state official said authorities had decided towing the carcas to sea was no longer feasible because it would break apart.” Apparently, the whale carcass didn’t get that memo.

Second follow up. Stop the presses! It turns out that we Californians are not the craziest ones when it comes to disposing of rotting carcasses of beached whales. A letter to the editor (L.A. Times, Dec. 9, 2012, at p. A33) reminds us that back in 1970, the Oregon Highway Division lent a hand in the whale carcass disposal game, and decided to blow up — blow up, like with explosives — a dead whale that had washed up on the beach up there. The result? We’re glad you asked. The explosion scattered chunks of rotting blubber for hundreds of feet, and provided much material for local humorists.

In the joyful spirit of the season (Starbuck’s is serving our morning Americano in red cups so it must be Christmastime), your faithful servant will now kindly pass over the question of what the hell is a state Highways Division doing, blowing up dead whales and managing beaches. Shouldn’t they be taking care of, er, highways? But what do we know?

And speaking of highway types and money, our own California highwaymen once needed a half-acre of land for a highway right-of-way up in Merced Couty, so they took some 54 acres for it on the theory that doing so would — are you ready? — save money. No, we are not making this up. As you can see for yourselves, dear readers, not only did they do it, but that ever-watchful guardian of the public purse, the California Supreme Court said 5 to 2 that this was cool with them, being as the state said it would save money thereby, so why make a constitutional fuss over it? Justices Mosk and Peters dissented, pointing out inter alia that in this case arithmetic trumped the law, with its insistence that more is more, not less, but to no avail. See, People v. Superior Court (Rodoni), 68 Cal.2d 206 (1968).

So how did it all come out? We’re glad you asked. Shortly after the Rodoni case the California Little Hoover Commission investigated the Division of Highways’ excess land program, and — surprise, surprise — discovered that far from saving the state money, the excess land program was a rathole for millions of dollars in public funds, and that the state had thus acquired land that it could neither use nor sell. And as to some 10% of that excess land that the state  was holding, our Division of Highways didn’t even know it owned it.

Your tax money at work.

This post was edited on December 12, 2012 at 12:50 p.m.

The Clancy Brothers recorded and preserved for posterity an old British vaudevuille song, entitled The’re Movin’ Father’s Grave to Build a Sewer, a lament of a Britsh workingman confronting the prospect of a taking of his father’s grave site in order to put in “nine-inch drains” to bring modern sewers to a “posh bloke’s residence.” (You can find a link to it in the right-hand margin of our fellow blogmeister’s handiwork at www.inversecondemnation.com — check it out).

But now, following the admonition of Oscar Wilde that “nature imitates art,” we have a real situation like that from — where else? — China. It seems that in spite of the Chinese government’s adherence to communist verities, the newly-enacted property rights over there are being taken seriously — very seriously. The Huffington Post brings us a dispatch that the owner of a cemetery in which his kinfolks are buried has flat-out refused to move his “father’s grave” and has refused compensation which he considers inadequate. So the developer is building his structure around the portion of the cemetery in which those graves are located. Like this:

See   http://www.huffingtonpost.com/2012/12/06/china-graves-construction-site_n_2250596.html

We finally got a chance to read the brand new SCOTUS opinion in Arkansas Fish & Game Commission v. U.S.,  and, with all due regard for the owner’s win, we conclude that, in a manner of speaking, it rounds up the usual suspects: it evades clarity in favor of uncertainty. It gives us more “factors,” as if the existing pile of them were not enough, and does so where it isn’t necessary. Why not? Because flooding is flooding — it covers the ground with water and renders it unusable, making the invasion a categorical, physical taking as SCOTUS explained way back in the 19th century case of Pumpelly v. Green Bay Canal Co case, so that the duration of that taking goes to the quantum of damages, not to liability.

But first, a word about a fact that has gone without notice or commentary. The flooding in question was not the consequence of some sort of government project pursued to benefit the public. The water that flooded the Arkansas forest preserve was released by the feds at the request of local farmers who evidently wanted more water without paying for it. You know, a pursuit of the good ol’ free lunch. So  the benefit was not to the public, but to specific individuals who wanted a federal benefit at the expense of their neighbor which in this case just happened to be the public. So slice it any way you want, this was a taking of public property for private use without compensation, which to us at least fails to ring any constitutional bells. Seems to us like this caper stood the constitutional concept of public purpose or public benefit on its ear in the Court of Appeals. The answer to those farmers’ demans should have been a polite but firm “Screw you! If you want the government to act for your private economic benefit  in a way that is injurious to your neighbor, pay for the damage you want inflicted on him.” But hey man, this kind of economic and moral jiggery-pokery has been with us ever since Clark v. Nash (1905) where a farmer was permitted to condemn his neighbor’s land to expand his farming operations (see 33 Pepperdine L. Rev. at 350-352) (except in Clark the taker wasn’t trying to avoid paying for the taking), but that fact does not make such doings any more doctrinally or ethically palatable. All it accomplished in this case was the goverment trying to facilitate a shirking of the duties of the farmers to pay for benefits received by them at their neighbor’s expense, and using the force of government to shift the economic burdens of onto the Arkansas taxpaying public. Doesn’t sound to us like an exercise of “political ethics,” a term which SCOTUS used in United States v. Cors to characterize the exercise of the taking power by the government.

Nominally, the Arkansas Game & Fish opinion professes only to tell us that the fact that a taking (flooding) is temporary, does not in itself establish it as being noncompensable. But the body of the opinion is larded with the ususl incomprehensible judicial babble that is familiar to us from other comparatively recent taking cases. There is mention of the good ol’ “magic formula”  to which we must not look to establish inverse condemnation liability — admonishes Justice Ginsburg. As if other fields of constitutional law were replete with such “formulas,” making it easy to establish the constitutionality vel non of the challeged actor’s conduct. Just ask a cop how easy it is to find a “magic formula” for search and seizure, probable cause, use of the Miranda rule, and all that other criminal/constitutional gobbledygook. (see 19 Loyola L.A. L. Rev. at 713-715). And how can we fail to mention the repeat appearance of those ever popular “reasonable investment-backed expectations” that Justice Brennan’s clerk lifted, sans attribution, from Frank Michelman’s law review article, and that have been mystifying the consumers of decisional law in this field, ever since the 1978 Penn Central decisions where it first made its appearance in decisional law? And so, instead of the three-factor Penn Central mish-mash (which is confusig enough), we now also have a “time factor” to consider — how long is “temporary” so as to make the temporary taking compensable? We note in passing that when the feds want to occupy private property at the end of a lease, they see no problem filing a formal eminent domain action for as little as one — count ’em, one — year. See United States v. 300 Units of Rentable Housing etc., 668 F.3d 1119 (9th Cir. 2012). So why isn’t a taking for a similarly short period of time equally compensable when it is accomplished without the niceties of due process?

Finally, we now have to contend with mind-reading: we have to plumb the bureaucratic mind to determine the “degree to which the invasion is intended or is a foreseeable result” of the government’s acts. And here we thought that — at least out here in the provinces where we practice — inquiries into government officials’ intent are a no-no. Go figure.

Bottom line: as noted above, in United States v. Cors, SCOTUS explained that the exercise of the taking power is an act of “political ethics.” But what we see here is much politics and very little ethics, even if in terms of result the court came down on the right side.*

Postscript. Of course, this opinion is a tour de force of doctrinal confusion on another point: it confuses the criteria of a regulatory taking with those of a physical taking. We should have mentioned that expressly, but since others did, we thought it wouldn’t be necessary. Wrong! You can never be too explicit, particulatrly in this fershluggenes field of law.

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* But keep in mind that the case will now go back to the lower court(s) where Uncle Sam’s liability will be tried without the benefit of the feds’ defense that this taking was only “temporary.” Stay tuned.

SCOTUS has handed down its decision in the Arkansas Fish & Game Commission v. United States case, and has come down unanimously on the side of the property owner (which in this case happens to be the State of Arkansas — of which more presently), with Justice Kagan abstaining. The facts were straightforward. The feds released water from their dam, flooding Arkansas state forest land over a period of several years. Eventually the feds drained the floodwaters, but the flooding had destroyed valuable standing state timber, for which the U.S. Court of Federal Claims awarded over $5 million. A taking? Seems that way to us.  Inundation of land has been deemed a taking at least since the 19th century Pumpelly v. Green Bay Canal Co. case, and destruction of property for a pulic use (except to stop a conflagration or by troops in wartime) is deemed to be a taking, as the court pointed out in the General Motors case. The more recent case of Cooper v. United States, 827 F.2d 762 (Fed.Cir. 1987) seems directly on point in favor of the Commission. And temporary takings are compensable — the difference being that in temporary takings the taker pays rent instead of fair market value of the taken land.

Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was a compensable taking. Seems clear to us. Permanent takings are compensable so why shouldn’t temporary ones be also compensable, with the permanent/temporary distiction going to the measure of damages? In a rational legal world, that decision would have been as hard as falling off a log. But who says the law of eminent domain is rational? Instead of giving us a sensible, workable rule, the court couldn’t resist it and created another morass of the it-all-depends variety? Why? The court didn’t say. And here we thought that physical takings — and flooding land seems to us to be about as physical as it gets — are takings per se.

So what that means now is that the question of when a temporary taking (by flooding) is compensable, remains just that — a question to be quibbled over on a case-by-case basis. And if the Penn Central case, with its confusing “three-part test” is any example, that sort of rule only gives judges the opportunity to quibble and, life in court being what it is, to rule in favor of the government in most cases, irrespective of what the facts are. For a full autopsy of Penn Central aand its baackground, see Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospetive on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill Rts. Jour. 679 (2005).

Still, a win is better that the proverbial poke in the eye, so we should rise above our usual curmudgeonliness and say something nice about the court’s ruling and about the prospects of employment of specialized lawyers. Hence the title of this post.

According to the Washington Post, Supreme Court Justices’ number of questions asked per oral argument averages out as follows:

Scalia                 23.8 (questions per argument)

Sotomayor     21.3

Breyer             20.3

Roberts          20.2

Ginsburg      12.6    

Kagan            12.2

Kennedy       11

Alito              11

Thomas          0