President's weekly report — February 15, 2013

Property Rights — Pretextual eminent domain

Somebody at the Supreme Court is interested in what’s been going on in Guam — or at least the blatant pretextual taking of our client’s property in Ilagen v. Ungacta, a case described in Robert Thomas’s excellent blog on inverse condemnation.  In this case, the City of Agana condemned a strip of property belonging to Mr. Ilagan pursuant to a moribund post World War II era redevelopment plan.  Interestingly enough, the condemned strip of land provides street access to property belonging to the Mayor of Agana, and  Mayor Ungacta paid the City the costs of condemning the property.  Other than providing access for the Mayor’s parcel, there is no other conceivable “public” purpose for the condemnation.   The government declined to respond to our petition for cert.  However, this week, several days before the case was set for conference, the Court requested a responsive brief.  Somebody at the Court could be interested.  Stay tuned.

Property Rights — Arizona’s Property Rights Initiative

We filed our petition for review with the Arizona Supreme Court in Aspen 528 v. Flagstaff this week.  At issue is a procedural problem raised by the interaction of Arizona’s Proposition 207, that state’s post-Kelo property rights initiative, with another statutory requirement that requires plaintiffs to give government 90 days to respond to a required demand letter for compensation.  While Proposition 207 has a three-year statute of limitations, an Arizona court of appeals ruled that a demand letter filed after two years and nine months can be untimely because the 90 days on the demand letter will not run out until after the three years are up.  Thank makes no sense and we are asking Arizona’s high court to review.

Individual Rights — Equality Under the Law Project

PLF argued before the Ninth Circuit earlier this week in Associated General Contractors of San Diego v. California Department of Transportation, our challenge to California’s race and gender preferences for Caltrans contracts — preferences that fly in the face of California’s Proposition 209.

Environment — Environmental Reviews

The California Supreme Court granted review this week in Tuolumne Jobs v. Wal*Mart Stores.  This is good news because it will give the California Supreme Court to reverse an unfortunate opinion that eviscerated an exception to the requirement tha development projects go through extensive environmental review under the California Environmental Quality Act.  The purpose of CEQA is to ensure that government decisionmakers consider the environment before approving projects.  But there is an exception for those rare instances where the voters approve a project.  Here, after enough citizens in Tuolumne County signed a petition seeking the development of a Wal*Mart store — enough signatures for an initiative to go to the voters — the County approved the project.  While most California Courts of Appeal have found this scenario triggers the exception, the court here did not.  We had filed an amicus letter brief in support of review and will file a brief on the merits explaining the need for the exception to apply here.