Recently in Property Law Category

The Ninth Circuit Court of Appeals ruled today that Revett Silver Company can move forward with plans to build and operate a copper and silver mine in northwest Montana, part of which will be located on land managed by the U.S. Forest Service.

Revett’s plans had been on hold as opponents pursued claims under the Endangered Species Act (ESA) that the proposed mine would endanger the bull trout and grizzly bear populations in the area.

Though the Fish and Wildlife Service had issued two biological opinions that concluded that the mine would result in “no adverse modification” to the bull trout habitat, and “no jeopardy” to the grizzly bear population, Rock Creek Alliance challenged that the opinions were arbitrary, capricious, and in violation of the ESA.

Establishment Clause Challenge to War Memorial

In Trunk v. City of San Diego, No. 08-56415, an Establishment Clause challenge to a cross on a war memorial, the court reversed summary judgment for defendants where the district court erred in declaring the memorial to be primarily non-sectarian, because a few scattered memorial services before the 1990s did not establish a historical war memorial landmark such as those found in Arlington Cemetery, Gettysburg, and the Vietnam Veterans Memorial in Washington, D.C.

Defective Construction Action

In Albano v. Shea Homes Ltd. Pshp., No. 09-15808, an action asserting defective construction claims against a developer, the court certified the following questions to the Arizona Supreme Court, 1) does the filing of a motion for class certification in an Arizona court toll the statute of limitations for individuals, who are included within the class, to file individual causes of action involving the same defendants and the same subject matter?; 2) if so, does this class-action tolling doctrine apply to statutes of repose, and more specifically, to the statute of repose for construction defects set forth in Arizona Revised Statute section 12-552?; 3) if the doctrine applies to statutes of repose, and specifically Arizona Revised Statute section 12-552, may a court weigh the equities of the case in determining whether, and to what extent, an action is tolled?

Environmental Challenge to Old-Growth Forest Thinning

In The Lands Council v. McNair, No. 09-36026, an action challenging the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violated the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA), the court affirmed summary judgment for defendants where 1) the Forest Service reasonably relied on the 10%-old-growth standard as set forth in the IPNF Plan; and 2) it was within the Forest Service's discretion to rely on its own data and to discount the alternative evidence proffered by petitioner.

Environmental Challenge to Mine Expansion

In Greater Yellowstone Coalition v. Lewis, No. 09-35729, an action claiming that the expansion of a mine would violate the National Environmental Policy Act, the Clean Water Act (CWA), and the National Forest Management Act (NFMA), the court affirmed summary judgment for defendants where 1) the CWA and NFMA did not require the Bureau of Land Management (BLM) to identify additional possible sources of pollution; and 2) the record showed that the BLM examined all the relevant evidence.

Challenge to Rent Control Ordinance

In Guggenheim v. City of Goleta, No. 06-56306, an action against the City of Santa Barbara claiming that its rent control ordinance was a taking of plaintiffs' property without compensation, and asserting numerous other claims, the court affirmed summary judgment for defendants where 1) leaving the ordinance in place impairs no investment-backed expectations of plaintiffs, but nullifying it would destroy the value these tenants thought they were buying; and 2) the ordinance protected owners of mobile homes from the leverage owners of the pads have, to collect a premium reflecting the cost of moving the mobile home on top of the market value of use of the land, which was a legitimate government purpose, related to but distinct from lowering housing prices for all renters.

Challenge to Fish and Wildlife Service Biological Opinion

In Wild Fish Conservancy v. Salazar, No. 09-35531, a challenge to a Fish and Wildlife Service (FWS) biological opinion addressing the effects of the operations of the Leavenworth National Fish Hatchery on the bull trout, the court reversed summary judgment for the FWS where the FWS in several respects failed to articulate a rational connection between the facts found and the "no jeopardy" conclusion.

Forum Non Conveniens Dismissal Reversed

In Carijano v. Occidental Petro. Corp., No. 08-56187, an action by members of the Peruvian Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, against an oil company, for environmental contamination and release of hazardous waste, the court reversed the dismissal of the action where defendant failed to meet its burden of demonstrating that Peru was a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum.

Dispute Over Parcel Surrounded By Indian Lands

In Lyon v. Gila River Indian Comm., No. 08-15570, an action seeking a declaratory judgment that debtors' estate had legal title and access to a parcel of land surrounded by Indian lands, the court affirmed partial judgment for plaintiffs where 1) the trustee's claim of a pre-existing easement to access the parcel was not preempted by the existence of a regulatory scheme for obtaining new easements over Indian lands; and 2) the implied easement Arizona obtained from the federal government in 1877 was effectively conveyed to each subsequent purchaser of the parcel.  However, the court vacated in part where the district court erred in refusing to take judicial notice of this official action by the Bureau of Indian Affairs.

In Murdoch v. Castro, No. 05-55665, a murder prosecution, the court of appeals affirmed the denial of petitioner's habeas petition, holding that, because the Supreme Court has not clearly established whether and in what circumstances the attorney-client privilege must give way in order to protect a defendant's Sixth Amendment confrontation rights, the California state court could not have unreasonably applied clearly established Supreme Court law when it denied petitioner access to an allegedly exculpatory letter sent by a witness.

Edwards v. First Am. Corp., No. 08-56536, involved an action claiming that defendant improperly paid millions of dollars to individual title companies and, in exchange, those title companies entered into exclusive referral agreements with defendant.  The court of appeals affirmed the denial of defendants' motion to dismiss the complaint, on the ground that the text of the Real Estate Settlement Procedures Act did not limit liability to instances in which a plaintiff was overcharged.

In US v. Batson, No. 09-50238, a prosecution for conspiracy to commit tax fraud, the court of appeals affirmed in part defendant's restitution order, on the ground that the district court was authorized to order restitution for a violation of Title 26 as a condition of supervised release by 18 U.S.C. section 3563(b)(2), which granted courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. section 3583(d), which made that grant applicable to supervised release.  However, the court vacated in part, holding that restitution so ordered must be limited to the offense of conviction when, as here, that offense does not involve an element of a "scheme, conspiracy, or pattern of criminal activity."

Related Resources

• Full Text of Murdoch v. Castro, No. 05-55665
• Full Text of Edwards v. First Am. Corp., No. 08-56536
• Full Text of US v. Batson, No. 09-50238