Recently in Property Law Category

Newsflash: California is in the midst of a budget crisis. Also, the sky is blue.

As part of Governor Jerry Brown’s plan to curb state spending and reduce the deficit, after consulting with Secretary Kathleen Sibelius, of the Department of Health and Human Services, the governor instituted 10 percent cuts in payments paid to Medi-Cal providers.

On Friday, the Ninth Circuit upheld those cuts for the second time, issuing a revision of their opinion from late last year and denying rehearing of the case. The court noted that none of the circuit’s judges requested a vote on an en banc hearing.

In the 1960s, some brilliant individual decided that, with all of the Central Valley desert being, well, deserted, it would be a desirable idea to drench the place in water and start growing crops. Congress paid for irrigation contingent on either California paying for drainage, or the water being dumped in the Contra Costa delta.

Original plans to dump the toxic drainage in the S.F. Bay and the delta were thwarted because, well, it’s freaking San Francisco. Could you choose a less optimal place to kill mother nature?

Take a bow, Chief Judge Alex Kozinski.

What's your personal record for insulting people in a single day? Unless you are a tact-less celeb or gaffe-tastic politician, it's probably in the single digits. Judge Kozinski labeled a group of environmental activists "pirates" (using the law to back his assertion), pointed out Australia's impotence in international whaling law, and then questioned a district court judge's ability to perform his duties. In a single opinion.

That's how you run an appeals court - like a boss.

Not every case can be a habeas corpus petition or a fascinating discussion on the requirements of Iqbal and Twombly. This opinion, unless you are enchanted with obscure environmental laws and administrative procedures, or live in Port MacKenzie, Alaska, is probably not worth reading verbatim. You can thank us later for the highlights.

The Alaska Railroad Corporation (AARC) wanted to construct 35 miles of rail to Port MacKenzie for the purposes of economic development and improving access beyond roads. Of course, with any construction project in the untamed wilderness, there will be casualties. Even with “one hundred mitigation measures … construction of the rail line would increase erosion and sediment transport to water, cause nutrient loading, and likely leak petrochemicals to nearby waters. Construction would also lead to loss of wetland habitat, water degradation, and potentially a change in the hydrology of the wetland system.”

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.