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Honolulu Rail and the Uniform Relocation Act - Overview

Since most of my practice involves the use or transfer of land (and not water - sorry) and since there is a very, VERY large public transportation infrastructure project in development in Honolulu, we thought we would provide some of the requirements for the Honolulu Area Rapid Transit (HART) project. 

Because the HART rail project will involve federal funds, federal laws and regulations provide property owners (and their tenants) with additional statutory and regulatory protections above what is required by the Fifth Amendment, the Hawaii Constitution or Hawaii Revised Statutes Chapter 101.  This is the first post in a series about Honolulu Rail.

Title 42, Chapter 61 of the U.S. Code is entitled:  "The Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Asssisted Programs" and provides the statutory authority for the regulations which provide the details of the various benefits of the Uniform Relocation Act program.   

The federal regulation (as originally published in the Federal Register) that provides the procedures and specific requirements for eminent domain projects that use federal funds can be found here.

Of note, the Uniform Act has unusual application in courts.  The Uniform Act does not create any element of value or damage not in existence prior to the date of enactment.  42 U.S.C. 4602.

• Improvements shall be disregarded, either to increase, or decrease, fair market value as of the date of valuation.  42 U.S.C. 4651(3).
• Expenses incidental to acquisition, conveyance taxes, property taxes must be born by the federal agency.  42 U.S.C. 4653.
• Property owners are entitled to reimbursement of attorney's fees if the federal agency cannot condemn or the condemnation is abandoned.  42 U.S.C. 4654.  If the landowner is forced to bring an inverse condemnation claim, the property owner is entitled to a reimbursement of attorney's fees, appraisal and engineering fees.  42 U.S.C. 4653 (c).
• These protections apply equally to HART or any State or County acquisition using federal funds.  42 U.S.C. 4655.  Any "acquiring agency" must provide assurances to the federal agency funding the acquisition that the acquiring agency will comply with the protections of the Uniform Act.  

Courts have grappled with landowners rights under the Uniform Act - fodder for future posts for sure.

 

Damon Key Turns 50 Today

Founders Frank Damon and Shigekane returned to share our 50th birthday celebration!

Federal Disaster Aid, Shorelines and Just Compensation - Hurricane Sandy

It is a rare day when I get to blog about natural disasters, the federal government, shorelines and takings law - but today, dear readers, is that day.

From our friends over at the New Jersey Condemnation Law blog here, the New Jersey Legislature is considering a bill that states:

Just compensation for a portion of beachfront property condemned for the purpose of acquiring an easement for dune construction shall include consideration of the increase in value to the entire property due to the added safety and property protection provided by the dune, as well as any diminution in value to the property attributable to the condemnation.

Typically, the Fifth Amendment sets the floor for damages required by the just compensation clause.  State can provide additional protections by constitution or statute.  This is interesting, in that the New Jersey Legislature is attempting to define what is included in the just compensation award, in a manner that may actually reduce the award.

If federal funds are assisting with the acquisition of the easement, query whether the Uniform Relocation Act has some bearing on this proposed law.  It provides, at 49 C.F.R. 24.103(b), that:  

(b) Influence of the project on just compensation. The appraiser shall disregard any decrease or increase in the market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for theproject, other than that due to physical deterioration within the reasonable control of the owner.

As the governments attempt to address the resiliency of coastal areas through dune projects and hazard mitigation (a topic recently discussed by our ABA Section on Litigation Condemnation Committee on a teleconference), determining the price tag for these issues is certain to become a hotly litigated area of the law.

New Maintenance and Cure - 5th Circuit - No Restitution for Employers

There is something about the sea that makes humans poetic.

As a corollary, there is something about maritime cases that make judges very eloquent. Case in chief - consider this closing from Boudreaux v. Transocean Deepwater, Inc., Maintenance and Cure decision of the Fifth Circuit Court of Appeals:

We are offered no reason to depart from precedent. There is only the change of advocates and judges, by definition irrelevant to the settling force of past jurisprudence — always prized but a treasure in matters maritime. All this against the cold reality that the sea has become no less dangerous, and the seaman no less essential to maritime commerce. 

As my faithful readers are aware, seamen enjoy a worker-compensation-type benefit called maintenance and cure.  It is an age-old common law duty on employers of seamen to treat and care for their injured sailors.

In this case, an employee brought a maintenance and cure claim against his employer.  The employee failed to disclose serious back problems in his pre-employment medical questionnaire, affirmately saying "no" to several inquiries about his back trouble.  Less than five months after his hire, he claimed an injury to his back.  The employer paid maintenance and cure benefits for five years.  The employee later brought suit for additional maintenance and cure and for punitive damages.  The employer obtained summary judgment on the employee's claim after discovery revealed the non-disclosure.  Then, the employer brought a counterclaim for restitution, seeking the earlier maintenance and cure payments made to the employee.

The district court, assuredly mindful of the facts, recognized a heretofore unknown right of restitution in maritime law, and granted summary judgment on the counterclaim.  The Fifth Circuit reversed this decision and found that maritime law has never recognized such a cause of action and policy reasons underlying the maintenance and cure claim vitiated any attempt to move the law towards recognizing such a cause of action.

 

 

Tough Month for Environmental Groups in Ninth Circuit - Shell Offshore v. Greenpeace

Earlier this month, the Ninth Circuit Court of Appeals shot down the Sea Shepherd Conservation Society on a piracy theory (my post here).  This week, Greenpeace is in the hotseat.  This case arises from a preliminary injunction obtained by Shell Oil Company against Greenpeace for protest activities in the Arctic.  The case is Shell Offshore, Inc. v. Greenpeace, Inc. and it can be found here.

The 2-1 decision affirmed the Alaska District Court's injunction against various protest activities directed at Shell's exploration vessels.  

This case has several different and thorny legal issues, including First Amendment, corporate status, jurisdictional reach of federal court's injunction power.

Of special note, the Ninth Circuit found that the federal court had supplemental jurisdiction over Shell's claims beyond the territorial sea (where the court's diversity jursidiction power ends), but before Shell's vessel was attached to the seabed (where the court's Outer Continental Shelf Lands Act jurisdiction would lie).