A long simmering point of contention between State and Federal governments in the City of San Diego is the fate of the property now occupied by the United States Navy’s Fleet Antisubmarine Warfare Training Center in San Diego Bay.  The issue is whether the Federal government, having decided that a 50 year extension of its existing lease over the property is not long enough, can extinguish California’s public tidelands trust rights, granted to the State upon its admission to statehood in 1850, through condemnation of 27.54 filled acres in perpetuity; or whether, as the State claims, California’s public trust rights reemerge if the property is subsequently sold to a private party.  The question is of general importance, not only because many states hold public tidelands in trust, but also because the issue represents a test of the scope of the supremacy clause of the United States Constitution, and the doctrine of federal preemption that arises from it.  On June 14, 2012, the Ninth Circuit Federal Court of Appeals decided the question in United States of America v. 32.42 Acres of Land, No. 10-56568, D.C. No. 3:05-CV-01137-DMS-WMC (“California Lands”).Continue Reading Ninth Circuit Upholds Federal Preemption of State Tidelands

Exemption of NextGen procedures from environmental review is not the only issue raised by the FAA Reauthorization legislation set to be approved by the United States Senate on Monday, February 6 at 5:30 p.m. EST.  Section 505 of the Conference Version of the Bill allows a public entity taking private residential properties by eminent domain for airport purposes to pay the value of the property after its value has been diminished by the pendency of the project itself, and by any delay by the public entity in purchasing the property.  In other words, the Congress is overriding the long held judicial precept that “temporary takings are as protected by the Constitution as are permanent ones.”  See, e.g., First Evangelical Lutheran Church of Glendale v. Los Angeles County, California, 482 U.S. 304, 318 (1987).Continue Reading FAA Reauthorization Act Changes Rules for Valuation of Residential Properties