Annotations 12/2008

(court affirms trial court decision denying plaintiffs' Fifth Amendment takings claim involving enactment and enforcement of Initiative 143; plaintiffs own and operate alternative livestock game farms at which persons pay large sums of money to shoot captive animals within the confines of a game farm; Initiative 143 barred the fee-based shooting of game animals or alternative livestock; no taking under Penn Central analysis because Initiative did not eliminate all uses of alternative livestock as plaintiffs could still harvest animals for meat or antlers, or sell them in out-of-state markets where fee shooting still legal). 


(plaintiff not entitled to personal injury damages received in automobile accident caused by swerving to avoid horses on public roadway; plaintiff failed to positively identify that horses on roadway were defendant's horses).


(contract construction case involving farming partnership business relations).  


(defendant improperly concluded that plaintiff's property did not qualify as current agricultural-use valuation status; property met the requirements because it consisted of more than 10 contiguous acres that satisfied regulatory standards; 19-year gap between timber harvests did not defeat the plaintiff's claim because the plaintiff met the standard of showing a discernible modicum of activity designed to further growth of timber for commercial purposes through activity establishing such purpose).


(summary judgment granted for defendants on claim that defendants violated plaintiff’s Fourth and Fourteenth Amendment rights as a result of an alleged illegal search of plaintiff’s farm and seizure of several animals; sufficient evidence present that animals living in “horrible” conditions and search warrant valid).


(post-petition taxes triggered by sale of real estate eligible for non-priority treatment under BAPCPA provision).


(Kentucky law barring out-of-state wineries from shipping their wine directly to customers held unconstitutional; opinion follows U.S. Supreme Court Granholm opinion).


(defendant’s importation of egg whites from Peru without first obtaining a pasteurization certificate from the Peruvian government and without obtaining authorization from the Food Safety Inspection Service violated the Egg Products Inspection Act, which could result in the condemnation and destruction of the egg whites; trial court’s granting of summary judgment upheld).


(plaintiff (farmer) filed Chapter 11 after U.S. Bureau of Indian Affairs (BIA) removed bridge that provided access to farmland that plaintiff leased from Indian Tribe; bankruptcy court found that regulatory taking had occurred and recommended award of over $1 million in damages; district court reversed on basis that plaintiff's claim not ripe for review; appellate court determined that plaintiff's claim was ripe, but that neither bankruptcy court nor district court could hear plaintiff's claim based on sovereign immunity - plaintiff's claim fell within jurisdiction of Tucker Act and Tucker Act's sovereign immunity waiver limited to suits filed in U.S. Court of Federal Claims; even though taking claim related to debtor's bankruptcy case, Tucker Act did not clearly express Government's consent to be sued in district court).


(creditor who imposes flat finance charge that does not vary with the term of a Refund Anticipation Loan need not refund a portion of the charge as "unearned interest" under 15 U.S.C. § 1615 when loan is repaid earlier than anticipated in the loan agreement; finance charge not an "interest" charge).


(court upholds defendant’s decision granting a special use permit for the operation of a facility to provide horse riding lessons and a twice annual competitive horseback endurance trail ride; location, scale and intensity of activities compatible with character and development of the area and surrounding properties).


(plaintiffs (Oregon miners) cannot prevail on their $22.5 million takings claim against the U.S. Forest Service because the government never ordered them to stop mining; government allegedly waited more than two years to tell the plaintiffs that their operation wouldn’t harm the northern spotted owl).


(refineries, ethanol distilleries and other industrial sites are not be exempt from normal emissions standards during startups, shutdowns and malfunctions).


(defendant, owner of fractional interest in an oil and gas lease, found liable for $5.8 million in unpaid fees incurred by the operator of the underwater oil and gas exploration operation, which paid operation costs up front for all fractional owners; operator did not affirmatively release defendant from obligations under the parties’ joint operating agreements before defendant assigned its rights to a third party).


(mother’s sale of farmland to a son for no consideration is a nullity and not a disguised donation, as is subsequent donation of land by son to a cousin).


(genuine issue of material fact existed regarding whether the parties established a partnership based upon either apparent authority of partnership by estoppel; trial court grant of summary judgment for defendant reversed).


(title to property acquired by adverse possession; plaintiffs exercised degree of use and control over subject parcel that was normal and customary, and demonstrated an intent to claim full ownership of tract superior to rights of all others, and plaintiff’s actions sufficient to give actual or constructive notice of intent for statutory period).


(sufficient evidence present to uphold defendant’s conviction on four counts of cruelty to animals; cows recklessly confined without supply of sufficient quantity of wholesome food and water and cause of death related to severe dehydration and emaciation).


(tuition and fees paid to Orthodox Jewish day schools not deductible).


(Cattle not point-source pollutants under CWA and such holding not inconsistent with SD Warren; non-point sources not included in definition of "discharge"; Oregon Natural Desert Association v. Dombeck, 151 F.3d 945 (9th Cir. 1998) controlling law on the issue).


(trial court’s denial of tenant’s request for issuance of permanent injunction that would restrain landowner from harvesting timber and conducting clearing operations on leased premises upheld; lease gave landlord retained right to use and develop premises for “other” purposes; tenant knew at time leased signed that future logging a possibility; and logging activity would actually enhance hunting value of property to tenant).


(plaintiff, surviving spouse of decedent who was killed in head- on collision with defendant’s farm implement on public road, appeals trial court’s denial of plaintiff’s motion for new trial; trial court’s determination upheld where evidence revealed that defendant did not violate state standard of care for moving farm implements on public roadways).


(plaintiff's tobacco crop damaged by rain and produced only 65% of estimated crop output production for the crop year, but plaintiff actually received 102% of expected income from tobacco crop when factoring in insurance proceeds received for damaged crop; plaintiff subsequently applied to FSA for crop damage payments (CDPs) and received another $80,000; summary judgment for government upheld where plaintiff had extensive knowledge in FSA farm program eligibility rules and should have known that $80,000 was erroneously paid).


(defendant charged with various criminal violations of state hunting laws based initially on discovery of game feeder and salt-block viewed by state game officials from airplane; defendant moved to suppress evidence based on Fourth Amendment; trial court's denial of defendant's motion upheld because "search" was merely an innocent observation of defendant's property and not a "search" as contemplated by the Fourth Amendment; defendant's posting of property insufficient to shield any and all observation of items not shielded or protected from view from places exterior to the property).


(conviction for unlawful merchandising practices arising from misrepresentations made in the course of selling cattle upheld; defendant told buyer that all of the cows the defendant was selling had raised at least one generation of calves while on defendant’s farm, but such statement did not match sale barn records showing that some cows had been recently acquired).  


(debtors had no intent to hinder, delay or defraud creditors upon converting non-exempt assets on the eve of bankruptcy filing to increase the value of their homestead exemption to its fullest; while some badges of fraud present, no extrinsic evidence present of intent to hinder, delay or defraud).


(amendment to agricultural land valuation statute upheld as constitutional; properties at issue not primarily used for agricultural purposes and not entitled to preferential valuation).


(plaintiff’s adverse possession claim failed due to plaintiff’s inability to prove that possession was hostile).


(case involves property division in divorce; corporate stock of ranching operation held not to be marital property, but debt associated with the farming operation was marital property).


(ownership agreement involving ranch not an enforceable contract; agreement ambiguous and lacked mutuality of obligation; extrinsic evidence did not support existence of enforceable contract).


(maximum value of required property under I.R.C. § 6324A includes the amount of interest expected to become payable over first four years of deferral; if use of flat 2 percent interest rate results in amount that is less than or equal to 45 percent of underpayment interest rate, it is legally permissible).


(commercial demonstration cellulosic ethanol production plant will be eligible for additional first-year bonus depreciation for qualified cellulosic ethanol plant property if requirements of I.R.C. Sec. 168(l) and (k) satisfied).


(cars, light general purpose trucks, and vehicles that share characteristics of both cars and light-duty trucks are like-kind for purposes of I.R.C. Sec. 1031).


(bank's security interest in debtor's cotton crop not seriously misleading, and defendant had notice of bank's prior perfected security interest in crop).


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