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Problem Questions

The deadline for all questions pertaining to the 2017 Problem is October 24, 2016. You should review the Problem prior to the deadline and email the NELMCC Board at with any question(s). Questions will be answered once a week to all team contacts via email and will also be posted weekly here. No questions about the Problem will be answered after the deadline.

Problem Q&As

Q1: Footnote 3 cites the Tahoe-Sierra name twice, but in the second citation sentence, it provides an incorrect citation to what comes up as Omaha Public Power Dist. v. O'Malley. This case is an 8th Cir. decision from 1954 and not a 9th Cir. case from 2000. Just wanted to pass that along so we could get clarification on the correct case.

A1: The citation in footnote 3 is incorrect. The second Tahoe–Sierra citation in footnote 3 should be the F.3d reporter, not the F.2d reporter. Accordingly, it should read: Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 773 (9th Cir. 2000).

Q2: While my team was reading through the problem we noted that FWS designates The Heath as critical habitat for New Union subpopulation Karner Blues in 1978, but the Karner Blue is not listed in the endangered species list until 1992. We were looking at ESA cases and kept running into only situations where a species was listed and then a critical habitat was created. So we wanted to check in and see if that timing is still correct or impacts any of the problem. We thought that a species had to be listed before critical habitat could be declared.

A2: Numbered paragraph 10 on page 6 of the problem should read: “The Heath was designated by the FWS as critical habitat for the New Union subpopulation of the Karner Blues in 1992.” Competitors are directed to assume the Heath’s designation as a critical habitat for the Karner Blue occurred in 1992.

Q3: When researching, should we consider U.S. Supreme Court cases as the only binding precedent and all other federal cases (circuit court cases and district court cases) as persuasive authority?

A3: Yes.

Q4: Will the 12th Circuit consider all seven issues de novo? In other words, can we assume there is no deference owed to the lower court's determinations, with the exception of their findings of fact?

A4: The 12th Circuit applies the standards of review applied by other United States Circuit Courts of Appeal.

Q5: The problem repeatedly refers to the “intrastate population” of Karner Blue butterflies. But in at least one place (page 8), the trial court decision refers to the Karner Blue as an “intrastate species.” Is this latter reference a typo, since we know that there are populations of Karner Blues in other states (see paragraph 9 of findings of fact)?

A5: There will be no alteration of the district court opinion on this matter.

Q6: Footnote 1 of the problem states that the jurisdiction was proper in the district court for the takings claim against the United States of America, basically avoiding any determination of whether the jurisdiction was proper in the district court under the Tucker Act. However, because that jurisdiction was proper due to the waiver, our research indicates that makes the whole action appeal able exclusively to the Federal Circuit rather than a regional circuit. See Chabal v. Reagan, 822 F.2d 349, 357 (3d. Cir.). There seems to be some room to argue that not all the claims are automatically transferable to the Federal Circuit automatically, but we feel if that is the case then this would be an issue in the problem to be briefed. Therefore, in sum our question is basically what are supposed to gain from footnote 1? It is supposed to be helping us with jurisdiction or is it an issue within itself?

A6: In Footnote 1, the district court is explaining why it has jurisdiction over the subject matter of Lear’s claim against the Fish & Wildlife Service. Competitors are directed to assume that the 12th Circuit has previously determined it has jurisdiction and that the Federal Circuit does not. Appellate jurisdiction is not an issue for briefing.

Q7: We know from Paragraph 1 of the Findings of Fact that Lake Union was "traditionally used for interstate navigation." Are we to assume that it was so used prior to the grant of Lear Island to Cornelius Lear in 1803? Or did interstate navigation on the lake only start after the grant was made?

A7: The record will not be supplemented on this issue.

Q8: When did New Union become a state?

A8: The record will not be supplemented on this issue.

Q9: The facts show two different values for the damages awarded to Lear against Brittain county--$100,000 (page 4) and $90,000 (page 12). Which is correct?

Q10: The problem indicates on page 4 that $10,000 in damages were assessed against the FWS and $100,000 to Brittain County. However, on page 12 of the document the Conclusion says that only $90,000 was awarded to plaintiff against Brittain County. Can you please clarify the damages against Brittain County?

Q11: The introduction to the district court opinion indicates that damages are awarded to Cordelia Lear in the amounts of $10,000 and $100,000 from FWS and Brittain County, respectively; however, the conclusion of the opinion indicates that Ms. Lear is only awarded $90,000 from Brittain County. What is the correct amount of damages awarded to Ms. Lear from Brittain County?

Q12: On page 4 of the record, Lear is awarded damages of $100K against Brittain County, but on the last page, the judgment is for $90K.  Which is correct?

Q13: The Record is inconsistent about the amount of damages awarded against Brittain County. R at 4 indicates $100,000, while R at 12 indicates $90,000. Can you clarify the District Court's ruling?

A9-13:  Page 12 is correct. Page 4 should read: “Based on the Findings of Fact and Conclusions of Law set forth below, this Court enters judgment: . . . 3) awarding damages in the amount of $90,000 against Brittain County for an unconstitutional taking of Lear’s property in violation of the Fifth Amendment to the Constitution.”

Q14: Where did Cordelia reside from 1965 - 2014? Since she did not have a residence on her property and was estranged from her sister Goneril who lived on the lot with the original house, did she live off the island, with Regan, or elsewhere?

A14: The record will not be supplemented on this issue.

Q15: Does the State of New Union equate vested rights with property rights?

A15:  Yes.