Friday, December 4, 2009
I have to say, Jim Titus is on the ball and he does his homework. Here's his follow up e-mail to me about Stop the Beach:
The plaintiff also insists that the common law right to recovery was not just a right to fill back land lost to the sea but also included a right to excavate any avulsion on the King's land between the owner's land and the sea. That is totally at odds with early common law, whose focus was on preserving the King’s ownership of the King’s land, often along the English Channel where accretion often brought new land. The right to reclaim land that you lose to the sea is very different from the right to destroy the King’s land just so you can have waterfront property. Especially during a period of time when riparian lands were generally not used for shorefront dependent uses, but the King might be able to use the new land for a fortification.
But the most clever part of his argument was his explanation for why the loss of the accretionary right—if a taking—would be a judicial rather than a legislative taking. The plaintiff argues that the Act’s savings clause, which authorizes compensation through eminent domain if the requirements of the Act would be a taking, implies that the taking did not occur when the statute was passed 50 years ago. It didn’t occur until the Court ruled that there was no taking and denied just compensation—at which point it was a judicial taking because the court failed to follow the law. Under that reasoning, every legislative takings claim lost in state court, even over very old legislation, could be a judicial taking if the statute had a provision for just compensation.
Now, if I just understood sea level rise science as well as Jim understands the common law, I'd really be in business!
Jamie Baker Roskie
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