Sunday, April 24, 2011

Kornfeld on Natural Resources Damages and BP Deepwater Horizon

Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2.  The abstract:

This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.

Matt Festa

April 24, 2011 in Beaches, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Oil & Gas, Scholarship, Wetlands | Permalink | Comments (0) | TrackBack (0)

Saturday, April 23, 2011

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa

April 23, 2011 in Beaches, Caselaw, Comparative Land Use, Environmentalism, History, Property, Scholarship, State Government, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Friday, April 1, 2011

Penalver & Strahilevitz on Judicial Takings or Due Process?

Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process?  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.

Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Looks like a very important paper!

Matt Festa

April 1, 2011 in Beaches, Caselaw, Constitutional Law, Judicial Review, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 28, 2011

Caribbean Spring Break

I was incredibly fortunate to spend my Spring Break in Turks & Caicos (TCI), a small chain of Carribean islands near Hispanola (the island shared by the Dominican Republic and Haiti).  Vacations like these are always interesting from a land use perspective. We spent our time on the island of Providencials (aka "Provo"), which is the most visited island in the chain.  In fact, tourism plays a large role in TCI's economy.  As there are no fresh water sources (all water comes from desalinization) and no land-based natural resources to speak of, the economy is largely dependent on tourism, fishing, and "offshore financial services."

The development on Provo shows signs of the boom and bust cycle in the world economy.  In fact, we went on a paddle boarding excursion that left from a brand new (but closed) marina with no boats. There were also many, many luxury houses standing empty and for sale all over the island.  However, it's my guess that the market will rebound more quickly than other parts of Latin America and the Carribean, as TCI has a stable government (it is still a British protectorate), the currency is the dollar, the language is English, and if you can get used to driving on the left, it's a pretty spectacular place to be.

Jamie Baker Roskie

March 28, 2011 in Beaches, Development, Property | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

Rehearing--and panel discussion--on Texas Open Beaches Act

Late last week, the Texas Supreme Court granted a rehearing in Severance v. Patterson, the case decided last November holding that the Texas Open Beaches Act does not establish a public easement for dry-sand beach access without proof of dedication, prescription, or custom, and that public access easements do not "roll" inward with the vegetation line after major avulsive events such as hurricanes.  Hard to say what this portends, but it can't be good news for the plaintiff-appellant.  After the decision, lots of amicus briefs, particularly from local governments, started pouring on the motion for rehearing.  Here's a link from the Supreme Court of Texas Blog.

I blogged about the decision in a post which includes a multitude of links to the opinions; to the Texas Supreme Court's webpage for the case (great for finding the amici on the motion for rehearing); to the statute and constitutional amendment; and to various briefs including (full disclosure) my amicus and that of Surfrider Foundation.  Oral arugment on the rehearing (not very often granted, as I understand it) is set for April 19.

In the meantime, let's do what we lawyers do best, and talk about it!  The Texas Wesleyan School of Law in Fort Worth is hosting a Severance v. Patterson Panel Discussion next Friday, March 25, at 11:30.  It will be co-sponsored by the student chapters of the Federalist Society and the Environmental Law Society, and will feature Pacific Legal Foundation attorney David Breemer, lead counsel for the plaintiff; Ellis Pickett, Chairman of the Upper Texas Chapter of the Surfrider Foundation and amicus curiae for defendants; and yours truly.  The event will be moderated by Texas Wesleyan land use scholar Prof. Timothy Mulvaney.  If you can be in DFW next week to join us, please do!

Matt Festa

March 16, 2011 in Beaches, Caselaw, Coastal Regulation, Conferences, Judicial Review, Local Government, Property Rights, State Government, Takings, Texas | Permalink | Comments (0) | TrackBack (0)

Saturday, February 26, 2011

Weekend Break: Local Hero (1983)

As I get ready for Property's land-use finale this semester, I will be making room to show a scene from one of my favorite movies of all time, Bill Forsyth's Local Hero.  A mid-level oil executive (Peter Riegert) is dispatched by the company CEO (Burt Lancaster) to buy up an entire Scottish coastal village to make way for a vast North Sea petrochemical facility.  Almost to a person, the villagers welcome the opportunity to pull up stakes and sell. 

The scene that I will show involves the negotiations over relocating the elderly beachcomber, who is skeptical about releasing his legal claim in exchange for any of the most expensive tropical shorelines in the world.  Another scene offers a brief exchange relating to sustainable economic development.  Both go quickly to the heart of the difference between market and subjective valuations of land and the role the latter plays in sustaining community.  If nothing else, my prep will be an excuse to watch one of the funniest movies about modern village life around.

Jim K.

February 26, 2011 in Beaches, Community Economic Development, Development, Economic Development, Eminent Domain, Environmentalism, Oil & Gas, Property, Property Theory, Sustainability, Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, February 17, 2011

Kahn, Vaughn, & Zasloff on the Housing Market Effects of Discrete Land Use Regulations

Matthew E. Kahn (UCLA, Inst. of Environment; Economics; Public Policy), Ryan Vaughn (UCLA, Economics), and Jonathan Zasloff (UCLA, Law) have posted The Housing Market Effects of Discrete Land Use Regulations: Evidence from the California Coastal Boundary Zone, Journal of Housing Economics, Vol. 19, pp. 269-279, December 2010The abstract:

The California coast line borders most beautiful and expensive land in the entire world. The California Coastal Commission was created in 1976 to protect the coast line and to regulate land use within the coastal boundary zone. This well defined regulatory boundary offers a unique opportunity to study the consequences of land use regulation on nearby housing located in the same political jurisdiction. Using two different geocoded data sets, we document gentrification within the boundary and discuss possible explanations for these patterns.

Matt Festa

February 17, 2011 in Beaches, California, Coastal Regulation, Development, Environmental Law, Housing, Property, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Thursday, January 6, 2011

Mulvaney on The New Judicial Takings Construct

Timothy M. Mulvaney (Texas Wesleyan) has posted The New Judicial Takings Construct, forthcoming on the Yale Law Journal Online.  The abstract:

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an "established" property right "no longer exists" may amount to an unconstitutional taking. The opinion draws on two fundamental threads of Justice Scalia’s property jurisprudence: the first is the notion of property as a pre-political, immutable partition between individual interests and permissible government action; the second is a general distrust for the state courts that are tasked with declaring these individual property rights.

This Article has two primary purposes. First, it compares the judicial takings standard established by the plurality to previous discussions of federal constitutional review of state court property declarations, both in prior judicial decisions and in the academic literature. Second, it considers whether the plurality’s standard could be interpreted as applicable not only to state court decisions that allegedly result in a private-to-public reassignment of property, as the petitioners in Stop the Beach Renourishment claimed, but also to two additional instances: (i) adjudications of property disputes between two private parties or (ii) any allegedly improper judicial change in non-property areas of law where damages would serve as the remedy. The Article concludes that the plurality’s judicial takings standard arguably is inclusive of more state court rulings than any standard presented by earlier courts and commentators. Depending upon the breadth of its reach, this standard could serve to chill the ordinary operation of the common law system as responsive to changing conditions.

An excellent contribution to the discussion of property theory after Stop the Beach.

Matt Festa

January 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Property Rights, Property Theory, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 30, 2010

Craig on Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses

Robin Kundis Craig (Florida State) has posted Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses on the Gulf Coast, forthcoming in the Journal of Land Use & Environmental Law.  The abstract:

The states bordering the Gulf of Mexico - Texas, Louisiana, Mississippi, Alabama, and Florida - face numerous challenges in coastal management along those shores, one of which is rising sea levels. Given the threats that sea-level rise and associated climate change impacts pose to public health and welfare, increased state and local government action in and regulation of the Gulf coast is virtually inevitable.

However, government action regarding the Gulf coast that limits or otherwise affects private property rights leaves state and local governments vulnerable to claims that those governments have taken private property in violation of the federal Constitution. Such vulnerability, however, is not absolute. As the U.S. Supreme Court recognized in Lucas v. South Carolina Coastal Council, no unconstitutional taking of private property occurs if the property owner’s claimed rights were never part of that owner’s title to begin with. As a result, certain “background principles” of state property law shield governmental action from taking liability, even if that action interferes with or prohibits a landowner’s desired use of the property.

This Article examines two of these “background principles” of state property law - state public trust doctrines and the doctrine of public necessity - to assess their abilities to insulate state and local coastal regulation from landowner claims of regulatory takings in the Gulf of Mexico states. It concludes that state and local governments in Gulf states generally have more tools to protect the coast than are generally acknowledged and that their defenses to coastal takings claims will become increasingly stronger as sea-level rise and coastal deterioration emerge as true emergencies and public health crises.

Matt Festa

November 30, 2010 in Beaches, Climate, Coastal Regulation, Environmental Law, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Decision on Open Beaches Act / Rolling Easement case (Severance v. Patterson)

The Texas Supreme Court issued its opinion today in Severance v. Patterson, a case that the Fifth Circuit certified on questions of interpreting state property law and the Texas Open Beaches Act (provisions which last year became part of the Texas Constitution).  The plaintiff owned beachfront property that ended up forward of the vegetation line after the damage wrought by Hurricane Rita in 2005.  The state informed her that her houses were now on the public easement and that the houses could be subject to a removal order.  The plaintiff claimed both a Fifth Amendment taking and, unusually, a Fourth Amendment unreasonable seizure.  The Fifth Circuit held the takings claim unripe but certified three questions to the Texas Supreme Court:

1.  Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied? 

2.  If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the [Open Beaches Act]?

3.  To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas’s law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?

The Court held (6-2) that the Act does not establish a rolling easement, at least to the extent that the state asserted--essentially siding with the plaintiff:

On this issue of first impression, we hold that Texas does not recognize a “rolling” easement on Galveston’s West Beach.  Easements for public use of private dry beach property do change along with gradual and imperceptible changes to the coastal landscape.  But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.  This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line.  That result would be unworkable, leaving ownership boundaries to mere guesswork.  The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, even when boundaries seem to change suddenly. The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law.

Full disclosure: I submitted an amicus brief in the case.  My position is that the rolling easement question can only be reached with respect to properties where the state has first established that the public has a beach access easement through the traditional common law doctrines of (1) dedication, (2) prescription, or (3) custom.  In other words, the statute does not establish a statewide beach access easement; it only purports to prescribe rules for easements otherwise established.  Keep in mind that the public trust doctrine that many of us learn about (e.g. the Matthews case from NJ) does not apply here, as the Court noted, devoting much of its opinion to tracing the historical lineage of title to Texas coastal lands.  I'm as much for public beach access as anyone, but regardless of whether the easement rolls inward with the vegetation line, the state still has to establish that there is an easement in the first place.  

Now the case heads back to the Fifth Circuit, and we are left with a very significant ruling interpreting the Open Beaches Act.  Many will criticize the opinion, which could make it much more difficult, practically and/or financially, for the state to establish public beach easements.  The opinion also seems to leave undecided where to draw the line between merely "gradual" changes in the high tide line and more "dramatic" changes due to avulsion.  It will be seen as a big win for the Pacific Legal Foundation, which represented the plaintiff, and by other libertarian and property rights advocates.  The opinion cites Stop the Beach as well as a host of other famous land use cases, and will be of interest to those working on coastal land use and property rights generally.

Here are some links:

The majority opinion (Wainwright, J.)

The dissent (Medina, J.)

The video of the oral argument (courtesy of St. Mary's Law School)

The Texas Supreme Court's web page for the case with links to all briefs.

The Fifth Circuit's opinion

The Texas Open Beaches Act

Land Use Prof Blog analysis

My amicus curiae brief

The Houston Chronicle's initial writeup

Texas Lawyer article Battle for the Beach

The Pacific Legal Foundation press release (David Breemer, counsel for plaintiff)

The Surfrider Foundation (amicus brief written with assistance from one of my students)

[UPDATED from original post at 11:00 pm]

Matt Festa

November 5, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Inverse Condemnation, Judicial Review, Property Rights, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Thursday, November 4, 2010

Arnold on The Evolution of Property Law, Culture, and Ecology in Coastal Lands

Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11).  The abstract:

U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions. 

An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use. 

This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.

Matt Festa

November 4, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, History, Judicial Review, Land Trust, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Saturday, October 30, 2010

Barros on the Complexities of Judicial Takings

Benjamin Barros (Widener)--the Property Prof Blogger--has posted The Complexities of Judicial Takings.  The abstract:

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

Matt Festa

October 30, 2010 in Beaches, Caselaw, Judicial Review, Property Rights, Property Theory, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Crude Justice screening at South Texas

South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!).  The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue.  After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion.  The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society.  Here's the blurb for the film:

Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself. 

Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.  

Matt Festa

October 26, 2010 in Beaches, Coastal Regulation, Conferences, Environmental Justice, Environmental Law, Houston, Judicial Review, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 16, 2010

Judicial Takings--Back to the Supreme Court?

Ilya Somin has an interesting post at the Volokh Conspiracy titled Is the Judicial Takings Issue Headed Back to the Supreme Court?  Somin notes that in Stop the Beach Renourishment, the Court split 4-4 on the merits of the judicial takings issue, and then describes a Montana state court case, PPL Montana v. State of Montana, that has been petitioned for certiorari.  The case turns on a favorite topic of mine, the constitutional definition of property with respect to "navigable waters."  Somin offers some analysis from Ilya Shapiro of the Cato Institute, who authored an amicus brief supporting cert.  While it's far from a sure thing to be granted cert, Somin thinks that it could potentially present the judicial takings issue more squarely, and he notes:

If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law.

 Matt Festa

September 16, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 15, 2010

Shapiro and Burrus on Judicial Takings and Scalia's Shifting Sands

Ilya Shapiro (Cato) and Trevor Burrus (Cato) have posted Judicial Takings and Scalia's Shifting Sands, forthcoming in the Vermont Law Review, Vol. 35.  The abstract:

In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Matt Festa

September 15, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Eminent Domain, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 7, 2010

Blumm & Dawson on Stop the Beach and Judicial Takings

Michael C. Blumm (Lewis & Clark) and Elizabeth B. Dawson (J.D. Candidate) have posted The Florida Beach Case and the Road to Judicial Takings.  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking claim they unsuccessfully pursued in the Florida courts to the judicial taking they argued before the Supreme Court. The petitioners contended that the Florida Supreme Court’s interpretation of Florida property law warranted constitutional compensation because the effect was to replace an eroded, hurricane-ravaged private beach with a restored publicly accessible beach. Although no member of the Court agreed that the lower court’s opinion amounted to a taking, a four-member plurality, led by Justice Scalia and encouraged by numerous amicus briefs filed by libertarian property groups, gave a ringing endorsement to concept of judicial takings. Moreover, two other members of the Court, Justices Kennedy and Sotomayer, claimed that state court property law interpretations could be cabined by the Due Process Clause. The result portends ominous implications for state courts’ capability to perform their traditional common law function of updating property law to reflect contemporary values and may unsettle federal-state juridicial relations by encouraging litigants to appeal adverse state property law decisions to federal courts.
Matt Festa

September 7, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Local Government, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 10, 2010

Hurricane-Proof Dome Homes

I'm back from a summer sabbatical from the Land Use Prof Blog.  Thanks to my fellow bloggers for holding down the blogging fort in my absence.

Also, thanks to Will for lending us his apartment in Charleston for a long weekend earlier this month.  Will's got the southern hospitality thing down pat, and we really enjoyed ourselves.

While in Charleston we visited Sullivan's Island for a beach walk. Unfortunately we got caught in a thunderstorm, but in the subsequent drive around the island we happened upon this interesting house:

HurricaneHouse
I've seen pictures of homes like this before; they are ostensibly hurricane proof.  They're also pretty interesting from an aesthetic point of view, very different from the other beach houses on Sullivan's.  If you Google "hurricane proof house" you find some interesting websites of firms who build these types of homes.  They're funky, but they may be the wave of the future in coastal architecture.

Jamie Baker Roskie

August 10, 2010 in Architecture, Beaches, Charleston, Housing | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

House Bill Addresses Flooding and Land Use Issues...

Awhile back, I posted on the wisdom (or lack thereof) in building buildings in flood-prone areas and how the current federal flood insurance program essentially subsidizes such risky behavior.

Now, I'm not suggesting that House members read Land Use Prof Blog (then again, Prof. Festa is pretty well-connected in the highest reaches of government), but Congress does appear to be addressing the problem of subsidizing development in areas where we know that the area is very likely to flood again in the future. 

From the Washington Post:

The bill takes such steps as permitting an increase in premiums, deductibles and coverage, and phasing out subsidies for vacation homes and for people living in areas repeatedly hit by floods. It now goes to the Senate.
In the past, this topic has made for several very interesting policy and regulatory discussions in my land use courses. Most center on the often-unrealized extent at which the federal flood insurance program has supported (if not downright incentivized) land development in areas where nature would seem to suggest otherwise.

--Chad Emerson, Faulkner U.

July 19, 2010 in Beaches, Coastal Regulation | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 13, 2010

Hudson on The Public and Wildlife Trust Doctrines and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009 .  The abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Matt Festa

July 13, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, July 9, 2010

BP Blowout Lecture Series at Tulane Law

From Oliver Houck:

We will be preparing a series of background lectures on the BP blowout this fall at Tulane Law School, covering basic tech, engineering, science, law and policy issues.  They will set a stage for several courses on BP-related issues (environmental, admiralty, energy…), and for research projects for students interested in participating for credit.  The lectures may be of interest to you and your students as well, and we will set up a system to “stream” these lectures live to other schools, as you may wish (unfortunately, we cannot do Q and A with you from this classroom). We will also be happy to share ideas for related research topics, if and as you wish.

The program, subject to changes but at this point firm, is reflected in the notice that follows:
 
THE BP OIL SPILL LECTURE SERIES
TULANE LAW SCHOOL
FALL, 2010

OPEN TO ALL STUDENTS AND THE GENERAL PUBLIC 

The purpose of this series is to provide background on technical, scientific and policy aspects of the BP blowout, including deep water drilling; the blowout; the Gulf of Mexico ecosystem; oil, water and cleanup; containment responses; biological impacts; community impacts; legal issues; and policy implications beyond BP.  The lectures (with Q and A following) will take place in room 110 of the law school, 6329 Freret Street, New Orleans, on Monday afternoons, from 4 – 5:15 pm, with exceptions noted.  While Tulane law students may participate in this series for academic credit with the satisfactory completion of additional work, it is intended equally for all students and the interested general public.  There is, of course, no admission.  For further inquiry, please contact Professor Houck at ohouck@tulane.edu (after August 5) or Forest Wootten, 2L, fwootten@tulane.edu.

Jamie Baker Roskie

July 9, 2010 in Beaches, Coastal Regulation, Environmental Law, Oil & Gas, Teaching, Water | Permalink | Comments (0) | TrackBack (0)