Friday, July 2, 2010
J. Peter Byrne (Georgetown) has posted Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Climate Change, Vermont J. of Envt'l Law, Vol. 11 (2010). The abstract:
Friday, June 18, 2010
Donna R. Christie (Florida State) has posted Of Beaches, Boundaries, and SOBs, published in the Journal of Land Use & Envrionmental Law, Vol. 25, p. 19 (2010). Hot off the press, this article addresses issues raised in Stop the Beach. The abstract:
As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.
Thursday, June 17, 2010
The big property rights case of the Term has been decided. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously. The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf. Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts. Justices Kennedy and Breyer wrote separately. We've posted about the case previously here, here, here, and here. For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year.
Also, tons of links (briefs, case history, oral argument, news articles) at the SCOTUS Wiki page for the case.
A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances. Now, to go read the opinions . . . .
June 17, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Property Theory, State Government, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)
Thursday, May 27, 2010
Tuesday, May 11, 2010
Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.
Jamie Baker Roskie
Monday, May 10, 2010
From Robin Craig at Florida State:
universities are putting together what should become a very helpful one-stop web
site for information on the Gulf spill, hosted (so far, at least) on Florida
State's web site. Soon there will be links to specific information on
ecological impacts, economic costs, the scope and path of the spill, underwater
and surface photos, data sets, and a legal page (I authored the draft of that
today), all with links to further information.
The site was officially launched this afternoon and will be growing
quickly. If you're interested in following events, I'd recommend bookmarking
the page and checking back frequently as the site develops.
See the Oil Spill Academic Task Force website here.
Jamie Baker Roskie
Tuesday, April 27, 2010
Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, 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.
Monday, April 19, 2010
From Robin Kundis Craig at Florida State:
The video of the event is available on our website. I hope that many of you will find this Forum helpful for yourselves and for your classes!
Jamie Baker Roskie
Wednesday, April 14, 2010
You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show. Long Beach Island is an 18-mile barrier island that's mostly low-density residental development. (I even lived on LBI for a short time growing up, and I turned out mostly OK). The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:
LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.
The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.
"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.
We're all familiar with land use contests over beachfront property, from Lucas to Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases. But the more typical framework pits the individual landowners against the power of the state. Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.
"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."
Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights. And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?). The question is whether you need to do that not just for the collective good but to save your house from falling into the sea. Of course there is one other solution not yet on the table:
Long Beach Township officials say eminent domain and its potential costs are a last resort.
Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang. So condemning an easement through eminent domain might prove well beyond the township's resources. The holdouts may well be either unreasonable or even acting against their own self-interest. But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors. We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community. Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.
Friday, April 9, 2010
Matt Festa alerted me to this piece; apparently he loved his time visiting at UGA so much that he still reads the local paper. One of the editors of the Athens Banner-Herald recently visited Seaside and decided maybe New Urbanism isn't so bad after all. The examples we've had of mixed-use development here in Athens have not been very successful - the usual opposition to density and trouble getting appropriate commercial have been bugaboos here. If Athens were ever to get a development that had the quality of Seaside (although how could you ever replicate the sea views?) folks here might better be able to get behind the concept.
Jamie Baker Roskie