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.
April 06, 2011
Columbia Conference on Sea Level Rise
From Michael Gerrard at Columbia Law:
Center for Climate Change Law, Columbia Law School and The Republic of the Marshall Islands
invite you to attend an international academic conference:
THREATENED ISLAND NATIONS:
LEGAL IMPLICATIONS OF RISING SEAS AND A CHANGING CLIMATE
May 23 - 25, 2011
New York, New York
DAY ONE: THE STATUS QUO -- SHIFTING LEGAL OPTIONS IN A CHANGING WORLD
Scientific summary: How much time do we have?
Statehood and statelessness
Preserving marine rights: Fishing and minerals
DAY TWO: WHAT CAN BE DONE TO HELP, AND HOW TO DO IT
Resettlement and migration issues
Existing legal structures
A new international convention?
DAY THREE: DOMESTIC OPTIONS FOR SMALL ISLAND STATES
Engineering for the future
Law and policy choices
[Visit this link for] Further information, and registration to attend conference or to view live webcast.
Jamie Baker Roskie
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!
March 14, 2011
Building Codes & the Quake
The news seems to get worse from Japan as the Death Toll Estimate Soars. But it's still true that things could have been even worse if it had not been for Japan's careful land and development planning. As James Glanz and Norimitsu Onishi reported in the New York Times, Japan's Strict Building Codes Saved Lives. From the article:
Hidden inside the skeletons of high-rise towers, extra steel bracing, giant rubber pads and embedded hydraulic shock absorbers make modern Japanese buildings among the sturdiest in the world during a major earthquake. . . .
Unlike Haiti, where shoddy construction vastly increased the death toll last year, or China, where failure to follow construction codes worsened the death toll in the devastating 2008 Sichuan earthquake, Japan enforces some of the world’s most stringent building codes. Japanese buildings tend to be much stiffer and stouter than similar structures in earthquake-prone areas in California as well, said Mr. Moehle, the Berkeley engineer: Japan’s building code allows for roughly half as much sway back and forth at the top of a high rise during a major quake.
So it's sad to contemplate but still probably true that the destruction and loss of life could have been much worse if not for the regulations. Of course, these building codes have made development much more expensive; but the article goes on to note an interest twist in how this has played in the marketplace:
New apartment and office developments in Japan flaunt their seismic resistance as a marketing technique, a fact that has accelerated the use of the latest technologies, said Ronald O. Hamburger, a structural engineer in the civil engineering society and Simpson Gumpertz & Heger, a San Francisco engineering firm.
“You can increase the rents by providing a sort of warranty — ‘If you locate here you’ll be safe,’ ” Mr. Hamburger said.
In the meantime, it's a terrible disaster and we wish the best to the rescue and recovery efforts. Thanks to James McKechnie for the pointer.
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 2010. The 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.
January 06, 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.
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.
November 12, 2010
Perry on Deepwater Horizon and the Limits of Civil Liability
Ronen Perry (Haifa) has posted The Deepwater Horizon Oil Spill and the Limits of Civil Liability, forthcoming in the Washington Law Review. The abstract:
The article, which follows up on my recently published work, uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act.
This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case.
Part I systematically discusses pre-OPA law. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime.
Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps, or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. The article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution.
November 05, 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.
Land Use Prof Blog analysis
My amicus curiae brief
The Houston Chronicle's initial writeup
Texas Lawyer article Battle for the Beach
The Surfrider Foundation (amicus brief written with assistance from one of my students)
[UPDATED from original post at 11:00 pm]
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
November 04, 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.
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
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.
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.
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
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.
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
September 07, 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:
September 7, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Local Government, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack
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.
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 13, 2010
Hudson on The Public and Wildlife Trust Doctrines and the Lucas RemandBlake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in
July 13, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack
July 09, 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
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 email@example.com (after August 5) or Forest Wootten, 2L, firstname.lastname@example.org.
Jamie Baker Roskie
July 02, 2010
Byrne on Regulatory Takings and Climate Change
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:
June 25, 2010
Gonzales-Pagan on Takings, the Public Trust, and Reclamation of Submerged Lands
Omar Gonzalez-Pagan (J.D. Candidate, Pennsylvania) has posted The Lucas Exemption: How Takings Can Prevent the Erosion of the Public Trust Due to the Reclamation of Submerged Lands, Real Estate Law Journal, Vol. 38, Winter 2009. The abstract:
June 18, 2010
Christie on Beaches, Boundaries, and SOBs
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.