Friday, 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:

Two fundamental principles of property law - the public trust doctrine and the takings clause of the Fifth Amendment = are coming to a clash due to climate change. While it has long been accepted that states possess title to most tidal lands and waters below the mean high-tide line through the public trust doctrine, the public trust has, in essence, been eroded through the reclamation of submerged lands.

This paper argues that the reclamation of submerged lands erodes the public trust. Moreover, it posits that the takings clause is an adequate remedy to restore the public trust without resorting to compensation. Such argument is based on the premise that “takings” of reclaimed submerged lands falls under one of the exceptions established by the Supreme Court in Lucas v. South Carolina Coastal Council - that of background principles of property and common law. 

The paper focuses on the Supreme Court of Puerto Rico case of San Geronimo Caribe Project, Inc. v. Puerto Rico as an example of how takings could have avoided the erosion of the public trust through the reclamation of submerged lands.

Matt Festa

June 25, 2010 in Caselaw, Climate, Coastal Regulation, Constitutional Law, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, 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.

Matt Festa

June 18, 2010 in Beaches, Caselaw, Coastal Regulation, Local Government, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 17, 2010

Stop The Beach I--The Lead Opinion

As mentioned below, the Supreme Court decided today what was billed to be the most significant property rights case of the Term, and probably since Kelo in 2005: Stop the Beach Renourishment v. Florida Dept. Environmental Protection.  The decision doesn’t seem to be particularly earth-shattering in its result, but the opinions do give us quite a bit to analyze for its implications for property and land use law. 

In this post I will give my first-day analysis of the lead opinion; in subsequent posts I’ll review the concurrences, round up what other commentators are saying, and highlight some issues for the future.  I think that Stop the Beach will provide a good background for lots of discussion about land use law over the coming weeks and months. 

I.  The Breakdown of the Decision

The Court ruled 8-0 to affirm the judgment of the Florida Supreme Court that the petitioners did not suffer an uncompensated taking of property rights under the Fifth and Fourteenth Amendments.  Justice Stevens did not participate.  Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.  Justice Scalia’s opinion in Parts II & III (joined by C.J. Roberts, J. Thomas, & J. Alito) argued that the Constitution recognizes the concept of a “judicial taking,” even though the claim in this case did not warrant such a ruling.  Justice Kennedy (joined by J. Sotomayor) concurred, but wrote separately to argue that the case did not require the Court to decide the judicial takings issue.  Justice Breyer (joined by J. Ginsburg) also concurred by arguing that it was unnecessary to resolve the constitutional question.

II.  Justice Scalia's Opinion of the Court

Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.  In the first Part, Justice Scalia (writing for the eight Justices who agreed in the disposition) first reviewed the common law rights associated with “littoral,” or coastal property, including the right of access, right to use the water, right to an unobstructed view, and the right to receive accretions and relictions to the littoral property.  Now, whether a particular state subscribes to the public trust doctrine, or some other legal baseline for property rights in beachfront property, the typical regime starts with the basic recognition that the state owns the “wet sand”—the land from the sea up to the mean high-tide line—and private landowners own the “dry sand” above that line, but usually subject to public access easements or other restrictions. 

The Opinion of the Court makes short work of the distinction between “accretion,” which is the gradual, imperceptible growing or shrinking of the coastline—where common law awards the land to the individual owner—and “avulsion,” which is a more “sudden and perceptible” addition or loss (caused by, e.g., a hurricane)—where the State, holding the property in public trust, remains the owner of the formerly submerged land.  Justice Scalia’s Opinion notes that the Florida statutory scheme clearly delineates a program whereby the State may implement projects that “renourish” beaches by adding lots of sand, which allows the State to establish an “erosion control line” that effectively re-sets the property line.  Because these State actions are more properly characterized as “avulsions” (even though they are caused by the government, and not natural forces such as a hurricane), they fit within the legitimate statutory scheme, and the property owners’ common law beachfront rights do not trump the State’s prerogative to do beach renourishment as a matter of constitutional takings law.

III.  Justice Scalia's Plurality Opinion

While he wrote for a unanimous Court in the disposition of the case, the jurisprudential controversy will be over his Parts II & III.  The meat of the Justice Scalia opinion, and what is certainly going to be the source of discussion, is his assertion that there can in fact be such a thing as a “judicial taking” within the scope of the Fifth and Fourteenth Amendments.  In Part II.A., Justice Scalia sets forth his opinion that even though it is not the result here, there can in fact be such a thing as a (compensable) taking of property by a judicial decision.  Noting that the “classic” case of a taking is a government acting through its legislative or executive branches to condemn title to private property through eminent domain or a regulatory taking, Justice Scalia insists that there is nothing in the Constitution that specifies which branch of government can be responsible for a taking: the Takings Clause, he writes, is “concerned simply with the act, and not with the governmental actor” (8).  He makes much of the observation that first, state governments are not held to the same standards for separation of powers under the federal constitution, and that as a result, it shouldn’t matter which branch of a state government is responsible for an alleged deprivation of property rights.  Justice Scalia articulates a test for “judicial takings” that is sure to be the baseline for arguments over the issue in years to come:

If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. 

Justice Scalia’s Part II spends sections B and C tearing down the concurrences of Justices Kennedy and Breyer, so I’ll discuss those in a later post.  For now, reading only the lead opinion of Justice Scalia, I think it’s safe to say that (1) it will be hard to argue that a court opinion effects a federal constitutional taking in the face of well-grounded state law; but that (2) the “judicial takings” issue is wide open for the future in property and land use law.

Matt Festa

June 17, 2010 in Caselaw, Coastal Regulation, Environmental Law, Property Rights, Property Theory, State Government, Sun Belt, Supreme Court, Takings | Permalink | Comments (3) | TrackBack (0)

Supreme Court Decides Stop the Beach Renourishment

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 . . . .

Matt Festa

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)

Tuesday, April 27, 2010

Hudson on Public and Wildlife Trust Doctrines & the Lucas Remand

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.

Matt Festa

April 27, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Property Rights, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Stop the Beach Forum at Florida State

From Robin Kundis Craig at Florida State:

I know that many of you are interested in the Stop the Beach Renourishment case currently pending before the U.S. Supreme Court (the "judicial takings" case).  On April 7, 2010, the Florida State University College of Law hosted our Spring Environmental Forum on this case, and the speakers included lawyers who had argued the case before the Court.

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

April 19, 2010 in Beaches, Coastal Regulation, Environmental Law, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 14, 2010

Easements & Beach Renourishment on the Jersey Shore

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.

Matt Festa

April 14, 2010 in Beaches, Coastal Regulation, Eminent Domain, Local Government, New York, NIMBY, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

Titus' Take on Stop the Beach Oral Arguments

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:

I got into the oral argument yesterday at Stop the Beach Renourishment v. Florida DEP and then went over to the post-game show at Georgetown.   It seems to me that  the plaintiff's lawyer overstated the common law antecedents of the idea that littoral property must "touch the water" as distinct from the accretionary right.  I suggested that since the predicate for the right to accretion had always been the reciprocal loss of land or cost of holding back the sea, then once the state takes on those costs, removal of that predicate is a sound common law reason for disallowing the  right to accretion.  He told the forum that there was a right to have one’s property touch the water in Blackstone (in addition to right to accretion).  That is wrong.  A new paper by Joe Sax (possibly still in draft) shows that the early cases had nothing to do with any of these modern littoral rights.  The judges struggled with the notion that on the one hand boundaries usually do not move and the King’s land ought not transfer to private owners just because the shore advanced; but on the other hand, the very gradual additions of land had the most value to the upland owner and little value to the King.  The right to accretion was justified by the reciprocal problem of losing land to erosion and/or having to spend money to hold back the sea.  Boundaries moved with the shore because that was the most practical way to allocate the creations of small amounts of land.  But in the case of an avulsion creating land, the boundary did not move.   Even the idea of access to the water being a littoral right came much later—after the American Revolution. But the reasoning was about access to the water, not about excluding others.

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

December 4, 2009 in Caselaw, Coastal Regulation, Environmental Law, Property, Takings | Permalink | Comments (0) | TrackBack (1)

Thursday, December 3, 2009

Sea Level Rise in Georgia

As promised yesterday, today I'm blogging about sea level rise research and modeling being done here at University of Georgia's River Basin Center.  (I've been privileged to work and be housed with the RBC for the past several years, and RBC co-director Laurie Fowler founded the Land Use Clinic).

Dean Hardy of the RBC staff has modeled the effect of one meter of sea rise on the Georgia coast. One meter is a forecast commonly accepted by scientists. A visit to the RBC website gives you a very interesting - or scary, if you're a coastal property owner, government official, or planner - view of the future.  I visit the Georgia coast fairly often - particularly Savannah, Tybee Island, and Jekyll Island.  It's very compelling to see my favorite beaches and neighborhoods inundated by seawater in the aerial flyovers.

Dean and his partners are taking this data to local government officials in Glynn County, Georgia next week.  Those officials apparently hope to use this data in their future planning.  I'm certainly glad I'm not in their shoes - although they might be calling the clinic for help soon, so I should be mentally prepared.

Jamie Baker Roskie

December 3, 2009 in Coastal Regulation, Georgia, Local Government, Planning, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 2, 2009

Sea Level Rise & Local Planning

The co-editors of this blog recently got an interesting e-mail from Jim Titus, an eminent EPA scientist who has been researching sea level rise for many years.  He was co-author of one of the first EPA-funded studies on sea level rise in the mid-80s.  He wrote to tell us about an important new study:

    The study sheds light on the ultimate significance of the Stop the Beach Renourishment (FL) and Severance (TX) takings cases.  The name of the article is State and local governments plan for development along most land vulnerable to rising sea level along the US Atlantic Coast
    The Texas case ultimately gets at the question about whether the legislature can adjust property law to reflect the geological reality of changing shores without causing a taking for those immediately affected, and for those who will ever be affected.  The Florida case looks like a judicial takings case but it too really gets at whether a confusing doctrine of avulsion can be adjusted to reflect the reality of shoreline movement and government response without causing a taking.   Ultimately, the question about whether all riparian owners benefit from beach nourishment depends on whether they had a right to build a seawall or would have had to lose their homes without that beach nourishment.  That is, cases like Stop the Beach Nourishment will ultimately require resolution of cases like Severance.  But ultimately, the relevance depends on where we will hold back the sea and where we will retreat.
    Our new study gets into that question.  The sea level rise planning study, recently published in the peer-review journal Environmental Research Letters., was based on a $2 million research project by USEPA, conducted in collabortation with 130 local governments.  Actually, the regional planning councils did the work in FL, GA, and PA; elsewhere we obtained our data and vetted the analysis through the local governments.  The media coverage was mostly in the southeast, especially North Carolina, but the general story is important to all who want to think about either (a) how lands use planning will deal with sea level rise or (b) where all these coastal takings cases ultimately go.    
    The study does three things worth knowing about.  First, we create maps about where people would hold back the sea if current policies continue, based on the data provided by 130 local govenments, refined through site-specific corrections by local planers.  The idea is to motivate dialogue on where we **should** protect and where we **should** allow wetlands to migrate inland.  So now, local governments that want to start planning for sea level rise have a strawman baseline analysis.  This is needed because one can not really address rising sea level in a local plan without making an assumption about which land will be yielded to the sea, which land will be elevated, and which land will be protected by a structure.
    With all these GIS maps, we then analyze how much land is likely to be developed and protected from the rising sea (possibly exposing people to a New Orleans situation) and how much land is available for the inland migration of wetlands.  We estimate that 60% of low land will be developed, with 10% set aside for conservation and the other 30% undeveloped at first--but shore protection would be possible even here. Opportunities for land-use planning are greatest between Delaware Bay and Georgia; elsewhere emergency and infrastructure planning are more urgent.  (My personal view is that, as legislatures and others think about possible clarification and alignment of property rights to reflect rising sea level, the areas shown in blue should all have something like the Texas rolling easement as a background principal, the areas in red are candidates for purchase of rolling easements as an interest in land--possibly by eminent domain, exactions, or conserancies; and the areas in brown should have policies more protective or property rights along estuaries provided that public access is preserved.)
    Finally, we conclude that the resulting level of shore protection has a cumulative impact which violates the Clean Water Act (legal reasoning explained in the article).  
  

Our thanks to Jim for letting us know about this study.  It parallels some work being done by the Ecology school here at UGA.  I'll blog about that soon.

Jamie Baker Roskie

UPDATE: Jim asked that I be sure to add the links to the sea level rise planning maps and the state-specific summaries. (On the latter page, for extra fun, you can download a Christmas global warming song!) Also, Jim attended oral arguments for Stop the Beach, which I will post in a separate blog entry.

December 2, 2009 in Coastal Regulation, Georgia, Local Government, Planning, Property Rights, Scholarship, Takings, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Nolon and Grzan on Stop the Beach Renourishment

John R. Nolon and Kristen M. Grzan (Pace) have posted Rising Tides--Changing Title: Walton County v. Stop the Beach Renourishment, published in the Real Estate Law Journal, 2009.  The abstract:

This article first discusses the facts of the Walton County case and how the statute affects title to coastal parcels and then turns to an analysis of the fee simple absolute title to coastal properties in Florida, how deeds are drawn, and how title is insured under title company practices. This is followed by a further exploration of the regulatory taking issue and then the judicial taking claim. We then explore the tension that the judicial takings issue raises regarding the jurisdiction of federal and state courts. The article then takes a look at the property interests-the sticks in the bundle of sticks that constitute fee simple title-that are implicated in regulatory takings cases, followed by a conclusion.  

Ben Barros has posted a link to the petitioner's reply brief in Stop the Beach Renourishment

Matt Festa

November 11, 2009 in Coastal Regulation, Scholarship | Permalink | Comments (0) | TrackBack (0)