Wednesday, October 5, 2011
Peter Orszag, former OMB director for the Obama Administration, has a piece in Bloomberg where he argues that the U.S. Can Rent Its Way Toward a Housing Recovery:
No matter what the government might try to do to break the housing-economy cycle, the deleveraging process will still be painful and take some time. But that’s not an argument against action; just because a headache can still hurt some even if you take aspirin doesn’t mean you should skip the aspirin. One thing the Obama administration could do now -- probably with Republican support -- would be to attack the oversupply of housing stock by allowing a tax write-off for investors who buy empty properties and rent them out.
Very interesting. If renting is the new owning, there might be something to this idea. I'm generally in favor of reducing rather than increasing tax incentives to promote real estate purchases, but if Orszag's proposal were narrowly tailored towards purchases specifically for rental housing, it might make some sense.
Sunday, October 2, 2011
This month begins a term at the U.S. Supreme Court in which the Court will hear two important cases concerning land use. The cases turn on very different doctrinal issues. One concerns rights and remedies under the Administrative Procedure Act. The other involves an actual property issue, namely whether a state has title to a river bed arising out of application of the navigable waterway doctrine. In most ways, the cases could not be more different. Yet they are connected by one common theme. Both cases demonstrate the dangers—to landowners and governments alike—when a government entity is both a party interested in the outcome of a land use dispute and the authority charged with adjudicating the dispute.
The first case is Sackett v. EPA. According to their counsel, the Sacketts planned to build their dream home near (but not adjacent to) a lake in Idaho. They acquired the necessary local permits and received the assurance of the U.S. Army Corps of Engineers that no federal permits were required. They had begun preparations to build when EPA showed up, insisting that the lot was situated on wetlands (the putative wetland area is separated from the lake itself).
As commentators on both the Left and the Right have observed, the factual question whether the Sacketts’ land is part of nearby wetlands is contestable. But the Sacketts have no way of contesting EPA’s contention unless and until EPA seeks enforcement of an order against them in federal court; two lower federal courts ruled that federal law provides no mechanism for a pre-enforcement challenge. As the Sacketts’ counsel pointed out, this situation left the Sacketts with an “unenviable choice.” They could apply for a permit that they believe they are not required to obtain and pay the associated costs. Or they could expose themselves to an enforcement action and the associated fines, which could run over $30,000 per day. Either way, they would incur inordinate expense to build on a lot that they purchased for $23,000.
This Hobson’s choice for the Sacketts rendered EPA the de facto adjudicator of their rights. And had a public interest litigation group not come to their aid, the Sacketts would have been at the mercy of a federal administrative agency that served as investigator, prosecutor, judge, and jury. Because the Court has agreed to hear the Sacketts’ claim not under the Clean Water Act but under the broader Administrative Procedure Act, the implications of the Court’s ruling could reach far. Jonathan Adler has speculated, “While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund.”
Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present day recreational use, with the question “very liberally construed” in the State’s favor?
According to the pleadings, the case arose when the State of Montana decided to claim title in riverbeds that had long been used by a private landowner, namely a power company using the river to generate hydroelectricity. Montana became a state in 1889. Two years later, in 1891, a predecessor-in-title to the power company built a dam near Fort Benton, Montana on the Missouri River, apparently believing that this stretch of the river was not navigable, and that the State of Montana therefore had no title in it. More dams were built on the Missouri and Madison Rivers, and the State, no doubt benefiting from this land use, did not object. Indeed, the State participated in the licensing proceedings for some of the dams.
Then, in 2004, the State of Montana, piggybacking on a lawsuit filed by parents of Montana school children, claimed that it had owned title to the riverbeds all along because the contested stretches of river are navigable. The Montana Supreme Court ruled for the State and upheld a judgment of $41 million in back rent.
In this case, the government actor advocating on behalf of the state—the Montana Attorney General—is distinct from the state courts that adjudicated the claim. But the central issue in the case turns on a disputed, mixed question of fact and law. And about this question the Montana state courts showed strikingly little curiosity. Despite 500 pages of expert testimony and exhibits disputing the State’s assertion of navigability, the Montana Supreme Court affirmed the trial court’s entry of summary judgment for the State. The Montana courts appear to have simply accepted the Montana Attorney General’s proposed findings.
It is now increasingly common for states and federal agencies to advocate for particular outcomes of private land use proposals. I intend to explore some of the implications of this trend at length in later posts. But in short, whatever its benefits, this advocacy entails significant costs. And these costs are not borne only by landowners. I will argue that the governmental authorities themselves pay a price, because they risk damaging their reputations as impartial ministers of law.
Update: David Breemer of the Pacific Legal Foundation (PLF) comments below. As I should have noted, PLF is the public interest firm representing the Sacketts.
Wednesday, September 21, 2011
Hillary M. Hoffman (Vermont) has posted Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating a Right-of-Way Claim Under Revised Statute 2477. The abstract:
The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that states and counties assert rights under R.S. 2477, regardless of whether they can be proven. This Article explores the history of R.S. 2477, its repeal by the Federal Land Policy and Management Act, and the Tenth Circuit’s historical treatment of R.S. 2477 claims. It also discusses why the Tenth Circuit’s holding in the Kane County case misconstrues the nature of an R.S. 2477 dispute, overlooks long-recognized presumptions about federal ownership of federal land, and ignores the myriad of legal issues involved in an R.S. 2477 dispute. Lastly, it makes specific suggestions about how the Tenth Circuit should address litigation surrounding the growing number of R.S. 2477 battles in years to come, to enable litigants and lower courts to more easily navigate this complex area of law.
An important issue, and on a tangent, the title reminds me how I keep trying in Property I to illustrate the right to exclude with clips from the Five Man Electrical Band, but kids today don't seem to dig it.
Sunday, September 11, 2011
Today America commemorates 9/11 on its tenth anniversary.
While the tragedy and heroics of that day appropriately take precedence, 9/11 has created long-running and controversial land use issues since 2001. From the logistics of managing the rescue operations and the excavation, to last year's "ground zero mosque" kerfuffle, issues from the local to the international have played out in discussions over land use at the WTC site in lower Manhattan.
Two of the most controversial land use questions, especially as the years passed, have been (1) how should 9/11 be remembered at the site, and (2) what and how to build/rebuild to replace the twin towers.
On the first question, public memory and historic presentation, you may have seen the news that the 9/11 Memorial opens with a dedication ceremony today. The project seems to be a classic American example of public-private cooperation:
The National September 11 Memorial & Museum at the World Trade Center Foundation, Inc. began formal operations in the spring of 2005 and worked with the Lower Manhattan Development Corporation on the design and construction management plan. In the summer of 2006, the organization assumed responsibility for overseeing the design and working with The Port Authority of New York and New Jersey (PANYNJ), the construction manager on the project. . . . In the beginning of October 2006, the Honorable Michael R. Bloomberg, Mayor of the City of New York, became Chair of the Foundation’s Board of Directors. Following the election of the Mayor as Chairman, the Foundation named Joseph C. Daniels as President.
At the website, there are links to a lot of of great photos and interactive views of the site and the Memorial.
The second enduring issue--whether and what to rebuild on the site--has generated a lot of criticism as a decade has passed without any replacement for the towers. This issue has been a perfect storm of land use issues: real estate, economics, regulation, federalism, urbanism, architecture, planning, transportation, culture, history, and of course, politics, politics, politics. For what it's worth, my impression has been that on the one hand, it's too simplistic to just say we should have built a ginormous tower immediately to stick it to the terrorists--yes, NY got the Empire State Building up in about 15 months during the Great Depression, but that's not realistic in lower Manhattan today. On the other hand, I think that the decade-long wait for putting some of the world's most valuable real estate to use says something important about the effect of the burdens that we have placed on property in the modern regulatory environment. Many of the procedural and political issues and delays might have been for justifiable ends, but really, a decade?
Things are finally moving along, though. From the Wall Street Journal's Developments real estate blog comes the helpful post Six Questions on Rebuilding the World Trade Center. The signature tower is in progress:
What’s the status of the office buildings? Some are further along than others. One World Trade Center, the site’s signature office building, is going up about a floor per week and is currently around 80 stories out of a total 104, and it’s already the tallest structure in Lower Manhattan.
On the delays:
What’s taken so long? Conflict has been a big theme of the rebuilding. There have been battles with insurers, wars between agencies, and repeated fights between the public sector and private developer Larry Silverstein over how to rebuild and fund his office towers. Those fights have often led to stalemates. Add onto that the fact that the site is extraordinarily complex — it’s often likened to a Rubik’s cube, but it’s sometimes more like a messy ball of rubber bands. The mechanics of the site are all intertwined — exits and emergency systems for the PATH station are in the neighboring towers, and deliveries to One World Trade Center need to run underneath 2, 3, and 4 World Trade Center. This means everything underground had to be built more or less at once, with precision. There is a laundry list of public agencies involved, and historically they hadn’t been great at communicating with each other.
The WSJ also has a great interactive graphic Exploring Ground Zero, Ten Years Later.
9/11 deserves our remembrance today, our continuing thanks for those serving in harm's way, and--secondarily--our commitment to good land use at this very important place for commerce, human activity, and public memory.
September 11, 2011 in Architecture, Development, Downtown, Federal Government, History, Local Government, New York, Planning, Politics, Property, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 7, 2011
Harvard economist Edward Glaeser--author of much fascinating work on land use and urban development, including his latest book, Triumph of the City-- has posted his latest article, Rethinking the Federal Bias Toward Homeownership, forthcoming in HUD's Cityscape: A Journal of Policy Development and Research, Vol. 13, No. 2 (2011). The abstract:
The most fundamental fact about rental housing in the United States is that rental units are overwhelmingly in multifamily structures. This fact surely reflects the agency problems associated with renting single-family dwellings, and it should influence all discussions of rental housing policy. Policies that encourage homeowning are implicitly encouraging people to move away from higher density living; policies that discourage renting are implicitly discouraging multifamily buildings. Two major distortions shape the rental housing market, both of which are created by the public sector. Federal pro-homeownership policies, such as the home mortgage interest deduction, weaken the rental market and the cities where rental markets thrive. Local policies that discourage tall buildings likewise ensure that Americans have fewer rental options. The economic vitality of cities and the environmental consequences of large suburban homes with long commutes both support arguments for reducing these distortions.
A very important argument; I'm looking forward to reading the whole thing.
Thursday, September 1, 2011
Driving today I happened upon a radio broadcast of a talk given by Polly Trottenberg, Assistant Secretary for Transportation Policy at US DOT, to the Commonwealth Club of California. Here's a description of her talk from the Commonwealth's web page:
If you have ever been stuck in traffic on the Bay Bridge, late to meetings, or have had a ruined weekend because you couldn’t make it to a destination in time, you know that California suffers from a major transportation infrastructure problem. From pot holes jarring people’s necks and backs, to bridges collapsing nationwide, thousands of commuters are being affected every day by America’s inadequate and faltering transportation infrastructure system. U.S. Department of Transportation Undersecretary for Policy Polly Trottenberg explores solutions to this serious crisis. Trottenberg works toward implementing the president’s priorities for transportation including safety and creating jobs. The DOT employs more than 55,000 employees with a $70 billion budget that oversees air, maritime and surface transportation missions. For 12 years she worked extensively on transportation, public works, energy and environmental issues in the U.S. Senate, for Senators Barbara Boxer, Charles Schumer and Daniel Patrick Moynahan.
Her talk doesn't focus only on California - I tuned in during the question and answer session, when she took a broad range of questions on high speed rail, TIGER grants, freight movement, transportation safety, and other topics. You can download the podcast here.
Jamie Baker Roskie
Wednesday, August 31, 2011
From the Smart Growth America website, news about an ironically timely meeting:
Can smart growth help communities avoid the catastrophic impacts of flooding? The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) brought together designers, land use planners, engineers and policy wonks at NOAA’s Silver Spring headquarters last week to examine this question, and to find commonalities and tensions between hazard mitigation techniques and smart growth principles.
Read the rest of the article here.
Monday, August 29, 2011
Elan Stavros Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties, forthcoming in the Journal of Affordable Housing, Vol. 20, No. 2, Winter 2011. The abstract:
The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.
This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.
To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.
Monday, August 22, 2011
Joshua P. Fershee (North Dakota) has posted Reliably Unreliable: The Problems with Piecemeal Federal Transmission and Grid Reliability Policies, Center for Energy and Environmental Law, University of Connecticut School of Law Policy Paper, July 2011. The abstract:
In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities as the traditional sense of local control over siting and delivery of electricity has been eroded.
A large portion of the current U.S. transmission system is between thirty and fifty years old. As the transmission grid ages, reliability concerns increase; an old grid is simply more likely to fail. Still, new transmission infrastructure is expensive, laborintensive, and complex. Further, there are significant concerns about whether upgraded and expanded transmission lines are the best way to improve safety and reliability.Certainly, with the advent of microgrids and other technologies, transmission lines are not the sole option. A multi-faceted approach that considers local and regional needs, as well as those of the nation as a whole, is necessary.
There are several areas in need of consideration. Recent federal legislation designed to address transmission siting has been well intended, but limited in scope. Further, recent court decisions have all but eliminated the potential effectiveness of the federal siting authority. In addition, cost allocation issues for new energy facilities have emerged as paramount in the relatively new era of competitive markets for power generation, and these issues have been exacerbated by recent energy policy developments. Finally, policies designed to address public safety and environmental concerns have impeded (or run the risk of impeding) broader policy goals, because the policies are often limited in scope and not part of a comprehensive package then ensures necessary synergies to improve grid reliability.
There is no shortage of effort at the state, regional, and federal levels to improve electricity grid reliability and safety. Unfortunately, in many cases, the efforts have been competitive with other energy-related policies (such as climate change initiatives and renewable energy mandates), and jurisdictional conflicts have obstructed, rather than facilitated, many such efforts. It is time for Congress to provide clear authority to someone to make and coordinate changes. A failure to act to preserve and improve the safety and reliability of our electric system would be a costly and avoidable failure. And that is something no one can afford.
Prof. Fershee had a very interesting presentation at SEALS last month too; check out this timely paper.
Wednesday, August 17, 2011
An interesting article on the New Urbanist Network about how the Postal Service plans to close 3,600 rural post offices.
For many communities, the closings may reduce activity in town or village centers. Even with diminishing mail volume, there are still many people who cross paths at the post office. The drawing power of post offices was recognized early by new urbanist developers such as Robert Davis in Seaside, Florida, and Buff Chace and Douglas Storrs in Mashpee, Massachusetts.
Jamie Baker Roskie
Monday, August 15, 2011
Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011. The abstract:
Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.
August 15, 2011 in Clean Energy, Environmental Law, Federal Government, Local Government, Planning, Scholarship, State Government, Sustainability, Wind Energy | Permalink | Comments (1) | TrackBack (0)
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 3, 2011
An interesting article in Wired magazine on a new report from the Leadership Conference on Civil and Human Rights on transportation equity:
According to the report, the average cost of owning a car is just shy of $9,500. That may not sound like much until you realize the federal poverty level is $22,350 for a family of four. One-third of low-income African-American households do not have access to an automobile. That figure is 25 percent among low-income Latino families and 12.1 percent for whites. Racial minorities are four times more likely than whites to use public transit to get to work.
Yet the federal government allocates 80 percent of its transportation funding to highways.
“This is the civil rights dilemma: Our laws purport to level the playing field, but our transportation choices have effectively barred millions of people from accessing it,” the report states. “Traditional nondiscrimination protections cannot protect people for whom opportunities are literally out of reach.”
Read the full report here.
Jamie Baker Roskie
Friday, July 22, 2011
The National Building Museum is hosting what looks like a particularly interesting program called The Public Memory of 9/11. It will explore two of my favorite subjects: public land use; and collective memory of the past.
The upcoming tenth anniversary of the 9/11 attacks offers an opportunity to consider how the sites in New York, Pennsylvania and Washington are memorializing and interpreting this event. Leading representatives—Alice Greenwald, Director, National September 11 Memorial & Museum; Jeff Reinbold, Site Manager, Flight 93 National Memorial and; Jim Laychak, President, Pentagon Memorial Fund— present the designs of the memorials and discuss the challenges in commemorating recent history. Brent Glass, director of the National Museum of American History, moderates the program. 1.5 LU HSW (AIA)
FREE. Pre-Registration required. Walk in registration based on availability.
Date: Tuesday, July 26, 2011
Time: 6:30 PM - 8:00 PM. If you'd like to attend this event you can RSVP online.
Friday, July 15, 2011
From The White House blog:
President Obama knows that the hard work of strengthening American communities and revitalizing the American economy happens at the local level – in neighborhood schools and community colleges, at town meetings and neighborhood associations, through new start-ups and small businesses. That’s why the White House is excited today to announce the launch of the Strong Cities, Strong Communities Initiative.
Strong Cities, Strong Communities is a new interagency pilot initiative that aims to strengthen neighborhoods, towns, cities and regions around the country by strengthening the capacity of local governments to develop and execute their economic vision and strategies. Strong Cities, Strong Communities bolsters local governments by providing necessary technical assistance and access to federal agency expertise, and creating new public and private sector partnerships. By leveraging existing assets, providing new resources, and fostering new connections at the local and national level, Strong Cities, Strong Communities will support towns and cities as they develop comprehensive plans for their communities and invest in economic growth and job creation.
If you visit the blogsite, you can watch the "launch video" and read more about the community intiatives.
Jamie Baker Roskie
Wednesday, July 13, 2011
According to the folks at Smart Growth America, the House Appropriations Committee has passed legislation that would eliminate the EPA's Office of Smart Growth. You can visit the Committee's website to learn more about the bill. SGA has a website that allows you to e-mail your congressional representative, if you're so inclined. Presumably this is part of the campaign to defund the administration's Sustainable Communities Initiative.
I've blogged several announcements from the OSG, which co-hosts the annual New Partners for Smart Growth conference, and gives smart growth implementation assistance and grants and awards to local and state governments each year.
Jamie Baker Roskie
Tuesday, June 21, 2011
I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth. He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant. This case has been somewhat under the radar, but could end up being very important. Thanks to Tim for the early and interesting analysis-- Matt Festa
Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.
It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut. But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana. This case could have important implications for property, land use, natural resources, and environmental law.
In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power. PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations. To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.” The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.
In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark. As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.” The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.
One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades. How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.
Yet there may be another issue lurking under the surface. In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux. To cull from a law review article I authored on Stop the Beach this past winter:
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. … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed. … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]
In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.” In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.” For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.”
It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year. The certiorari stage documents are available here. It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter. Stay tuned to the Land Use Prof Blog for updated information.
It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out. Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term.
Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."
Also, Wal-Mart Stores, Inc. v. Dukes et al. This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field. The Wal-Mart Wars involve a distillation of many of the major land use issues in current events. I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher. Thanks to Troy Covington for the pointer.
In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case. We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!).
Sunday, May 29, 2011
David J. Reiss (Brooklyn) has posted Foundations of Federal Housing Policy, a chapter in the book COMMUNITY, HOME, AND IDENTITY, Michael Diamond, Terry Turnipseed, eds., 2011. The abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."
Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Looks like a fascinating contribution on a very important topic.
Wednesday, May 25, 2011
Under the title "Million-Dollar Wasteland", the Washington Post has published a series of investigative articles attacking the effectiveness of HOME, HUD's principal source of targeted funding for community-based development of affordable housing. The reporters' data analysis lead them to conclude that more than 700 affordable housing projects granted more than $400 million in HUD funds are "delayed or abandoned." In a posted response, HUD says its own review shows that most of these supposedly failed projects are "actually completed and occupied." Unsurprisingly in this fiscal climate, congressional leaders have called for an investigation into the HOME program (Post follow-up story). No doubt more to follow.