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)
Thursday, August 4, 2011
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Jonathan D. Rosenbloom (Drake)--our excellent recent guest blogger--has posted New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations. The abstract:
State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on place-based, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article then proposes that non-place based municipal collaborations allow a reconceptualization of existing local government authority—rather than a drastic reallocation of authority from higher levels to the local level. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.
The objective of the article is not to suggest one strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.
Wednesday, July 6, 2011
[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March. Here are his thoughts on the latest development in the case. Thanks!--Matt Festa]
The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here). The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit.
At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance. Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach. Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement.
In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance. The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland.
Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case. The Court ultimately conducted a second round of oral argument in April. Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).
Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.” Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”
Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy.
In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue. The Court obliged. The State filed its brief today, and Ms. Severance’s response is due next Tuesday. Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.
July 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmentalism, Politics, Property Rights, State Government, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 5, 2011
From Prof. Sara Bronin, here's an announcement about an opportunity to participate in an upcoming conference. There is more information at the conference website.
Call for Papers:
“Legal Solutions to Coastal Climate Change Adaptation in Connecticut”
Conference Date: February 10, 2012
Conference Location: University of Connecticut School of Law,
Deadline for paper abstract submissions: September 30, 2011
Key Issues covered by the conference: The conference presentations and
discussions aim to enhance understanding and promote discussion of
cutting-edge policy and legal approaches to climate change adaptation
in coastal areas, with potential application to Connecticut.
Topics of Interest: We invite practitioners, academics, and students
in the field of law as well as others with expertise and interest to
submit a 2 to 3 page paper proposal that focuses on existing or
proposed innovative legal, policy and related incentive-based options
for climate change adaptation in coastal environments. We invite
papers that lay out the existing legal and regulatory structure in
Connecticut as well as in other states, identify gaps and obstacles in
these approaches, present innovative and environmentally sound
approaches to climate change adaptation and stimulate legal thinking
on legal and policy remedies to this issue of international
importance. All submitted papers must contain a legal, policy or
regulatory approach, solution or tool designed to facilitate climate
change adaptation in Connecticut.
Specific Topics: Topics of interest include, but are not limited to:
· Opportunities for and roadblocks to adaptation in existing
laws and policies; lessons from other areas:
· Interplay between the protection of public resources and
private property rights
· Using the CZMA and Coastal Management Act for climate change
· Rolling easements, ambulatory vs. fixed property lines
· Ecosystem-based adaptation incentives via policy and legal
· Land use planning, growth strategies and regulatory
approaches to climate change at the municipal and state levels
· Climate Justice and Adaptation Planning: Who bears the
burden? Who reaps the benefits?
· Legal approaches to emergency planning and changing hazards
· Adaptation Economics: the costs of adapting or not adapting,
who pays and when?
· Reactive versus proactive legal approaches to climate change
· Legal strategies or barriers to financing climate change
Publication of Papers: Submitted papers that are accepted for
presentation will be published in a special issue of the Sea Grant Law
and Policy Journal. How to Submit: 2 to 3 page paper proposals should be submitted via e-
mail to email@example.com by September 30th. Be sure to
include your affiliation and contact information.
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!).
Monday, June 20, 2011
Sara C. Bronin (Connecticut) has posted Solar Rights for Texas Property Owners, Texas Law Review See Also, Vol. 89, p. 79, 2011. The abstract:
In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.
Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France's suggestion that zoning ordinances protect homeowners' solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France's proposal, according to Bronin.
Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France's proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas's current budget shortfall, and powerful interests groups that are affected by the proposal.
Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as "small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment." Bronin believes that renewable energy microgrids "should be a key part of solar access regimes in any state."
Friday, May 27, 2011
Paul A. Diller (Willamette) has posted what looks like a fascinating article, The City and the Private Right of Action, forthcoming in the Stanford Law Review, Vol. 64 (2011). The abstract:
Cities in most states enjoy broad “home rule” authority – that is, the presumptive power to pass ordinances regulating a wide range of subjects. In many of these states, however, home rule comes with a catch: cities are prevented from passing ordinances that regulate or interfere with “private law.” This article argues that the “private law exception,” as this doctrine is known, is an anachronistic relic of early twentieth century legal thought that ought to be retired outright. This article explains how a subject-based view of the “private law exception,” which prevents cities from passing ordinances affecting subjects like contracts, property, and torts, is largely unenforced today. The more relevant and potent form of the “private law exception,” by contrast, prohibits cities from enacting ordinances that create private causes of action, thereby requiring local ordinances to be enforced by public means only. As this article will show, the potential justifications for the contemporary “private law exception” – preserving uniformity and protecting the interests of the state courts – are not sufficiently compelling to outweigh the costs to local policy experimentation that the exception imposes.
Thursday, May 26, 2011
Reed D. Benson (New Mexico) has posted Alive but Irrelevant: The Prior Appropriation Doctrine in Today’s Western Water Law, forthcoming in the Colorado Law Review. The abstract:
The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the western states’ departure from Prior Appropriation.
Tuesday, May 24, 2011
The John Marshall Law School will be hosting a conference on its Chicago campus on September 20, 2011, to commemorate the 40th anniversary of publication of The Quiet Revolution in Land Use Control. The book’s two original authors, Fred Bosselman and David Callies, will speak at the event, along with Daniel Mandelker, Patricia Salkin, and other prominent scholars. Here are some excerpts from a news release posted at the law school’s website:
The Kratovil Quiet Revolution Conference will begin with an analysis of the impact of The Quiet Revolution in Land Use Control, a book that discussed the shift from local to regional planning, has had on our nation and land use policy. National speakers representing the states involved in The Quiet Revolution in Land Use Control will analyze how The Quiet Revolution unfolded in these jurisdictions. The afternoon will then analyze the future of land use policy and how this national issue will play out around the country…
…This national debate started with two scholars in Chicago, so it is a fitting site for a reexamination of this 40-year-old national debate and the legislation it produced. In 1971, the president's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states around the nation which returned the control of land use to a state or regional level, largely at the expense of local zoning. This was the "ancient regime" being overthrown. This constituted the "quiet revolution." Immensely influential (several thousand copies were purchased and distributed) in stimulating creative thinking by planners, lawyers, and public officials to solve difficult land use planning issues, the book also quickly became a fixture of courses in many university planning and law programs, as well as a handbook and sourcebook for state and local officials. Dozens of articles have been written about it, some recently. It remains a reading source in many courses taught today.
Sunday, May 15, 2011
Speaking of HUD, here's a new article from Lisa T. Alexander (Wisconsisn) called The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, forthcoming in the Fordham Urban Law Journal, Vol. 38 (2011). The abstract:
This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.
May 15, 2011 in Affordable Housing, Community Design, HUD, Local Government, Planning, Scholarship, Sprawl, State Government, Suburbs, Sustainability, Transportation | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 3, 2011
While waiting for the first stack of ungraded final exams to hit my desk this week, I’ve been following developments in a dispute between Illinois and Missouri over flooding along the Mississippi River. Rising floodwaters in the region presented federal government officials with a difficult choice. If they took no action, severe flooding would likely destroy the small town of Cairo, Illinois. If they intentionally broke a downstream levee, they would save Cairo from ruin but would allow floodwaters to devastate 90 homes and 200 square miles of farmland in Missouri. I plan on discussing this simple dilemma to introduce the concept of cost-benefit analysis to my Land Use students this Fall.
The conflict has centered on whether to activate the Birds Point-New Madrid Floodway, a 130,000-acre area in southeast Missouri. In the 1920s and 1930s, the federal government paid private landowners an average of $17 per acre to acquire “flowage rights” throughout the floodway. The acquisition of these rights, authorized under the 1928 Flood Control Act, entitles the federal government to purposely divert water from the main channel of the Mississippi River onto the burdened properties when necessary to prevent flooding elsewhere.
For the past week, Illinois and Missouri have been battling in court over whether the federal government should fill the floodway with water for the first time since 1937 to prevent flooding in Cairo. Missouri’s attorney general filed a complaint in U.S. District Court last week seeking a court order to prevent intentional flooding of the floodway, arguing that it was unjustified and would cause water pollution in violation of the Clean Water Act. The District Court denied Missouri’s request, and Missouri’s appeals to the Eight Circuit Court of Appeals and U.S. Supreme Court also failed. With the legal obstacles cleared, the U.S. Army Corps of Engineers used explosives to blast a two-mile-wide hole in a river levee last night and began floodwaters pouring into the floodway.
According to Bloomberg, the U.S. Government believes that flooding the floodway will cause about $314 million in damage and contamination but will avoid more than $1.7 billion in damage in Cairo and other communities along the river. Based on those figures, landowners within the floodway were the least-cost avoiders in this context and sacrificing their land uses to protect more valuable uses upstream probably maximizes social welfare. Not surprisingly, many of the private individuals residing or working within the 200-square-mile floodway were more focused on their own losses. A local newspaper article suggests that some landowners intend to file a takings claim against the federal government for breaking the levee.
Ironically, the concept of externalities or “spillover” effects takes on a double meaning in this case. The question of whether or not to flood the floodway required government decision makers to consider both the literal and figurative spillover effects of each option!
Thursday, April 28, 2011
It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney. Scroll down to the next two posts for that background and analysis.
But wait, there's more! Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time. Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society). The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.
Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues. Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights.
I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls.
Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach. He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point. This was followed by a great Q&A session with the well-informed crowd.
What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion. It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing. By the way, you can read all of the briefs, including the amici, at the link from this post.
It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.
Here's the video! [requires Real Player]. This video, plus Part 2, are also available at the Texas Weslayan web article on the event.
Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson. I meant to get to it last week, but I wouldn't have done half as good a job. But I also encourage you to do as she suggests and listen to the oral argument yourself.
But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing. Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.
[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson. In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland. But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:
Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable? Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary?
The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.). There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static. At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude. Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose. I would be interested to hear other analogies or perspectives off-blog (firstname.lastname@example.org), or even on-blog if you are so inclined. Thank you for your time.
Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!
Monday, April 25, 2011
Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review. The abstract:
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
A significant paper on drought and the increasingly alarming state of U.S. water resource law.
Saturday, April 23, 2011
Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012). The abstract:
The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.
A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.
Friday, April 1, 2011
Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process? The abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.
Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.
Looks like a very important paper!
April 1, 2011 in Beaches, Caselaw, Constitutional Law, Judicial Review, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Monday, March 21, 2011
Raymond H. Brescia (Albany) has posted Leverage: State Enforcement Actions in the Wake of the Robo-Sign Scandal. The abstract:
In the fall of 2010, in one of the largest scandals to ever hit the American court system, information gathered from lawsuits across the country revealed that tens of thousands of foreclosure filings were likely fraudulent - if not outright criminal. These revelations sparked a nation-wide investigation by all 50 state attorneys general to assess not only the extent of the scandal and its potential impacts but also potential legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state's Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit "unfair" and "deceptive" practices and often give consumers, as well as state attorneys general, the ability to bring affirmative litigation to rein in practices that violate their terms. UDAP laws serve a critical consumer protection function by filling in gaps in the law where other, more targeted statutes might not cover practices that have a harmful impact on consumers. Since their inception, UDAP laws have been used to rein in abusive practices in such areas as used car sales, telemarketing and even the sale of tobacco products. This paper explores the availability of UDAP laws and the remedies they provide to rein in the range of practices revealed in the so-called "robo-sign scandal." It concludes that such practices - the false affidavits, reckless claims and improper notarizations - all violate the essence of most state UDAP laws; accordingly, the remedies available under such laws may be wielded by state attorneys general to halt abusive foreclosure practices throughout the nation. Such remedies include civil penalties, actual and punitive damages, attorney's fees and injunctions. What's more, UDAP actions in light of robo-sign abuses could help chart a path towards a more robust mortgage modification regime, one that would result in principal reduction, which is the clearest path out of the current crisis.
March 21, 2011 in Finance, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Property, Real Estate Transactions, Remedies, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 16, 2011
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!