Wednesday, April 4, 2012

Hail and Farewell: Introducing Jerrold Long

Time for another new guest blogger!  First, let me give a sincere, belated thanks to Susan Kraham who had some really interesting posts last month here at the Land Use Prof Blog.

I also want to extend a warm welcome Professor Jerrold A. Long for the upcoming month.  JerroldLongProf. Long is on the faculty of the University of Idaho College of Law, where he teaches courses in Environmental Law, Land Use, and Property, and is also affilated with the water resources and bioregional planning programs.  He has a JD from Colorado and a PhD from Wisconsin.  From his faculty bio page:

Jerrold A. Long returned to Idaho to join the faculty at the College of Law in 2007. He teaches land-use law, environmental law, property, and subjects relating to the interdisciplinary “Water of the West” program at the University of Idaho. Professor Long is also an Affiliate Professor in the University’s Water Resources and Bioregional Planning programs.

Professor Long grew up in Rexburg, Idaho. He attended Utah State University where he was a National Merit Scholar and graduated magna cum laude in 1997 with a B.S. in Biology. Professor Long received his J.D. degree from the University of Colorado School of Law in 2000. He was president of his first-year class and associate editor of the Colorado Journal of International Environmental Law & Policy. While in law school, Professor Long served as an intern for Earthjustice Legal Defense Fund in Honolulu, Hawai`i, and worked for the U.S. Department of Justice, General Litigation Section, Environmental & Natural Resources Division. After law school, Professor Long joined the Cheyenne office of the western regional law firm Holland & Hart LLP. At Holland & Hart, Professor Long’s practice focused on environmental compliance and litigation before the U.S. Department of Interior Board of Land Appeals. Most recently, Professor Long attended the University of Wisconsin-Madison, where he was an instructor, Distinguished Graduate Fellow, and earned a Doctorate degree from the interdisciplinary Gaylord Nelson Institute for Environmental Studies. Professor Long’s dissertation – New West or Same West?: Evolving land-use institutions in the American West – explored how local land-use regimes respond to social and cultural change.

Professor Long lives in Moscow with his wife Jessica and sons Kieran and Kelton. He is an avid cyclist and wanderer.

We've featured his recent scholarship a couple of times this year, including his forthcoming articles Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism, and Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word ChoiceWe're very pleased he can join us for the month!

Matt Festa

April 4, 2012 in Planning, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2012

Saxer on Managing Water Rights Using Fishing Rights

Shelley Ross Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model, forthcoming in Marquette Law Review Vol. 95 (2011).  The abstract:

This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.

Matt Festa

March 28, 2012 in Environmental Law, Property Theory, Scholarship, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Friday, February 24, 2012

Mulvaney's take on PPL Montana

Prof. Tim Mulvaney has a thoughtful and original analysis of this week's Supreme Court decision in PPL Montana v. Montana, over at the Environmental Law Prof Blog.  From Tim's Post:

Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.

So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights.  I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.

Matt Festa

February 24, 2012 in Caselaw, Constitutional Law, Property Rights, Supreme Court, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2012

Supreme Court opinion on PPL Montana

The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana.  The opinion is here

A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue. 

Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year.  We previewed the oral argument here.  SCOTUSblog has, as always, a great roundup of early analysis and links. 

I look forward to hearing more discussion of this important land use case in the near future.

Matt Festa

February 23, 2012 in Caselaw, Constitutional Law, History, Property Rights, Supreme Court, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2012

Benson on the Failure of Law to Protect Public Water Uses

Reed Benson (New Mexico) has posted Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States, Journal of Rural Law and Policy, Vol. 1, No. 1, 2011.  The abstract:

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.

This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.

Matt Festa

February 9, 2012 in Environmental Law, Property Rights, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Hanging Fabric on the Water in Colorado?

While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth.  There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product.  From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:

CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”

The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.

But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.

And there are some intrepid law students involved in the case. 

The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.

An interesting issue, with both sides clothed in good intentions.  Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife.  Hopefully the project is not a wolf in sheep's clothing.  I hope it doesn't irreparably tear at the fabric of the regional community.

Matt Festa

February 9, 2012 in Environmentalism, Politics, Water | Permalink | Comments (0) | TrackBack (0)

Friday, January 6, 2012

CFP: Wetlands Policy Conference at Buffalo

Via Jessica Owley, news of an interesting upcoming conference at Buffalo:

Save The Date and Call for Papers
Beyond Jurisdiction:
Wetlands Policy for the Next Generation
26-27 April 2012 at SUNY Buffalo Law School
Buffalo, New York

Beyond Jurisdiction: Wetlands Policy for the Next Generation will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). As is true of many areas of law and social policy, the world of wetlands is inherently political and value-laden—the law is often be a poor means of accomplishing contested social objectives in this area. A debate sparked by U.S. Supreme Court decisions and related federal actions have focused wetlands scholarship and advocacy during the past decade on exploring the parameters of which “waters of the United States” fall under federal jurisdictional. Such concentration has detracted from scholarship and study of many other important issues related to wetlands policy, such as mitigation, the Tulloch rule, nationwide permits, local and state policy developments, international treaty obligations, and other matters. This conference is designed to broaden the focus of exploration and include voices of scholars, activists, scientists, media professionals, and others.

We welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including:

· Mitigation
· Tulloch/discharge issues
· Ecosystem services
· State and local governance
· Enforcement
· Permit processes (including nationwide and regional permits)
· Administration of the Clean Water Act
· International and transnational protections

Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words by Monday, 13 February 2012 to http://baldycenter.info/cgi-bin/applications/rfp.cgi <http://baldycenter.info/cgi-bin/applications/rfp.cgi> .

For more information, contact Kim Diana Connolly at kimconno@buffalo.edu or 716-645-2092

Matt Festa

January 6, 2012 in Conferences, Environmental Law, Federal Government, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Saturday, December 31, 2011

ULI Report on What's Next in Urban Land Use

As we head into the New Year, The Urban Land Institute has also been looking ahead at the future of land use.  ULI recently issued its report What's Next? Real Estate in the New Economy.  From the press release:

A new economy is unfolding over the course of this decade, driven by an extraordinary convergence of demographic, financial, technological and environmental trends. Taken together, these trends will dramatically change urban planning, design and development through 2020, according to a new report from the Urban Land Institute (ULI).

What’s Next? Real Estate in the New Economy outlines how every aspect of living, working and connecting will change in major ways, driven in large part by the values, preferences and work ethic of Generation Y, the largest generation in American history. . . .

Among the report’s findings:

  • Technology will reshape work places. Office tenants will decrease space per employee, and new office environments will need to promote interaction and dialogue. Offices will be transforming into meeting places more than work places, with an emphasis on conference rooms, break areas and open configurations. Developers will craft attractive environments to attract young, talented workers.
  • Major companies will value space that enables innovation. They will continue to pay more for space in a global gateway served by a major international airport, or in 24-hour urban centers. Hard-to-reach suburban work places will be less in demand.
  • The influx of Generation Y, now in their teens through early thirties, will change housing demand. They are comfortable with smaller homes and will happily trade living space for an easier commute and better lifestyle. They will drive up the number of single households and prompt a surge in demand for rentals, causing rents to escalate.
  • For most people, finances will still be constrained, leading to more shared housing and multi-generational households. Immigration will support that trend, as many immigrants come from places where it is common for extended families to share housing. This may be the one group that continues to drive demand for large, suburban homes.
  • The senior population will grow fastest, but financial constraints could limit demand for adult housing developments. Many will age in place or move in with relatives to conserve money. Developers may want to recast retirement communities into amenity-laden “age friendly” residences. Homes near hospitals and medical offices will be popular, especially if integrated into mixed-use neighborhoods with shops, restaurants and services.
  • Energy and infrastructure take on greater importance. Businesses cannot afford to have their network connections down, and more will consider self-generated power or onsite generator capacity. Developers, owners and investors are realizing that the slightly higher costs of energy- and water-saving technologies can pay for themselves quickly, creating more marketable and valuable assets. Ignoring sustainability issues speeds property obsolescence.

You can download the full report here

Matt Festa

December 31, 2011 in Architecture, Clean Energy, Density, Development, Downtown, Environmentalism, Finance, Green Building, Housing, Planning, Property, Real Estate Transactions, Redevelopment, Scholarship, Smart Growth, Suburbs, Sustainability, Transportation, Urbanism, Water | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

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.

Should be very interesting.  Stay tuned.

Matt Festa

December 5, 2011 in Caselaw, Constitutional Law, Federal Government, History, Property Rights, Scholarship, State Government, Supreme Court, Takings, Transportation, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 23, 2011

Wiseman & Gradijan on Regulation of Shale Gas Development

Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law.  The abstract:

Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.

Timely and important.

Matt Festa

November 23, 2011 in Environmental Law, Federal Government, Oil & Gas, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, November 3, 2011

NPR on Zoning out Hydrofracking in Upstate NY

From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits.  The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).  

I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class.  I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes.  Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely.  Enjoy.

Jim K.

November 3, 2011 in Clean Energy, Environmental Law, Environmentalism, Industrial Regulation, New York, NIMBY, Nuisance, Oil & Gas, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, September 1, 2011

Learning from Brooklyn

Before I got co-op approval on my rental in Forest Hills, Queens (where I now live), I spent a week or so sharing apartments and houses in Boro Park and Canarsie.  These are two very different neighborhoods, but from a planning perspective both are of some interest.

I spent the weekend of August 4 sharing an apartment in Boro Park. Boro Park is a heavily Hasidic neighborhood teeming with large families in a zip code with over 75,000 people per square mile, almost three times the NYC average.  Some commentators argue that density and large families are inconsistent- but Boro Park shows otherwise.  In Boro Park, the average age is 29, well below the statewide average (35).

Then I spent a few days at a bed and breakfast in Canarsie, at the eastern edge of Brooklyn (that is, the part furthest from Manhattan).  Canarsie has been hit with many of the major bad urban planning ideas of the 50s and 60s: it includes a couple of housing projects, is not too far from another, and is mostly cut off from the water by an expressway.  And because it is so far from Manhattan, it is not appealing to people looking for short commutes.

Not surprisingly, Canarsie has never been a wealthy neighborhood; at some point in the late 20th century it transitioned from a Jewish/Italian working class area to a Caribbean-American working class area.  But it is by no means one one of Brooklyn’s worst neighborhoods.  Canarsie's poverty rate is lower than the Brooklyn average, and I was willing to walk through the public housing on the way to the subway; even though I wouldn’t do it at night it doesn’t seem threatening during the day.

To me the interesting questions in Canarsie aren't what went wrong: they are: what went right?  And given the decline of many inner suburbs, does Canarsie have a future?

Michael Lewyn


September 1, 2011 in Density, Development, Housing, New York, Planning, Water | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

Craig on Defining Riparian Rights as 'Property' through Takings Litigation

Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:

The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Matt Festa

August 26, 2011 in Agriculture, Environmental Law, Property Rights, Scholarship, Servitudes, Sustainability, Takings, Water | Permalink | Comments (1) | TrackBack (0)

Friday, July 8, 2011

A Major Development in the Southeastern Water Wars

I've only blogged a very little bit about the on-going water conflict between Alabama, Georgia and Florida, but it's a very big deal around here.  A recent 11th Circuit decision is worth noting.  From an Atlanta Journal Constitution story:

The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision Tuesday, the 11th U.S. Circuit Court of Appeals found that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro region.

Alabama will appeal the ruling to the full Circuit Court.

Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s -- when the population was less than one-third its current size.

That deadline is no longer in effect.

Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the corps that the water litigation has already been going on for more than two decades...

Tad Leithead, chairman of the Atlanta Regional Commission, said Magnuson's order posed a serious threat to metro Atlanta's water supply and noted the judge himself said his ruling could lead to a "draconian" result if the July 2012 deadline were not met.

"Had his ruling gone into effect in July 2012, the water supplies that millions of people depend on would have been cut off," Leithead said. "As a result of today’s action by the 11th Circuit, now that won’t happen."

Demming Bass, chief operating officer of the Cobb Chamber of Commerce, said the ruling takes uncertainty off the table in terms of recruiting businesses to locate to metro Atlanta.

"The good news is that because of Judge Magnuson's decision, it forced Georgia and Atlanta to come together and look at worst-case scenarios," Bass said. "It made us pass some great legislation that's going to help us conserve water and get plans in place to look at additional reservoirs, which is something we're going to need anyway."

If you're interested in reading the judge's 95 page ruling, it's available here.

Jamie Baker Roskie

July 8, 2011 in Environmental Law, Georgia, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Mulvaney guest-blog on Severance's latest development: Mootness?

[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.

Timothy Mulvaney

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, June 21, 2011

Craig on Energy System Impacts

Robin Kundis Craig (Florida State) has posted Energy System Impacts, forthcoming in THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS, American Bar Association, 2012.  The abstract:

The exact impacts of climate change in the U.S. are still uncertain, so the effects on the energy sector are also highly uncertain, although the uncertainty is greater regarding effects on energy supply and production than regarding energy demand. Overall, climate change is likely to increase energy demand, increase peak demands, and shift energy needs from heating oil and natural gas to electricity, all of which effects will be driven primarily by increased needs for residential, industrial, commercial, and agricultural space cooling as summers grow hotter and heat waves become more frequent. As for production and supply, the greatest overall effects of climate change in the U.S. are likely to be on operators’ abilities to cool power plants and the consequent loss of efficiency and capacity as a result of increased air and water temperatures and reduced water supplies; on hydroelectric generation as a result of reduced and more variable flows; and on energy-related infrastructure of all types as a result of increasingly severe weather events and sea-level rise. Importantly, however, these national or overall projections mask important regional variations in climate change impacts, and hence adaptation strategies should be cognizant of and responsive to those regional differences. Moreover, climate change impacts on the energy sector strongly indicate that adaptation efforts will need to coordinate energy policy and water policy to reflect the likelihood that climate change will have significant impact on the energy-water nexus.

Matt Festa

June 21, 2011 in Climate, Environmental Law, Environmentalism, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, May 26, 2011

Benson on Prior Appropriation Doctrine in Western Water Law

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.

Matt Festa

May 26, 2011 in Environmental Law, Property Rights, Scholarship, State Government, Water | Permalink | Comments (1) | TrackBack (0)

Thursday, May 12, 2011

Gardner on U.S. Wetland Law, Policy, and Politics

Royal C. Gardner (Stetson) has posted Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics.  It is the introduction to his new book of the same name from Island Press (2011).  The abstract:

This paper is the table of contents and introduction to Royal C. Gardner, Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics (Island Press 2011). The book is an accessible guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

the geographic scope and activities covered by the Clean Water Act; the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency; the goal of no net loss of wetlands; the role of entrepreneurial wetland mitigation banking; the tension between wetland mitigation bankers and in-lieu fee mitigation programs; enforcement issues; and wetland regulation and private property rights.

The book concludes with policy recommendations to make wetlands law more effective.

Looks like a new key resource for anyone intersted in wetlands law.

Matt Festa

May 12, 2011 in Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Property Rights, Scholarship, Supreme Court, Takings, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

The Spillover Effects of Flood Control

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!

Troy Rule

May 3, 2011 in Environmentalism, Federal Government, Politics, Property Rights, State Government, Takings, Teaching, Water | Permalink | Comments (1) | TrackBack (0)

Monday, May 2, 2011

U.S. Supreme Court Rules on Western Water Law Case

As previously reported on this blog, the U.S. Supreme Court took on a relatively rare original-jurisdiction matter with the case of Montana v. Wyoming. Today, the Court ruled in a 7-1 opinion (Kagan recused; Scalia in dissent) to dismiss Montana's suit. Following the conclusion of Buzz Thompson (Stanford), the master it appointed on the matter in 2008, the Court held that the western water law doctrine of prior appropriation allowed upstream users to improve the efficiency of irrigation operations even to the detriment of downstream users.

Jim K.

May 2, 2011 in Environmental Law, Water | Permalink | Comments (1) | TrackBack (0)