Land Use Prof Blog

CFP: Connecticut Conference on Legal Solutions to Climate Change Adaptation

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,  
Hartford, CT

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  
adaptation
·         Rolling easements, ambulatory vs. fixed property lines
·         Ecosystem-based adaptation incentives via policy and legal  
approaches
·         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  
adaptation
·         Legal strategies or barriers to financing climate change  
resilience planning/implementation

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 protected]  by September 30th.  Be sure to  
include your affiliation and contact information.

Matt Festa

Comparative Law Conference on Sustainability June 11th in Montréal

Weekend in Montréal anyone? The McGill Faculty of Law and Vermont Law School present a joint cross-border conference on Sustainability: Achieving Environmental Sustainability in the Face of Climate Change. 

Kat Garvey

For the full agenda...

Continue reading

Byrne on Stopping Stop the Beach

J. Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality!, forthcoming in the Ecology Law Quarterly.  The abstract:

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

Matt Festa

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

Mulvaney on the Severance Rehearing and Location vs. Purpose

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 ([email protected]), 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!

Matt Festa

Doremus (and many more) on Adaptive Management

Holly Doremus (Cal-Berkeley) collaborated with nine other scholars and two staff members from the Center for Progressive Reform to produce Making Use of Adaptive Management. Here's the abstract:

Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts.

This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.

The nine other scholars listed as co-authors (Andreen, Camacho, Farber, Glicksman, Goble, Karkkainen, Rohlf, Tarlock and Zellmer) make this white paper an all-star production. As an environmental 'greenhorn', I found the explanation of the concept of adaptive management straightforward and compelling. The case studies illustrate not only best practices but cautionary tales belying elevation of adaptive management as a panacea for the protection of all complex ecosystems.

Jim K.

Kornfeld on Natural Resources Damages and BP Deepwater Horizon

Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2.  The abstract:

This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.

Matt Festa

Columbia Conference on Sea Level Rise

From Michael Gerrard at Columbia Law:

Center for Climate Change Law, Columbia Law School and The Republic of the Marshall Islands
invite you to attend an international academic conference:

THREATENED ISLAND NATIONS:
LEGAL IMPLICATIONS OF RISING SEAS AND A CHANGING CLIMATE

May 23 - 25, 2011
Columbia University
New York, New York

DAY ONE: THE STATUS QUO -- SHIFTING LEGAL OPTIONS IN A CHANGING WORLD

Scientific summary: How much time do we have?
Statehood and statelessness
Preserving marine rights: Fishing and minerals
Legal remedies

DAY TWO: WHAT CAN BE DONE TO HELP, AND HOW TO DO IT

Resettlement and migration issues
Existing legal structures
A new international convention?

DAY THREE: DOMESTIC OPTIONS FOR SMALL ISLAND STATES       

Engineering for the future
Law and policy choices

[Visit this link for] Further information, and registration to attend conference or to view live webcast.

Jamie Baker Roskie

Rehearing--and panel discussion--on Texas Open Beaches Act

Late last week, the Texas Supreme Court granted a rehearing in Severance v. Patterson, the case decided last November holding that the Texas Open Beaches Act does not establish a public easement for dry-sand beach access without proof of dedication, prescription, or custom, and that public access easements do not "roll" inward with the vegetation line after major avulsive events such as hurricanes.  Hard to say what this portends, but it can't be good news for the plaintiff-appellant.  After the decision, lots of amicus briefs, particularly from local governments, started pouring on the motion for rehearing.  Here's a link from the Supreme Court of Texas Blog.

I blogged about the decision in a post which includes a multitude of links to the opinions; to the Texas Supreme Court's webpage for the case (great for finding the amici on the motion for rehearing); to the statute and constitutional amendment; and to various briefs including (full disclosure) my amicus and that of Surfrider Foundation.  Oral arugment on the rehearing (not very often granted, as I understand it) is set for April 19.

In the meantime, let's do what we lawyers do best, and talk about it!  The Texas Wesleyan School of Law in Fort Worth is hosting a Severance v. Patterson Panel Discussion next Friday, March 25, at 11:30.  It will be co-sponsored by the student chapters of the Federalist Society and the Environmental Law Society, and will feature Pacific Legal Foundation attorney David Breemer, lead counsel for the plaintiff; Ellis Pickett, Chairman of the Upper Texas Chapter of the Surfrider Foundation and amicus curiae for defendants; and yours truly.  The event will be moderated by Texas Wesleyan land use scholar Prof. Timothy Mulvaney.  If you can be in DFW next week to join us, please do!

Matt Festa

Building Codes & the Quake

The news seems to get worse from Japan as the Death Toll Estimate Soars.  But it's still true that things could have been even worse if it had not been for Japan's careful land and development planning.  As James Glanz and Norimitsu Onishi reported in the New York Times, Japan's Strict Building Codes Saved Lives.  From the article:

Hidden inside the skeletons of high-rise towers, extra steel bracing, giant rubber pads and embedded hydraulic shock absorbers make modern Japanese buildings among the sturdiest in the world during a major earthquake. . . .

Unlike Haiti, where shoddy construction vastly increased the death toll last year, or China, where failure to follow construction codes worsened the death toll in the devastating 2008 Sichuan earthquake, Japan enforces some of the world’s most stringent building codes. Japanese buildings tend to be much stiffer and stouter than similar structures in earthquake-prone areas in California as well, said Mr. Moehle, the Berkeley engineer: Japan’s building code allows for roughly half as much sway back and forth at the top of a high rise during a major quake.

So it's sad to contemplate but still probably true that the destruction and loss of life could have been much worse if not for the regulations.  Of course, these building codes have made development much more expensive; but the article goes on to note an interest twist in how this has played in the marketplace:

New apartment and office developments in Japan flaunt their seismic resistance as a marketing technique, a fact that has accelerated the use of the latest technologies, said Ronald O. Hamburger, a structural engineer in the civil engineering society and Simpson Gumpertz & Heger, a San Francisco engineering firm.

“You can increase the rents by providing a sort of warranty — ‘If you locate here you’ll be safe,’ ” Mr. Hamburger said.

In the meantime, it's a terrible disaster and we wish the best to the rescue and recovery efforts.  Thanks to James McKechnie for the pointer.

Matt Festa

Kahn, Vaughn, & Zasloff on the Housing Market Effects of Discrete Land Use Regulations

Matthew E. Kahn (UCLA, Inst. of Environment; Economics; Public Policy), Ryan Vaughn (UCLA, Economics), and Jonathan Zasloff (UCLA, Law) have posted The Housing Market Effects of Discrete Land Use Regulations: Evidence from the California Coastal Boundary Zone, Journal of Housing Economics, Vol. 19, pp. 269-279, December 2010.  The abstract:

The California coast line borders most beautiful and expensive land in the entire world. The California Coastal Commission was created in 1976 to protect the coast line and to regulate land use within the coastal boundary zone. This well defined regulatory boundary offers a unique opportunity to study the consequences of land use regulation on nearby housing located in the same political jurisdiction. Using two different geocoded data sets, we document gentrification within the boundary and discuss possible explanations for these patterns.

Matt Festa

Mulvaney on The New Judicial Takings Construct

Timothy M. Mulvaney (Texas Wesleyan) has posted The New Judicial Takings Construct, forthcoming on the Yale Law Journal Online.  The abstract:

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an "established" property right "no longer exists" may amount to an unconstitutional taking. The opinion draws on two fundamental threads of Justice Scalia’s property jurisprudence: the first is the notion of property as a pre-political, immutable partition between individual interests and permissible government action; the second is a general distrust for the state courts that are tasked with declaring these individual property rights.

This Article has two primary purposes. First, it compares the judicial takings standard established by the plurality to previous discussions of federal constitutional review of state court property declarations, both in prior judicial decisions and in the academic literature. Second, it considers whether the plurality’s standard could be interpreted as applicable not only to state court decisions that allegedly result in a private-to-public reassignment of property, as the petitioners in Stop the Beach Renourishment claimed, but also to two additional instances: (i) adjudications of property disputes between two private parties or (ii) any allegedly improper judicial change in non-property areas of law where damages would serve as the remedy. The Article concludes that the plurality’s judicial takings standard arguably is inclusive of more state court rulings than any standard presented by earlier courts and commentators. Depending upon the breadth of its reach, this standard could serve to chill the ordinary operation of the common law system as responsive to changing conditions.

An excellent contribution to the discussion of property theory after Stop the Beach.

Matt Festa

Craig on Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses

Robin Kundis Craig (Florida State) has posted Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses on the Gulf Coast, forthcoming in the Journal of Land Use & Environmental Law.  The abstract:

The states bordering the Gulf of Mexico - Texas, Louisiana, Mississippi, Alabama, and Florida - face numerous challenges in coastal management along those shores, one of which is rising sea levels. Given the threats that sea-level rise and associated climate change impacts pose to public health and welfare, increased state and local government action in and regulation of the Gulf coast is virtually inevitable.

However, government action regarding the Gulf coast that limits or otherwise affects private property rights leaves state and local governments vulnerable to claims that those governments have taken private property in violation of the federal Constitution. Such vulnerability, however, is not absolute. As the U.S. Supreme Court recognized in Lucas v. South Carolina Coastal Council, no unconstitutional taking of private property occurs if the property owner’s claimed rights were never part of that owner’s title to begin with. As a result, certain “background principles” of state property law shield governmental action from taking liability, even if that action interferes with or prohibits a landowner’s desired use of the property.

This Article examines two of these “background principles” of state property law - state public trust doctrines and the doctrine of public necessity - to assess their abilities to insulate state and local coastal regulation from landowner claims of regulatory takings in the Gulf of Mexico states. It concludes that state and local governments in Gulf states generally have more tools to protect the coast than are generally acknowledged and that their defenses to coastal takings claims will become increasingly stronger as sea-level rise and coastal deterioration emerge as true emergencies and public health crises.

Matt Festa

Perry on Deepwater Horizon and the Limits of Civil Liability

Ronen Perry (Haifa) has posted The Deepwater Horizon Oil Spill and the Limits of Civil Liability, forthcoming in the Washington Law Review.  The abstract:

The article, which follows up on my recently published work, uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. 

This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case.

Part I systematically discusses pre-OPA law. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime.

Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps, or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. The article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution.

Matt Festa

Decision on Open Beaches Act / Rolling Easement case (Severance v. Patterson)

The Texas Supreme Court issued its opinion today in Severance v. Patterson, a case that the Fifth Circuit certified on questions of interpreting state property law and the Texas Open Beaches Act (provisions which last year became part of the Texas Constitution).  The plaintiff owned beachfront property that ended up forward of the vegetation line after the damage wrought by Hurricane Rita in 2005.  The state informed her that her houses were now on the public easement and that the houses could be subject to a removal order.  The plaintiff claimed both a Fifth Amendment taking and, unusually, a Fourth Amendment unreasonable seizure.  The Fifth Circuit held the takings claim unripe but certified three questions to the Texas Supreme Court:

1.  Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied? 

2.  If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the [Open Beaches Act]?

3.  To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas’s law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?

The Court held (6-2) that the Act does not establish a rolling easement, at least to the extent that the state asserted--essentially siding with the plaintiff:

On this issue of first impression, we hold that Texas does not recognize a “rolling” easement on Galveston’s West Beach.  Easements for public use of private dry beach property do change along with gradual and imperceptible changes to the coastal landscape.  But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.  This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line.  That result would be unworkable, leaving ownership boundaries to mere guesswork.  The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, even when boundaries seem to change suddenly. The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law.

Full disclosure: I submitted an amicus brief in the case.  My position is that the rolling easement question can only be reached with respect to properties where the state has first established that the public has a beach access easement through the traditional common law doctrines of (1) dedication, (2) prescription, or (3) custom.  In other words, the statute does not establish a statewide beach access easement; it only purports to prescribe rules for easements otherwise established.  Keep in mind that the public trust doctrine that many of us learn about (e.g. the Matthews case from NJ) does not apply here, as the Court noted, devoting much of its opinion to tracing the historical lineage of title to Texas coastal lands.  I'm as much for public beach access as anyone, but regardless of whether the easement rolls inward with the vegetation line, the state still has to establish that there is an easement in the first place.  

Now the case heads back to the Fifth Circuit, and we are left with a very significant ruling interpreting the Open Beaches Act.  Many will criticize the opinion, which could make it much more difficult, practically and/or financially, for the state to establish public beach easements.  The opinion also seems to leave undecided where to draw the line between merely "gradual" changes in the high tide line and more "dramatic" changes due to avulsion.  It will be seen as a big win for the Pacific Legal Foundation, which represented the plaintiff, and by other libertarian and property rights advocates.  The opinion cites Stop the Beach as well as a host of other famous land use cases, and will be of interest to those working on coastal land use and property rights generally.

Here are some links:

The majority opinion (Wainwright, J.)

The dissent (Medina, J.)

The video of the oral argument (courtesy of St. Mary's Law School)

The Texas Supreme Court's web page for the case with links to all briefs.

The Fifth Circuit's opinion

The Texas Open Beaches Act

Land Use Prof Blog analysis

My amicus curiae brief

The Houston Chronicle's initial writeup

Texas Lawyer article Battle for the Beach

The Pacific Legal Foundation press release (David Breemer, counsel for plaintiff)

The Surfrider Foundation (amicus brief written with assistance from one of my students)

[UPDATED from original post at 11:00 pm]

Matt Festa

Arnold on The Evolution of Property Law, Culture, and Ecology in Coastal Lands

Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11).  The abstract:

U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions. 

An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use. 

This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.

Matt Festa

Crude Justice screening at South Texas

South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!).  The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue.  After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion.  The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society.  Here's the blurb for the film:

Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself. 

Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.  

Matt Festa

Judicial Takings--Back to the Supreme Court?

Ilya Somin has an interesting post at the Volokh Conspiracy titled Is the Judicial Takings Issue Headed Back to the Supreme Court?  Somin notes that in Stop the Beach Renourishment, the Court split 4-4 on the merits of the judicial takings issue, and then describes a Montana state court case, PPL Montana v. State of Montana, that has been petitioned for certiorari.  The case turns on a favorite topic of mine, the constitutional definition of property with respect to "navigable waters."  Somin offers some analysis from Ilya Shapiro of the Cato Institute, who authored an amicus brief supporting cert.  While it's far from a sure thing to be granted cert, Somin thinks that it could potentially present the judicial takings issue more squarely, and he notes:

If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law.

 Matt Festa

Shapiro and Burrus on Judicial Takings and Scalia's Shifting Sands

Ilya Shapiro (Cato) and Trevor Burrus (Cato) have posted Judicial Takings and Scalia's Shifting Sands, forthcoming in the Vermont Law Review, Vol. 35.  The abstract:

In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Matt Festa

Blumm & Dawson on Stop the Beach and Judicial Takings

Michael C. Blumm (Lewis & Clark) and Elizabeth B. Dawson (J.D. Candidate) have posted The Florida Beach Case and the Road to Judicial Takings.  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking claim they unsuccessfully pursued in the Florida courts to the judicial taking they argued before the Supreme Court. The petitioners contended that the Florida Supreme Court’s interpretation of Florida property law warranted constitutional compensation because the effect was to replace an eroded, hurricane-ravaged private beach with a restored publicly accessible beach. Although no member of the Court agreed that the lower court’s opinion amounted to a taking, a four-member plurality, led by Justice Scalia and encouraged by numerous amicus briefs filed by libertarian property groups, gave a ringing endorsement to concept of judicial takings. Moreover, two other members of the Court, Justices Kennedy and Sotomayer, claimed that state court property law interpretations could be cabined by the Due Process Clause. The result portends ominous implications for state courts’ capability to perform their traditional common law function of updating property law to reflect contemporary values and may unsettle federal-state juridicial relations by encouraging litigants to appeal adverse state property law decisions to federal courts.

Matt Festa