Land Use Prof Blog

Fennell Helps us Picture Takings

One of my (few) disappointments this semester was that I was out of town the day Lee Fennell (Chicago) came to ND Law to present a really interesting paper broadening legal theory's view of resource-allocation-relevant costs beyond the conventional focus on "transaction costs."  I did have the consolation of hearing many terrific papers at the ALPS Conference at Georgetown on the day she presented here in South Bend. Hopefully, that paper, Resource Access Costs, will be finding its way to SSRN and this blog soon.  

In the meantime, she has posted Picturing Takings, 88 Notre Dame L. Rev ___ (forthcoming 2012), an article that makes visual sense of a doctrine that has so successfully defied textual explanatory efforts. Here's the abstract:

Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court’s recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally. [Note: a PowerPoint version of the diagrams is available on the author's faculty webpage or can be obtained by emailing the author]. 

 I am very hopeful that this article will be helpful not only to my understanding of takings but also to my (first-time) teaching of Land Use Planning next spring. Here is a link to the PowerPoint presentation referred to at the end of the abstract.

Jim K.

Epstein on Judicial Takings in a Federalist System

Richard Epstein (NYU) has written Littoral Rights under the Takings Doctrine: the Clash between the Ius Naturale and Stop the Beach Renourishment, 6 Duke J. Const. L & Pub. Policy 37 (2011). He begins with the point that, due to the self-contradictory nature of judicial takings in a unitary court system, "the doctrine of judicial takings can, in practice, only arise in a federalist system." He goes on to argue for an appropriate deployment of centralized, federal oversight of state courts in defense of age-old, decentralized ius naturale. He sees Stop the Beach as a missed opportunity to invalidate years of Florida precedent as well as the Preservation Act that occasioned the controversy. He concludes that application of the judicial takings doctrine "should be limited to those circumstances in which the decided cases make a radical break from well-established common law patterns that systematically work for the advantage of the state or some identifiable private faction."

This article was published as part of a symposium on judicial takings that also included papers by Ilya Somin and Nestor Davidson.

Jim K.

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