Wildfires | Flooding

Subscribe to Wildfires | Flooding via RSS

2025RMLUI_750x550_FNL

Registration is open and underway for this year’s edition of the Rocky Mountain Land Use Institute in Denver, March 5-7, 2025. Location: University of Denver Sturm College of Law.

This conference is more what we’ll call “land usey” than ALI-CLE’s Eminent Domain & Land Valuation Litigation Conference (as the respective titles suggest), but there’s a lot at RMLUI for those whose practices lean more on the eminent domain side than the land usey. As we know, any attempt to draw a clean line between these practices is futile, and there’s tons of crossover. That’s why we’ll be there, downloading the latest.

As always, there’s a great a la carte menu of programs and tracks for attendees to choose from, including sessions on “Sheetz and Exactions,” “Brownfields Re-Re-Development,” “Managing Growth and Infrastructure in the Southwest,” “ADUs for Aging in Place,” and, thankfully, “Legal Ethics.” And some add-on workshops the day…

Continue Reading 2025 Rocky Mountain Land Use Institute, Denver (March 5-7, Denver U. Law School)

Check this out, a recent Fourth Branch pod featuring lawprof Donald Kochan and our law firm colleague Jeremy Talcott, “Explainer Episode 85 – Rebuilding California: Lessons from the Pacific Palisades Fire.”

Here’s the description:

The 2025 Pacific Palisades Fire has underscored the challenges of building in California’s complex regulatory landscape. In response, Governor Newsom issued an executive order suspending CEQA and Coastal Act requirements to expedite reconstruction, raising important questions about the future of development in the state. In this podcast, experts Jeremy Talcott and Donald Kochan examine California’s regulatory environment before the disaster and the broader implications of its permitting processes in the effort to rebuild. Join us for an in-depth discussion on balancing efficient recovery with long-term regulatory considerations.

The money quote from Jeremy:

And I think this fire really offers a very good inflection point for a reimagining or a revisiting of the utility…

Continue Reading Fourth Branch Podcast: Talcott & Kochan On “Rebuilding California: Lessons from the Pacific Palisades Fire”

Here’s what we’re reading this day:

Good weekend reading as well. Continue Reading Friday Dirt Law Round-Up

You remember 1977, don’t you? No? Well surely you must know the soundtrack. Sublime and deeply resonant music, accompanied by complex-yet-meaningful lyrics like these:

I’m your boogie man, that’s what I am.
I’m here to do whatever I can.
Be it early morning, late afternoon.
Or at midnight, it’s never too soon.

To wanna please you, to wanna keep you.
To wanna do it all, all for you.
I wanna be your, be your rubber ball.
I wanna be the one you love most of all, oh, yeah.

I’m your boogie man
I’m your boogie man, turn me on.

We dig it. After all, we there, tuning in on AM radio at a time when disco dominated, before it fell from grace and then became hip again.

Well dust off your 1977 vibes. The year Elvis left the building for good, when Star Wars was just “Star Wars” and…

Continue Reading Cal SCt Petition: Does “Existing Structures” Protected By The California Coastal Act Mean Only Those Existing In 1977?

Screenshot 2024-12-30 at 10-16-00 Electricity-Caused Wildland Fires Costs Social Fairness and Proposed Solution

For those of you who follow the wildfire/inverse cases (centered in, although not exclusively, California and Hawaii), you might want to check out this article by a fire engineer: Vytenis Babrauskas (aka “Dr. Fire“), “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution.”

As the title suggests, the article is an analysis of the situation, including the legal liability (see Section 5: “Tort Laws, Strict Liability, and Inverse Condemnation”). Dr. Babrauskas argues for abrogation of a lawsuit-based system, and replacement with a compensation scheme akin to worker’s comp.

Here’s the Abstract:

If electric power is distributed by an overhead network of cables, the ignition of wildland fires is unavoidable, although prudent management efforts can reduce the losses. The economic aspects of these fires are driven by tort litigation, which tends to create serious problems of social fairness. The present system does not contain adequate incentives…

Continue Reading New Article: “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution”

Here are the cases and other materials we discussed in today’s Section of State & Local Government Law Land Use group meeting on takings:

…
Continue Reading Links From Today’s ABA Land Use Session

The line between negligence torts and inverse condemnation can be a fine one. In Roman Realty, LLC v. City of Morgantown, No. 220587 (June 11, 2024), the West Virginia Supreme Court came down on the tort side.

Now before we go on, a caution: technically speaking the claimant did not assert an inverse condemnation claim. Rather, after the city removed trees and altered the slope of land such that surface water increased on the owner’s land, it brought a petition for mandamus to compel the city to institute eminent domain proceedings. There are places that approach it that way.

Here’s the gravamen of the petition:

In its verified petition for writ of mandamus to compel eminent domain proceedings, Petitioner alleged that during project construction, eleven trees were removed from its property and “approximately 1,000 square feet of Petitioner’s property was excavated and used as a dump site.” Additionally…

Continue Reading WVa: Tort, Not Inverse (At Least Where Municipalities Are Involved)

In Simple Avo Paradise Ranch, LLC v. So. Cal Edison Co., No. B320948 (May 23, 2024), the California Court of Appeal (Second District) held that a complaint adequately alleged a claim for inverse condemnation by asserting a privately-owned public utility’s actions substantially caused a wildfire.

The court rejected the utility’s argument that alleging that the utility knew its infrastructure was old and improperly maintained and it failed to remediate these known risks was not enough to show substantial causation, and that this negligence shows only that its actions were a concurrent (and therefore not substantial) cause of the wildfire.

The court’s analysis turned on the California Supreme Court’s Oroville decision in which the court refined the “substantial causation” requirement where a secondary concurrent cause may be enough to absolve the government from inverse liability.

A large part of the opinion is about whether a stipulated judgment is appealable (yes…

Continue Reading Cal App: Inverse Complaint Alleged That Wildfire Was Substantially Caused By Inherent Risk, And That’s Good Enough

PXL_20230509_183011703

Today’s the day, 191 years ago, when — a mere 5 days after oral arguments — the U.S. Supreme Court issued its (in)famous opinion in Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833).

Generations of law students study this one in their Con Law classes, and it is mostly known as the case which held that the Bill of Rights limits only the federal government and does not limit the power of states. For the latter, one must look to state constitutions. Barron, of course, was overruled or otherwise neutralized by the Fourteenth Amendment (privileges or immunities clause or the due process clause, take your pick).

But the reason we’re posting our sad birthday wishes today isn’t for that reason, but more because in our estimation, Barron was the first “takings” case considered by the U.S. Supreme Court.

The case was instituted …

Continue Reading Sad 191st Birthday To You, Barron v. Baltimore (Feb. 16, 1833) – The First SCOTUS Takings Case?

“No need to ask, he’s a smooth operator…”

On Tuesday, January 16, 2024, the Supreme Court will hear arguments in a case we’ve  been following closely because it involves the fundamental limitation on the sovereign power to take private property. In our system, the sovereign indeed has the power to take private property against the will of the owner, but only if the taking is accompanied by just compensation.

Before we go on, a disclosure: we filed an amicus brief supporting Devillier’s arguments, so we’ve have an obvious bias. Special kudos to our law firm colleagues — and self-executing Just Compensation mavens — Deb La Fetra and Kady Valois for this brief.

Texas Flooded Devillier’s Property

Here are the facts in Devillier v. Texas. As part of a road project, the Texas Department of Transportation caused Devillier’s property to flood. The state flooding someone’s property is one of those…

Continue Reading Devillier v. Texas Argument Preview: Do Courts Need Congress’ Permission To Enforce The Right To Just Compensation?